Land and Environment Court of New South Wales CITATION : Robbcut Pty Ltd v Willoughby City Council [2000] NSWLEC 258 APPLICANT: Robbcut Pty Ltd PARTIES : RESPONDENT: Willoughby City Council FILE NUMBER(S) : 11031 of 1999 CORAM: Talbot J KEY ISSUES: Environmental Planning Instruments :- construction of definition in LEP LEGISLATION CITED: Willoughby Local Environmental Plan 1995 cl 5(3)(c), cl 37 CASES CITED: DATES OF HEARING: 24/08/2000 EX TEMPORE 08/24/2000 JUDGMENT DATE : APPLICANT: Mr J J Webster (Barrister) SOLICITORS: Mills Cameron Gallagher LEGAL REPRESENTATIVES: RESPONDENT: Mr C W McEwen (Barrister) SOLICITORS: Mallesons Stephen Jaques JUDGMENT: IN THE LAND AND Matter No. 11031 of 1999 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 24 August, 2000 Robbcut Pty Ltd Applicant v Willoughby City Council Respondent REASONS FOR JUDGMENT 1. The issues that have been referred to the Court on the motion of both parties and with the support of Commissioner Bly, who joins in the referral, is the proper construction to be applied to cl 5(3)(c) of Willoughby Local Environmental Plan 1995 ("the LEP"). 2. The questions that arise relate to the determination of the height of the proposed building for the purposes of the LEP. 3. In the definition clause height has the meaning set out in subclause (3). It provides "[F]or the purposes of this plan, the height of a building is to be measured as follows" and then follow three alternative circumstances that can be applied. The third alternative, or alternative (c), is the particular measurement that is the subject of the current argument. 4. Clause 5(3)(c) reads:- if the relevant provision of this plan specifies a maximum height in metres without reference to RL, the height of the building is to be measured as the greatest vertical distance in metres from natural ground level at any point to the uppermost ceiling level or the bottom of the eaves (whichever is the lower) immediately above that point. 5. The meaning of the definition becomes critical for the purposes of the application of cl 37. Clause 37 provides that "[C]ouncil shall not consent to the erection of a building to be used for the purposes of a residential flat building" , which I understand this building to be, "within Zone 3(a)" , which I understand to be the relevant zone, "where the height exceeds 9 metres" . 6. Mr Webster appears for the applicant. His contention is that the natural meaning of cl 5(3)(c) is a direction to take the measurement of each eave height of the building and then to take a measurement of the height of the highest ceiling at each point within the building. Whichever is the lower of the respective greatest vertical distances is to be regarded as the height of the building. 7. On the other hand, the council construes the clause in a way which demands the vertical distance be measured from natural ground level at every point across the site. Where there is only a ceiling above that point, and no eave, then to measure the distance of the uppermost ceiling above the ground level. Alternatively, where there is only an eave above a natural ground level point, to measure the distance between natural ground level and that eave. 8. Where at any vertical point above natural ground level the line intersects an uppermost ceiling, or any ceiling for that matter, and an eave, then the distance to be taken for the purposes of the exercise in determining height is the lower of the height of the uppermost ceiling or the eave along that vertical projection from ground level. 9. The council then says that the greatest distance which has been measured following the completion of that exercise is the height of the building. 10. At first approach, cl 5(3)(c) appears to be convoluted, disjointed and difficult to understand. However, on closer examination, there is a logical setting out within the clause which leads to a meaning arising out of the ordinary words of the English language used in the clause. The intention is to be extracted from a direction to measure the height of the building as the greatest vertical distance in metres from natural ground level at any point to a point immediately above that point. The point which is to be found immediately above the point at natural ground level is expressed in the alternative: (1) the uppermost ceiling level; or (2) the bottom of the eaves. 11. There is an underlying assumption that a person applying the clause is to draw an imaginary vertical line above each point of natural ground level until it strikes the highest ceiling or the bottom of an eave. The distance is to be measured as the vertical distance in metres from natural ground level immediately above the point at natural ground level. 12. If the first point which is intersected is the uppermost ceiling level, that is the vertical distance taken at that point. If the first point intersected is the bottom of an eave, then that is the vertical distance which is relevant at that point. That is a consequence of the juxtaposition of the words in brackets, "whichever is the lower", immediately after the two alternatives of the uppermost ceiling level or the bottom of the eaves. That the vertical distance is to be taken in the same vertical plane or along the same vertical axis arises as a consequence of the use of "any point" when reference is made to natural ground level and "that point" which appears at the end of the subclause. 13. There is some doubt created by the use of the plural of eaves, which suggests that the level of an eave might be projected across the building at any particular point to be compared with the ceiling level. The difficulty in doing that is the Court would have to disregard the very plain direction to measure the distance from natural ground level at any point, being the starting point selected for the purposes of the particular measurement, and then to measure a distance immediately above that point which relates to the uppermost ceiling level or the projection of the bottom line of the eaves. 14. The words clearly state that the physical features of a ceiling level or a bottom of the eaves are expected to be encountered along the vertical line. Where there is an eave above the ceiling level along any such vertical line, then the ceiling height is to be treated as the height of the building at that point. After having moved right across the site at every point, the ultimate height of the building for the purposes of the clause is the greatest figure derived by taking those measurements. 15. There may be a result in some circumstances which is inconvenient or creates a difficulty in its application to the configuration of any particular building. Mr Webster pointed to a number of those. Conversely, Mr McEwen also indicated that there could be a consequence the other way. 16. I am not satisfied that there is any manifest unreasonableness in applying the words as they appear according to their ordinary meaning. It is simply a matter of bringing the component parts of the sentence after the word "measured" together so that the reference to the greatest vertical distance in metres is understood as being a distance from natural ground level at any point to somewhere immediately above that point. The words in between provide clear alternatives. That they are intended to be alternatives to each other along the vertical distance or axis is made plain by using the words "whichever is the lower" immediately after those alternatives. 17. The problem now is to come back and frame an answer to the alternative questions. Question one is amended to insert the words "greatest vertical level" . I will read it out as it has been amended:- Does cl 5(3)(c) require the comparison between the greatest vertical level to the bottom of the eaves (at any point on the site) to the greatest vertical level of the uppermost ceiling (at any point on the site), and whichever is the lower is the determination of the height for cl 37? Answer - No. 18. The second question I am asked is:- Does cl 5(3)(c) require that where there are rooms above the level of the eaves, such as attics, the height must be determined at the level of the ceilings of those rooms? I decline to answer this question. It cannot be amended to bring any meaningful contribution to the question that has been raised here. 19. The result of the Court's deliberation of cl 5(3)(c) is that the height of the building is to be determined by measuring from natural ground level at any point within the site to the lower of the uppermost ceiling level or the bottom of the eaves. The greatest vertical distance so measured is the height of the building. In other words, the vertical distance to be measured is that distance between natural ground level and the first point above natural ground level, that is the lowest, which is the uppermost ceiling level above that point, or the eaves above that point. The greatest distance of all of these measurements is the maximum height of the building for the purpose of the LEP. 20. The question of costs will be reserved. 21. The formal answer to the Question of Law referred by Commissioner Bly on 24 August 2000 is as follows:- To determine the height of a building in accordance with cl 5(3)(c) of Willoughby LEP 1995:- 1. Measure the vertical distance from each point at natural ground level to the uppermost ceiling level or the bottom of the eaves immediately above that point. 2. Take the lower of those measured distances or the single distance if there is only one. 3. Compare each of the distances determined by (2). 4. The height of the building is the greatest distance determined by (2). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.