Land and Environment Court of New South Wales CITATION : Macquarie Vale Developments Pty Ltd v Hawkesbury City Council [2005] NSWLEC 276 APPLICANT Macquarie Vale Developments Pty Ltd PARTIES : RESPONDENT Hawkesbury City Council FILE NUMBER(S) : 11453 of 2004 CORAM: Murrell C KEY ISSUES: Development Application :- Whether form of development is permissible in the zone - character of area - residential development LEGISLATION CITED: Hawkesbury Local Environmental Plan 1989 7-Eleven Stores Pty Ltd v Sydney CC NSWLEC 154, par 17; CASES CITED: R v Regos and Morgan [1947] 74 CLR 613 DATES OF HEARING: 27-28/04/2005 EX TEMPORE JUDGMENT DATE : 05/18/2005 APPLICANT Ms J Wauchope, solicitor SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr J Cole, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 18 May 2005 11453 of 2004 Macquarie Vale Developments Pty Ltd v Hawkesbury City Council JUDGMENT 1 The subject site is known as 31 and 41a Flinders Place, North Richmond, being two parcels of land with a total site area of some 3700 sq m. The Statement of Issues identified a number of issues. 2 The purpose of asking the parties to attend Court this morning is to give my findings on issue of No 2, which states: Proposal prohibited The proposal is for a residential flat building Class C, as defined in the Hawkesbury Local Environmental Plan 1989 which is a prohibited form of development within the 2(a) residential zoning under the LEP. Particulars The proposed residential flat building contains more than two dwellings. The proposal also contains a common stair access. 3 The matter is listed for completion of the hearing this Friday. However I requested the parties to make their submissions on the above issue part way through the hearing and I undertook to give my views on this threshold of preliminary question. 4 The Hawkesbury LEP provides a number of definitions in the beginning of the plan and the two relevant ones here are: "residential flat building class B means a residential flat building containing more than two dwellings in a group, such as commonly known as group houses, villa homes, townhouses, terrace buildings and the like; residential flat building class C means a residential flat building containing more than two dwellings in a form commonly described as walk-up flats, a characteristic of which is a common stair access." 5 The subject site is zoned Residential A under the LEP and the land-use matrix appears in the documents with a number of symbols for development that is: prohibited; exempt; and permissible with consent. Where no symbol appears, development is prohibited. When one moves then to the various uses, a residential flat building class B is shown as permissible with consent, and a residential flat building class C has no symbol appearing. Therefore one assumes, or one must interpret that to mean that development defined as such is prohibited. 6 The plan also adopts a number of model provisions and it reiterates those at the rear of the plan, and for residential flat building the definition means "a building containing two or more dwellings". 7 It was submitted on behalf of the applicant that the proposed development is permissible and that it should be classified as a residential class B building. Mr Dickson, for the applicant and Mr Harrison, the Court-appointed expert, considered that the proposed development was permissible in terms of the definitions of the LEP. Mr Harrison was of the opinion that the building was a terrace building because it stepped down the topography of the land, and he said: "The building is a terrace building because it comprises buildings on terraces". 8 Mr Dickson said that there is no clear definition of building types in the LEP, but it is a terrace building in his opinion that has an open air walkway connecting the dwellings. 9 On the other hand, Mr Falson gave evidence for the respondent council, and he is of the opinion the proposal is a residential flat building class C and therefore prohibited. He said "it has characteristics of a residential flat building class C including common stair access between the levels, common vehicle and pedestrian entrances, common carparking, common open space and landscaping, and private open space only in the form of balconies." 10 In my opinion I have concluded the proposal is not a residential flat building class B, notwithstanding an inclusion within this definition of terrace buildings. A terrace building for the purposes of this definition means buildings that are in terraces along a street and whereby the dwellings are attached, each having their own entrance and their own rear yard. The definition does not mean buildings that are terraced down a slope of a site unless they have the common characteristics of separate entity described above. Neither is the proposal villa homes or townhouses, again, as these types of dwellings generally have separate entrances, courtyards, garages and private open space on a discretely defined portion of land. 11 An alternative proposition is that the development does not fall within either of the residential flat definitions within the LEP and is therefore prohibited due to the construction of cl 9 and the accompanying matrix. I should state that cl 9 of the LEP states: "The carrying out of development unless otherwise provided by this plan in the land use matrix set out at the end of this clause that specifies uses for each zone" 12 Clause 9 subcl (3) states: "Development that is not referred to in the land use matrix is prohibited." This notation is also at the heading of the matrix table. 13 The parties referred me to a number of judgments and also the definition of the Latin term ejusdem generis that means: "The rule that where particular words are followed by general words, the general words are limited to the same kind as the particular words." 14 This is also consistent with the Butterworths Concise Australian Legal Dictionary definition which says: "Of the same sort, kind or nature, where general words follow particular words and general words will often be construed as being limited to the same kind as the particular words." 15 The applicant referred the Court to the matter of 7-Eleven Stores Proprietary Limited v The City of Sydney Council NSWLEC 154, where at par 17 it states: "The generis rule should be applied in the construction of the words 'and the like'. The rule provides that where general words follow particular words the general words are limited to the same kind or genus as the particular words. The rule can only be applied, however, where a genus can be established in the series of particular words." 16 In R v Regos and Morgan [1947] 74 CLR 613, Latham CJ described the genus as "some common and dominant feature". 17 The issue of permissibility is an important matter for these proceedings in terms of it being the preliminary question that one must ask before one can do a merits assessment of the application. Clearly permissibility needs to be satisfied in terms of the development in the construction of the LEP. 18 While I have concluded that the proposed development is not permissible, this is distinct from whether the development is of good design. I am of the opinion that the proposed development is of good design, but that is not the test in terms of permissibility. The test in terms of permissibility is whether, under the zone and in terms of the land-use table or matrix, the particular development is permissible. 19 In looking at the definition in the LEP it is an unusual definition in terms of describing class B and class C residential flat buildings. I did go back to the now repealed Sch 7 of the Local Government Act 1919 a very old instrument, where there was a reference to residential class B and C, however, this did not inform me, and I must construct the LEP as the words require me to. 20 The residential flat building class B means "a residential flat building containing two or more dwellings, group houses, villa homes, townhouses, terrace buildings and the like." Taking the words: "group houses", it is not "group dwellings", it is "group houses" and houses in themselves have a distinct identity, individual identity; villa homes, once again, they are generally regarded as homes that may be joined by a common wall of single-storey construction generally, a medium-density type of development; townhouses, once again, a medium-density type of development, having common walls, similar to terrace buildings I agree with the respondent. The definition does not say "terraced" buildings, it says "terrace buildings". One must interpret that as what a terrace building is, a row of terraces. While they respect the topography as this particular development does there is a basic and fundamental difference in that terrace buildings, rows, also have an entrance at the ground level and they directly relate to the ground, and each one has a separate footprint. Similarly, for group houses, villa homes and townhouses, they all have distinct and individual discrete footprints that relate to the land below. 21 On an examination of the plans of the proposed development, there is some overlapping of one dwelling unit to another. This does not mean it is not a good feature but it does not fit the description of the permissible uses if I take the interpretation of "and the like". 22 Clearly also for the definition for residential flat building class B, one must look at the uses that have been nominated in looking at "and the like" and what are the common features. There are clearly common features for each of those types of developments that have been identified in the definition including: they all have separate roofs; separate entrances with access from the ground floor; and generally there would be some ground floor open space associated with each of those forms of development as well. That is, they all have a quite clear, distinct and separate identity relating to the land below. I have concluded on the construction of the LEP, with the benefit of the definitions of "and the like", that the proposed development does not fall within residential class B. 23 Residential flat buildings class C refers to "as commonly described walk-up flats". The proposal may not be depicted as a walk-up flat as such, but it does have the characteristic of a common stair access in terms of the access to each of the individual units or apartments. The fact that it is an open-air access is not the issue. The definition states "common stair access". 24 One may say that it does not fall within Residential class C. There are, however, factors or elements of the Residential class C which, in my assessment, put it within that definition. Even if I am wrong in terms of that, the land use matrix and cl 9 in terms of the construction of the LEP clearly states that if the development is not referred to in the land use matrix it is prohibited. 25 Developments will not always fall neatly under categories within the LEP and one must take a common sense approach to what the definitions and what the construction of the LEP are and what the intent of those instruments is. I have concluded that the proposed development is not permissible. 26 What remains now is to ask the parties, the matter is listed for Friday, it would appear to the Court that there would be no purpose served in proceeding with the matter. It is always good to have hindsight, and I should have addressed the question even before I went on-site in terms of an examination of the plans. However, in saying this, the parties clearly decided that I would go on-site and commence the hearing, and there is little point in trying to have hindsight. I am conscious of the fact that the applicant has a consent which is due to expire on 29 May, and clearly it is better for me to determine the permissibility – preliminary/threshold question before the merits of the matter. 28 I should preface the orders by saying that given my findings on the preliminary question as to the permissibility, clearly the Court does not have jurisdiction to determine the merits of the application. 27 Therefore, the formal orders of the Court in this matter are: 1. That the appeal in respect of the property known as 31 and 41a Flinders Place, North Richmond, is dismissed. 2. The development application submitted to Hawkesbury Council, and as amended, is determined by the refusal of consent. 3. The exhibits are returned. 4. There is no order as to costs. _______________ J S Murrell Commissioner of the Court rjs 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.