Land and Environment Court of New South Wales CITATION : Zenere v Canterbury City Council [2005] NSWLEC 260 APPLICANT Albert Zenere Architect PARTIES : RESPONDENT Canterbury City Council FILE NUMBER(S) : 10836 of 2004 CORAM: Nott C KEY ISSUES: Development Application :- Proposed eight-level building for commercial use and for 27 residential units - General Business 3(a1) zone - question of law - whether the residential component is permissible with consent or prohibited - held to be permissible Land and Environment Court Act 1979, s 36(1) LEGISLATION CITED: Canterbury Planning Scheme Ordinance CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGERA 270; Westpoint Corp Pty Ltd v Rockdale City Council (2000) 109 LGERA 398; CASES CITED: Egan v Hawkesbury City Council (1993) 79 LGERA 321; Friends of Pryor Park v Ryde Council No. 40100 of 1995 Bignold J (unreported) 25/9/95 DATES OF HEARING: 04/03/2005 and susequent written submissions (applicant's reply - 23 May 2005) DATE OF JUDGMENT: 07/08/2005 APPLICANT Mr P J McEwen SC SOLICITORS Lapaine Pomare Foster LEGAL REPRESENTATIVES: RESPONDENT Mr A M Pickles, barrister SOLICITORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Nott C 8 July 2005 10836 of 2004 Albert Zenere Architect v Canterbury City Council [2005] NSWLEC 260 JUDGMENT Overview 1 Commissioner: Pursuant to s 36(1) of the Land and Environment Court Act 1979, the Chief Judge has directed that I hear a preliminary question of law concerning whether a proposed development on lot 101 DP 747279 at 221-235 Homer Street, Earlwood, is permissible with consent or is prohibited. 2 It is proposed to erect an eight-level building containing commercial uses and 27 residential units. 3 The subject land is in the General Business 3(a1) zone under the Canterbury Planning Scheme Ordinance. In accordance with column V of the zoning table, a building may not be erected for the purpose of "dwellings and dwelling-houses (other than dwellings and dwelling-houses attached to buildings in which development for a purpose permitted in this zone may be carried out)". The wording in parenthesis would implicitly permit with consent "multiple unit housing". However, column V expressly lists as a non-permissible purpose "multiple unit housing". 4 The proposed residential units are clearly dwellings, but they also fall within the definition of multiple unit housing. 5 The question to be determined is: whether the proposed residential units are permissible with consent, on the basis that they are attached to a building in which there will be the permissible uses of shops or offices? 6 For the reasons given later in this judgment, I have concluded that the proposed development is permissible with consent. An important factor leading to this conclusion is cl 44, to which cl 22 and the zoning table are subject. Despite the amendments made to the Ordinance by LEP 194, no change was made to the relevant provisions of cl 44, which allow bonus floor space for buildings containing shops or offices in the 3(a1) zone if the buildings also contain flats. The proposed dwellings are flats. 7 I will first describe in some detail the original and amended proposals, and then set out relevant extracts from the Ordinance. Original and amended proposals 8 On the development application form, the proposed development is described as: mixed use development, ground floor retail, four levels of residential flats, 26 units plus one townhouse. 9 After the lodgement of the appeal, the council agreed to the substitution of amended plans, being the "series 3" plans. At the commencement of this hearing, these amended plans were tendered (part of exhibit 2), and it was assumed by the representatives of the parties that there were no significant differences from the original plans. However, as I indicated to the parties, the amended plans provide for an eight-level building in lieu of a seven-level building and 27 residential units. These proposed units are distributed over seven floors instead of four floors as in the original proposal. In the amended plans the layout on each of the floors is noticeably different from the layout in the original plans. The statement of environmental effects in exhibit 2 relates to the original plans and not to the amended plans. 10 Although there are significant differences between the original and the amended plans, I will proceed to determine the preliminary question on the assumption that the amended proposal is substantially the same application as originally lodged with the council. No issue was raised by the council that the amended application was substantially different from the original proposal; nor did the council claim that the amended proposal should have been the subject of a new development application. The description of the development that follows is of the amended proposal, as seen in the series 3 plans. 11 On level 1, the lower basement, there are 41 car spaces and a storage area of 62 sq m for residential occupants. Lifts and stairwells give access to the floors above. 12 On level 2, the basement, there are 30 additional carparking spaces including one for a disabled person. There is a small store for plant, another storage area (undesignated) of 44 sq m, and a residential occupants' store of 92 sq m. As well, at the basement there is the lower floor of each of residential units 1, 2 and 3, which have private open space at ground level on the northern side. 13 At level 3, the Homer Street ground floor plan, there are: + the upper level of each of residential units 1, 2 and 3; + a garbage room and waste bin storage and recycling room, both of which have a total floor area of about 80 sq m (as scaled from the amended plans), + three large "commercial use" areas having a frontage to Homer Street, + a communal store over two levels, having a total floor area of 170 sq m, + a loading dock, and + toilet facilities. 14 On levels 4 to 8, there are other residential units, including communal open space at levels 4 and 7. 15 In a Development Schedule accompanying these amened plans (ex 2, p 11), some of the 27 residential units are described as maisonettes and others are described as flats. As discussed below, however, I regard each of the flats and maisonettes shown on the amended plans as falling within both the definitions of "flat" and "dwelling" under the Ordinance (quoted at par 21 below). 16 The same schedule says that the commercial areas on level 3 and the residential units on levels 2 to 8 inclusive have a total floor area of 3,958 sq m. In the calculation of that floor area, no mention is made of the area of the lower floors of units 1, 2 and 3 on level 1. As well, it appears that the residential storage areas (and perhaps other storage areas that are unrelated to lifts or cooling towers, machinery or plant rooms) have not been included in the calculation of the floor space. Without deciding the point, it seems that in accordance with the Ordinance, only the "storage space related" to "lift towers, cooling towers, machinery and plant rooms" is excluded from being "floor space". If the residential storage areas are to be included, it would seem that the floor space ratio of the building will exceed the maximum 2:1 referred to later in this judgment. However, if that ratio is exceeded, it does not affect the question of law that the parties have requested should be determined first. The floor space ratio is a merit matter to be considered at a later stage and may be the subject of an objection under State Environmental Planning Policy No. 1—Development Standards. And it is not my task to determine the merits of the application. 17 The question of law posed at the beginning of this judgment relates only to (part of) lot 101 DP 747279, having an area of 2015 sq m (according to the survey plan C2, being part of the plans originally lodged with the Class 1 application), on which it is proposed to erect the building (described above) that is intended to contain commercial uses and 27 residential units, together with carparking and storage. Current provisions of the Ordinance 18 The parties agreed that the proposed development is to be carried out on that part of lot 101 DP 747279 which is zoned General Business 3(a1) under the relevant environmental planning instrument, Canterbury Planning Scheme Ordinance (the "Ordinance"). Unless otherwise stated, the "Ordinance" means the instrument with the amendments currently in force. 19 The total area of lot 101 DP 747279 is 2015 sq m. It seems that a small part lot 1, along part of the northern boundary, is zoned Special Uses for a proposed lane extension (shown on drawing C3 of the plans originally lodged with the Class 1 application). 20 The original application included other land, zoned Residential 2(a), having an area of 538.3 sq m, and known as lot 12 DP 10802. However, in the present amended application, there is a note on drawing 09 that this residentially zoned portion is to be the subject of a separate development application. 21 The following definitions currently appear in the Ordinance: "Dual occupancy" means 2 dwellings (whether or not attached) on one allotment of land. "Dwelling" means a room or number of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate residence. "Flat" means a room or suite of rooms occupied or used or so designed, constructed or adapted as to be capable of being occupied or used as a separate domicile and includes a group dwelling but does not include a dwelling-house. "Group dwelling" means a building designed, constructed or adapted for use as a dwelling for a single family which forms part of a group of two or more dwellings such as are commonly known as group houses, villa homes, town houses, semi-detached or terrace buildings and the like. "Medium flat" means a flat, the floor space of which is more than 60 square metres and not more than 90 square metres. "Multiple unit housing" means a group of 3 or more dwellings (whether or not attached), but does not include multiple dwellings comprising town houses or villa homes. "Shop" means a building or place used or intended for use for the purpose of selling, exposing or offering for sale by retail goods, merchandise or materials, but does not include a building or place elsewhere specifically defined in this clause or a building or place used or intended for use for a purpose elsewhere specifically defined in this clause or for a roadside stall. "Small flat" means a flat, the floor space of which is not more than 60 square metres. "Town house" means a dwelling that is one of a group of 3 or more dwellings (whether or not attached), where each dwelling is 2 storeys in height and has its own private entrance and landscaped area with direct access from the dwelling. "Villa home" means a dwelling that is one of a group of 3 or more dwellings (whether or not attached), where each dwelling is one storey in height and has its own private entrance and landscaped area with direct access from the dwelling. 22 I reproduce, from cl 22 of the Ordinance, the table of permissible and prohibited uses for the 3(a1) zone as currently in force: COLUMN COLUMN COLUMN COLUMN COLUMN I II III IV V Purposes for which buildings or works may not be erected or carried out or used Purposes for which buildings or works may be erected or carried out or used only with the consent of the respons- Zone and colour or indication on scheme map Purpose for which buildings or works may be erected or carried out or used without the consent of the responsible authority Purposes for which buildings or works may be erected or carried out or used subject to such conditions as may be imposed by the responsible authority ible authority [The underlining below is my emphases.] 3. … Shops not exceeding 1,000 sq m floor space and commercial premises not exceeding 1,500 sq m floor space referred to in Schedule 1. Any purpose other than those permitted by Column II or prohibited by Column V. Abattoirs; amusement parks; boarding houses; caravan parks; car repair stations; dual occupancies; dwellings and dwelling-houses (other than dwellings and dwelling-houses attached to buildings in which development for a purpose permitted in this zone may be carried out); extractive industries; gas holders; generating works; industries; other than light industries; institutions; junk yards; liquid fuel depots; mines; motels; motor showrooms; multiple unit housing; rag collecting and dealing; road side stalls; stock and sale yards; town houses; transport terminals; villa homes; warehouses; wholesale markets. Business. (a1) General Business. Light blue. 23 The parties also referred to cl 32, which relevantly provides: 32. Consideration of certain applications. In respect of any application for the consent of the responsible authority whether under this Ordinance or under any provisions of the Act for consent or approval to the carrying out of development for a purpose referred to in Column IV of the Table to clause 22 of this Ordinance, namely: … Dual occupancy, multiple unit housing, town house, or villa home. (d) to the erection or use of dual occupancies, multiple unit housing buildings, town houses, and villa homes the responsible authority shall take into consideration a code for the erection of dual occupancies, multiple unit housing buildings, town houses, and villa homes adopted by resolution of the Council. 24 An important part of the applicant's case is that column V in the zoning table of cl 22 of the Ordinance has to be read with cl 44. The relevant current provisions of cl 44 provide: Floor space ratios. 44. (1) In this clause "floor space ratio" means the ratio of the floor space of a building to the site area of the land on which the building is proposed to be erected. (2) The responsible authority shall not consent to the erection of a building on an allotment of land within a zone specified in Column I of the Table to this clause if the floor space ratio in respect of the building exceeds the ratio set out, opposite that zone, in Column II of that Table. (3) Nothing in subclause (2) prevents the council from consenting to the erection of a building on an allotment of land: (a) within Zone No. 3(al), 3(a3) or 3(c) where: (i) the ratio of the floor space of the building to the site area of the land on which the building is proposed to be erected will not exceed the ratio specified opposite that zone in Column III of the Table to this clause; and (ii) the ratio of the floor space (other than such floor space as is used or is intended to be used only for the purpose of flats) of the building to the site area of the land on which the building is proposed to be erected will not exceed the ratio specified opposite that zone in Column II of the Table to this clause. … Column I Column II Column III Zone No. 3(a1)) 1:1 2:1 Historical provisions of the Ordinance 25 I take judicial notice that as originally published in the Government Gazette No. 109 of 28 October 1970, there was no 3(a1) zone. The General Business zone was simply 3(a), and the other business zones were Business (Special) 3(b) and Neighbourhood business 3(c). Originally, column V of the 3(a) zone relevantly prohibited "dwelling-houses other than those used in conjunction with shops or commercial premises; residential flat buildings Class A and Class B". 26 The Ordinance was amended by Canterbury Planning Scheme (Amendment No. 1) Ordinance (Government Gazette No. 140 of 12 October 1979). Relevantly, this amendment deleted from column V "residential flat buildings Class A and Class B" and inserted instead "residential flat buildings other than those attached to shops or commercial premises". 27 Furthermore, amendment no. 1 deleted the original clause 44 and inserted a new clause 44, which relevantly provided: (2) The responsible authority shall not consent to the erection of a building on an allotment of land within a zone specified in Column I of the Table to this clause if the floor space ratio in respect of the building exceeds the ratio set out, opposite that zone, in Column 2 of the Table. (3) Nothing in subclause (2) prevents the responsible authority from consenting to the erection of a building on an allotment of land within Zone No. 3(a) or 3(c) if— (a) more than 50 per cent of the floor space of the building is proposed to be used for flats; and (b) the floor space ratio in respect of the building does not exceed the ratio set out, opposite that zone, in Column III of the Table to this clause. Column I Column II Column III Zone No. 3(a) 1:1 2:1 28 Obviously, the Council wished to encourage residential living in the 3(a) zone. The effect of cl 44 (as amended by amendment no. 1) was that a residential flat building attached to shops or commercial premises could exceed an FSR of 1:1, if more than 50 percent of the floor space of the building was proposed to be used for flats and if the total FSR of the building did not exceed 2:1. 29 There were many other subsequent amendments to the Ordinance and I note in particular the following. 30 The original General Business 3(a) zone was spit into zones 3(a1), 3(a2), 3(a3), 3(a4) and 3(a5), and the original 3(b) and 3(c) zones were retained. 31 Immediately before the amendments made on 6 July 2001 by Canterbury Local Environmental Plan No 194 ("LEP 194"), column V of the Ordinance (as in force on 5 July 2001) relevantly listed in respect of the 3(a1) zone: "dwelling-houses other than those used in conjunction with shops or commercial premises" and "residential flat buildings other than those attached to shops or commercial premises". 32 Moreover, it appears that as at 5 July 2001 the relevant subclauses of cl 44 were the same as the current provisions quoted in par 24 above. 33 So, during a period of almost 22 years, from 12 October 1979 (par 26 above) until 5 July 2001, a residential flat building attached to shops or offices (similar to what is now proposed) could have been erected on the subject land with the consent of the council, subject to compliance with the floor space ratios of cl 44. 34 It appears that the Ordinance was amended by local environmental plans so as not to apply to three precincts in parts of the council's area. The Ordinance continued to apply to other land in the council's area, including the subject land. It seems that the precinct LEPs and the Ordinance did not have consistent definitions of various residential uses. Hence, LEP 194 was made with the express aim "to standardise certain definitions regarding residential land use that are used in various environmental planning instruments relating to the City of Canterbury" (LEP 194, cl 2). 35 The relevant amendments made by LEP 194 were to delete from column V the purposes mentioned in par 31 above and to insert instead the purposes underlined in the table reproduced at par 22 above. There was no other express aim of LEP 194, such as to restrict or prohibit the type of mixed-use development referred to in par 33 above. Significantly, LEP 194 did not alter cl 44(1)-(3) (quoted at par 24 above). Of further significance is the fact that the zoning table of permitted and prohibited purposes is contained in cl 22. And it is clear from the opening words of cl 22 that the purposes mentioned in the table are subject to the special provisions of part VII, which include cl 44. The parties' submissions and the Court's determination 36 In their submissions, the representatives of the parties referred me to quite a number of cases on the classification of uses and the interpretation of zoning tables, including the more recent Court of Appeal decisions of DEM (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187 and Woolworths Ltd v Pallas Newco Pty Ltd (2004) 136 LGERA 288. 37 After I had reserved my decision, I received a communication from the parties requesting me to withhold giving judgment in order to enable the parties to make further written submissions and perhaps additional oral submissions. I received the last of the written submission (applicant's reply) on 20 May 2005. On 16 June 2005 the parties informed the Court that they did not wish to present further oral submissions. 38 Briefly stated, the respondent's submission was that the only type of dwelling that was not proscribed by column V of the zoning table is a dwelling or a dwelling-house attached to a building used for permissible purposes within the zone. Thus, a single dwelling contained within a building that contains a use permissible in the zone, would be permissible. Similarly, a dwelling-house contained in one building attached in some way to a shop in another building would also be permissible. However, the respondent submitted, dwellings within any of the specifically proscribed purposes in column V are not permissible. Accordingly, multiple unit housing attached to a building containing uses otherwise permissible in the zone would be prohibited. Reference was made to the Court of Appeal decisions of CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 at 279, Egan v Hawkesbury CC (1993) 79 LGERA 321 and Westpoint Corp Pty Ltd v Rockdale City Council (2000) 109 LGERA 398. 39 The applicant's main submission was that notwithstanding the proscription of stand-alone multiple unit housing, there was a legislative intention that if dwellings are attached to buildings in which there is a use for a purpose permitted in the zone, those dwellings are permissible. The legislative intention was made plain by cl 44 of the Ordinance, which encourages the construction of flats in the 3(a1) zone by allowing bonus floor space for flats attached to buildings containing uses permissible within the zone. 40 Among the cases referred to by the applicant was an unreported decision of Bignold J in Friends of Pryor Park Incorporated v Ryde Council No. 40100 of 1995, decided on 25 September 1995. (The subsequent decisions under the same name reported in (1995) 89 LGERA 226 and (1996) 91 LGERA 302 are not relevant to the question of law in the present hearing, and it is to the unreported decision that I refer.) The applicant in that case sought a declaration that a consent granted by the respondent council for a Montessori childcare centre was invalid. The land was zoned Open space (recreation existing), and column IV of the zoning table in cl 22 stipulated that certain purposes, including "community facilities", were permissible with consent. A "childcare centre" was not mentioned in the table (although that term was in the definition section of the ordinance). Column V prohibited any purpose other than those referred to in columns II or IV. In the course of his judgment, Bignold J said: As I have earlier mentioned the Applicant's argument [challenging the validity of the consent] relies heavily upon the majority judgments in CB Investments and upon the general proposition of planning law (claimed to be supported by the majority judgments) that if a proposed development fell within two categories of purposes (one permissible and the other prohibited) the prohibited purpose prevails so as to render the proposal not capable of being the subject of a valid development consent. In my judgment this proposition is unsound, and is not supported by the majority judgments in CB Investments. … In short the conclusion in CB Investments that the Council could not grant consent to the application, is based upon the express terms of the planning instrument which relevantly prohibit the development if it were " only for the purpose of agriculture ". Accordingly, and as may reasonably be expected, the majority judgments in CB Investments do not support any general principle of planning law concerning the legal consequences of any dual classification of a proposed development. Rather they reflect the legal results of the proper (and uncontested) statutory interpretation of the terms of the relevant planning instrument controlling development in that case. Since the present case depends upon the proper construction of cl 22 of the Ryde PSO the decision in CB Investments (based upon a different planning instrument) provides limited (if any) assistance, to the present task of construing cl 22 of the Ryde PSO . The Respondent's competing argument [seeking to uphold the validity of the consent] is that where, as in the present case, the proposed development falls within the permissible purpose of "community facilities", development consent may legally be granted to the proposed development for that purpose and the fact that the development also falls within another "purpose" namely "childcare centre" is legally irrelevant to the validity of the development consent granted for the permissible purpose. In my judgment the respondent's argument is correct and is clearly to be preferred to the applicant's competing argument. 41 In the present case, the zoning table is quite different from the table considered in the Friends of Pryor Park. However, that case is relevant insofar as it emphasises the need to properly interpret the particular instrument involved and insofar as it explains CB Investments. 42 In the present case, I am not dealing with the Canterbury Planning Scheme Ordinance as originally published in the Government Gazette of 28 August 1970. Rather, I am required to consider the more complex amended Ordinance as now in force. There are a number of overlapping, or partly overlapping, definitions now in the Ordinance comprising one or more dwellings. These definitions are of: dual occupancy, dwelling, dwelling-house, group dwelling, multiple unit housing, town house, and villa home. 43 In addition, a "flat" is also a species of "dwelling", because for town-planning purposes there appears to be no material distinction between "a separate domicile" (in the definition of "flat") and "a separate residence" (in the definition of "dwelling"). 44 Having regard to the various definitions quoted earlier in this judgment (par 21 above), and to the land-use table for the General Business 3(a1) zone and cl 44 of the Ordinance, it seems to me that the Ordinance should be interpreted so as to prohibit in that zone all varieties of dwellings and dwelling-houses other than any dwellings or dwelling-houses attached to buildings in which development for a purpose permitted in this zone may be carried out. 45 That is, any stand-alone buildings containing only dwellings, whether those dwellings are dual occupancies, flats, multiple unit housing, town houses or villa homes, are prohibited. Flats and group homes are not expressly mentioned in column V but nevertheless they are still prohibited as stand-alone buildings, because they contain dwellings; and "dwellings" (where first appearing in column V) are prohibited. On this interpretation, the mention of multiple unit housing, town houses and villa dwellings in column V would appear to be surplusage. Those particular types of dwellings could have been mentioned for abundant caution. 46 Taking into account cl 44 of the Ordinance, the word "dwellings" in column V of the zoning table in cl 22 should be taken to include flats. Clause 44 should not be read down so as to refer only to one flat attached to a building containing other uses permissible in the zone. 47 I regard the proposed residential units in the present case as dwellings and also as flats, and the proposed units are permissible as falling within the exception in column V as being "dwellings…attached to buildings in which development for a purpose permitted in this zone may be carried out". Like the first occurrence of "dwellings" in column V, the next occurrence of "dwellings" in the expression in parenthesis ("dwellings… attached to buildings [etc]") is also to be taken as referring to any category of dwellings, whether those dwellings are single dwellings or multiple dwellings such as multiple unit housing. 48 In other words, properly construing the Ordinance, the prohibition of multiple unit housing in column V refers to stand-alone dwellings (for example, in a discrete building containing only multiple unit housing) and does not extend to prohibiting such dwellings if the multiple unit housing is attached to a building in which there is a use for a purpose permitted in the 3(a1) zone. 49 The planning documents referred to on behalf of the applicant in relation to cl 32 (quoted at par 23 above) do not affect the findings that I have otherwise made as to the permissibility of the proposed development. 50 It appears that the council has granted development consents (under the current Ordinance) for two other developments of multiple unit housing attached to buildings containing uses permissible in the 3(a1) zone. These consents have had no bearing on my decision. They cannot be used as confirmation of the correct interpretation of the Ordinance. 51 Since my decision involves a discrete question of law, the merits of the appeal may be heard by any Commissioner or Judge, as directed by the Chief Judge. Orders 52 The orders of the Court are: 1. The answer to the question, "Is the proposed development (involving the erection of a building for commercial premises or shops, to which are attached residential units, together with associated carparking) at 221-235 Homer Street, Earlwood, permissible with consent?" is "yes ". 2. Costs are reserved. 3. The appeal is adjourned to the Registrar's call-over on 14 July 2005. 3. The exhibits, other than exhibit 2, may be returned. ___________ A J Nott 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.