Stanisic Associates v Sydney City Council [2004] NSWLEC 770

Land and Environment Court of New South Wales

CITATION : Stanisic Associates v Sydney City Council [2004] NSWLEC 770 PARTIES : Stanisic Associates (Appl) Sydney City Council (Resp) FILE NUMBER(S) : 11090 of 2004 CORAM: McClellan CJ KEY ISSUES: Question of Law :- Construing the terms of the relevant DCP as it relates to the height of a building LEGISLATION CITED: Land and Environment Court Act 1979 CASES CITED: DATES OF HEARING: 16 December 2004 EX TEMPORE 12/16/2004 JUDGMENT DATE :

P J McEwen SC (Appl) Phillips Fox (Solicitors - Appl)

LEGAL REPRESENTATIVES: C Leggat (Resp) Maddocks (Solicitors - Resp)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

THURSDAY 16 DECEMBER 2004

11090/04 STANISIC ASSOCIATES v SYDNEY CITY COUNCIL

JUDGMENT 1 HIS HONOUR: This matter comes before me by way of reference pursuant to s 36(5) of the Land and Environment Court Act. I had previously directed that the proceedings be heard and disposed of by Commissioner Watts. As I understand the position the applicant and the Council reached agreement in the matter and came before Commissioner Watts so that he could consider whether the Court would exercise the discretion and grant the approval contemplated by the parties. 2 As is the usual course, objectors were provided with an opportunity to inform the Commissioner of their views in relation to the matter. One of the objectors raised a question as to whether or not the application, in its present form, complies with the relevant development control plan. Difficulties emerged in the construction of the relevant provisions of that plan and, accordingly, the Commissioner, of his own motion, has referred a question of law to me for consideration and determination by a judge. I have decided that I will determine the matter myself. 3 The building as proposed is a residential flat building and has a proposed height of eighteen metres at its main parapet level. A further level of accommodation is proposed on top of the eighteen metre level which will provide for a number of components of the individual dwellings. Unless the development control plan is construed so as to allow for the additional accommodation the Commissioner will be considering an application which does not comply with the development control plan. This, of course, does not mean that the application must necessarily be refused, although the weighting of the objector's position may alter. Those, of course, are matters for the Commissioner. 4 The Commissioner placed on paper a question of law which has two components. It reads as follows: "Whether the DCP controls relating to height: (a) permits part floor or storey in excess of the 18m plane being part floor or storey within an envelope defined by a 36 degree plane such being a drawn plane and not a constructed roof plane; (b) whether the 36 degree plane is to be taken from the site boundary or the edge of the proposed building at a height of 18m above the natural ground line." 5 At the outset, I should observe that the document has not been worded in a particularly helpful manner. If the document is to be construed as providing particular controls, great care should be taken to ensure that the language used in the document clearly indicates the controls which are intended. This document does not do that. 6 The relevant section dealing with height and scale of buildings is s 2.3. It provides an objective in the following terms: "To ensure buildings: