Land and Environment Court of New South Wales CITATION : Nguyen v Marrickville Municipal Council [1988] NSWLEC 114 APPLICANT MR. Nguyen PARTIES : RESPONDANT Marrickville Municipal Council FILE NUMBER(S) : 40222 of 1988 CORAM: Bignold J KEY ISSUES: :- Environmental Planning and Assessment Act LEGISLATION CITED: Local Government Act 1919 Interpretation Act 1987 Repeal and Amendment Act 1979 Leichhardt Municipal Council v. Fridrich Constructions Pty. Ltd.; Aitken v. South Sydney Municipal Council (1976); Woollahra Municipal Council v. Ageitos (1979) ; Caltex Oil (Aust) Pty. Ltd. v. Canterbury Municipal Council (1983); Tange v. Drummoyne Municipal Council (1955); G.T. Bissett and Co. v. Gosford City Council (1985); CASES CITED: Attorney-General v. Waverley Municipal Council (1979); Botany Municipal Council v. Feneck (1987); Hazell v. Parramatta City Council (1954) ; Tange v. Drummoyne Municipal Council (1955) ; Mitchell v. Sydney City Council (1956) .; Reg v. Barnet London Borough Council Ex p. Shah (1983); Watts v. Leichhardt Municipal Council (1981) DATES OF HEARING: 07/04/1988 DATE OF JUDGMENT: 04/07/1988 LEGAL REPRESENTATIVES: JUDGMENT: JUDGMENT Bignold J.: These are class 4 proceedings in which the Applicant seeks a declaration that a proposed development for which he has unsuccessfully sought development consent from the Respondent is not prohibited by the applicable planning law. More particularly he seeks a declaration that his proposed use (manufacturing clothing) of a particular building situate at the rear of his residence at No. 107 Railway Road, Sydenham is a use for a "home industry" within the meaning of the Marrickville Planning Scheme Ordinance. The primary facts are not in dispute and may be briefly stated. The Applicant and his wife own property No. 107 Railway Road, Sydenham on which is erected a single storey brick cottage used by them as their home. The living accommodation so provided comprises 3 bedrooms, kitchen, living room, small bathroom and storeroom. The house does not provide inside toilet or laundry facilities. There is an 'outside' toilet, which the Applicant proposes to demolish and to provide toilet facilities in a separate building which I shall presently describe. The aforesaid property is within Residential Zone No. 2(a) under the Marrickville Planning Scheme Ordinance, which together with the Environmental Planning and Assessment Act, is the applicable planning law. On 12th June, 1987 the Applicant caused to be lodged with the Respondent a development application seeking consent to establish a home industry in a building located at the rear of the aforesaid property in its north eastern corner. The development application was accompanied by a plan drawn to scale showing the site of the proposed home industry. It appears that the building was at the time of lodging the development application substantially constructed. It appears originally to have been intended as a garage building. The plan indicates a subdivision of the garage building into a separate workshop and a separate laundry/shower room. The aforesaid plan includes a "site plan" showing the subject out-building in relation to the property boundaries (the site is small having dimensions of 9m x 30m) and to the existing dwelling-house. There is a separation space of 1 metre between these two buildings. The proposed laundry/shower room is located nearer to the dwelling-house. It also includes a floor plan of the outbuilding showing two separate areas "workshop" and "laundry/shower". This separation is achieved by effectively subdividing the outbuilding by the erection of a solid brick partition wall (230mm thick) without openings. The two areas have their own separate door and window openings. The application was considered by the Respondent's Chief Town Planner in his written report to the Respondent. He and the Respondent appear to have regarded the development application as an application for the use of garage building. No doubt this is the principal component of the development application. However it appears that by necessary implication the application additionally sought consent for the erection of the building at least in respect of changes proposed to the building as it existed in its partly completed state. The Chief Planner's report states inter alia:- "The area proposed to be used has a floor space of 30sq metres. However the workshop area forms part of a building which also contains a laundry and shower. The two areas share a common floor level and are separated by a 230mm brick wall. The roof over the laundry/shower area is approximately 0.3m lower than the roof over the garage section. It is considered that the workshop and laundry/shower areas form one building. ...................................................... ...................................................... The proposed use would not constitute a home industry in that the subject garage has a floor space of 41sq metres which is in excess of the maximum floor space of 30sq metre permitted for home industries under the Ordinance. The proposed use complies with the other requirements of a home industry. The proposed use would therefore constitute an "industry" under the definitions contained within the Marrickville Planning Scheme Ordinance which is a prohibited use within the Residential 'A' Zoning." On 12th August, 1987 the Respondent notified the Applicant that it had determined the aforesaid development application by disapproving it on the following ground:- "The proposed use would not constitute a "home industry" under the definitions contained within the Marrickville Planning Scheme Ordinance in that the floor space of the building proposed to be used of approximately 41.0 sq.m. exceeds the maximum 30 sq.m. permitted and consequently the proposed use would constitute an "industry" which is a prohibited use within the Residential 'A' zoning of the land." The notification advised the Applicant of his right of appeal to this Court against the Respondent's determination. Apparently the Applicant has not instituted an appeal pursuant to s.97 of the Environmental Planning and Assessment Act. Instead he has instituted the present proceedings, presumably in the expectation, based upon the Respondent's determination and the Chief Planner's report, that if the declaration is granted the Respondent will grant development consent. It is common ground between the parties that the proposed industrial use is permissible development only if it qualifies as a "home industry" which is defined by cl.4(1) of the Marrickville Planning Scheme Ordinance as follows:- ""Home Industry" means industry carried on in a building, not being a dwelling-house or dwelling in a residential flat building, under the following circumstances - (a) the building does not occupy a floor space exceeding 30 square metres and is erected within the curtilage of the dwelling-house or residential flat building occupied by the person carrying on the industry or an adjoining land owned by such person; (b) the industry does not interfere with the amenity of the locality by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or otherwise; (c) the industry does not involve exposure to view from any adjacent premises or from any public place of any unsightly matter; and (d) the industry does not require the provision of any essential service main of a greater capacity than that available in the locality." The only dispute between the parties in these proceedings concerns the limitation on the floor space of the building as set forth in paragraph (a) of the definition, the Applicant contending that the proposed development complies with that limitation and the Respondent denying that contention. In this respect it is common ground that the floor space of the workshop separately considered does not exceed 30m2. The crucial question in issue is whether the proposed workshop for the conduct of the proposed industry is "a building (that) does not occupy a floor space exceeding 30 square metres" within the statutory definition. The Applicant supports an affirmative answer to this question by advancing alternative arguments - (i) the workshop is such a building because it is relevantly "part of" the building and hence is a building that does not occupy a floor space exceeding 30m2 - see the definition of "building" in s.342B of the Local Government Act 1919 applicable to the statutory definition by virtue of s.11 of the Interpretation Act 1987 (see also cl.2(1) of Schedule 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 and cf. Leichhardt Municipal Council v. Fridrich Constructions Pty. Ltd. (1984) 54 LGRA 82; or (ii) the workshop is such a building because it is a separate building from the proposed laundry/shower room, and hence is a building that does not occupy a floor space exceeding 30m2. The Respondent's competing arguments can be briefly stated - (i) the extended meaning of "building" is not applicable because the context or subject matter indicates to the contrary; (ii) the workshop and laundry/shower room together comprise a single building; (iii) since the total floor space of that single building exceeds 30m2 the proposed development cannot qualify as a "home industry"; (iv) even if the workshop be regarded as the relevant building for the purpose of the statutory definition of "home industry" it does not satisfy the implicit requirement of physical separation from the dwelling-house because the attached "laundry/shower room" itself constitutes a dwelling-house. In my opinion there is nothing in the relevant context or subject matter of the Marrickville Planning Scheme Ordinance that requires the exclusion of the application to the definition "home industry" of the statutory definition of "building" in s.342B. There are many decided cases that may be cited where the extended meaning of "building" has been applied to planning provisions eg. Aitken v. South Sydney Municipal Council (1976) 35 LGRA 234; North Sydney Municipal Council v. Pielor Pty. Ltd. (1981) 43 LGRA 184; Woollahra Municipal Council v. Ageitos (1979) 38 LGRA 365; Caltex Oil (Aust) Pty. Ltd. v. Canterbury Municipal Council (1983) 50 LGRA 1. The last two cases involved specifically that extended aspect of the statutory definition of "building" that refers to 'part of a building'. On the other hand there are decided cases where Courts have found reasons of context or subject matter requiring the exclusion of the extended definition of building. The Respondent cited Tange v. Drummoyne Municipal Council (1955) 20 LGR 229. The interesting point in that case was the fact that the relevant context involved the planning concept of "local light industry" a term with many similarities to the term "home industry" as will be later demonstrated. A more recent illustration is provided by the Court of Appeal's decision in Botany Municipal Council v. Feneck (1987) 61 LGRA 299. That case involved the interpretation of a familiar planning provision enabling an existing "dwelling-house" to be altered or added to, so as to create 2 dwellings. In that case the relevant building consisted of commercial premises at ground floor and a residence on the first floor. The central question in that case was whether the "residence" component of the building was a 'dwelling-house' as statutorily defined. One of the arguments relied upon by the owner was that the residence component was 'part of' the overall building and by virtue of the statutory definition of 'building' provided by s.342B of the Local Government Act was itself a "building" and thus capable of satisfying the definition of "dwelling-house". The Court found that there existed a contrary context (found in various provisions of the planning instrument) which excluded the extended definition of 'building' in s.342B of the Local Government Act. With 'some regret' the Court found it impossible to overcome "the force generated by a fair reading of the language which the drafter has seen fit to employ" p.303. In the present case I do not find any contrary indication in the context of the statutory definition of "home industry" to exclude the extended meaning of 'building'. Thus the definition of "home industry' can reasonably accommodate that extended meaning and read as follows:- ".......... industry carried on in part of a building ...... (a)the part of the building does not occupy a floor space exceeding 30 square metres and is erected within the curtilage of the dwelling house." There is, I confess, some little difficulty encountered with the concept of 'part of' the building being erected within the curtilage. However I do not think the difficulty to be so acute or insurmountable as to provide the necessary 'contrary indication'. If the relevant 'part of' the building is erected within the curtilage the requirement is satisfied and it is strictly irrelevant to consider whether the remainder of the building is likewise erected within the curtilage (although this could reasonably be assumed to be the case). Nor do I find any contrary indication in the subject matter. This involves the concept of a 'home industry' carried on by the owner of the dwelling-house but in a building (not being the dwelling-house) erected within the curtilage of the dwelling-house. The limitations found in the definition of 'home industry' on the nature and character of the industry and the manner in which it is carried on reflect the obvious legislative intent to strike the right planning balance in the co-existence in residential areas of residential uses and home industrial uses. The statutory limitations clearly recognise a bias in favour of residential uses with only a limited accommodation of home industrial uses undertaken by the owner of each dwelling-house. The particular limitation on the maximum floor space needs to be understood in the light of the overall limitations imposed. It would appear to be intended as an instrument of control on the scale of the permissible industrial use. Clearly it is related to the statutory requirement that the industry be "carried on in a building, not being a dwelling-house". (Although the question does not arise in the present case the prohibition on industrial use of the dwelling-house would appear to be directed to considerations of safety and residential amenity). The requirement that the permissible industrial activity be carried on in a building as opposed to in the open air was emphasized in a number of decisions of the Land and Valuation Court in relation to the planning term "local light industry"; see Hazell v. Parramatta City Council (1954) 19 LGR 301; Tange v. Drummoyne Municipal Council (1955) 20 LGR 229 and Mitchell v. Sydney City Council (1956) 2 LGRA 152. I do not think that the limitation on the floor space of the building in which the home industry is carried on was intended as an overall general limitation on the scale and size of all out buildings (used for whatever purpose in addition to the home industrial use) that may be erected within the curtilages of dwelling-houses. In this respect it should be noted that planning controls do not normally apply to a host of developments and uses ancillary to the use and enjoyment of dwelling-houses: cf. Burwood Municipal Council v. Parkes Development Pty. Ltd. (1964) 10 LGRA 414. Accordingly in the task of statutory interpretation I do not think it a matter of any significance or validity in promoting the planning purpose underlying the statutory concept "home industry" to distinguish between the case of a single out-building consisting of separate accommodation for a workshop in which the home industry is carried on and for a garage housing motor vehicles on the one hand and the case of two separate out-buildings providing the same accommodation but in separate buildings. Accordingly I conclude that there is nothing in the subject matter indicating a contrary intention which would require the exclusion of the extended meaning of "building". In reaching this conclusion I do not overlook the opinion of Sugerman J. in L.N. Price Pty. Ltd. v. Leichhardt Municipal Council (1959) 4 LGRA 63 in relation to the interpretation of a similar floor space limitation contained in the definition of "local light industry" (from which planning concept permissible in the 'Living Area' Zone under the County of Cumberland Planning Scheme the present concept of 'home industry' might be seen to have derived and refined). The definition of 'local light industry' relevantly required the industry "to be carried on in a building whether on one or more floors, or one or more buildings ....... provided that in each case the floor space of such building or buildings does not exceed 5,000 square feet". In Price the total floor space of the relevant building was 4,800 and it was proposed to enlarge the total floor space to 7,200 square feet but the industrial use was intended to be confined to 4,800 square feet. At pp.65 and 66 Sugerman J. states the following opinion:- "It may be agreed that, if an application under Pt. III for consent to a use of the building identical with the use to which in fact it has hitherto been put were now to be made, that application could be granted, so far as concerns the manufacture of furniture, as relating to a use for the purpose of local light industry. If, however, the building were extended as proposed and such an application were then made in respect of the proposed use of the premises, it would appear that the application must, as regards the manufacture of furniture, be refused, on the ground that such manufacture carried on in the building as extended, would be a use for the purpose of industry other than local light industry which is prohibited in a Living Area Zone. As between the different views which have been advanced as to the meaning of par.(a) in the definition of "local light industry", I think that the correct view is that the paragraph requires in all cases that the building in which the industry is carried on shall have a floor space not exceeding 5,000 square feet. Paragraph (a), that is to say, is not satisfied by the circumstance that the floor space which happens to be employed in carrying on the industry in portion only of a building is less than 5,000 square feet, if the portion so employed is part of a larger building whose floor space is in excess of 5,000 square feet. In the present case, although the manufacture of furniture would be restricted to 4,800 square feet thereof the total floor space of the whole building, if extended as proposed, would be 7,200 square feet." His Honour had earlier in Hazell and Mitchell left the question open. The Respondent relies on the decision in Price. The Applicant seeks to distinguish it on the facts, pointing out that in Price the enlarged building was proposed to be used for the one overall purpose of manufacturing, displaying and selling furniture whereas in the present case the use of the workshop is wholly unrelated to the use of the laundry/shower room. As I pointed out in the course of argument when I referred to Price it is, of course, not a direct authority on the question of statutory interpretation raised in the present proceedings. However its bearing appeared to me to be sufficiently relevant as to require some close attention. Upon further reflection I do not think that the decision in Price stands in the way of the Applicant's argument based upon the application of the extended statutory meaning of "building". Sugerman J's. decision of course was based upon his interpretation of the statutory definition of "local light industry" and in particular resolved the latent ambiguity as to "whether the limitation to 5,000 square feet of floor space refers to the area of the building itself or the amount of floor space used in carrying on the industry": Hazell at p.302. It is not apparent whether the argument based upon the extended meaning of 'building' upon which the Applicant relies in the present proceedings was actually advanced in Price. Sugerman J's. reasoning rejects the interpretation of confining the floor space limitation to portion only of the building used industrially. In any event the Applicant's argument before me does not seek to re-agitate the question decided in Price in the sense of the question raised in Hazell. Finally I should say that the interpretation adopted in Price is not expressed to be based upon a purposive approach to statutory interpretation. If it was, it does not reveal the relevant purpose and in particular does not cast doubt on the purpose of the relevant floor space limitation in the definition of 'home industry' that I have discerned in the present case. In my opinion the vastly different prescribed maximum floor spaces (5,000 square feet compared with 30 square metres) provides the key to a ready appreciation of the interpretation adopted in Price yet of its non-applicability to the interpretation required of the statutory term "home industry". In considering the subject matter of "home industries" permitted by planning instruments to be established in residential areas I have discerned from the text the legislative purpose or policy of the relevant statutory provisions. In Fenwick Samuels JA. recognised the appropriateness of the purposive approach to statutory interpretation of similar planning provisions. In that case the Court had the benefit of an express statement of the 'aims, objectives, policies and strategies' (see also s.25(3) of the Environmental Planning and Assessment Act), and found that that statement "tends to support the conclusion" (already arrived at by dint of the other provisions of the instrument) even though the Court could see no policy reason for excluding from the entitlement to convert into 2 dwellings, the case of a dwelling in a building containing mixed developments (eg. shop and dwelling). However the Court did not allow its own view of policy considerations to intrude into its interpretive function, for as Lord Scarman stated in Reg v. Barnet London Borough Council Ex p. Shah (1983) 2 AC 309 at p.348:- "Judges may not interpret statutes in the light of their own views as to policy. They may of course, adopt a purposive interpretation if they can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy." In the present case I have discerned what I believe to be the purpose or policy of the limitation on floor space imposed by the planning provision permitting 'home industries' to be established in residential area from the text of the statutory instrument (especially the defnition of "home industry"). The result yielded is in my opinion supported by reference to legislative history of the planning term 'local light industry' and "home industry". Accordingly I am of the opinion that the extended statutory meaning of "building" is applicable to the interpretation of 'home industry' in the present case, and subject to the Respondent's arguments based upon the need for the workshop to be physically separated from the dwelling-house (which I next consider), that so applied the Applicant's argument that the workshop qualifies as a building satisfying the floor space limitation imposed by paragraph (a) of the definition of "home industry" is correct. The Respondent's argument concerning the necessity for the workshop to be physically separated from the dwelling-house is in my opinion, unsustainable unless it be held - (i) the laundry/shower room is a dwelling-house; and (ii) the entire outbuilding (including the workshop) is a dwelling-house. In my opinion each proposition is untenable. 'Dwelling-house' is defined in the Marrickville Planning Scheme Ordinance as meaning:- "a building containing one but not more than one dwelling." 'Dwelling' is likewise defined as meaning:- "a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile." When those definitions are read in combination it is obvious that the "laundry/shower room" is not itself capable of being occupied or used as a separate domicile. It may be readily accepted that this detached outbuilding is part of the dwelling-house (cf. Norkom Pty. Ltd. v. Hunters Hill Municipal Council (unreported 30th September, 1986 per Cripps C.J.). However this is not sufficient to qualify it a 'dwelling' and hence a 'dwelling-house'. Clearly the outbuilding serves two distinct and separate purposes - one a workshop and the other a domestic laundry/shower room (the Applicant's affidavit evidence of intention that the two purposes remain distinct is not challenged and I accept it). The outbuilding cannot reasonably be regarded in toto as a dwelling-house or part of a dwelling house. Accordingly there is no valid basis for the Respondent's argument. In my opinion the physical relationship of the workshop with the laundry/shower room and with the dwelling-house satisfies the limitation in the definition of 'home industry' that "the industry be carried on in a building not being a dwelling-house". In Watts v. Leichhardt Municipal Council (1981) 44 LGRA 443 Perrignon J. in concluding that a proposal to carry on an industry in the shop portion of a building (comprising a shop at ground floor and residence at 1st floor) was not a "home industry" stated at p.446:- "In the present case I do not think that the shop portion of the premises could be said to be erected within the curtilage of the dwellinghouse, whether the dwellinghouse is regarded as meaning the whole of the subject building or that portion only which is devoted to residential use. ...................................................... ...................................................... It seems to me, when one considers the whole of the definition of "home industry" and reads it in the light of the other definitions to which I have referred, including the definition of "building", that it was intended that the industry should be carried on in a building which is separate from the building containing the dwelling." In my opinion the workshop in the present case is properly regarded as 'separate' from the building containing the dwelling. It follows, in my opinion, that the Applicant has established his entitlement to a suitably framed declaration. The form of declaration as originally sought is not however appropriate as was conceded by the Applicant. The Applicant is invited to bring in short minutes reflecting an appropriate form of Order giving effect to my determination of the only issue raised in these proceedings. In these circumstances it is in my opinion strictly unnecessary to determine the alternative argument advanced by the Applicant viz that the workshop is a separate building from the laundry/shower room. Accordingly I shall consider it but briefly. Features of the outbuilding emphasised by the Applicant suggestive of there being 2 separate buildings were - (i) the party wall with no internal access between the workshop and the laundry/shower room; (ii) separate access to each section of the outbuilding; (iii) different roof line; and (iv) different and separate uses of the workshop and the laundry/shower room. Features suggestive of unity of the outbuilding is its common origin, the same floor slab, the extensions of the external walls, similar roofline and the fact that the building though itself subdivided stands on unsubdivided land. In G.T. Bissett and Co. v. Gosford City Council (1985) 57 LGRA 164 it was acknowledged that the fact that a cottage had been converted into 2 dwellings did not result in there being more than one building. Although in certain circumstances it may be appropriate to consider different parts of a building separately from other parts (eg. Attorney-General v. Waverley Municipal Council (1979) 38 LGRA 372 where the upper floor of a building was considered separately from the remainder of the building) in the present case I think the Applicant's argument is too artificial. In my opinion the outbuilding does not comprise two separate buildings. It is but one building albeit subdivided into separate parts or compartments and used for separate purposes. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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