WERNAX PTY LIMITED v MARRICKVILLE COUNCIL [1997] NSWLEC 211 (13 August 1997)

IN THE LAND AND							MATTER No 10281 of 1997

ENVIRONMENT COURT			CORAM: Talbot J

OF NEW SOUTH WALES			DECISION DATE: 13 August 1997

WERNAX PTY LIMITED

Applicant

v

MARRICKVILLE COUNCIL

Respondent

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: The respondent council has raised two questions which are described as preliminary points of law. In essence, the questions are, whether or not the proposed development as described in the development application should be included within, or excluded from, the category of development which is defined as residential flat building.

Under the terms of Marrickville Planning Scheme Ordinance, within zone A, which is the subject zone, development which may not be erected or carried out includes residential flat buildings, with certain irrelevant exceptions.

The questions at best are mixed questions of fact and law. I am inclined to the view that, in accordance with the authorities discussed on many previous occasions in this Court, the question of whether the proposed building, when erected, would be a residential flat building is a question of fact.

The original development application lodged with council on 29 April 1996 described the development as the construction of eight grouped dwellings of townhouse style in a configuration of five dwellings along the Albany Road boundary to the site and three dwellings within an existing church building structure to the rear of the site. The plans upon which the applicant now relies show a proposed development which generally answers that description.

The council relies heavily on the commonality of the use of certain areas at the basement level where parking is to be provided. The plans show a ramp leading from street level to the basement to facilitate ingress and egress of motor vehicles, a turning area, a common aisle and visitor car parking spaces within allotments. It is proposed the allotments will be held in separate, private ownership delineated by boundaries which reflect the habitable areas above, including the separate dwellings and courtyard areas.

The capacity to use the above common areas will be facilitated by grants of rights of carriageway and other appropriate easements so that the owners of the respective allotments over which the common areas pass will not be in a position to hinder the use of that part of the property.

The title to the land is currently held in a different configuration but is nevertheless held as a number of allotments. The boundaries of those allotments are irrelevant in terms of the proposed development and have no bearing upon it or relationship to it.

The applicant contends that what is proposed is a number of dwellings which answer the description of a group dwelling in the Marrickville Planning Scheme Ordinance. On the other hand, the council contends that the development should be properly regarded as a building containing two or more dwellings; in one case five dwellings and in the other case three dwellings, situated on a single allotment of land.

The applicant concedes, and quite rightly in my opinion in light of the decision of the Court of Appeal in Egan & Ors v Hawkesbury City Council & Anor (1993) 79 LGERA 321, that the mere fact that the development can be seen to fit within the definition of a group dwelling in the Planning Scheme Ordinance will not save it from being prohibited if it is otherwise a residential flat building as defined.

The point the applicant now makes is a simple one. It is that it is not proposed to construct a building on a single allotment of land. It concedes nevertheless there will be buildings containing two or more dwellings, but that is not to the point. The definition of residential flat building has a number of components. Firstly, the development must comprise a building. Secondly, the building must contain two or more dwellings, and thirdly, the building itself must be situated on a single allotment of land. That definition accords with the common understanding of what might be described as a block of flats or a block of home units. Either the building and all the dwellings within it are owned by one owner who is the registered proprietor of the single allotment upon which the building stands, as in the case of a block of flats or, as in the case of a development generally described in common parlance as a block of home units, there is common property upon which the building is constructed comprising one allotment of land upon which a number of dwellings have been constructed in a single building.

In the correspondence that has passed between the respondent council and the applicant following the lodgment of the application, it has been clarified that what the applicant is seeking development consent to construct is eight Torrens Titled group dwellings with on-site basement car parking. Five dwellings have an Albany Road frontage and three dwellings are generally within the existing church buildings.

The proposal is supported by plans which explain the nature of the buildings to be constructed and the dwellings within them. The application is also supported by a concept plan of subdivision which shows that each dwelling will be on a separate allotment of land. The parking in respect of each dwelling presumably will be provided within the respective allotment upon which the dwelling stands, although in several instances at least, visitor parking will be provided. The owners of the other allotments will have rights of use. The situation therefore might be regarded as no different to a subdivision where two houses are constructed on adjoining blocks of land with a shared driveway, facilitated by complimentary rights of carriageway.

I am satisfied that, in theory at least, the development can be regarded as something other than a building containing two or more dwellings situated on a single allotment of land. I do not stay to consider whether the scheme proposed by the applicant is feasible. I do not tarry to consider what merit issues may arise as a consequence of the proposed title arrangements. I do not at this time seek to resolve the way in which the objectives of the applicant might be achieved and the appropriate way of ensuring that the development proceeds as permissible development, namely as something other than a residential flat building.

Those questions can be addressed during the hearing of the merits and ultimately might be resolved by conditions. However, if they prove to be insoluble or can be resolved, in the opinion of the Court at least, only in a way which is unsatisfactory for whatever reason, that will be a question of fact to be determined on the merits by the person who adjudicates at the hearing.

I am therefore disposed at this point to hold only that the Court is satisfied that the development as proposed is capable of being regarded as something other than a residential flat building provided that development ultimately proceeds on the basis that any building containing a dwelling is to be constructed within the boundaries of a single allotment of land.

In the circumstances I am satisfied it was beneficial to the interests of both parties and to the Court that these matters were raised as preliminary questions, even though I am not completely satisfied they were properly raised as questions of law. The answer to the questions ultimately has a bearing on the way in which the case should be conducted at the hearing on the merits. It was convenient and appropriate for these matters to be determined in advance. The determination at this point may have some bearing on fixing or identification of the merit issues.

I am not satisfied that there are exceptional circumstances which justify the Court making an order for costs against either party. I make no order as to costs.

The exhibits may be returned.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 3 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT

ASSOCIATE