Chan Industrial Pty Limited v Port Stephens Council and Anor [2004] NSWLEC 650

Chan Industrial Pty Limited v Port Stephens Council and Anor [2004] NSWLEC 650

Clause 19(c) of the LEP and the definition of "height" were clear and unambiguous. The lower relevant level was the finished ground level of the completed building, being the basement car park floor at R.L 12.12, not the pre-construction natural ground level. Measuring vertically to the highest parapet level at R.L. 27.42 gave a height of at least 15.30 metres, so the proposed completed building exceeded the 15 metre maximum height control.

Jurisdiction
Australia
Judgment Date
19 November 2004
Procedural Posture
Preliminary Question of Law in Land and Environment Court Proceedings / Ex Tempore Judgment Answering Preliminary Question of Law
Outcome
Preliminary question answered in the affirmative: the completed building would have exceeded 15 metres in height within the meaning of the LEP.
Legal Topics
['building Height Control' 'port Stephens Local Environmental Plan 2000' 'development Control Plan Psc1' 'state Environmental Planning Policy No. 1' 'statutory Interpretation']
['planning and Environment Law'] ['building Height Control' 'port Stephens Local Environmental Plan 2000' 'development Control Plan Psc1' 'state Environmental Planning Policy No. 1' 'statutory Interpretation']

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Procedural Posture

Preliminary Question of Law in Land and Environment Court Proceedings / Ex Tempore Judgment Answering Preliminary Question of Law

Legal Issues

  1. 1 ['Whether the completed building depicted in the plans at tab 55 in exhibit A would have exceeded 15 m in height within the meaning of Port Stephens LEP 2000 cl 19(c) and the table thereto.' 'Whether height was to be measured from the finished ground level of the completed building, including the basement car park level, or from natural ground level under the highest parapet.']

Ratio Decidendi

Clause 19(c) of the LEP and the definition of "height" were clear and unambiguous. The lower relevant level was the finished ground level of the completed building, being the basement car park floor at R.L 12.12, not the pre-construction natural ground level. Measuring vertically to the highest parapet level at R.L. 27.42 gave a height of at least 15.30 metres, so the proposed completed building exceeded the 15 metre maximum height control.

Court Disposition

Preliminary question answered in the affirmative: the completed building would have exceeded 15 metres in height within the meaning of the LEP.

Orders

  • ['The completed building referred to at tab 55 of exhibit A would have exceeded 15 metres in height within the meaning of the Port Stephens Local Environmental Plan 2000.']