A recent case in the Supreme Court and Court of Appeal illuminates one of the most often contended topics in development applications: building height.

This case provides insight into:

• the correct way to measure building height; and
• whether compliance with the height restriction is a jurisdictional prerequisite to a decision-maker’s power to grant consent.

El Khouri v Gemaveld Pty Ltd [2023] NSWSC 25 and [2023] NSWCA 78

Gemaveld brought proceedings in the Land and Environment Court (the LEC) to appeal against the decision of Georges River Council to refuse development consent. During the proceedings, Gemaveld submitted new plans showing that the height control under cl 4.3(2) of the Kogarah Local Environmental Plan 2012 (the LEP) would not be exceeded, and the parties came to an agreement. The Commissioner granted development consent in accordance with that agreement, pursuant to s 34(3) of the Land and Environment Court Act 1979 (NSW).

Subsequently, the Applicants in these proceedings, who are neighbours of the Respondent, brought proceedings in the Court of Appeal challenging the LEC decision. They alleged that the Respondent’s proposed dwelling in fact exceeded the height control under cl 4.3(2) of the LEP. As a result, the Applicants contended that the LEC:

had no power to make the decision to grant consent to the DA because it was not a decision that the Court could have made in the proper exercise of its functions, within the meaning of s 34(3) … in that the height of the proposed development exceeded the relevant height control in the Kogarah [LEP] and there was no request to vary that standard as required by cl 4.6 of that LEP.

The matter was remitted by the Court of Appeal to a single judge of the Supreme Court to decide questions of fact, such as whether the proposed dwelling in fact exceeded the height control.

The decision of the Supreme Court

Findings

The Respondent submitted that the building height should be measured vertically from the plane of the highest part of the proposed building above sea level to the existing ground level.

White J did not accept this submission. His Honour instead held that:

• Existing ground level is the existing level of a site at any point;
• Height is to be measured from any point of the existing ground level upon which the proposed building is to be erected vertically upwards to the top of the proposed building above that point in the ground.

His Honour reasoned that it was clear from cl 4.3(1)(c) that the objective of the height limit was not only to regulate the skyline or maximum height above sea level, but also to regulate the scale of buildings.

The Respondent submitted that building height is to be measured by reference to the documents that are required to form part of the development application. His Honour accepted the Respondent's submission that the plans provided with the development application to the consent authority showed that the proposed building would not contravene the maximum building height.

However, His Honour also accepted the evidence of the Applicant's surveyor, who had surveyed the site and found there was a point on the natural surface of the ground where the proposed building would exceed the height limit. His Honour concluded that, on the proper basis of measuring building height, by measuring from any point of the existing ground level to the top of the proposed building above that point, the height limit would be exceeded. Therefore, the plans provided to the consent authority with the development application were in error, as they showed the proposed building did not exceed the height limit.

Key takeaways

• Height is to be measured from any point of the existing ground level upon which the proposed building is to be erected vertically upwards to the top of the proposed building above that point in the ground.
• If the proposed building exceeds the height limit above any point in the existing ground level on which it is to be built, it exceeds the maximum height for the purposes of the height development standard.
• The plans provided as part of the development application are not conclusive in determining the existing ground level and whether the height limit would be exceeded.

The decision of the Court of Appeal

Background

A jurisdictional fact is a criterion that must be satisfied for the decision-maker to have the power to make a particular decision. The Applicants argued that, since compliance with the height control was a jurisdictional fact, and it had not been complied with, the LEC did not have the power to grant consent.

Importantly, the evidence relied on by the Applicants before White J in the Supreme Court had not been before the Commissioner of the LEC who had granted the consent. The Commissioner had granted consent pursuant to a statement signed by the solicitors for the Respondent and the Council stating that the development satisfied the height standard.

Findings

The Court of Appeal held that compliance with environmental planning instruments such as the LEP is not a jurisdictional fact, applying Ross v Lane [2022] NSWCA 235.

Section 4.15(1)(a) of the Environmental Planning and Assessment Act 1979 (the EPA Act) lists the matters that a consent authority must 'take into consideration', including the provisions of any environmental planning instrument. The Court held that compliance with the LEP is a matter that must be considered under s 4.15(1)(a) and is therefore not a jurisdictional fact.

The Applicants submitted that the LEP, as an environmental planning instrument, had force of law independently of s 4.15 of the EPA Act. The Court did not accept this submission; it found that LEPs do not directly create rights and obligations, but instead rely on primary and delegated legislation, which create rights, obligations, and offences.

Key takeaways

• Provisions of a planning instrument must be taken into consideration in determining a development application, but that does not make related information a jurisdictional fact.
• Objectors and councils need to review plans carefully and closely, and raise matters of inaccuracy or omissions in the course of the assessment or initial appeal proceedings. It can be challenging for an objector to do so after a consent is granted, because such a challenge is a judicial review and a legal error must be established.