AO-TAI Cleveland Pty Ltd v Redland City Council [2011] QPEC 63 [2011] QPELR 704

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: AO-TAI Cleveland Pty Ltd v Redland City Council [2011] QPEC 63 PARTIES: AO-TAI Cleveland Pty Ltd ACN 131150026 (Appellant) V Redland City Council (Respondent) FILE NO/S: Appeal BD 3685 of 2010 DIVISION: Planning and Environment PROCEEDING: Preliminary Point ORIGINATING COURT: Brisbane DELIVERED ON: 10 May 2011 DELIVERED AT: Brisbane HEARING DATE: 3 May 2011 JUDGE: Andrews SC DCJ ORDER: Declare that the Application is code assessable CATCHWORDS: PLANNING SCHEME – interpretation – whether meaning of “building height” was as defined – whether development application code assessable or impact assessable. Redlands Planning Scheme - Version 2 Acts Interpretation Act 1954 (Qld) s 32A, s 32AA, s 32C; Building Act 1975 (Qld); Integrated Planning Act 1997 (Qld) s 2.1.23; Statutory Instruments Act 1992 (Qld) s 14(1), sch 1. Amalgamated Society of Engineers v Adelaide Steamship Co (1920) 28 CLR 129, applied. Luke v Maroochy Shire Council and Watpac Developments [2003] QPEC 005, applied. Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, applied. COUNSEL: Kefford of counsel for AO-TAI Cleveland Pty Ltd -- 1 of 13 -- 2 Houston of counsel for Redland City Council SOLICITORS: Redmond and Redmond for AO-TAI Cleveland Pty Ltd Redland City Council Legal Services Group for Redland City Council [1] I am to determine a preliminary point. The parties agree that the issue for consideration is whether the Application1 required code assessment or impact assessment and that the determination of this issue will turn on whether the requirement in the right column of Table 22 , i.e. the requirement that the maximum height to the top of the floor level of highest habitable room be 13 metres (5 storeys), must be met for the Application to be code assessable. [2] The appellant is AO-TAI Cleveland Pty Ltd (“the appellant”). The respondent is Redland City Council (“Council”). [3] Various facts were agreed between the appellant and council including facts relating to the application made by the appellant, certain planning scheme provisions and the issue. They follow as paragraphs [4] to [12] inclusive. [4] On or about 18 February 2009, the Appellant, A-o Tai Cleveland Pty Ltd (“Ao- Tai”), made a development application (“Application”) seeking a development permit for the making of a material change of use for an Apartment Building (72 units) with respect to land situated at 7, 9, 11 and 13 Taylor Crescent, Cleveland and more particularly described as Lots 11, 12, 13 and 14 on RP 119834 (“Land”). [5] Properly construed, the Application was for an Apartment Building: (a) with a building height that did not exceed that specified for the Land in Table 2 as the Maximum Overall Building Height, i.e. 19 metres; and (b) with a height to the top of the floor level of the highest habitable room that exceeded the maximum specified in the last column of Table 2, i.e. 13 metres (5 storeys). [6] On 2 March 2009, Council issued an Acknowledgment Notice which indicated that: (a) the Application would be assessed under the Redlands Planning Scheme; (b) the Application required code assessment and did not require impact assessment; (c) the following were referral agencies for the Application: (i) Department of Main Roads (now the Department of Transport and Main Roads) (“DTMR”); (ii) Department of Natural Resources and Water (now the Department of Environment and Resource Management) (“DERM”); and (d) Council would make an information request. [7] On 23 March 2009, Council made an information request. On 24 March 2009, the Application was referred to DTMR and DERM. On 31 March 2009, DTMR made a request for additional information. On 16 April 2009, DERM provided its concurrence agency response. On 26 October 2009, Ao-Tai responded to Council’s 1 See [4] herein 2 See [12] herein -- 2 of 13 -- 3 information request. On 19 January 2010, Ao-Tai responded to DTMR’s information request. On 15 February 2010, DTMR provided its concurrence agency response. On 19 March 2010, Council issued a notice for an extension of time for the decision making period to 20 April 2010. Between 19 March 2010 and 7 December 2010, Council engaged in discussions with Ao-Tai with respect to the merits of the Application. On 7 December 2010, Ao-Tai filed an appeal against Council’s deemed refusal of its Application. [8] At the time the Application was made: (a) Redlands Planning Scheme Version 2 (“Planning Scheme”) applied; and (b) the Land was in the Medium Density Residential Zone and sub-area MDR-1 in the Planning Scheme. [9] Section 1.2.5 of the Planning Scheme relevantly provides: (3) In addition to the IPA, the Redlands Planning Scheme identifies development that is exempt, self-assessable or assessable. … (6) The tables of assessment for the zones and overlays establish the level of assessment, being exempt, self-assessable or code or impact assessable, as follows – (a) zone tables of assessment for – (i) material change of use of premises; (ii) other development not associated with a material change of use of premises; (b) overlay tables of assessment for – (i) material change of use of premises; (ii) other development not associated with a material change of use of premises. (7) Zone tables of assessment are as follows – … (n) sections 4.14.4 and 4.14.5 – Medium Density Residential Zone; … (9) For zones – (a) a material change of use of premises is impact assessable where – (i) a use is defined in Schedule 3 – Dictionary, Division 1 – Uses and is not listed in column 1 of the zone tables of assessment; or (ii) a use is defined in Schedule 3 – Dictionary, Division 1 – Uses and listed in column 1 of the zone tables of assessment but does not meet the level of assessment qualifications in column 2 of the Zone Tables of Assessment; or (iii) a use is not defined in Schedule 3 – Dictionary, Division 1 – Uses; (my emphasis) [10] Section 4.14.2 of the Planning Scheme relevantly provides: (2) Sections 4.14.4 and 4.14.5 identify the level of assessment for development in the Medium Density Residential Zone, as follows – (a) section 4.14.4 Medium Density Residential Zone – Table of Assessment for Making a Material Change of Use of Premises - (i) column 1 identifies uses that are exempt, self-assessable or assessable; (ii) column 2 identifies the level of assessment for the uses listed in column 1; -- 3 of 13 -- 4 (iii) the use is impact assessable where – it is defined in Schedule 3 – Dictionary, Division 1 – Uses and is not listed in column 1; or it is listed in column 1 and does not comply with the level of assessment qualifications listed in column 2; or it is not defined in Schedule 3 – Dictionary, Division 1 – Uses. (my emphasis) [11] In section 4.14.4, the Medium Density Residential Zone - Table of Assessment for Material Change of Use of Premises includes the following entry: 4.14.4 Medium Density Residential Zone-Table of Assessment for Material Change of Use of Premises Medium Density Residential Zone- Table of Assessment for Material Change of Use of Premises column 1 column 2 column 3 Use Level of Assessment Assessment Criteria Apartment Building Code Assessable If- (1) In sub-area – (a) MDR1; or (b) MDR3; (2) The building height does not exceed that detailed in Table 2 – Maximum Overall Building Height Otherwise- Impact Assessable ƒ Medium Density Residential Zone Code ƒ Apartment Building Code ƒ Access and Parking Code ƒ Development Near Underground Infrastructure Code ƒ Erosion Prevention and Sediment Control Code ƒ Excavation and Fill Code ƒ Infrastructure Works Code ƒ Landscape Code ƒ Stormwater Management Code [12] In section 4.14.8 Specific Outcomes and Probable Solutions applicable to Assessable Development, Table 2 – Maximum Overall Building Height relevantly includes the following entry (which the parties accepted in oral submissions applies to the Land): -- 4 of 13 -- 5 Table 2 – Maximum Overall Building Height Location Maximum Overall Building Height Maximum Height to the Top of the Floor Level of Highest Habitable Room Sub-area MDR1 Cleveland – Refer to Map 2/5 3 Haggup Street, Queen Street, Waterloo Street 19 metres 13 metres (5 storey) Relevant principles [13] By the operation of section 2.1.23 of the Integrated Planning Act 1997 (“IPA”), the Planning Scheme 3 was a statutory instrument under the Statutory Instruments Act 1992 and had the force of law. Accordingly, the approach taken to the interpretation of the Planning Scheme should be generally consistent with the approach taken to the interpretation of any statute. The words of an Act are to be given their ordinary and natural meaning. 4 A court interpreting a statutory provision must try to give meaning to every word of the provision.5 In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [70] it was relevantly observed: “A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.” With respect to the process of interpretation of Planning Schemes in particular I respectfully adopt the words of Wilson SC DCJ as His Honour then was in Luke v Maroochy Shire Council and Watpac Developments [2003] QPEC 005: 3 See the definition of “local planning instrument” in Schedule 10 of IPA. 4 Amalgamated Society of Engineers v Adelaide Steamship Co (1920) 28 CLR 129 at 162. 5 Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at [71]. -- 5 of 13 -- 6 “[44] A Planning Scheme promulgated under IPA has the status of a statutory instrument and must, therefore, be interpreted in a way which best achieves its apparent purpose… [45] In ZW Pty Ltd v Hughes and Partners Pty Ltd (1992) 1Qd. R. 352 it was said that, when interpreting a Planning Scheme, the Court should take a common sense approach; and the particular document should not be read too narrowly but, rather, broadly (rather than pedantically) and in a way which adopts a sensible, practical approach. These statements reflect long-settled principles in relation to the judicial approach to Planning Schemes. In Pacific Seven v City of Sandringham (1982) V. R. 157 at 163 it was said: ‘Planning is a difficult exercise with flexibility as an essential ingredient. Those entrusted with its implementation should bear in mind that neither individual nor community interest is served by recourse to exotic legalism. Whetting the saliva of lawyers with one hand on the guillotine can only frustrate rather than meet the end of justice, and the expressed intention of the legislature in the field of planning. Whatever be the consequence of legal points which fall to be decided, every endeavour should be made to deal with the substance of an application for permission to use or develop land in a certain way with maximum expedition and fairness.” [14] The appellant’s counsel urged a further principle of interpretation that ambiguous provisions in planning instruments should be interpreted in a way which places least burden on the land owner. She referred to authority in support.6 Council did not accept the correctness of that approach to interpretation of a Planning Scheme submitting that there is a community interest as well as an the landowners. I need not resolve this difference to determine this matter. [15] Within the Planning Scheme there are two tables which feature prominently in submissions. The first is the “Medium Density Residential Zone – Table of Assessment for Material Change of Use of Premises” which is within s 4.14.4 of the Planning Scheme and part of which is set out in par [11] above. I will refer to that table as the “Table of Assessment”. The second table is “Table 2 – Maximum Overall Building Height” the relevant part of which is set out in par [12] above. I will refer to that as “Table 2”. [16] At the relevant place in the Table of Assessment it provides that an application for a Material Change of Use for an Apartment Building will be code assessable if “(2) The building height does not exceed that in Table 2 – Maximum Overall Building Height”. 6 Friends of Currumbin Association Inc v Gold Coast City Council & Co-You Australia [2006] QPELR 657 at [33] and Taylor v Pine River Shire Council [2007] QPELR 4 at [46] each being decisions of Robin QC DCJ. -- 6 of 13 -- 7 [17] Section 2.1.1 of the Planning Scheme provides that the dictionary in Schedule 3 defines particular words used in the Redlands Planning Scheme. [18] The words “building height” are defined in Schedule 3 of the Planning Scheme as “the vertical distance from ground level to the highest point of the building and structures.” The same schedule defines “Building” and “Structure” as having the meaning given to the word by the Building Act 1975. In the Building Act 1975 “building” is defined as: “building – 1 A building is a fixed structure that is wholly or partly enclosed by walls or is roofed. 2 The term includes a floating building and any part of a building.” In the same Act “structure” is defined as: “structure includes a wall or fence and anything fixed to or projecting from a building, wall, fence or other structure.” [19] The Acts Interpretation Act 1954 part 8 applies7 as if a reference to an Act included a reference to a statutory instrument, including the Planning Scheme, and relevantly provides: 32A Definitions to be read in context Definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires. 32AA Definitions generally apply to entire Act A definition in or applying to an Act applies to the entire Act. 32C Number In an Act— (a) words in the singular include the plural; and (b) words in the plural include the singular. [20] Accordingly, the definition of “building height” in the Planning Scheme applies “except so far as the context or subject matter otherwise indicates or requires” and applies to the entire Planning Scheme. [21] Appellant’s counsel submitted that the language of the Planning Scheme in its use of “building height” is clear. She submitted, in effect, that the words “building height” in the Table of Assessment in column 2 for the Level of Assessment for the Use, Apartment Building, have the same meaning as the definition of “building height”. Consistent with that submission, the issue would be whether “the vertical distance from ground level to the highest point of the building and structures” does not exceed that detailed in Table 2. The essence of the submission appears to be that one starts with the Table of Assessment it directs the reader to determine a single measurement, “building height”, being “the vertical distance from ground 7 Statutory Instruments Act 1992 s14(1) and schedule1 to that Act -- 7 of 13 -- 8 level to the highest point of the building and structures” and directs the reader to determine whether that single measurement does or “does not exceed that detailed in Table 2 – Maximum Overall Building Height.” Another essential part of the submission appears to be that the measurement to be performed from ground was to “the highest point of the building and structures.” [22] When one returns to Table 28 one sees that the phrase “Table 2 – Maximum Overall Building Height” appears as the title for the table and as the title for one of the three columns in the table. The titles of the three columns are: “Location”, “Maximum Overall Building Height” and “Maximum Height to the Top of the Floor Level of Highest Habitable Room”. Appellant’s counsel submitted that the dimension for determining “level of assessment” is that contained in the middle column of Table 2 under the heading “Maximum Overall Building Height”. [23] Council’s counsel submitted that “Table 2 in s 4.14.8 … requires compliance with the criteria identified in both columns of the table.”9 His reference to “both columns” meant the middle and right columns. While the conclusion about whether the level of assessment is code assessable or impact assessable may depend on whether one must refer to the middle column only or the middle and right columns of Table 2, I do not accept that “Table 2… requires compliance with…the table.” The submission is apt to confuse operation of Table 2 and the process of interpretation. Table 2 requires nothing. It is a table of lengths and storeys to which other parts of the Planning Scheme refer. Section 4.14.2 and s 4.14.4 column 210 prescribe the requirements for identifying the level of assessment in the relevant zone for the Use of Apartment Building. [24] In listing those requirements for identifying the level of assessment s 4.14.4 takes the concept “building height” and requires that “building height” not exceed “that” detailed in Table 2. The concept “building height” as used in s 4.14.4 at the Table of Assessment column 2, if it is intended to have its defined meaning, would sensibly be compared only with the middle column of Table 2 because only the middle column deals with a measurement to a point consistent with the defined meaning. I say “consistent” with the defined meaning because the title of the middle column introduces an unexplained and undefined expression “maximum overall building height”. Nowhere in the Planning Scheme is there a definition of “maximum overall building height”. Both counsel made submissions to the effect that the figures represented in the middle column of Table 2 were figures for “building height” as it is defined. [25] If “building height” in the Table of Assessment at column 2 was intended to mean both “the vertical distance from ground level to the highest point of the building and structures” and the “maximum height to the top of the floor level of the highest habitable room” it would have been appropriate in the Table of Assessment column 2 to have provided that “(2) The building’s heights do not exceed those… in Table 2…” instead of persisting with a defined term and providing that “(2) The building height does not exceed that… in Table 2…”. 8 See [12] above 9 Outline of submissions on behalf of the respondent par 6 10 See [11] above -- 8 of 13 -- 9 [26] Council’s counsel submitted, in effect, that the Acts Interpretation Act 1954 s 32C by providing that words in the singular include the plural overcomes the impression that a single measurement was contemplated by s 4.14.4 column 2. I do not accept that submission. Because “building height” is a defined term, its plural would ordinarily be “buildings’ heights” and would not be either “building’s heights” or “buildings’ height”. If the meaning is to be found by a partial reliance on the Acts Interpretation Act 1954 s 32C so that “building” remains singular but “height” becomes plural so that the combination means “building’s heights” it destroys the meaning which comes from the defined term to substitute something else. That substitution may be what is intended, but that intent is not apparent merely because one can contort one word of a defined concept “building height”, to pluralise height while destroying the concept. That contortion would be “recourse to exotic legalism.” [27] Council’s counsel submitted that “building height” where it appears in Column 2 of the Table of Assessment is not intended to mean “building height” as defined. He submitted that in the Table of Assessment there are four places where “building height” is used in such a way that it cannot have been intended to have the defined meaning. For each of the Uses, Dual Occupancy, Dwelling House, Multiple Dwelling and Small Lot House there is a provision that the Use is Code Assessable if, among other things: “The building height is – (a) 8.5 metres or less above ground level; (b) two storey or less;” He submitted that this shows that “building height” is not consistently used in the Planning Scheme as it is defined. [28] Appellant’s counsel submitted that on those four occasions “building height” was being used as defined. She explained that the definition of “building height”, by referring to a vertical distance, did not specify a distance measured in metres. The distance could be measured in other ways. She submitted it could be measured by storeys. I infer the submission to be that, in each of the four instances referred to above, the provision means “the vertical distance from ground level to the highest point of the building and structures is (a) 8.5 metres or less above ground level; (b) two storey or less”. I reject that submission. I do not regard the undefined dimension of a storey as a measurement of vertical distance. I accept the submission for Council that on those four occasions “building height” was not used as defined in the Planning Scheme. However it does not assist with the interpretation problem. Those four occasions are examples contemplated in the Acts Interpretation Act 1954 s 32A. The definition in the Planning Scheme does not apply in those four instances because “the context or subject matter otherwise indicates or requires”. Unlike those four instances, the wording in the Table of Assessment at Column 211 does not by context or subject matter indicate that the definition of “building height” should not apply. 11 See [11] above -- 9 of 13 -- 10 [29] Council’s counsel submitted that the Table of Assessment, in directing the reader to “Table 2 – Maximum Overall Building Height”, directed the reader to the entire table and not to only the middle column. While the title of Table 2 tends to support that submission I note that the reference in the Table of Assessment to Table 2 leaves to the common sense of the reader a determination of which of the 21 rows are relevant. It may similarly leave to the reader’s common sense whether a column concerned with floor level height is relevant when considering the “building height”. It is common ground that for the Application, Row 3 and the left and middle columns in that row are relevant. The issue is whether the right column in that row is relevant too. [30] Appellant’s counsel submitted that her approach allows for the operation of the definition of “building height”, “building” and “structure”. I accept that to be correct. She further submitted that it does not offend the language in the Table of Assessment as the Table of Assessment does not require consideration of the height of the top of the floor level of the highest habitable room. I accept that the literal words in the Table of Assessment do not require consideration of the height of the top of the floor level of the highest habitable room. Those propositions do assist but only to a limited extent. One must read the words in the Table of Assessment with the words in Table 2 in particular and the words of the Planning Scheme in general to determine whether the words in the Table of Assessment require a reference to the right column of Table 2. [31] Council’s counsel submitted that the words “maximum overall” qualify the words “building height” in the heading of Table 2 because it was intended to direct the reader to more than a column containing “building height” but also to the right column containing “Maximum Height to the Top of the Floor Level of Highest Habitable Room”. The submission implied that the middle column contains the figure for “building height”. He submitted it was unfortunate that the middle column happened, wrongly, to use the words “maximum overall” before the words “building height”. I reject this submission for council. If “maximum overall building height” meant two measurements being “building height” as defined and the “maximum height of the top of the floor level of the highest habitable room” then it was misleading to place a heading on the middle column “maximum overall building height”. The fact that one column is specifically headed “maximum overall building height” tends to suggest that “maximum overall building height” relates only to a measurement represented by the figures in that column and not to figures in that column and a different column. Does the right column of Table 2 have a purpose? [32] If the right column of Table 2 has no purpose other than setting out a second criterion for determining the level of assessment its presence tends to support Council’s interpretation. Appellant’s counsel submitted that her approach does not render the right hand column in Table 2 otiose. Council’s counsel did not dispute that submission. He made no submission about whether the right column of Table 2 in the Planning Scheme would have a function if it was not given the function of creating a criterion for determining whether an application was code assessable. [33] Appellant’s counsel submitted that Table 2 forms part of the Medium Density Residential Zone Code. I accept that it does. Appellant’s counsel submitted that, as part of the Medium Density Residential Zone Code, Table 2’s right column is -- 10 of 13 -- 11 relevant to an assessment of any application for material change of use to Apartment Building in the Medium Density Residential Zone, be it code assessable or impact assessable. By way of example she referred to Probable Solution P2.1 (1) in s 4.14.8 Specific Outcomes and Probable Solutions applicable to Assessable Development. They provide as follows: “Built Form and Density - S2.1 (1) The height of buildings and structures maintain a mid-rise building height; P2.1 (1) Building height is less than the heights detailed in Table 2 - Medium Density Residential Zone -Maximum Overall Building Height”. [34] I have not been required in this dispute to declare or interpret the meaning of S2.1 and P2.1. I note however that the Appellant’s counsel submits that Probable Solution P2.1(1) by referring to the “Building height” being less than the “heights” detailed in Table 2 thereby incorporates reference to the dimensions in all of the columns of Table 2 and not just the middle column. 12 Council’s counsel did not dispute this submission. The fact that S2.1 refers to “The height of buildings and structures” shows that S2.1 is not using the concept of a single building’s “building height” as defined. S2.1 appears to contemplate multiple buildings. Accordingly the solution P2.1 by referring to “heights” in Table 2 is arguably referring to the heights obtained from only the middle column for each of multiple buildings. If P2.1 refers to the right column of Table 2 that reference is not easy to discern from the words of S2.1 (1) and P2.1 (1). The words of S2.1 and P2.1 arguably do not, by themselves, lead to a conclusion that the right column of Table 2 has a purpose related to P2.1. [35] Appellant’s counsel submitted orally that the use in P2.1 of the word “heights” unqualified by the word “building” supported her interpretation. I accept that it is an instance where the Planning Scheme differentiates height from “building height” as defined. I further accept that it is an example which shows that “heights detailed in Table 2” is an instance where “heights” is expressly used in the plural and in this respect is obviously different from column 2 of the Table of Assessment. I accept that the use of the word “heights” is, at least, consistent with Appellant’s counsel’s interpretation. [36] Appellant’s counsel submitted that the right column of Table 2 has a purpose as it is also “called up” by the Apartment Building Code13 and the Multiple Dwelling Code.14 Council’s counsel did not dispute this. However, if the submission is intended to convey that the right column of Table 2 is referred to by the other Codes, the submission is inaccurate. Tables which have contents equivalent to the contents of the right column of Table 2 appear in those Codes. The correct position is that a different table is in the Apartment Building Code and that table appears at page 10 of that Code. It is a table used as one of the Building Design Requirements against which applications are assessed rather than one of the criteria against which 12 Outline of argument on behalf of the appellant Footnote 18 13 See Probable Solution P3(1)(a) and Table 1 – Building Siting and Design Requirements. 14 See Probable Solution P3(1)(a) and Table 1 – Building Siting and Design Requirements. -- 11 of 13 -- 12 the level of assessment is determined. It has a heading “Table 2- Maximum Height to the Top of the Floor Level of Highest Habitable Room”. The table’s content is relevantly like the content of Table 2, except that it omits the middle column of Table 2. Another table is “called up by the Multiple Dwelling Code” and appears on page 10 of the Apartment Building Code. That table in the Multiple Dwelling Code is in all relevant ways identical with the table called up by the Apartment Building Code and is to do with Building Design Requirements rather than the criteria for level of assessment. [37] While I reject as inaccurate the submission that the right column of Table 2 is “called up” by the Apartment Building Code and the Multiple Dwelling Code, the appearance of an equivalent column in the Apartment Building Code and the Multiple Dwelling Code is relevant to the interpretation of the words I found problematic in S2.1 and P2.1 in the Medium Density Residential Zone Code. Under each of the Apartment Building Code and the Multiple Dwelling Code, Probable Solution P3.1 (a) refers to Table 1 which then, for “Floor Height of Highest Habitable Room” imposes a requirement by reference to “Table 2 - Maximum Height to the Top of the Floor Level of Highest Habitable Room”. In those two Codes that column is within the Code as a Building Design Requirement related to the assessment criteria. That function of the column in those two Codes is consistent with the uncontested submission of the Appellant’s counsel that the right hand column of Table 2 has a function and that function is to set out a criterion for the assessment of applications. [38] I note that it is accepted by the Appellant that the building should be assessed for compliance with the equivalent of the right column of Table 2, being a requirement that the maximum height to the top of the floor level of the highest habitable room be “13 metres (5 storey)”. [39] Appellant’s counsel did not make other submissions to justify her interpretation that the right column in Table 2 is relevant to the assessment of any application for an Apartment Building in the Medium Density Residential Zone. There was no apparent need to make such a submission as Council’s counsel did not dispute it and did not make a submission that the right column of Table 2 lacks purpose if Council’s interpretation is rejected. [40] As the right column of Table 2 has a purpose other than the purpose of creating a criterion for the level of assessment one should not ignore the defined meaning of “building height” when interpreting those words in the Table of Assessment and one should not ignore the heading on the middle column of Table 2. On balance, I find that it was not intended to ignore those matters. [41] I find that the Application is code assessable. -- 12 of 13 -- 13 -- 13 of 13 --