Adelaide City Council v Sarris - [2015] SASCFC 48

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ADELAIDE CITY COUNCIL v SARRIS
[2015] SASCFC 48
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Nicholson)
17 April 2015
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - CONSENTS, APPROVALS AND PERMITS
The two respondents reside in adjoining residences in the suburb of North Adelaide in the local government area of the Corporation of the City of Adelaide. The second respondent applied to the Corporation of the City of Adelaide for development approval for the renovation and extension of his home. Included in this was the construction of a second floor rear facing balcony. The plans for this balcony showed a party wall between the two respondents’ properties on the eastern side, a 1.6 metre high opaque glass privacy screen on the northern side and on western side comprising, in part, roof high timber slats and, for the other part, 1.6 metre opaque glass.
The development is within the North Adelaide Historic (Conservation) Zone and within the Kentish Arms Policy Area. Pursuant to a principle of development control of the Zone, development which exceeds the maximum plot ratio for its Policy Area is non-complying development. The Corporation of the City of Adelaide excluded the balcony from the calculation of the plot ratio and consequently approved the application of the second respondent.
The first respondent, the owner of the adjoining property, applied to the Environment Resources and Development Court of South Australia to review the categorisation of development. The Court below decided in favour of the first respondent. The appellant appeals to this Court.
Held (Per Kourakis CJ, Nicholson J agreeing):
1. Outer walls, for the purposes of the the Adelaide City Council Development Plan, are walls which delineate the interior of a building from on the on land on which it stands. Outer wall is to be given its ordinary meaning.
2. The question asked of this court in characterising the finding of the lower court was on of law as there was no evidence capable of supporting the conclusion of the lower court Judge.
3. The lower court erred in giving the words “outer wall” a wider construction than their ordinary meaning bears.
4. Appeal allowed.
Per Gray J (dissenting):
1. It was open to the Judge to conclude that the contribution that the balcony would make to the appearance of the bulk of the house suggested that the balcony floor area should be counted as part of the total building floor area for the purpose of the calculation of plot ratio.
2. As the Judge’s decision was one that was open on the evidence and was within an area within which the special expertise of the Environment, Resources and Development Court is well known, this Court should be reluctant to interfere.
3. Appeal dismissed.
Development Act 1993 (SA) s 35, s 38, s 86(1), referred to.
Azzopardi v Tasmanian UEB Industries Ltd (1985) 4 NSWLR 139; S v Crimes Compensation Tribunal (1998) 1 VR 83; Hope v Bathurst City Council (1980) 144 CLR 1; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509, applied.
Sarris v The Corporation of the City of Adelaide & Anor [2014] SAERDC 17, discussed.
Ian Turner Partners (NSW) Pty Ltd v Lane Cove Municipal Council (1985) 57 LGRA 224; Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 109; RK & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; Wik Peoples v Queensland (1996) 187 CLR 1; Saraswati v The Queen (1991) 172 CLR 1; Central Northern Adelaide Health Service v Atkinson (1998) 103 SASR 89; Project Blue Sky Inc c Australian Broadcasting Authority (1998) 194 CLR 355; Collector of Customs v Pozzolanic (1993) 43 FCR 280, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Adelaide City Council Development Plan", "Development plan", "outer walls", "balcony", "floor plan"

ADELAIDE CITY COUNCIL v SARRIS
[2015] SASCFC 48
Full Court: Kourakis CJ, Gray and Nicholson JJ
KOURAKIS CJ:
The Issue

This is an appeal against a decision of the Environment Resources and Development Court of South Australia (the ERD Court) made on a review of the categorisation of an application for building development by the Corporation of the City of Adelaide (the Council). The decision of the Council was made on an application by Mr Bunn, the registered proprietor of land at 10 Sussex Street, North Adelaide for development approval for the renovation and extension of his home (the application). The development he proposed was the demolition of an existing structure at the rear of his premises and the construction in its place of a new kitchen/dining area on the ground floor and a bedroom with en-suite and reading area above it. The plans included a balcony, onto which the bedroom would open.
The proper categorisation of the application critically depended on the ratio of the building floor area of the home to the area of the allotment (the plot ratio). The Council decided that the area of the balcony should not be included within the building floor area of the home. The maximum plot ratio allowed for homes in the applicable zone, the Kentish Arms Policy Area 11, of the City of Adelaide Development Plan (the Development Plan) is 0.8. If the plot ratio of a proposed development is less than 0.8, the development is a complying Category 2 development. If the plot ratio exceeds 0.8 the development is a non-complying Category 3 development and the concurrence of the Development Assessment Commission is required for its approval.[1] Moreover if the Council refuses development approval of a non-complying development, the applicant has no right of appeal to the ERD Court.[2]
[1] Development Act 1993 (SA) s 35(3).
[2] Development Act 1993 (SA) s 35(4).
The total area of Mr Bunn’s allotment is 202.253 square metres. The total area of the balcony is 15.236 square metres. Of that area 9.152 square metres is roofed. If the proposed development is undertaken, the building floor area of the dwelling, excluding the balcony, will be 159.1 square metres. If the balcony is excluded the ratio of building floor area to the land (the plot ratio) is 0.787. If the roofed area of the balcony is included the plot ratio is 0.83. If the entire balcony is included the plot ratio is 0.86. The Council excluded the floor area of the balcony entirely for the purposes of calculating the plot ratio and as a result determined that the application was for a complying Category 2 development.
The respondent, Mrs Sarris, is the registered proprietor of, and resides at, 8 Sussex Street. Pursuant to s 86(1)(f)(ii) of the Development Act 1993 (SA) (the Development Act), Mrs Sarris as the owner of adjacent land applied to the ERD Court to review the Council’s categorisation of the development under s 38 of the Development Act.
The ERD Court held that the entire area of the balcony should be included in the calculation of the building floor area. Accordingly the ERD Court held that the application was for a non-complying development and should, therefore, be treated as a Category 3 development. The ERD Court accordingly quashed the development approval granted by the Council and ordered that the Council consider the application on the basis that the proposed development is a non-complying Category 3 development under the Development Act.
The Council appeals against those orders on the ground that the ERD Court wrongly found that the area of the balcony should be included as part of the building floor area of the proposed renovated and extended dwelling. Mrs Sarris appeared before the ERD Court but did not appear on the hearing of the appeal. She informed the Court that she would abide the event save as to costs. Accordingly there was no contradictor of the Council’s position.
For the reasons which follow I would allow the appeal to this Court and affirm the decision of the Council.
Building Elements of the Balcony
The homes of Mrs Sarris and Mr Bunn are on the northern side of Sussex Street. Mrs Sarris’ residence is situated immediately to the east of Mr Bunn’s. The proposed balcony is on the rear of Mr Bunn’s premises and faces north. The balcony is rectangular in shape sitting above a proposed ground floor living/dining room. On the southern side of the balcony will be the wall of a bedroom which extends to ceiling height and has sliding glass doors through which access is gained to the balcony. The wall on the eastern side of Mr Bunn’s home is a party wall which is shared with Mrs Sarris’ home. That party wall will run the entire length of the balcony to roof height. The very northern edge of the balcony will be bounded by opaque glass panels to a height of 1.6 metres, well below the ceiling and roof height of the home. On the western side of the balcony will be a roof-high timber slat wall constructed so as to leave gaps between the timber slats amounting to 25 per cent of the surface area of the wall. The timber slat wall will extend northward from the bedroom wall for the length of the roofed part of the balcony. From that point opaque glass panels at a height of 1.6 metres will complete the western border of the balcony meeting the panelling of the northern wall.
The Development Plan
The ACC Development Plan includes the following definitions:
plot ratio: the ratio between the total building floor area or areas of a building or buildings, and the area of the allotment(s) upon which such building or buildings are or are intended to be erected.
building floor area: the sum of the gross horizontal areas of each and every floor of a building contained within the inner faces of the outer walls measured at a height of 1.5 metres above the floor. It includes the areas occupied by internal walls and columns, party walls between adjoining properties, staircases, lobbies, corridors and toilets, but excludes any area permanently set aside for the parking, manoeuvring, unloading or loading of vehicles together with ramps or other means of access. It also excludes the accommodation of mechanical or electrical plant or equipment servicing the building, lift shafts, vertical service ducts and space devoted to a required pedestrian link as identified in Map Adel/1 (Overlay 2A) or in any Zone or Policy Area.
Principle 4 of the Kentish Arms Policy Area provides that the “bulk and density of development” should satisfy, inter-alia, a plot ratio 0.8.
Principle 31 of the Development Plan provides that private open space should be directly accessible from a living room and may be in the form of a balcony. Principle 32 allows the floor area of a balcony of a prescribed size to be included within the calculation of the prescribed minimum area of open space. Principle 37 of the Development Plan protects the privacy of the “usable private open space” of residences. Principle 37 includes within the definition of private open space “a balcony of minimum dimension of 2 metres connected to a living area”. The “Design Techniques” section of Principle 37 also envisages the use of lattice screens and perforated panels on balconies.
The Reasoning of the ERD Court
The ERD Court held that the floor area of the balcony was contained within the outer walls for the following reasons:[3]
The balcony the subject of the application sits on top of the lower floor, it does not protrude into space. The wall to the east is undisputedly an outer wall. In my opinion, the timber wall to the west is also an outer wall, even though it will be 25% void. It will have a solid appearance. I also consider that the 1.6 metre high opaque glass surround to the north, returning to the west, is an outer wall within the meaning of that term in the definition of “building floor area” in Schedule 1 of the ACC Development Plan. The 1.6 metre high opaque glass surround will look very like a full length wall from the ground. The contribution that the balcony will make to the appearance of bulk of the house suggests to me that the balcony floor area should be counted as part of the total building floor area. I also note that staircases, lobbies, corridors and toilets, which are not living areas, but are adjuncts to living areas, are expressly included in the definition of building floor area. The only exclusions relate to the parking and unloading of vehicles, a pedestrian link only required in specific areas, and mechanical and electrical services. Considering that the role of the calculation of plot ratio in the regulatory regime is a density control, this balcony is properly included in the calculation of building floor area, especially having regard to the manner and degree of its enclosure and its relationship with the balance of the first floor.
Emphasis added
[3] Sarris v The Corporation of the City of Adelaide & Anor [2014] SAERDC 17 at [19].
The Glass Panels are not Outer Walls
The words of the ACC Development Plan definition “contained within … the outer walls” mean that the space which constitutes the building floor must be circumscribed by outer walls. Outer walls are those walls which delineate the interior of a building from the land on which it stands.
The Macquarie Dictionary defines a wall as:
An upright work or structure of stone, brick, or similar material, serving for enclosure, division, support, protection, etc., as one of the upright enclosing sides of a building or a room, or a solid fence of masonry.
An outer wall will commonly have a structural purpose. However for the purposes of the definition of building floor area the characteristic of the outer wall which is important is its delineation of the interior from the exterior of a building. I also observe that the definition is premised on there being a single boundary, or set of walls, which contain the building floor area of a building and separate it from the allotment on which the building stands. An area cannot both be contained, and not contained, within the outer walls.
The most important feature of an “outer wall”, in the ordinary meaning of that term, is the protection it gives its occupants against the weather, noise, odours, trespassers, human or animal, and other nuisances. On floors above ground level, outer walls also prevent occupants and their belongings from falling to the ground. The opaque glass panels do not provide any effective protection against heat, rain or wind. They provide no protection against noise or odours. They do not provide any significant protection against trespassers, over and above the security the balcony enjoys because it is on the first floor. The glass panels do pose a significant safety barrier preventing occupants and objects from falling, but so too would other forms of balustrading which are clearly not walls. Far from performing as outer walls the glass panels would allow the residents to enjoy the outdoor (that is beyond outer walls) experiences of fresh air and sunshine, especially in winter given the balcony’s northern aspect. The balcony allows views to the horizon and to the flora and fauna of the outdoors. The opaque glass panels simply do not perform the functions of outer walls.
The building floor area of a building will usually be contained within outer walls which extend to ceiling height. Speaking generally, an outer wall which does not extend to the roof or ceiling of a building will only imperfectly perform as an outer wall. It is perhaps possible to conceive of a building in which there is an area contained by high walls which do not meet the roof, or walls pervious to the elements, which nonetheless sufficiently protect the area they contain, to perform as outer walls. Few such cases will arise in practice because walls of that kind are unlikely to serve a useful purpose. This is not one of those cases. Having regard to the dimensions of the balcony, the opaque glass northern wall does not provide the protection ordinarily expected of an outer wall.
It follows that the floor area of the balcony is not “contained within outer walls” and is not included in the building floor area for the purposes of the Development Plan. I am also of the view that as a matter of ordinary language the wall of the bedroom is properly described as an outer wall of the proposed building. The ordinary householder would not refer to the northern bedroom wall as an internal wall. The conclusion of the ERD Court implies that the northern wall, including the glass sliding doors of the proposed first floor bedroom, is an internal wall. The northern wall of the bedroom and the glass panels on the northern edge of the balcony cannot both be outer walls because the balcony cannot both be part of the building floor area of the residence and part of the outside space of the building. Faced then with the question which, as a matter of ordinary language, is the outer wall the northern wall of the bedroom or the glass panelling, the answer must be the bedroom wall.
There is also a semantic inconsistency in describing the balustrade of a balcony as an outer wall of the building on which the balcony is placed. The Macquarie Dictionary defines a balcony to be “a balustraded or raised and railed platform projecting from the wall of a building”. It follows that if the opaque glass panels are an outer wall of the building, the space they contain is not properly described as a balcony because it does not “project from” the wall of a building.
There is very little to be gained from authorities which have decided a similar question but on the terms of different development instruments. For example in Ian Turner Partners (NSW) Pty Ltd v Lane Cove Municipal Council[4] the relevant definition did not speak of an area contained within outer walls.
[4] (1985) 57 LGRA 224.
In Haralambis Management Pty Ltd v Council of the City of Sydney[5] balconies were included within the gross floor area of the relevant development. In that case full height aluminium framed glass louvers were found to be external walls because they “relate to the outside and form the outer part of the building”. The fact that the louvers were full height louver walls is of course important in terms of the functions of an outer wall to which I earlier referred. Moreover, the relevant planning document in that case expressly excluded “terraces and balconies with outer walls less than 1.4 metres high”. That exclusion, by implication included, or at least contemplated the inclusion, within the gross floor area of a building, balconies with outer walls greater than 1.4 metres in height.
[5] [2013] NSWLEC 1009.
Error of Law or Fact
Section 30(2) of the Environment Resources and Development Court Act 1993 (SA) provides:
30—Right of appeal
…
(2) An appeal lies as of right on a question of law and with permission on a question of fact (but this principle may be displaced or modified by the provisions of the relevant Act under which the jurisdiction is conferred).
If the error of the ERD Court in including the floor area of the balcony is one of fact, permission to appeal is required.
It is an error of law to make a finding of fact when there is no evidence to support it. However it is not an error of law to make an unreasonable finding of empirical fact.[6]
[6] Azzopardi v Tasmanian UEB Industries Ltd (1985) 4 NSWLR 139 at 154-157 per Glass AJ with whom Samuel JA agreed; cf Kirby P at 151.
A long line of authority supports the proposition that the question whether material facts, fully found, come within a statutory enactment is a question of law.[7] However that statement is subject to an important qualification. In Hope v Bathurst City Council[8] the High Court held that the ordinary meaning of the words of a statute is a question of fact even though the proper construction of the text of a statute as to whether the words carry their ordinary meaning or a technical legal meaning is a question of law.[9] In Collector of Customs v Agfa-Gavaert Ltd[10] the High Court held that the question whether an “Act uses (an) expression in any other sense that which they have in ordinary speech” is always a question of law.
[7] S v Crimes Compensation Tribunal (1998) 1 VR 83 at 87 per Phillips JA.
[8] (1980) 144 CLR 1. See above when the words of the statute have their ordinary meaning: S v Crimes Compensation Tribunal at p88.
[9] Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8. It is in some respects disconcerting to think of the precise meaning of a word of a statutory command as a question of fact. If there were no shades of meaning, and the denotation of the words used not susceptible to variation depending on the context, the proposition would cause no difficulty. However, it is not uncommon for contextual considerations to affect the precise denotation of a word. It is difficult to see how the construction of a word in one statutory provision by reference to the remainder of the statute and in accordance with the command in s 22 of the Acts Interpretation Act 1915 (SA) to prefer a construction of a provision which promotes the purpose of an Act can be characterised as a question of fact. The resolution of this apparent contradiction is to regard the process of purposive construction as yielding a special technical meaning. See Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395-398; RK & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; Wik Peoples v Queensland (1996) 187 CLR 1 at 171; Saraswati v The Queen (1991) 172 CLR 1 at 21; Central Northern Adelaide Health Service v Atkinson (2008) 103 SASR 89 at [83] and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-2.
[10] (1995-1996) 186 CLR 389 at 397.

If there is room for reasonable disagreement as to whether facts, for which there is evidence, fall within the ordinary meaning of the words of a statutory provision, the selection of one reasonable conclusion over another is a question of fact. However, whether or not more than one answer is reasonably open is a question of law.
In Blue-Metal Quarries Ltd v Federal Commissioner of Taxation[11] Kitto J explained:
The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the appellant’s operations fall within the ordinary meaning of the words as so determined; and that is a question of law [see cases cited by Starke J in Broken Hill South case, (1941) 65 CLR 150 at 155]: see also per Isaacs and Rich JJ in Australian Slate Quarries Ltd v Federal Commissioner of Taxation (1923) 33 CLR 416 at p 419. If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact: see per Williams J in the Broken Hill South Case (1941) 65 CLR 150 at p 160.
[11] (1956) 94 CLR 509 at 512. See also S v Crime Compensation Tribunal at 90-91. See also Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.
It follows that whether or not facts fully found fall within a statutory provision or not is a question of law only when the statutory provisions has a technical legal meaning or when the answer admits of only one reasonable conclusion.
In my view the words “outer walls” carry their ordinary meaning in the Development Plan. There is no dispute in this case as to the primary findings of fact as to the nature and form of the construction of the house and balcony. Whether or not the opaque glass panels are “outer walls” is a question of fact if the primary facts are reasonably capable of yielding that conclusion. However, in my view, they are not. There is only one reasonable answer to the enquiry whether they are outer walls in the ordinary meaning of those words and that is that they are not. I hasten to add that the contrary conclusion of the ERD Court did not proceed from an unreasonable finding of fact. The ERD Court reached its conclusion by giving the words “outer walls” a technical meaning. So much is clear from the underlined passages in the paragraph of the ERD Court’s reasons which I have set out in [12] above. The ERD Court has construed the words “outer walls” more widely than their ordinary meaning by reference to what are said to be the purposes of the Development Plan. In doing so it made an error of law for the following reasons.
First, it is important that the terms of a Development Plan be given their ordinary meaning wherever it is open to do so. Everyday homeowners, businesses, developers, architects, town planners, and council officers make many decisions based on the application of Development Plans. They should be able to do so with reasonable confidence on their reading of the text of Development Plans without concern for the extent to which a court may restrict or expand the ordinary meaning of the words of the Development Plan by reference to its view of the planning policy merits of a wider or narrower meaning. Secondly, the departure from the ordinary meaning of the words “outer walls” in this case is substantial. It strains considerably the ordinary meaning of those words. Thirdly, the considerations on which the ERD Court relied to give a more expensive meaning to the words are not strong. Even though Principle 4 of the Kentish Arms Policy Area 11 refers to the “bulk and density of development” it provides a mathematical formula for calculating an acceptable “bulk and density”. There is no obvious basis for adding to that formula what, ultimately, is a much less objective criterion based on the appearance of the building. The same observation can be made as to the “density” of the development insofar as that refers to the intensity of human occupation. It is precisely because the glass panels are not outer walls within the ordinary meaning of those words, in that they allow the area of the balcony to be affected by the elements, that the balcony will not result in any greater intensity of occupation than that which the other areas of the home allow. Fourthly, there are policy considerations which go the other way. The construction of the ERD Court would in effect result in homes of this kind in the inner city zones of the Development Plan being constructed with less useable outdoor space. Mr Bunn’s home would comply with the building plot ratio if glass opaque panels were not placed on the northern edge of the balcony and no doors provided to the upstairs bedroom but valuable outdoor space would be lost. Alternatively the decision may lead to the council reducing the requirements for screening, and, thereby, the privacy of neighbours. Fifthly, Principles 31, 32, and 37 of the Development Plan treat balconies as providing private open space.
Conclusion
The ERD Court erred in law in giving the words “outer walls” a wider construction than their ordinary meaning bears. The glass panels on the northern edge of the balcony are not an outer wall. I would allow the appeal against the decision of the ERD Court. I would set aside its order allowing the appeal against the categorisation of the Council. I would order instead that the appeal to the Council brought by Mrs Sarris be dismissed. I would hear the parties as to the costs of the appeal to the ERD Court and to this Court
GRAY J:
This is an appeal from a decision of a Judge of the Environment, Resources and Development Court of South Australia.
The Judge heard an application pursuant to section 86(1)(f)(ii) of the Development Act 1993 (SA) for a review of the decision of the appellant, Adelaide City Council, to process an application for Adelaide (City) Development Plan consent made by the second respondent, Christopher Bunn, as a Category 2 development. The property the subject of the application was 10 Sussex Street, North Adelaide, South Australia. Mr Bunn proposed to demolish an existing rear addition and to construct a two storey dwelling with a balcony. 10 Sussex Street is a semi-detached dwelling which shares a party wall with 8 Sussex Street. The first respondent, Theadora Sarris, the registered proprietor of land at 8 Sussex Street, contended that the application should have been processed as a non-complying form of development and a Category 3 development.
The Judge allowed the application. The Judge determined that the proposed development was a non-complying development. As a consequence, by order dated 19 June 2014, the Judge quashed the development plan consent granted by the Council. The Judge directed that further consideration of the development application be undertaken by Adelaide City Council on the basis that the development applied for was a non-complying development and, as a consequence, a Category 3 development under the Development Act.
At the hearing before the Judge, the Council was legally represented, as were Ms Sarris and Mr Bunn. On the appeal, the Council was legally represented but neither Ms Sarris nor Mr Bunn appeared or were represented.
The parties submitted an agreed statement of facts. That statement relevantly provided that the development plan for the City of Adelaide was the consolidation dated 18 July 2013. 10 Sussex Street is located within the North Adelaide Historic (Conservation) Zone and within Kentish Arms Policy Area 11.
Pursuant to principal of development control 25(b) of the Zone, development which exceeds the maximum plot ratio for its Policy Area is non-complying development. The maximum plot ratio in the Kentish Arms Policy Area 11 is 0.8, pursuant to principal of development control 4 of the Policy Area.
On 24 September 2013, as set out above, Mr Bunn lodged an application to demolish an existing rear addition and to construct a two storey dwelling addition at 10 Sussex Street. Janaki Benson, an officer of the Council, prepared a report and recommendation on the application for the Development Assessment Panel. In her report, Ms Benson noted that the Council’s calculation of plot ratio was less than 0.8 by reference to a site area of 201.71 square metres, which Ms Benson noted was a “conservative number provided by the applicant”. The proposed development, excluding the balcony, was 159.1 square metres.
At the meeting of the Development Assessment Panel on 2 December 2013, the Council determined that no area of the balcony should be included in the calculation of plot ratio. On this basis the Council was satisfied that the plot ratio of the proposed development did not exceed 0.8, and consequently, processed the development as a Category 2 and as a merit development.
On the application to the Judge, the parties agreed that the 10 Sussex Street allotment had an area of 202.253 square metres. It was also agreed that the proposed balcony was 15.236 square metres and the roofed area of the balcony was 9.152 square metres. It was agreed that, provided the balcony was excluded from the calculation, then the plot ratio of the proposed development was less than 0.8, being 0.787.
Before the Judge, counsel for Ms Sarris submitted that the “building floor area”, as that term is defined in Schedule 1 of the relevant Development Plan, included the area of the balcony. The parties agreed that if the roofed area of the balcony was included in the calculation of the building floor area then the plot ratio would exceed 0.83, and if the entire balcony was included in the calculation, the plot ratio would exceed 0.86. However, counsel for the Council and Mr Bunn contended that the definition of building floor area did not include any part of the balcony.
The Judge drew on the terms of the Development Plan as it related to the application:
In very general terms, the designation of certain kinds of proposed development as non-complying in the Development Plan by reference to a maximum plot ratio is a density or site coverage control. In order to obtain approval, non-complying development must go through additional steps under the Act, including the obtaining of approval from two planning authorities.
The Adelaide (City) Development Plan consolidated on 18 July 2013 (“the ACC Development Plan”) applies to the application. The ACC Development Plan provides definitions in Schedule 1, including the following:
plot ratio: the ratio between the total building floor area or areas of a building or buildings, and the area of the allotment(s) upon which such building or buildings are or are intended to be erected.
building floor area: the sum of the gross horizontal areas of each and every floor of a building contained within the inner faces of the outer walls measured at a height of 1.5 metres above the floor. It includes the areas occupied by internal walls and columns, party walls between adjoining properties, staircases, lobbies, corridors and toilets, but excludes any area permanently set aside for the parking, manoeuvring, unloading or loading of vehicles together with ramps or other means of access. It also excludes the accommodation of mechanical or electrical plant or equipment servicing the building, lift shafts, vertical service ducts and space devoted to a required pedestrian link as identified in Map Adel/1 (Overlay 2A) or in any Zone or Policy Area.
The Judge then identified the central issue in the application as follows:
The central issue in this matter is how the balcony should be considered in the calculation of plot ratio. The balcony is rectangular and sits above the ground floor living/dining room. The wall on the eastern side of the property the subject of the application, which is the party wall with Ms Sarris’ property, is to run for the entire length of the balcony to the height of the adjacent roof. The elevation plans show that the northern side of the balcony is to be opaque glass panels to 1.6m high, so that the northern side of the balcony will not be fully enclosed to ceiling height. The west side of the balcony will be timber slats from the wall of the bedroom to the edge of the roofed part of the balcony, to ceiling height, and then opaque glass panels to 1.6m high, to the corner of the balcony. There are to be gaps between the timber slats so that 25% of the area will be open space. The southern side of the balcony consists of a wall to ceiling height with sliding glass doors which lead into a bedroom.
Having reviewed counsel’s submissions and canvassed authorities from other jurisdictions, the Judge observed:
The Development Plan acknowledges that there are many different types of balconies. The question of whether the floor area of any particular balcony must be included as part of the “building floor area” for the purpose of calculating the plot ratio under the ACC Development Plan should be decided on a case by case basis, depending upon the physical attributes of the balcony. It is a question of fact and degree. The floor area of a Juliet balcony, which is surrounded on three sides by a low, highly permeable balustrade of iron upright members, and which protrudes a very short distance from the wall of a building into space, would not be included. The balustrade of a Juliet balcony could not be described as an “outer wall”.
The balcony the subject of the application sits on top of the lower floor, it does not protrude into space. The wall to the east is undisputedly an outer wall. In my opinion, the timber wall to the west is also an outer wall, even though it will be 25% void. It will have a solid appearance. I also consider that the 1.6 metre high opaque glass surround to the north, returning to the west, is an outer wall within the meaning of that term in the definition of “building floor area” in Schedule 1 of the ACC Development Plan. The 1.6 metre high opaque glass surround will look very like a full length wall from the ground. The contribution that the balcony will make to the appearance of bulk of the house suggests to me that the balcony floor area should be counted as part of the total building floor area. I also note that staircases, lobbies, corridors and toilets, which are not living areas, but are adjuncts to living areas, are expressly included in the definition of building floor area. The only exclusions relate to the parking and unloading of vehicles, a pedestrian link only required in specific areas, and mechanical and electrical services. Considering that the role of the calculation of plot ratio in the regulatory regime is a density control, this balcony is properly included in the calculation of building floor area, especially having regard to the manner and degree of its enclosure and its relationship with the balance of the first floor.
[Emphasis added.]
As a consequence, the Judge reached the following ultimate conclusion:
The floor area of the whole balcony should have been included in the calculation of the building floor area, and therefore in the calculation of the plot ratio, which is then 0.86. Consequently, the proposed development is non-complying pursuant to Zone PDC 25(b) and Policy Area PDC 4. It follows that it is a Category 3 kind of development.
The Appeal
The primary submission on the appeal was that the Judge erred in concluding that:
Considering that the role of the calculation of plot ratio in the regulatory regime is a density control, this balcony is properly included in the calculation of building floor area, especially having regard to the manner and degree of its enclosure and its relationship with the balance of the first floor.
The appellant submitted that neither the northern glass balustrade privacy screen, nor the timber slat part of the western wall, would be regarded as a wall within its ordinary definition, and as a consequence, the balcony area should be regarded as an external space rather than an indoor room. It was further submitted that the Judge erred insofar as her Honour:
-     Failed to take into account the purpose of the privacy screen. That is the purpose of the screen was not enclosure or support but to restrict overlooking potential. The purpose of the screen was a relevant matter;
-     Took into account its relationship with the living area and the fact that it could be accessed from the living area (which would be the case with any usable balcony);
-     Answered the question by reference to what [her Honour] considered to be the contribution that the balcony would make to the bulk of the house, especially given that a bulky balcony could be completely open, and that bulky and non-bulky balconies are likely to require similar privacy treatments;
-     Failed to recognise that the purpose of “plot ratio” included issues such as density which include the intensity of use and the availability of private open spaces.
In my view, insofar as it was contended that the Judge had made an error of law, or mixed fact and law, in her approach to the meaning of plot ratio, the contention is without substance. The Judge’s reasons in the paragraphs extracted above demonstrate that she properly identified the meaning of the words plot ratio.
I would dismiss the appeal. The Judge’s decision was one that was open on the evidence and further, in my view, within an area within which the special expertise of the Environment, Resources and Development Court is well known and in which this Court is reluctant to interfere. I consider that the decision reached by the Judge was entirely reasonable. The effect of the Judge’s reasons was to resolve the question of fact and degree. It was open to the Judge to conclude that the contribution that the balcony would make to the appearance of the bulk of the house suggested that the balcony floor area should be counted as part of the total building floor area. It was open to the Judge to consider the role of density control in the calculation of plot ratio and to conclude, particularly, that the degree of enclosure of the balcony and the balcony’s relationship to the balance of the first floor were significant considerations.
An oral application for permission to appeal, insofar as there was any error of fact, was advanced at the hearing. No notice was given to the other parties, and in particular Ms Sarris. In my view, this oral application should not be considered without proper notice being given so that the parties have the opportunity to be heard.
Conclusion
I would dismiss the appeal and insofar as permission to appeal has been sought I would refuse that application
NICHOLSON J:
I agree with the orders proposed by Kourakis CJ and with his Honour’s reasons.