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;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Adelaide City Council v Sarris and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] SASCFC 48
Decision Date: 17 April 2015

CaseChat Overview and Summary

The Adelaide City Council (ACC) appealed a decision of the Environment, Resources and Development Court of South Australia (ERD Court) concerning the calculation of building floor area for a residential development. The dispute centred on whether the floor area of a balcony, enclosed by glass panels, should be included in the calculation of the plot ratio, a measure of development density. The ACC argued that the balcony's floor area should be counted, while the respondent, Mrs Sarris, contended it should not.

The central legal issue before the Full Court of the Supreme Court of South Australia was the interpretation of the term "outer walls" as defined in the ACC Development Plan. Specifically, the court had to determine whether glass panels enclosing a balcony constituted an "outer wall" for the purpose of calculating "building floor area" under the Development Plan's definitions. This interpretation was crucial for determining compliance with the plot ratio requirement of 0.8 for the relevant policy area.

The Full Court reasoned that the ERD Court had erred in law by adopting a meaning of "outer walls" that extended beyond its ordinary meaning. The court emphasised that Development Plan terms should be interpreted according to their ordinary meaning to ensure clarity and predictability for those relying on them. It found that the glass panels, which allowed the balcony area to be affected by the elements, did not qualify as "outer walls" in the conventional sense. The court also considered that a broader interpretation would negatively impact the availability of usable outdoor space and potentially undermine privacy provisions within the Development Plan.

Consequently, the Full Court allowed the appeal, setting aside the ERD Court's order. It ordered that Mrs Sarris's appeal to the ERD Court be dismissed, meaning the ACC's original categorisation stood. The court indicated it would hear the parties on the issue of costs for both the ERD Court appeal and the Supreme Court appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 CourtGRAY J: This is an appeal from a decision of a Judge of the Environment, Resources and Development Court of South Australia.

Ratio Decidendi

Legal Principle Established

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