Broadway and City Of Subiaco
[2009] WASAT 40
•6 MARCH 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BROADWAY and CITY OF SUBIACO [2009] WASAT 40
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 6 MARCH 2009
FILE NO/S: DR 520 of 2008
BETWEEN: BARRY BROADWAY
Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning - Preliminary issue - Whether lobbies, bin storage areas and passageways to bin storage areas are included in calculation of plot ratio under local planning scheme - Whether lobbies, bin storage areas and passageways to bin storage areas are 'amenities' - Words and phrases: 'amenities'
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 12(1), cl 12(4), cl 54(1), Sch 1
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.10.3
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Lobbies, bin storage areas and passageways to bin storage areas are not included in the assessment of plot ratio under the City of Subiaco Town Planning Scheme No 4
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr J Thompson (Public Sector Employee)
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This decision concerned a preliminary issue as to whether lobbies, bin storage areas and passageways to bin storage areas in a proposed mixed use office and residential building were included in the calculation of plot ratio under a local planning scheme. The determination of the preliminary issue turned on whether these parts of the building were 'amenities'.
In ascertaining the meaning of 'amenities', the Tribunal had regard to the most apposite dictionary meaning and the context in which the word appeared in the scheme.
The Tribunal determined that lobbies, bin storage areas and ancillary passageways were amenities, and therefore not included in the calculation of plot ratio, because they were facilities of the building that made for a pleasant and comfortable working life, were necessary for the functioning of the building and were common areas of the building.
Introduction
Mr Barry Broadway owns an irregularly‑shaped, 251 square metre property on the corner of Railway Road and Alvan Street, Subiaco, which is known as No 27 Railway Road, Subiaco (site). The site is zoned 'Town Centre' under the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme).
On 16 October 2008, Mr Broadway's architect lodged a development application with the City of Subiaco (City or Council) for approval for the construction of a four‑level mixed use office and residential building on the site. The proposed development includes the following elements:
•at ground floor ‑ common foyer, stairs and lift, passageway from the foyer to a common bin storage area, office, and car park utilising parking lifts;
•at first floor ‑ lobby and common passage leading from the lift and stairway to a kitchen, toilets and shower in the internal part of the building and an office occupying the rest of the floor;
•at second floor ‑ lobby and common passage leading from the lift and stairway to a kitchen, toilets and shower in the internal part of the building and an office occupying the Alvan Street frontage, and part of residential apartment 1; and
•at third floor ‑ lobby providing access from the lift and stairway to two residential apartments that occupy the remainder of the floor.
On 2 December 2008, the Council refused to grant development approval for the construction of the proposed building for five reasons, including the following:
The proposal does not meet the requirements of Clause 54(1) of the City's [TPS 4] relating to plot ratio.
On 29 December 2008, Mr Broadway sought review of the Council's decision by the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA).
At the directions hearing on 23 January 2009, the parties identified a preliminary issue as to whether lobbies, bin storage areas and passageways to bin storage areas are included in the calculation of plot ratio under TPS 4. The Tribunal directed that the preliminary issue is to be determined entirely on the documents in accordance with s 60(2) of the State Administrative Tribunal Act 2004 (WA).
Relevant Scheme provisions
Clause 54(1) of TPS 4 imposes the following standard for development in the Town Centre zone:
Plot Ratio: Buildings are to have a maximum plot ratio of 1.33 except where a mixed-use development comprising residential uses is proposed. In this instance, the maximum plot ratio may be increased to 2 provided that in any development not more than 25% of the excess relevant floor space will be used for non-residential purposes.
Clause 12(1) of TPS 4 states that, unless the context requires otherwise, the words and expressions used in the Scheme have the meanings set out in Sch 1 of TPS 4.
The term 'plot ratio' is defined in Sch 1 of TPS 4 as follows:
Plot ratio: means the ratio of the floor area of a building to the area of land within the boundaries of the lots on which that building is located except for residential development where the term shall have the same meaning given to it in the [Residential Design Codes of Western Australia (2008)].
The term 'floor area of a building' is defined, in the case of a non‑residential building, in Sch 1 of TPS 4 as follows:
The gross total area of each of the floors of the building including the area of car parking spaces in public fee-paying car parks but shall not include the area of private car parks, the areas of lift shafts, stairs, toilets, amenities, plant rooms and the thickness of any external walls. (Emphasis in bold added)
The term 'plot ratio' is defined in the Residential Design Codes of Western Australia (2008) (Codes) as follows:
The ratio of the gross total of all floors of buildings on a site to the area of land in the site boundaries. For this purpose, such areas shall include the area of any walls but not include the areas of any lift shafts, stairs or stair landings common to two or more dwellings, machinery, air conditioning and equipment rooms, non‑habitable space that is wholly below natural ground level, areas used exclusively for the parking of wheeled vehicles at or below natural ground level, lobbies or amenities areas common to more than one dwelling, or balconies or verandahs open on at least two sides. (Emphasis in bold added)
The determination of the preliminary issue turns on the meaning of the terms 'amenities' in the definition of 'floor area of a building' in TPS 4 and 'amenities areas' in the definition of 'plot ratio' in the Codes. These terms are not defined in the Scheme or the Codes. However, cl 12(4) of TPS 4 states that a word or term used in the Scheme, but not defined in the Scheme or the Codes, is to have its normal and common meaning. The most apposite meaning of the noun 'amenities' in The Macquarie Dictionary (Macquarie, Sydney, 4th Edition, 2005) at page 43 is as follows:
features, facilities, or services of a house, estate, district, etc., which make for a comfortable and pleasant life.
Are lobbies, bin storage areas and passageways to bin storage areas included in plot ratio?
The City contended that lobbies are not 'amenities' within the meaning of the definition of 'floor area of a building', in the case of a non‑residential building, under the Scheme. The City's reasoning for this contention was that, whereas the Codes' definition of 'plot ratio' specifically excludes both 'lobbies' and 'amenities areas', the Scheme definition of 'floor area of a building' does not refer to 'lobbies', and relevantly excludes only 'amenities'. The City, therefore, excluded lobbies from its calculation of plot ratio 'on a pro rata basis' for the residential component of the development, but included the proportion of lobbies attributable to the office component of the development.
However, the fact that the Codes' definition of 'plot ratio' distinguishes between 'lobbies' and 'amenities areas' does not mean that lobbies are excluded from the term 'amenities' in the Scheme, as the Scheme and the Codes are different planning instruments.
In relation to the office component of the proposed building, the Tribunal's task is 'to ascertain the legislative intention [of the use of the word 'amenities' in the Scheme definition] by reference to the language of the [Scheme] viewed as a whole': Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 per Mason and Wilson JJ.
As noted earlier, the most apposite meaning of 'amenities' is 'features, facilities, or services of a house, estate, district, etc., which make for a comfortable and pleasant life'. In relation to the office component of a mixed use building, the normal and common meaning of 'amenities' is features, facilities or services of the building which make for a comfortable and pleasant working life.
However, in addition to the normal and common meaning of the word 'amenities', the context in which the word appears is also important in ascertaining the legislative intention. The word 'amenities' appears in the definition of 'floor area of a building' for a non-residential building in the Scheme as part of the phrase 'the areas of lift shafts, stairs, toilets, amenities, [and] plant rooms'. In a non‑residential building, lift shafts, stairs, toilets and plant rooms are typically common areas and are necessary for the functioning of the building.
Having regard to the normal and common meaning of the word 'amenities' and the context in which it appears in the definition of 'floor area of a building' for a non‑residential building in the Scheme, 'amenities' refers to features, facilities or services of a building that make for a comfortable and pleasant working life, are necessary for the functioning of the building and are common areas of the building.
The lobbies proposed for the non‑residential part of the building, and in particular the foyer at the ground floor and the lobbies and common passages at the first and second floors, the bin storage areas, and the passageways to bin storage areas, are each facilities of the building that make for a comfortable and pleasant working life, are necessary for the functioning of the building and are common areas of the building. The lobbies provide occupants and visitors with shelter and facilitate circulation within the building. The bin storage areas and ancillary passageways enable occupants not to have to accumulate large quantities of rubbish in their offices or apartments, thereby avoiding unpleasant smells and the difficulty of transporting large quantities of rubbish in the lift or down the stairs. Each of these areas is, therefore, excluded from the calculation of 'plot ratio' for the non‑residential part of the proposed building under the Scheme.
In relation to the residential part of the proposed development, the City submitted that, as bin storage areas are 'essential facilities' under cl 6.10.3 of the Codes, they should not be considered as 'amenities areas' for the purposes of the definition of 'plot ratio' in the Codes. The City also submitted that, as the term 'amenities areas' is found in the phrase 'lobbies and amenities areas' in the Codes' definition of 'plot ratio', 'the lobbies and amenities areas are intended to be of the same class and … amenities areas is (sic) a useful or desirable communal area such as a communal courtyard or waiting areas similar to a lobby'. The City contended that bin storage areas are not of this nature or class, but rather are an essential and compulsory requirement for both residential and non‑residential development.
The Tribunal considers that bin storage areas and passageways to bin storage areas are clearly 'amenities areas' within the meaning of the definition of 'plot ratio' in the Codes. For the reason set out earlier, bin storage areas and ancillary passageways are facilities of a building which make for a comfortable and pleasant life. The fact that bin storage areas are essential and compulsory requirements for residential and non‑residential developments only strengthens this finding. These facilities are essential and compulsory under planning legislation precisely because they make for a comfortable and pleasant life.
Furthermore, while the Codes' definition of 'plot ratio' links the words 'lobbies' and 'amenities areas', the link is not to limit 'amenities areas' to areas similar to lobbies, but rather to require that they both must be 'common to more than one dwelling'.
The City made two further submissions. First, it argued that its approach in relation to its assessment of the plot ratio of the proposed development is consistent with its approach to mixed use developments since the gazettal of the Scheme in 2001. Second, the City argued that, as plot ratio is a 'tool to measure building bulk, the inclusion of the areas for bin storage and lobbies add to this building bulk'.
However, for reasons discussed earlier, the City's approach is incorrect. Furthermore, while it is true that the inclusion of areas for lobbies, bin storage and ancillary passageways adds to building bulk, this is the case in relation to all exclusions from the assessment of 'plot ratio' under the Scheme and the Codes.
It follows that the lobbies, bin storage areas and passageways to bin storage areas in the proposed development are not included in the calculation of plot ratio under TPS 4.
Conclusion
The Tribunal has determined that the lobbies, bin storage areas and passageways to bin storage areas in the proposed development are not included in the calculation of plot ratio under TPS 4.
These areas are 'amenities' within the meaning of 'floor area of a building' for a non‑residential building under the Scheme, because they are facilities of the building that make for a comfortable and pleasant working life, are necessary for the functioning of the building and are common areas of the building.
In relation to the residential component of the proposed development, the Codes' definition of 'plot ratio' expressly excludes 'lobbies … common to more than one dwelling'. Furthermore, the bin storage areas and passageways to bin storage areas are 'amenities areas common to more than one dwelling' for the purposes of the Codes' definition of 'plot ratio', because they are facilities of the building that make for a comfortable and pleasant life and are common to more than one dwelling.
Order
The Tribunal makes the following order:
The preliminary issue is answered as follows:
The lobbies, bin storage areas and passageways to bin storage areas in the proposed development are not included in the assessment of plot ratio under the City of Subiaco Town Planning Scheme No 4.
I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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