Giardini and City Of South Perth
[2008] WASAT 172
•31 JULY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: GIARDINI and CITY OF SOUTH PERTH [2008] WASAT 172
MEMBER: MR P McNAB (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 31 JULY 2008
FILE NO/S: DR 17 of 2008
BETWEEN: EMIDIO GIARDINI
Applicant
AND
CITY OF SOUTH PERTH
Respondent
Catchwords:
Town planning - Development application - Plot ratio - Plot ratio limitation under Residential Design Codes of Western Australia (2008) - Apartment complex - Balcony - Barrier installation - Wind barrier proposed for balcony - Partitioning of balcony when barrier extended - Wind tunnel effect on balcony ameliorated by barrier - Whether wind barrier affects calculation of plot ratio - Whether balcony open or enclosed by barrier - City acknowledging bona fide purpose of barrier - Plot ratio for building already exceeded - Effect on orderly and proper planning if structure approved - Structure held not to affect plot ratio - Regard to be had to nature, extent and impact of structure - No evidence that barrier exceeded what was reasonably necessary - Balcony was not enclosed by structure - Tribunal limiting decision to particular circumstances of the case - Observations on which set of Residential Design Codes are applicable to review - Words and phrases: "balcony", "open", "enclosed".
Legislation:
City of South Perth Town Planning Scheme No 6
Residential Design Codes of Western Australia (2002)
Residential Design Codes of Western Australia (2008)
Result:
Application for review allowed, conditional approval given to development
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr S McLaughlin
Solicitors:
Applicant: N/A
Respondent: City of South Perth
Case(s) referred to in decision(s):
Aintree Holdings Pty Ltd v City of Wanneroo [2004] WATPAT 3
Bonton Pty Ltd v City of South Perth [1982] WAR 213
Carcione Nominees Pty Ltd v Western Australian Planning Commission (2005) 30 WAR 97
Drake and City of South Perth [2005] WASAT 271
Dubler Group Pty Ltd v Minister for Infrastructure (2004) 137 LGERA 178
Jacobs and City of Subiaco [2007] WASAT 132
McGrath Corp Pty Ltd v Brisbane City Council [2000] QPELR 267
Re Costello and Department of Transport (1979) 2 ALD 934
Robertson v City of Nunawading [1973] VR 819
Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Giardini owned an apartment in South Perth. The apartment had a large balcony which was exposed to strong winds and other weather, strong enough to make it, on occasions, a "wind tunnel". He proposed to erect a wind barrier in the form of moveable glass panels which could be extended to block off the wind. The effect of the barrier, when extended, would be to effectively partition the balcony.
This installation needed planning approval from the City of South Perth.
The City of South Perth generally accepted that there was a problem with severe weather in relation to the balcony, and that the barrier would be acceptable, upon certain conditions, but for a major problem with its effect on the plot ratio applicable to the entire building. The calculation of plot ratio, which is a density control found in the Residential Design Codes of Western Australia (2008), excluded certain balconies if they were not "enclosed".
The City argued that the partition would enclose the balcony and thus affect the plot ratio. Further, the plot ratio for the building already exceeded what was prescribed. Thus, the City argued that any exercise of discretion to approve this particular barrier would offend notions of orderly and proper planning as other applications for the approval of similar barriers would be lodged and could not be resisted by the City. All such approvals would further exacerbate the plot ratio problem for the building.
The Tribunal found that, on their true interpretation, the Residential Design Codes of Western Australia (2008) in their application to the circumstances of the case, did not contemplate inclusion of the balconies in the plot ratio merely because of the installation of a wind barrier. Such an installation did not enclose the balcony. Regard had to be had to such matters as the nature, extent and impact of the structure. In reaching its conclusion, the Tribunal paid close attention to a Queensland case where the court came to the same conclusion in respect of certain weather shutters on a balcony on a building in Brisbane.
However, the Tribunal cautioned that its decision "should not be taken as a green light for owners to willynilly construct or erect structures blocking off parts of their balcony - still less attempting to enclose them with, say, large glass panels". The Tribunal said that the decision "must be read strictly in the context of the particular circumstances of the case".
The review was allowed and conditional planning approval was given by the Tribunal.
Introduction and issues
The applicant, Mr Giardini, resides in Millstream Apartments in South Perth, a multiple dwelling development fully constructed upon Lot Nos 12 - 14) Stone Street, South Perth (subject land). Mr Giardini lives in apartment No 6 in this 26unit development.
Mr Giardini has applied to the respondent (City) for permission to install a device with the capacity to partially enclose his apartment's balcony. He describes the proposal as the installation of a "dividing screen" or "a very minor stackable partition in the middle of [his] balcony to reduce a very real wind control problem". He also describes it as a "wind barrier" or "moveable wind barrier". The City describes the proposal as a "partition" or, more formally, as a "frameless, glass sliding 'stackable' door extending from floor to ceiling … intended to be fixed in place as a permanent addition to the building structure."
Each relevant apartment in the complex has, it appears, a reverse Lshaped balcony with the "sunset deck" (the open part to the front, and the smaller part of the total balcony in area) forming part of the front elevation - that is, generally to the west. The back, internal or side part of the balcony ("around the corner", so to speak and generally to the east) is enclosed by a feature wall structurally supporting and dividing all of the apartments. The roof of the balcony is of course the apartment floor above. Thus, the two frameless stackable panels would, when extended, close off the balcony, or divide it into two parts, bridging - when viewed from the front of the apartment complex - the current gap between the dividing feature wall and the existing corner front glass window panels which are set back on the sunset deck.
The respondent describes the site and the setting of the balcony as follows:
"The development incorporates a portion of a balcony on each floor orientated in a south-easterly direction. A small opening is located at the eastern end with a significantly larger opening at the western end of the balcony. Two large walls running the length of this portion of the balcony are located on the northern and southern side."
From the street, given the composition of the stackable panels and its partial obscuring of them by a glass balcony, it would appear that the visual impact would be fairly negligible. However, if it were to be approved, the City submits, amongst other matters, that the "proposed partition should be moved approximately 1.5 [metres] further east, to the alignment of the forward-most [internal] pier so as to ensure that the proposed partition is not visible from the street".
The applicant submits that the prevailing winds force very strong winds and on occasion driving rain into the balcony area, including the eastern part. A "wind tunnel" effect is suggested. The installation would be designed to both withstand and ameliorate these winds. The City properly concedes that the purpose of the structure is to lessen the impact of these winds.
The City has refused approval for the development essentially for two reasons. The first reason is that if the proposed installation were approved:
"the western end of the balcony would no longer be classified as 'open' [under the relevant planning instruments] and the balcony would no longer be 'open on at least two sides'. Thus the balcony would no longer be exempt from the calculation of plot ratio area based on the definition in the R-Codes. Consequently, approval of the applicant's proposal would cause the total plot ratio area of the building to be increased."
Secondly, the City suggests that it would be contrary to notions of orderly and proper planning for the approval of further applications from other owners that could cause further exceedences of the plot ratio.
The background to this matter
The essential facts and history of the matter (and related matters to do with the building that the development forms part of) are common ground between the parties and may be summarised as follows:
1)According to the City, the subject land:
"(a) is zoned 'Mixed Use Commercial' under [TPS 6];
(b) has a density coding of R80/100;
(c) has an area of 2718 [square metres]; and
(d) has a permissible plot ratio of 3398 [square metres]."
2)On 27 July 2004, the City granted conditional planning approval for 26 multiple dwellings on the site (2004 approval).
3)The 2004 approval permitted a total plot ratio area 98 square metres in excess of the area that the respondent had previously determined as the maximum permissible plot ratio area "based on the methods of calculation used at the time".
4)It was subsequently decided that the respondent's method for calculating plot ratio was "incorrect". Based on the definition of plot ratio set out in the Residential Design Codes of Western Australia (2002) (R-Codes 2002), the 2004 approval "allowed a total plot ratio area 304 [square metres] in excess of the area permitted on the site".
5)In December 2006, the respondent engaged a licensed surveyor to determine the total plot ratio area of the as constructed building. That survey concluded that the building had "a total plot ratio area 66 [square metres] greater than shown on the 2004 approval, resulting in the final development having a plot ratio area 370 [square metres] greater than [that] permitted by the R-Codes".
The recalculation of the plot ratio appears to have arisen because of the Tribunal's decision in Drake and City of South Perth [2005] WASAT 271. That case dealt with representations that a building which had been erected at No 11 Heppingstone Street, South Perth had a plot ratio in excess of 0.66. The Tribunal found that the building had a plot ratio of 0.78. The exceedence of the permitted plot ratio was principally due to three parts of the building. One of these parts was a terrace which was not a "private open balcony" under the then planning framework applicable in the City of South Perth. This case is discussed further, below.
Position of the respondent upon reconsideration
Mr Giardini's original application of November 2007 was refused planning approval in January 2008. In February 2008, the Tribunal invited the City to reconsider its position because of advice that a draft of what eventually became the Residential Design Codes of Western Australia (2008) (RCodes 2008) (see below) might have led to a possible solution. In fact, the draft removed plot ratio altogether: see Planning Bulletin 89 at 5. These proposals did not eventuate, and as appears below the definitions of plot ratio and balconies remained substantially unchanged as between the R-Codes 2002 and the RCodes 2008.
On 26 March 2008, the City resolved as follows:
"[P]ursuant to the provisions of [TPS 6] and the Metropolitan Region Scheme, this application for planning approval for enclosure of a balcony appurtenant to Unit 6 on Lot 9 (No 12) Stone Street, South Perth, be refused for the following reasons:
(i)Non-compliance with the maximum permissible plot ratio allowance prescribed by the Residential Design Codes of Western Australia [as then in force]. The additions will result in the development further exceeding the maximum plot ratio prescribed under the Residential Design Codes of Western Australia for the subject property.
(ii)Approval of the current application would not be consistent with the principles of orderly and proper planning as it would represent support for plot ratio area further exceeding the intended maximum as prescribed by the R-Codes, and could lead to further excess plot ratio area if other apartment owners in the same building are encouraged to submit similar applications."
The Tribunal, after the receipt of the parties' documents and submissions, proceeded to determine the matter on the documents.
The planning framework
Generally speaking, the Tribunal must apply the law in force and the facts found at the time of the making of its de novo decision: see, for example, Re Costello and Department of Transport (1979) 2 ALD 934; Bonton Pty Ltd v City of South Perth [1982] WAR 213 (and subsequent proceedings: (1982) 4 APA 108); Carcione Nominees Pty Ltd v Western Australian Planning Commission (2005) 30 WAR 97; Dubler Group Pty Ltd v Minister for Infrastructure (2004) 137 LGERA 178; Robertson v City of Nunawading [1973] VR 819 (but cf Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 per Barker J).
On 29 April 2008 the new R-Codes 2008 were gazetted as "State Planning Policy 3.1, Residential Design Codes (Variation 1)", varying "State Planning Policy 3.1", as published in the Government Gazette, 4 October 2002 (that is, the R-Codes 2002).
Accordingly, the R-Codes 2008 apply to this review.
In any event (and as has been mentioned above), there is, so far as is relevant, no material difference between the old and new versions of the Rcodes. The R-Codes 2008 provide the following definition of "plot ratio" (emphasis added):
"Plot ratio
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."
The City of South Perth Town Planning Scheme No 6 (TPS 6) provides the following definition of a balcony:
"a platform outside and protruding from or recessed into the main structure of a building with access from an upper floor".
It is common ground that we are dealing in this review with a balcony as defined. It is also, of course, common ground that the proposed installation requires planning approval under TPS 6.
A number of other provisions of TPS 6 are mentioned in the respondent's contentions (see below). It is unnecessary to reproduce them in the Tribunal's reasons.
Draft conditions
As has been mentioned, if the development were to be approved, the City submits that the installation should be set back further from the front. Further, they recommend a condition so that the external materials and colour finish match those of the existing building. A 24month period of validity is proposed with a condition that a building licence should be obtained.
The applicant rejects the proposed conditions (apart from one) as unnecessary. He says:
"The material is clear and frameless [and] in total sympathy with the existing structure.
The suggested alignment of 1.5 metres back to the forward most pier would inhibit the proper opening of the stackable screen. In any case at its most forward position the screen is near invisible from the streetscape …
Consideration should be given that this is not a structural work and hence a building license [sic] should not be required."
The Tribunal will return to the issue of conditions, below.
The respondent's contentions
On the first issue of plot ratio, the respondent contends as follows:
"1.The [2008 R-Codes] define the term 'plot ratio'. In accordance with that definition, a balcony is to be included in the calculation of plot ratio area unless the balcony is 'open on at least two sides'. [See the complete definition reproduced above.]
2.The subject area is properly classified as a 'balcony', based on the following definition of that term contained in [TPS 6]:
'a platform outside and protruding from or recessed into the main structure of a building with access from an upper floor'.
3.The proposed 'wind barrier', in the form of a frameless, glass sliding 'stackable' door extending from floor to ceiling, is intended to be fixed in place as a permanent addition to the building structure. If the proposed 'wind barrier' is installed in the manner proposed, the western end of the balcony would no longer be classified as 'open' and the balcony would no longer be 'open on at least two sides'. Thus the balcony would no longer be exempt from the calculation of plot ratio area based on the definition in the RCodes. Consequently, approval of the applicant's proposal would cause the total plot ratio area of the building to be increased.
4.The Applicant's grounds for seeking the review do not present any sustainable argument which contradicts [these contentions]. The Applicant's submission acknowledges that the proposed wind barrier would create a 'three-sided balcony', meaning that the balcony would only remain open on one side, being the eastern side."
On the second more general issue of the proposal offending notions of orderly and proper planning, the respondent contends as follows (emphasis added):
"1. Under the R-Codes, it appears that the [respondent] is able to exercise discretionary power to approve development which causes the prescribed maximum plot ratio to be exceeded. In relation to Part 2 'Codes Approval Process - Discretionary Approval', the 'Explanatory Guidelines' [in the R-Codes] state that all [of the] Codes['] provisions (with the exception of the site area requirements set out in Table 1) are open to the exercise of discretion [as regards their variation]. However, unlike the situation for other site requirements, the R-Codes do not provide guidance in the form of [any] Performance Criteria as to how [that exercise of] discretion should be exercised when the prescribed maximum plot ratio is exceeded. In the absence of any such guidance, a conservative and cautious approach should be exercised before approval is granted for any proposal involving an excess of plot ratio area.
2.Clause 2.5.2 of the R-Codes sets out a number of considerations to be addressed before deciding whether or not to exercise discretion. The Respondent has addressed these considerations and, in respect of all the listed considerations other than [sub cl] (g) relating to 'orderly and proper planning', the Applicant's proposal is considered satisfactory [subject to certain conditions].
3.Similarly, [cl] 7.5(b) of [TPS 6] lists 'orderly and proper planning' as a matter requiring due and proper consideration when Council is dealing with any application for planning approval. This submission setting out the Respondent's position explains why the Applicant's proposal is considered to be contrary to the interests of 'orderly and proper planning'.
4.In pursuance of orderly and proper planning, the Council needs to adopt a consistent approach to the application of statutory provisions of the Scheme and the R-Codes. Plot ratio is a site control which has been applied in a consistent manner for the past 40 years or longer. While the R-Codes seem to indicate that discretion can be exercised to permit the prescribed plot ratio area to be exceeded, in the interests of orderly and proper planning and consistent decision-making, this discretionary power must be exercised with due caution. Unless a particular proposal is unique and unlikely to lead to other applications for a similar concession, it is not advisable to support a conflict with the maximum prescribed plot ratio.
5.In the present instance, the case for not approving the current application due to the plot ratio conflict, is even more compelling since the existing building already exceeds the prescribed limit by some 370 [square metres]. If the current application were approved, the plot ratio area of the building would be increased by a further 38.5 [square metres].
6.The further excess of plot ratio area which would be brought about by approval of the current proposal, would be exacerbated if the current application were to lead to the submission of other similar applications from other apartment owners in the same building. If the current application were approved, there would be no valid basis for refusing identical proposals submitted by other apartment owners. The end result could be that the permitted plot ratio area of the building would be exceeded by a further 924 [square metres] or thereabouts. Coupled with the existing 370 [square metres] already in excess of the prescribed maximum, the total excess could then be in the order of 1294 [square metres]. Clearly, this outcome would not be in the interests of orderly and proper planning.
7.If the enclosure of the balconies had been shown on the originally submitted drawings, thus requiring inclusion in [the] plot ratio calculations, it would have been necessary to reduce the floor area of the building elsewhere. This would have brought about a significant reduction in building bulk.
8.In light of the significant conflict with the prescribed maximum plot ratio, approval of the current application would represent a distortion of the manner in which plot ratio control is intended to be exercised based upon the definition of this term in the R-Codes. Noting the inconsistency with the manner in which plot ratio area is to be assessed under the R-Codes, if the current application were approved, it would be difficult to justify the refusal of any other similar proposal to 'enclose' a balcony on three sides."
Applicant's arguments in reply
On the first issue, the applicant submits:
"Council's argument that the wind barrier [to be] installed as indicated would no longer enable the balcony to be classed as 'open' can be equally refuted on the grounds that it is not a permanent closure of the area. The Oxford Dictionary defines 'open' as 'not closed or blocked up, allowing entrance or passage or access'. I believe the glass barrier falls within the R-Codes['] definition and intent. On this basis I believe there is a case to exclude the balcony from plot ratio calculations.
I have always maintained that the barrier is intended to be open except when wind becomes a problem. It is no more permanent than a cafe curtain which has multiple fixings, yet the cafe curtain is acceptable to council. It is surely one and the same. A similarity can be drawn to a segmented garage door as compared to a roller door, one has rigid panels the other flexible. In both instances they are both the same by definition and purpose.
There is a determination [by the respondent] to compare the glass screen addition to a wall. A wall is defined in the R-Codes as 'The vertical external face of a constructed building comprising solid building material'. I do not believe the glass screen falls within this description as it is neither an external face nor a wall in its common accepted meaning."
On the second issue, the applicant says:
"The purpose of the plot ratio is to be a form of density and intensity control. This has already been pre-determined at the initial approval of the existing building plans. Any change to the plot ratio on an existing building is not going to change this density control as the planning criteria has already been established and controlled by the planners. My placing a dividing screen to control wind will not affect the density or intensity of the building. Council, through the R-Codes, still has full control of this aspect at the planning and approval stages so the affect of my proposal for an alteration to an existing building would have no bearing on any new development."
Discussion of the relevant principles
In McGrath Corp Pty Ltd v Brisbane City Council [2000] QPELR 267, Chief Judge Wolfe had to consider whether certain sliding shutters enclosed certain balconies for the purposes of calculating plot ratio. Her Honour said, at 270-271 (emphasis added):
"The development control plan
19. The [relevant planning instrument] does not prohibit the erection of shutters or awnings on balconies or terraces, but s 3.3.2(b)(iii) of the control plan does place constraints on the gross floor area of a development in that part of New Farm. It provides that the maximum ratio of new development is 1.0. Plot ratio is the ratio of the gross floor area of buildings on a site to the area of the site. Gross floor area is the sum of the plan areas of all floor levels excluding certain areas. Gross floor area is calculated by excluding the area of outdoor spaces such as balconies and whether or not the balcony is roofed. If the balcony is enclosed it will form part of a gross floor area.
20.It was not in issue that the plans approved under the permit provided for the maximum gross floor area in relation to the site as is permitted under the development control plan, or that the relevant balconies were not brought to account in calculating the gross floor area on the basis that they were not enclosed. Nor was it in issue that there was a distinction between internal rooms and areas with the character of outdoor space such as balconies which project out from the side of a building.
21.Where a blind or an awning is attached but does not enclose a balcony, simply providing some privacy or protection from the weather, the balcony remains an outdoor space. If a blind, awning or shutter encloses the space so as to make it part of an internal room or an internal room, that would contravene that provision of the development control plan, as the gross floor area would exceed the limits imposed by the development control plan.
22.The Oxford Reference English Dictionary defines 'balcony' as 'a usu. balustraded platform on the outside of a building, with access from an upper-floor window or door'. The Macquarie Concise Dictionary defines 'balcony' as 'a balustraded or raised and raised and railed platform projecting from the wall of a building'. The Shorter Oxford English Dictionary defines it as 'a platform projecting from the wall of a house or room, supported by pillars, brackets or consoles, and enclosed by a balustrade'.
23.The Appellant also submitted that definitions of 'enclosed' in those dictionaries supported the developer's contention that the sliding shutters did not enclose the balcony. The meanings given to that word include 'surround with a wall, fence, etc.' and 'shut in on all sides' (Oxford Reference English Dictionary); 'to shut in; close in on all sides' (Macquarie Concise Dictionary); and 'to surround so as to bar ingress or egress (Shorter Oxford English Dictionary). The definitions of 'shutter' suggest a moveable cover or panel device or screen applied to the outside or inside of a window. The meanings of 'room' relevantly included 'a part of a building enclosed by walls or partitions, floor and ceiling' or 'an interior portion of a building divided off by walls or partitions (the Oxford Dictionaries), although the Macquarie gives a slightly broader meaning, 'a portion of a space within a building, separated by walls or partitions from other parts'.
24.The balconies are external to the load bearing walls of the building and so project from the building. Balcony areas are cantilevered and supported by columns.
Whether the shutters enclosed the balconies
25.The shutters which the developer had erected, taken down and proposes to erect are adjustable sliding shutters retractable along a track fitted to the inside of the balcony. McGrath Corp contends that the shutters contemplated allowed the area to retain the character of a balcony having regard to the nature of those shutters and the character of the balconies. The shutters were to be installed behind the railings on the balconies and were not to be installed to replace or to facilitate the removal of the balcony railings which are either of concrete with a handrail on top or plain masonry. The shutters are not load bearing, they are not weatherproof, they are not burglar-proof or insect-proof nor are they security grilles. They are hinged. They are not permanent structures. They are more robust than a canvas screen or a wooden framed, paper-lined free-standing screen. They would provide some protection from the weather and some privacy. However, wind, rain and insects could pass through them. The balconies to which they are to be attached have sloping floors with holes to drain water from the floor. Most of the balconies to which the shutters were to be attached contain other openings, about the size of a large window. The openings were to remain unshuttered and unscreened by the developer.
26.I was persuaded that the proposed shutters would not 'enclose' the balconies even when slid out to their fullest extent. Consequently as they would not 'enclose' the balconies, the gross floor area does not increase by reason of their installation."
See also, Drake and City of South Perth [2005] WASAT 271 at [63] [73] for a related discussion concerning plot ratio and "private open balconies" under the predecessor scheme to TPS 6. At [68], Senior Member Parry observed:
"Neither the term 'private open balcony' nor 'balcony' was defined in the RCodes. The relevant, ordinary meaning of the noun 'balcony' is 'a balustraded or raised and railed platform projecting from the wall of a building' (The Macquarie Dictionary (supra) page 138). The relevant, ordinary meaning of the adjective 'open' is 'not closed, covered, or shut up, as a house, box, drawer, etc' and 'not enclosed as by barriers, as a space' (page 1341). An 'open balcony' is, therefore, an unenclosed raised platform projecting from the wall of a building. As Mr Slarke [of counsel] observed, an assessment of whether floor area of a building is an 'open balcony' necessarily involves questions of fact and degree."
In Jacobs and City of Subiaco [2007] WASAT 132, the Tribunal, after discussing Drake and City of South Perth, observed in passing at [28] that:
"Obscure glazed balcony screens which are necessary for privacy do not generally preclude a balcony from being 'open' on the side of the screen with the consequence that the balcony would be excluded from plot ratio area for the calculation of plot ratio."
See also Aintree Holdings Pty Ltd v City of Wanneroo [2004] WATPAT 3, at [47] - [52], where certain large aluminium screens on balconies were held not to affect plot ratio, the Tribunal applying explanatory advice published by the WAPC.
Application of these principles to the present case
As the respondent's submissions in this case emphasise, this review is about whether the proposed installation would "enclose" the balcony. Thus, the respondent submits that if the current application were to be approved, "it would be difficult to justify the refusal of any other similar proposal to 'enclose' a balcony on three sides". This is the correct approach, for in this context "open" and "not enclosed" mean effectively the same thing.
Thus the question ought to be properly framed as: whether, on a true interpretation the R-Codes 2008, in their application to the case, were intended to encompass the partial, but temporary enclosure to be effected from time to time by the proposed installation, bearing in mind the structure's particular design and purpose. That question must be answered in the context, of course, of the purposes of this particular type of density control which is to limit, by the application of a particular index, the intensity of use of the land.
In my view, the answer to the question thus posed is "No" for the following reasons.
As McGrath Corp Pty Ltd v Brisbane City Council makes clear, careful consideration must be had to the nature, extent and impact of the structure proposed, together with the degree of its permanence, its operation and purpose. A judgment as to the degree to which enclosure might result (whether intended or not) will be important.
Here, the proposed installation is not the same as the shutters considered in McGrath Corp Pty Ltd v Brisbane City Council, but, having said that, the nature of the installation is at least similar in that protection from the weather is a goal. This is achieved here by a moveable device comprising transparent panels. There is no evidence to suggest that what is proposed is in any way more than what is reasonably necessary for the task of weather amelioration.
Further, in my view, the notion of "enclosure" captured from dictionary definitions and applied in McGrath Corp Pty Ltd v Brisbane City Council ("surround with a wall, fence, etc … shut in on all sides … to shut in; close in on all sides"; and "to surround so as to bar ingress or egress") is not reflected in the facts of this case. There is no relevant enclosure, properly understood.
Accordingly, plot ratio is unaffected.
It thus becomes unnecessary to consider the secondary questions of discretion and orderly and proper planning.
It only remains to be added that this decision should not be taken as a green light for owners to willy-nilly construct or erect structures blocking off parts of their balcony - still less attempting to enclose them with, say, large glass panels. The decision must be read strictly in the context of the particular circumstances of the case, including the nature of the problem sought to be addressed; the particular method of addressing it; the design and layout of the installation itself, to be seen in the particular context of a specific balcony design and layout. These matters will necessarily vary widely from case to case.
Conditional approval
The only dispute as to any major condition relates to the requirement that the installation should be set back further from the front ("1.5 [metres] further east, to the alignment of the forward-most pier so as to ensure that the proposed partition is not visible from the street"). The applicant's objections to this course are recorded above. No case of any real substance has been presented by the respondent as to why the setback should be imposed. In particular, the photographic material supplied by the applicant indicates that visibility will not be a problem, and all strata approvals are in place. A condition on matching finishes will ensure that the installation, whether open or closed, will be unlikely to attract attention from the street. If a building licence is required, the City can advise the applicant directly of this matter itself. It is unnecessary to impose such a condition on the approval.
Approval will be given upon conditions consistent with these reasons.
Orders
For the reasons set out above, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision under review is set aside and in lieu thereof there will be a grant of planning approval under TPS 6 for the installation (namely a proposed "glass barrier") as shown on and in accordance with the Westplan drawing A1 dated 31 October 2007, subject to the following conditions:
(a)The external materials and colour finish of the proposed structure shall match those of the existing building;
(b)The approval expires within 24 months unless construction is substantially commenced within this period.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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