McGrath Corporation Pty Ltd v Brisbane City Council
[2000] QPEC 23
•1/04/2000
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: McGrath Co P/L v Brisbane City Council [2000] QPE 023 PARTIES: McGRATH CORPORATION PTY LTD
BRISBANE CITY COUNCIL
FILE NO/S: Originating summons No 4898 of 1999 Appeal No. 620 of 2000 DELIVERED ON: DELIVERED AT: BRISBANE HEARING DATES: 17 FEBRUARY 2000 JUDGE: WOLFE C.J.D.C. ORDER: CATCHWORDS: COUNSEL: Mr. W. Cochrane for the applicant/appellant
Mr. M. Hinson SC and Mr. M. Rackemann for the respondentSOLICITORS:
Under its originating application filed 15 December 1999 McGrath Corporation Pty Ltd sought declarations and orders in respect of a community management statement relating to a proposed community titles scheme over land for which the Brisbane City Council issued a development permit on 20 August 1998 as amended on or about 25 June 1999 and to a town planning consent permit issued by the Council on 20 August 1998 as amended on or about 25 June 1999. Interlocutory orders were later made with respect to that application.
On 16 February 2000 McGrath Corporation filed a notice of appeal against the deemed decision of the Council to refuse to endorse a certificate on the community management statement notation pursuant to s.54(1) of the Body Corporate and Community Management Act 1997. On the appeal McGrath Corporation sought an order that the Council forthwith provide to McGrath Corporation the first community management statement lodged by McGrath Corporation on 1 December 1999 with a community management statement notation by the Council endorsed thereon in accordance with s.54.
These proceedings relate to a block of units or apartments built and substantially completed at Brunswick Street, New Farm. The first community management statement for this development, to be known as the Coolden Community Titles Scheme, was first delivered to the Council on or about 1 November 1999.
The Council’s failure to endorse the notation emanates from McGrath Corporation’s proposal to erect sliding shutters on the balconies of the apartments. At issue is that part of the community management statement prohibiting the erection of blinds or awnings without the body corporate’s consent. The Council asserts these sliding shutters would offend the relevant development control plan and further that the approved building plans did not contemplate these shutters.
Both the originating application and the appeal came on for hearing on 17 February. The right of appeal arises under s.54(5) of the Body Corporate and Community Management Act 1997 as the Council did not endorse the community management statement notation within 40 days of the community management statement being submitted for endorsement. This was the only issue between the parties at the hearing, as counsel for the Council conceded that in the events that had transpired there was no reason why the Council could not seal the plan of subdivision. The parties were then content to have the substantial issue between them decided on the appeal.
McGrath Corporation’s combined application to the Council for rezoning of the New Farm land and the issue of a town planning consent permit in respect of that land was made on 16 May 1997. On 20 August 1998 the Council issued a town planning consent permit in respect of the proposed development identifying the conditions of approval and proposed plans. On 25 June 1999 the Council issued a decision notice approving amendment of conditions 1 and 2 of the town planning consent permit. Condition 1 of the town planning consent permit required that the development be “in accordance with” specified plans. Condition 1 was modified on 25 June 1999 by the substitution of some new plans for previously approved plans. Some of those plans showed fixed shutters or louvres. McGrath Corporation prepared “for construction” drawings and submitted those for approval to the Brisbane Certification Group, a private certifier pursuant to the provisions of the Integrated Planning Act 1997. The Brisbane Certification Group approved the plans on or about 18 December 1998, and certified that the assessed plans complied with the Building Act 1975, the Standard Building Regulation 1993 and the Council’s conditions of approval.
However, none of the approved plans shows shutters, external blinds or awnings in the locations where McGrath Corporation later installed retractable shutters on the inner periphery of balconies on the building. When McGrath Corporation erected these sliding shutters on the balconies, the Council advised it of the Council’s opinion that the installation of sliding folding shutters on the development was contrary to the conditions of the town planning consent permit. McGrath Corporation then removed all of those sliding aluminium shutters from the building.
The community management statement
Schedule B of the community management statement states that the scheme land will be developed by the construction of an apartment building comprising 28 residential apartments, associated car parking and common areas and facilities.
Section 26 of the Body Corporate and Community Management Act provides for the establishment of a community titles scheme (s.11(1)) by registration under the Land Title Act 1994 of a plan of subdivision for identifying the scheme land for the scheme, and by the Registrar of Titles recording the first community management statement for the scheme. In essence, to bring this development within the provisions of the Body Corporate and Community Management Act and for the Registrar of Titles to record the community management statement, firstly, the plan of subdivision had to be sealed pursuant to s.3.7.1 of the Integrated Planning Act and secondly, the community management statement required the Council’s notation. Section 54 of the Body Corporate and Community Management Act 1997 relevantly provides:
“54(1) A community management statement proposed to be recorded for a community titles scheme may be recorded only if the local government for each local government area in which the scheme land is, or is proposed to be located, has endorsed on the statement a certificate (a ‘community management statement notation’).
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(3) A local government may refuse to endorse a community management statement notation on a proposed community management statement only if there is an inconsistency between the provisions of the statement and –
(a) a lawful requirement of, or an approval given by, the local government under the Planning Act; or
(b) if the local government has a planning scheme – the planning scheme, or a lawful requirement of, or an approval given by, the local government under the planning scheme or....”
The example (see s.14D of the Acts Interpretation Act) given for subsection (3) is:
“A local government would be expected to refuse to endorse a proposed community management statement with a community management statement notation if the statement envisages development of part of the scheme land in a way prohibited under the local government’s planning scheme......”
The question for determination then is whether, under s.54(3)(a) or (b), there is an inconsistency between the community management statement and a provision of the approved plans or a provision of the relevant development control plan. The Council asserts that the community management statement submitted, in particular its clause 10(a), was inconsistent with the town planning consent permit, by which the Council gave the approval for the erection of the building and that it also also offends the New Farm and Teneriffe Hill Development Control Plan. The relevant land is within the special development high density zone of that development control plan.
Clause 10(a) of the first statement provided:
“No external blinds or awnings shall be erected without the previous consent from the committee of the body corporate.”
In November 1999 the Council suggested amendments to the community management statement to McGrath Corporation which would have satisfied the Council’s concerns. Council officers indicated that these amendments to the community management statement would lead to the Council’s notation pursuant to s.54(1).
The Council asked that an additional clause 32 be inserted in the following terms:
“Restrictions on enclosure of balconies/terraces.
32. Unless shown as such on the plans approved as part of the Council’s development approval package, balconies or terraces are to remain unenclosed and there are to be no shutters, blinds or similar structures or devices on balconies or terraces.”
It also asked that the words “and any necessary Council’s approval” inserted at the end of clause 10(a).
McGrath Corporation lodged amended statements which included the suggested amendments on two occasions, but on receiving legal advice, again lodged its first community management statement on 1 December 1999, requesting endorsement on the original statement.
The form of the community management statement as lodged for notation is of some importance to the developer. The Council has no power to amend the community management statement although it suggested the notation would be certified if McGrath Corporation made the amendments in the form suggested by the Council. Ultimately McGrath Corporation was not minded to modify the community management statement in the terms suggested by the Council prior to and at the hearing. Purchasers have contracted to purchase lots on the basis of the first community management statement lodged with the Council. This gives rise to s.171 of the Body Corporate and Community Management Act which provides:
“171(1) This section applies if the contract has not been settled and –
(a) the seller becomes aware that information contained in the first statement was inaccurate as at the day the contract was entered into; or
(b) the first statement would not be accurate if now given as a first statement.”
In the circumstances set out in s.171 a buyer may then cancel that contract, and McGrath Corporation was concerned that it was at risk of that occurring. The fact that McGrath Corporation was prepared at one point to make the proposed amendments and then withdrew the amendments is not determinative of the issues between the parties, but merely explains the urgency of the proceedings.
In essence, the Council’s case is that as the approved plans do not show the sliding shutters, they are not part of the development it approved, and in any event they would enclose the balconies so increasing the gross floor area of the building in contravention of the New Farm and Teneriffe Development Control Plan. It said it was then entitled to refuse the notation. Counsel for the Council submitted that offending clause 10(a) of the community management statement which McGrath Corporation lodged with the Council tended to suggest to lot owners that the only consent they would require was that of the committee of the body corporate for them to be at liberty to install such features as blinds, shutters and awnings and this would be inconsistent with the terms of the consent permit and the provisions of the development control plan. It was said the development permit was such as to prevent them from doing so and to the extent that they would thereby enclose a balcony or terrace, that would offend the provisions of the development control plan. It was submitted that the amendments proposed by the Council would ensure that balconies or terraces would remain unenclosed and that there would be no shutters, blinds or similar structures or devices on balconies or terraces unless shown on the plans approved as part of the development approval.
The development control plan
The New Farm and Teneriffe Development Control Plan does not prohibit the erection of shutters or awnings on balconies or terraces, but section 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.
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.
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.
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 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.”
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”.
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
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 Corporation 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 burglarproof or insect-proof nor are they security grills. 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 or unscreened by the developer.
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.
The approved plans
The plans approved under Condition 1 of the permit did show, in some instances, louvres and screens, such as fixed screening around courtyards, some fixed, non-retractable louvres on some balconies as well as other floor to ceiling timber louvres which appear to form part of the external wall. The Council contended that any other fixtures such as external blinds, awnings or shutters infringed the permit. The consent permit approved louvre screens which were self-supporting, impervious to the weather when closed, fixed in position and in some cases capable of structurally supporting power-coated handrails. Most form part of a wall and are quite different from the sliding shutters or screens proposed. The proposed shutters and their tracks are more in the nature of fittings. At the hearing there was some discussion about the character of these items, of their being chattels, fixtures or fittings, of the differences between these shutters, curtains, paper screens and the fixed self-supporting wooden louvres shown in the approved plan. The point did not seem to me a fine one. They appear to me to be in the nature of furnishings affixed to the building, and not part of the structure of the building as are the fixed louvres in the approved plans.
The Council’s proposed clause 32 purports to regulate the use of the building in a way which was not envisaged by the approved plans, and importantly, by the town planning consent permit. The permit was silent on the matter of external blinds, awnings and shutters. On one view, the Council’s insistence on its proposed amendments approaches an attempt to amend the town planning consent permit by failing or refusing to endorse a community management statement which does not prohibit shutters, blinds or similar structures on balconies or terraces other than the fixed, self-supporting timber louvres or screens.
However the fact that the shutters might be classed as fixtures (as would a light globe or a picture hook) by reason of the track being affixed to the inside of the balcony, does not result in a variation of the approved plans or in an alteration to the building in contravention of the permit.
Council consent
The Council preferred that the community management statement be amended to require Council consent as that would direct a person’s mind to the limits of this development and the fact that any variation of the approved plans would be either in contravention of the approval or would require Council approval. It was said that clause 32 and the amendment to clause 10(a) were required to the extent that the present community management statement suggested that the owner of a lot could do those things provided only that the consent of the committee was obtained, and this was inconsistent with the provisions of the approval and in the development control plan. It was said that as a community management statement binds the body corporate and the lot proprietors this would be the preferable way of drawing those matters to their attention. However, I am unable to elicit from the Body Corporate and Community Management Act any requirement that a community management statement should recite, refer to or warn of the limits of all relevant legislative and town planning provisions, consents and approvals. As was submitted by counsel for the appellant any number of activities might require approval by the body corporate and would also require other town planning consent, for example, the conduct of a business from one of the units. I am not persuaded that the community management statement should contain a provision having the effect of admonishing the lot proprietors or the body corporate to obey the law, or in effect stating that the committee of the body corporate might only approve lawful activities. In my view clause 10(a) does not suggest that the committee of the body corporate may approve development prohibited by the development control plan or the permit.
Clause 10(a) of the first statement is not inconsistent with the Council’s planning approval or planning scheme. The Council cannot insist on the amendment to clause 10(a) or on the insertion of clause 32. Without those proposed amendments, the proposed community management statement is not one which is inconsistent with any of the relevant matters referred to in s.54(3)(a) or (b). The Council had no lawful reason for failing to endorse the notation.
The appeal is allowed.
I will hear submissions as to the form of order.
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