Pawmac (No 1) P/L v Corp. of City of Adelaide No ERD-98-1235 Judgment No OE539 [1998] SAERDC 539 (24 December 1998)

Last Updated: 25 January 1999

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Her Honour Judge Trenorden

Hearing

10/12/98 to 16/12/98.

Catchwords

Appeal by applicant against refusal of consent - preliminary question of jurisdiction - whether non-complying - calculation of height and number of storeys - definition of "storey" and "maximum building height" - whether floor area of party walls included in total floor area - application of de minimus principle to prescribed standards in Development Plan - held no jurisdiction.

Materials Considered

• Development Act 1993 , referred to.

Representation

Appellant PAWMAC (NO 1) PTY LTD:
Counsel: MR D JOHNSON (SUBMISSIONS IN WRITING) - Solicitors: JOHNSON LAWYERS

Respondent CORPORATION OF THE CITY OF ADELAIDE:
Counsel: MR S HENRY (SUBMISSIONS IN WRITING) - Solicitors: STUART HENRY

ERD-98-1235

Judgment No. OE539

24 December 1998

[1998] SA ERDC No 1235 of 1998 OE 539

PAWMAC (No 1) PTY LTD

v CORPORATION OF THE CITY OF ADELAIDE

JUDGMENT OF HER HONOUR JUDGE TRENORDEN

1 In this matter I am asked to decide, as a preliminary issue, whether the Court has jurisdiction to entertain the appeal lodged by Pawmac (No 1) Pty Ltd ("the appellant") against the decision of the Corporation of the City of Adelaide ("the Council") made pursuant to the provisions of the Development Act 1993, on 14 September 1998. At issue is whether the proposed development the subject of the application to the Council, was properly classified as a non-complying kind of development. If the classification by the Council was correct, then this Court has no jurisdiction to entertain an appeal against the Council's decision : Development Act Section 35(4). By consent, this matter was heard by way of written submissions, which were received by the Court during the period 10 December 1998 to 16 December 1998. The Court was also provided with a copy of the Council record (application, submissions, reports and decision) in relation to the application and plans.

2 The proposed development is on land comprised and described in Certificate of Title Register Book Volume 1050, Folio 228, with the street address of 282-284 Melbourne Street, North Adelaide. The allotment has a north/south orientation, with a southerly frontage to Melbourne Street and a northerly frontage to Old Street. It is a sloping site with a natural fall of approximately 4.5 metres from the north to the south. The appellant proposes to demolish the existing building and construct a building comprising ten apartments in two wings, separated by courtyards, an elevator and stairway in the centre of the building (and the centre of the subject land), and with basement carparking. The subject land is situated in the R20 Melbourne Street West Precinct in the City of Adelaide Development Plan (12 December 1996). The Statement of Desired Future Character for the Precinct read together with the relevant principles of development control has the effect of classifying development which has a maximum building height of greater than 9.0 metres and more than three storeys, as a non-complying kind of development. In addition, proposed development which has a maximum plot ratio of greater than 1.0, is a non-complying kind of development in the Precinct.

Maximum Building Height

3 "Maximum building height" is given the following meaning in the City of Adelaide Development Plan:

"The maximum vertical distance between the median natural or finished ground level at any point or any part of the building and the ceiling height of the top-most storey."

Should the distance be measured from the median natural ground level or the median finished ground level? It is important to keep in mind the purpose for which a building height limit is prescribed. It is sensible to assume that the height limit is to be measured from the perspective of a viewer of the proposed building, as it is a prescription limiting the mass of the built form. Accordingly the base measurement of the height will vary where a limit is set, depending on whether the natural ground level is lower than the finished ground level of the building. Here, the natural ground level is the lower of the two levels, and therefore the median natural ground level is the base point for measurement of the vertical distance to the ceiling height of the top-most storey.

4 It is my view that the median natural ground level of the site is not the mid point of the site. The Macquarie Dictionary, Second Edition provides a number of meanings to the words "median"; the most relevant being the first meaning as follows:

"denoting or pertaining to a plane dividing something into two equal parts, esp. one dividing an animal into right and left halves."

The median natural ground level would be the median point of the vertical plane of the natural ground level on the site. However, this appears to be too difficult to determine on the subject land and accordingly I find that it is reasonable to take the middle point of the site as the median natural ground level. The building exceeds the maximum building height when measured from natural ground level, even if the median natural ground level is taken to be the middle point of the actual site of each of the wings of the building. On my calculations, assuming a median natural ground level for the Old Street wing of AHD 103.0, the height of the building is 9.05 metres. For the Melbourne Street wing, I have assumed the median natural ground level to be AHD 102.23, and thus the height of the building is 10.05 metres.

5 The building exceeds the maximum building height prescribed for the Precinct.

Number of Storeys

6 The term "storey" is defined in the City of Adelaide Development Plan as follows:

"that portion of a building which is situated between the top of any floor and the top of the floor next above it and if there is no floor above it, that portion between the top of the floor and the ceiling above it. It does not include a floor located more than 1.5 metres below the median natural or finished ground level or the roof-top location of plant and mechanical equipment."

The purpose of a limitation of this nature must be borne in mind. Accordingly, the number of storeys must be calculated having regard to the perspective of the viewer, as the purpose of specifying the maximum number of storeys is to limit the height and therefore the mass of the building. Natural ground level is the benchmark from which it is determined, in this matter, whether the basement constitutes a "storey". The words in the second sentence of the definition of "storey" suggest that a basement which is largely underground and therefore not apparent to the beholder, is not to be counted as a storey. This approach is consistent with the purpose of a storey limitation. Thus, the calculation is to be made with the starting point being the lower of median natural or finished ground level, in any case.

7 Because of the slope of the site, the calculation has to be carried out for both the northern and the southern wings of the building. On my calculation, the basement floor is located more than 1.5 metres below the median natural ground level for the southern wing and I have calculated the same result for the northern wing. Accordingly neither wing exceeds three storeys, nor does the building as a whole exceed three storeys.

Principle of Development Control 16

8 Principle of Development Control 16 would see the proposed development classified as a non-complying kind of development if the building exceeds both the maximum building height and the specified maximum number of storeys. The proposed development does exceed the maximum building height specified in the Desired Future Character Statement for the Precinct, but it does not exceed three storeys which is also expressed to be the maximum building height in the Precinct. Principle of Development Control 16 recognizes that a three storey building may have a height greater than 9.0 metres. As the proposed development does not exceed both criteria, the proposed development is not a non-complying kind of development.

Plot Ratio

9 Principle of Development Control 18 in the appropriate Development Plan, read together with the provisions for the R20 Precinct provides that proposed development which has a maximum plot ratio exceeding 1.0 is a non-complying kind of development.

10 It has been agreed that the area of the site is 1043.61 square metres. The floor area of the building is 1040.83 square metres. It is agreed that if the party walls, and the stairs to the basement carpark are excluded from the calculations, the proposed development would not exceed the specified maximum plot ratio. The respondent has calculated the area of the stairwell to be 7.99 square metres and the floor area occupied by the party walls, 15.72 square metres. The issue is whether the floor area occupied by the party walls and the stairwell is included in the definition of "floor area" contained in the Development Plan. It is evident that if either the party walls or the stairwell are to be included within the definition of floor area, then the proposed development would exceed the maximum plot ratio for the Precinct.

11 Once again it is necessary to consider the purpose of setting a basic and maximum plot ratio. The two are the same in the R20 Precinct. There are no bonus mechanisms in the Precinct. Thus, development which exceeds the expressed (basic and maximum) plot ratio is non-complying. The expression of a maximum plot ratio sets a benchmark for density in the Precinct. Principle of Development Control 18 relates the floor area to the site of any development. "Floor area" must be intended to mean the floor area of a building rather than the combined floor area of the several dwellings or tenancies within the one building on the site. Thus, the density objective of Principle of Development Control 18 is in relation to buildings. My conclusion in this regard is reinforced by the existence of Principle of Development Control 22 which addresses maximum dwelling density. It deals with the number of "self-contained residences which will be permitted on a site". Thus, Principle of Development Control 18 must have been intended to deal with the relationship between a building in its entirety, and the site on which it is built.

12 Upon this conclusion, the floor area occupied by the party walls between dwellings within a building is not exempted from the definition of floor area. I agree that it is arguable as to whether the area of the stairwell leading to the basement carpark should be included in the calculation of floor area, but I do not have to decide this, as the inclusion of the area occupied by the party walls results in the plot ratio of the building exceeding the maximum specified for the R20 Precinct. Thus, the proposed development is a kind of development which is non-complying in the Precinct.

13 It was submitted on behalf of the appellant, that if I reached this conclusion I should apply the de minimus principle and thus conclude that the proposed development does not exceed the maximum plot ratio. I do not find that course open to me. Where a numerical standard is prescribed, and a consequence of proposed development not meeting the standard is that proposed development is non-complying, it is not open to this Court to overlook the failure because it is very small. Once the standard is not met, then the development is non-complying.

Conclusion

14 The proposed development is a non-complying kind of development by reason of its failure to meet the specified maximum plot ratio for the R20 Precinct. It follows, in accordance with Section 35(4) of the Development Act that no appeal lies against the refusal of consent by the relevant authority, namely the respondent Council. The purported appeal is struck out for want of jurisdiction in this Court.