50 Emu Drive Pty Ltd v ACT Planning and Land Authority (Administrative Review)
[2018] ACAT 46
•14 December 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
50 EMU DRIVE PTY LTD v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2018] ACAT 46
AT 48/2017
Catchwords: ADMINISTRATIVE REVIEW – land and planning – construction of a single storey building containing a restaurant and take-away food shop and associated car parking, landscaping, paving and other site works – whether the development is consistent with the Crown Lease – whether the proposed development is consistent with the requirements of the Belconnen Precinct Map and Code? – whether an area masterplan can be used in an assessment of the proposed development
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Planning and Development Act 2007 ss 48, 50, 53, 55, 113, 119, 120, 407
Cases cited: Morozow v ACT Planning and Land Authority [2017] ACAT 79
Tribunal: Senior Member G Lunney SC (Presiding)
Senior Member R Pegrum
Date of Orders: 14 December 2017
Date of Reasons for Decision: 20 April 2018IN THE AUSTRALIAN CAPITAL TERRITORY
CIVIL AND ADMINISTRATIVE TRIBUNALAT 48/2017
50 Emu Drive Pty Ltd Applicant and
ACT Planning and Land Authority Respondent
Tribunal: Senior Member G Lunney SC
Senior Member R PegrumDate of Order: 14 December 2017 ORDER
1.The decision of the respondent made 3 August 2017 is set aside.
2.The Development Application number 201630298 lodged with the respondent on 11 October 2016 is approved subject the following conditions:
A. ADMINISTRATIVE / PROCESS CONDITIONS
A1. APPROVAL NOT TO TAKE EFFECT
This approval does not take effect and no works must commence on the site until:
(i) the applicant/lessee has sought written approval/re-endorsement in respect of design acceptance for the proposed development from Transport Canberra and City Services (TCCS), ACTEWAGL Electricity Networks Division, ICON Water and JEMENA; and
(ii) an application has been made for amendment of the purposes clause in the Crown Lease over Block 83 Section 65 Belconnen to authorise the development by the applicant in accordance with the present conditional approval and has also been approved by the Planning and Land Authority and the relevant Instrument of Variation is registered at Access Canberra (Land Titles and Rental Bonds).a new development application to vary the purpose clause of the Crown lease over Block 83 Section 65 Belconnen to add the words "take away food" after the words "shop LIMITED to the sale of" in clause 3 (e)(v) of the Crown Lease is submitted by the applicant and approved by the planning and land authority, and the relevant Instrument of Variation is registered at Access Canberra (Land Titles and Rental Bonds).
A2. FURTHER INFORMATION
Within 28 days from the date of this decision, or within such further time as may be approved in writing by the planning and land authority, the applicant shall lodge with the authority revised site plan, landscape plans, architectural and Civil drawings, based on the relevant drawings appearing at ATTACHMENT A submitted as part of the Tribunal proceedings in relation to AT48/2017, including a plan showing the height of the proposed pylon sign not exceeding 6.550 metres above the natural ground level.
A3. LOADING/UNLOADING
Subject to TCCS approval, all vehicle movements into and out of Block 83 Section 65 Belconnen for loading waste and unloading supplies must only occur between Monday to Sunday only in the following times:
(iii) 12:00am (midnight) and 8:00am; and
(iv) 9:15am and 10:15am
A4. VERGE CROSSINGS
The proposed verge crossings must be designed and constructed in accordance with TCCS Design Standards. The pedestrian footpath must take precedence over verge crossings and be constructed in accordance with TCCS requirements.
A5. WASTE
All waste must be stored, transferred and collected on-site in accordance with TCCS requirements.
A6. VENTILATION SYSTEMS
All exhaust and ventilation systems must be installed and operated to comply with Australian Standard AS1668.1 - The Use of Ventilation and Air-conditioning in Buildings.
A7. EXTERNAL LIGHTING
All external lighting provided must be in accordance with Australian Standard AS4282 - Control of the Obtrusive Effects of Outdoor Lighting.
B. PRIOR TO CONSTRUCTION AND/OR DEMOLITION
B1. OFF-SITE WORKS
The lessee must design and construct the following off-site works associated with this approval which are to become the assets of the Territory. These works must be undertaken in accordance with plans and specifications prepared by the lessee and previously submitted to and approved in writing by the Territory. Such approval must be obtained prior to the commencement of any work on the site and must meet the requirements of all relevant entities, particularly TCCS. All works must be undertaken by the lessee at its own cost to the satisfaction of the Territory.
Off-site works must be undertaken in accordance with the Territory and relevant Authority approvals and includes (but not limited to) the following.
(a) The modification of the centre median strip on Emu Bank in the vicinity of Soundy Close, to (a) prevent traffic exiting the southern access for Soundy Close to turn right onto Emu Bank, and (b) allowing traffic going north on Emu Bank to turn right into the western access point for the subject site.
The applicant must provide a full traffic function layout design and civil design, to the satisfaction of TCCS, to detail the layout of the western access point for the subject site, including addressing relevant design standards regarding signage, line marking, street lighting and drainage.
(b) A new pedestrian path along the northern boundary of the subject site to link existing paths to the east and west of the site.
B2. ENVIRONMENT PROTECTION
Construction and development works must be in accordance with the Environment Protection Guidelines for Construction and Land Development, March 2011.
B3. TREE PROTECTION
Tree protection fencing must be erected prior to the commencement of any work on the site.
B4. DESIGN REVIEW
Prior to the commencement of any work on the site, the applicant/lessee must obtain a Letter of Design Review for all off-site works from the Senior Manager, Development Review and Coordination, TCCS.
B5. TEMPORARY TRAFFIC MANAGEMENT (TTM)
Prior to the commencement of any work on the site, approval must be obtained for a TTM Plan from the Manager, Traffic Management & Safety, Roads ACT, TCCS. At all times during construction the site and surrounds shall be managed in accordance with a TTM Plan, prepared by a suitably qualified person and approved by the Manager, Traffic Management & Safety. This plan is to address, as a minimum, measures to be employed during construction to manage all traffic, including construction traffic, in and around the site, provision of safe pedestrian movement around the site, the provision of parking for construction workers, and associated traffic control devices.
B6. LANDSCAPE MANAGEMENT & PROTECTION PLAN (LMPP)
Prior to the commencement of any work on the site, approval must be obtained for a LMPP from the Senior Manager, Development Review and Coordination, TCCS. This plan is to be implemented before the commencement of works, including demolition on the site and is to be in accordance with TCCS Guidelines for the Protection of Public Landscape Assets Adjacent to Development Works-REF-04. All fencing must be placed so that the verge is protected but access to the pedestrian network is provided at all times.
B7. DILAPIDATION REPORT
A Dilapidation Report for all Government assets adjacent the site must be submitted to Development Review and Coordination Section within TCCS prior to the commencement of any construction on the site and on the completion of works.
B8. NOTICE OF COMMENCEMENT OF CONSTRUCTION
Notice of Commencement for the Works in Unleased Territory Land must be submitted to the Senior Manager, Development Review and Coordination, TCCS one week prior to the commencement of works. The Notice must also include the confirmation of any protective measures installed in accordance with the approved LMPP and the programmed implementation of TTM.
C. DURING CONSTRUCTION AND/OR DEMOLITION
C1. SEDIMENT AND EROSION CONTROL
All unsurfaced entry and exit points must be consolidated with crushed aggregate or similar extending from the road kerb to the building line.
Temporary sediment controls - comprising, as a minimum, geotextile silt fencing along the lowest points of the site and hay bale filters as required - are to be installed and maintained at least daily to prevent sediment from reaching the storm water mains system.
C2. TREE PROTECTION
The applicant/lessee shall protect and maintain all existing trees and shrubs located on the subject site, on adjoining blocks overhanging the subject site, on the verge and unleased Territory land immediately adjacent, except for those specifically identified for removal in the approved drawings and a Tree Management Plan.
C3. VERGE MANAGEMENT
During any work undertaken on the site, all existing vegetation (trees, shrubs and grass) located on the verge and unleased Territory land immediately adjacent to the development shall be managed, protected and maintained in accordance with an LMPP approved by the Senior Manager, Development Review and Coordination, TCCS.
C4. TRAFFIC MANAGEMENT
At all times, the site and surrounds shall be managed in accordance with the approved Temporary Traffic Management (TTM) Plan.
C5. WASTE MANAGEMENT
All building waste is to be stored on the site in suitable receptacles and collected regularly. The lessee is to take all reasonable steps to ensure that waste, particularly wind borne litter, does not affect adjoining or adjacent properties.
3.The parties have leave to make any application to the Tribunal regarding the conditions set out above within 3 Days of the date of notification of these orders.
4.Full reasons for this decision shall be published by the Tribunal as soon as possible.
…………Signed.…………..
Senior Member G Lunney SCREASONS FOR DECISION
Background
1.50 Emu Drive Pty Ltd (the applicant) has sought review of a decision by the ACT Planning and Land Authority (the Authority or the respondent) made under section 113(2) of the Planning and Development Act 2007 (the Planning Act) being a decision to refuse development application 201630298 for construction of a single storey building containing a restaurant and take-away food shop and associated car parking, landscaping, paving and other site works (the proposed development) at Block 83 Section 65 Belconnen ACT (the subject site).[1]
[1] Notice of decision at T-documents page 14
2.The applicant is the registered proprietor of the subject site. The applicant seeks orders that the decision of the respondent be set aside and that the Tribunal make a substitute decision.[2]
[2] Application for review of a decision at T-documents page 12
The subject site
3.Emu Bank is a lengthy street that runs along the southern part of Lake Ginninderra on the edge of the Belconnen Town Centre. The site of the proposed development is a corner site with frontages of approximately 38 metres and 30 metres to roads referred to respectively in these proceedings as Emu Bank North and Emu Bank South. The land has an area of approximately 1877 square metres and is generally rectangular with a slight fall to the north east. A drainage easement of varying width runs inside the western boundary of the site. The terms of the Crown Lease prevent the construction of a building or structure or any part of a building or structure on any part of the land comprising the easement.[3]
[3] Crown lease dated 29 June 2009 at T-documents pages 540-551; statement of findings in accordance with the requirements of section 22B of the ACAT Act at T-documents pages 28-34
4.The site and adjoining sites to the north and east are zoned CZ6 Leisure and Accommodation Zone. Land use zones elsewhere in the vicinity are CZ2 Business Zone and RZ5 High Density Residential Zone.
The development application
5.Development application 201630298 was lodged on 25 August 2016 by Purdon Planning Pty Ltd (Purdon) on behalf of Taraje Holdings Pty Ltd the then lessee. The application was accompanied by architectural and engineering drawings and supporting documents including a statement against criteria and planning report by Purdon; a noise management plan by Rudds Consulting Engineers Pty Ltd; and a traffic impact and traffic assessment report by Graeme Shoobridge Advisory Services.[4] The decision of 3 August 2017 refusing the application was notified to Purdon. This application for review of that decision was made by 50 Emu Drive Pty Ltd, the present applicant, after purchase of the lease of the premises in December 2016.
[4] ‘Statement against Criteria and Planning Report’ dated September 2016 by Purdon at T-documents pages 467-514; ‘Noise Management Plan’ dated 30 June 2016 by Rudds at T-documents pages 515-529; ‘Traffic Impact and Traffic Assessment Report’ dated 6 September 2016 by Graeme Shoobridge at T-documents pages 459-466
6.The development application was lodged in the merit track. Pursuant to section 113(4) of the Planning Act, the application must be assessed according to the provisions relevant to merit track applications.
7.The development application was publicly notified from 17 October to 17 November 2016. Nineteen (19) written representations were received during the public notification period and there were two late representations. The main issues raised included that the location was not appropriate under the Belconnen Town Centre masterplan and that there would be pedestrian and traffic issues along Emu Bank. The issues raised in the representations are discussed by the Tribunal elsewhere in these reasons.[5]
[5] Notice of decision at T-documents page 17
8.Entity responses were generally supportive or supportive with conditions in relation to transport and city services, electricity and gas networks and health issues in the operation of the restaurant. Icon Water did not support the proposal because of the location of a proposed pylon sign within the drainage easement. The applicant submitted plans during the hearing which showed that the sign had been moved away from the easement and had also been reduced in height. Evidence was given that the pylon sign was no longer an issue.[6]
[6] Drawing TP220 issue 02 exhibit 2; drawing TP002 issue 07 exhibit 11; transcript of proceedings 22 November 2017 page 105 [20-]
9.In response to issues raised by representors and entities, Purdon provided further details of traffic modelling, pedestrian paths to the building entry and signage.[7] Purdon advised by email “it is considered that the arrival and departure of an average of approximately 2 trucks per day (outside of peak periods) will have a negligible traffic impact”. In relation to internal pedestrian paths from the car parking spaces to the front entry of the building, Purdon advised that this is “similar to other Emu Bank developments…the design/layout simply requires the exercise of usual levels of caution by both drivers and pedestrians, as is usual throughout all car parks”. The Authority advised Purdon on 2 December 2016 that “apart from matters already discussed there are no major or fatal issues from the Territory Plan perspective”.[8]
[7] Development applications 201630298 A/B/C at T-documents pages 92-94, 100-102, 169-171
[8] Letter dated 21 November 2016 from Purdon to the Authority at T-documents pages 172-173; email Gabrielle Caddy (assessment officer) to Purdon 2 December 2016 at T-documents page 167
The decision of the Authority
10.The development application was refused by the respondent on 3 August 2017. The proposed development was found to be not consistent with the Crown Lease for the subject site and not to comply with the requirements of the Belconnen Precinct Map and Code, the Commercial Zones Development Code, the Territory Plan and National Capital Plan and the advice of Icon Water relating to the proposed sign within the drainage easement.[9]
[9] Notice of decision at T-documents page 14
Applicable law
11.The relevant statute is the Planning Act. The Planning Act provides that there must be a Territory Plan the object of which is set out in section 48 as follows:
The object of the territory plan is to ensure, in a manner not inconsistent with the national capital plan, the planning and development of the ACT provide the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation.
12.The decision before the Tribunal is a reviewable decision in accordance with section 407 of the Planning Act.
13.Section 68 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides that the Tribunal may exercise any function given by an Act to the entity for making the decision. The Tribunal has all the powers of the Authority in reviewing the decision to the extent that those powers are related to the making of the decision under review.
14.Section 50 of the Planning Act provides that a territory authority must not do any act, or approve the doing of an act, that is inconsistent with the Territory Plan.
15.Section 53 (1) of the Planning Act states:
The objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone.
16.Division 7.2.3 of the Planning Act, specifically sections 119 and 120, sets out the considerations applicable when deciding development approvals in the merit track.
17.Section 55 of the Planning Act states:
(1) A code (other than a general code or precinct code that is a concept plan) in the territory plan must contain either or both of the following:
(a) the detailed rules that apply to development proposals the code applies to;
(b) the criteria that apply to development proposals the code applies to, other than proposals in the code track.
(2) A code must be consistent with each objective for the zone to which the code relates.
(3) A code that sets out the requirements that apply to stated areas, or places, or states that it is a precinct code, is a precinct code.
(4) A code that sets out the requirements for types of development, or states that it is a development code, is a development code.
(5) A code that sets out requirements applicable to the Territory, the Executive, a Minister or a Territory authority is a general code.
(6) To remove any doubt, a general code may also contain—
(a) policies to be complied with; and
(b) rules and criteria applicable to development proposals the code applies to.
18.Section 119 of the Planning Act provides that development approval in the merit track must be consistent with the relevant code. The proposed development is in the CZ6 Leisure and Accommodation Zone and the corresponding development table defines the relevant code as being the Commercial Zones Development Code (CZDC). Section 119 of the Planning Act is reproduced in full in Appendix 1.
19.Section 120 of the Planning Act is also reproduced in full in Appendix 1. It requires the Tribunal relevantly to consider the following matters:
(a)The zone objectives of the CZ6 Leisure and Accommodation Zone, being the zone in which the proposed development is located.
(b)The suitability of the land for a development of the kind proposed.
(d)The representations from the public that were received as a result of a process of public notification.
(g)The probable impact of the development including environmental impact.
20.In addition to the CZDC, the Belconnen Precinct Map and Code applies to the development since it is within the Division of Belconnen and is within area RC2 in the Belconnen Precinct Map. The introduction to the Belconnen Precinct Code provides that the code contains additional rules and/or criteria as applicable to be read in conjunction with the relevant development code.
21.The Territory Plan provides that codes identify planning, design and environmental controls for differing land uses, development types, zones and precincts. Development applications are assessed against rules or criteria within the applicable code or codes. Where more than one type of code applies to a development the order of precedence if there is inconsistency of provisions between the codes is: precinct code, development code and general code.[10]
[10] Territory Plan 1.1 ‘Governance’
The Tribunal proceedings
22.The matter was heard on 21, 22, 23 and 24 November 2017. Prior to the commencement of the hearing, the Tribunal, the parties and their representatives gathered at the subject site from where they walked north on the eastern footpath of Emu Bank and returned to the subject site via the lakeside pathway.
23.Mr P Walker SC with Mr Larkings and Mr Falcetta appeared for the applicant. Mr C Erskine SC with Mr Chand appeared for the respondent.
24.Evidence was given for the applicant by Ms Rebecca Gallacher, who is a qualified urban and environmental planner and a member of the Planning Institute of Australia with eight years’ experience in statutory planning within the ACT. Evidence was also given for the applicant by Mr Jamie Dawson, who is a qualified landscape architect and a member of the Australian Institute of Landscape Architects with more than thirty years’ experience in private and public sectors. Evidence for the respondent was given by Mr Chris Gell, who is a registered architect in the ACT and is a manager in the Environment, Planning and Sustainable Development Directorate of the ACT Government.
25.An expert report on traffic impact was prepared for the applicant by Mr Chris Coath. A statement on traffic engineering issues was prepared for the respondent by Mr David Field. A meeting was held between Mr Coath and Mr Field and in a joint report it was agreed that the relevant transport matters raised by Mr Field had been suitably addressed by way of clarification or condition of development approval.[11]
[11] ‘Statement on Traffic Impact Evidence’ by Christopher Andrew Coath of GTA Consultants dated 20 November 2017; Statement by David John Field not dated received at ACAT 9 November 2017; ‘Meeting and Joint Report of Experts’ dated 22 November 2017 exhibit 10
The applicant’s submissions
26.The applicant submitted that the corridor of land along Emu Bank presently contains establishments similar to that proposed for the subject site. These include Hungry Jacks and Ali Baba. There is also an existing McDonalds restaurant nearby and close to Lake Ginninderra Secondary College.[12]
[12] Applicants facts and contentions dated 13 October 2017 at [5]
27.The applicant submitted that the Lease permits the proposed development and that the Planning Act permits approval on a condition.[13] The applicant also submitted that “the decision maker took into account irrelevant considerations in making the Decision”.[14]
[13] Applicants facts and contentions, dated 13 October 2017 at [14]
[14] Application for review of a decision at T-docs page 11
28.The applicant acknowledged individual representations received during public consultation. The applicant also noted the requirements of the Belconnen Precinct Code and the CZDC and the objectives of the RZ6 Leisure and Accommodation Zone. The applicant advised that it relied on the expert evidence of Ms Rebecca Gallacher for assessment of the proposed development as it related to these requirements.[15]
[15] Witness statement of Ms Rebecca Gallacher dated 13 October 2017 exhibit 4
The respondent’s submissions
29.The respondent submitted that the proposed use of the premises is not as a restaurant but as a take-away food shop and that this use is not permitted under the terms of the Crown Lease.
30.The respondent submitted that the Belconnen Town Centre is currently undergoing substantial regeneration and that the Belconnen Town Centre masterplan published in 2016 describes the longer-term planning intent for the area. The respondent suggested that the Belconnen masterplan may provide information as to future planning expectations along Emu Bank. However, the respondent acknowledged that masterplans “have no legislated status under the Territory Plan since 2008, even though they continue to be prepared for individual areas in the city”.[16]
[16] Respondent’s statement of facts and contentions dated 10 November 2017 at [15]
Issues for consideration
31.The issues before the Tribunal relate to issues raised between the parties as to compliance with the Planning Act and relevant planning codes and compliance with the Crown Lease for the subject site.
Issue 1: is the proposed development consistent with the requirements of the Belconnen Precinct Map and Code?
32.In its notice of decision, the Authority stated that the proposed development is inconsistent with elements 3.2 and 3.4 of the Belconnen Precinct Map and Code. No other parts of the Precinct Code have been identified by the parties as relevant to the assessment of the proposed development.
33.The Tribunal notes that the Belconnen Precinct Map and Code is dated December 2012 and has not yet been amended to reflect the 2016 Belconnen Town Centre masterplan. As noted earlier, the Belconnen masterplan has no legislative status and cannot be used in an assessment of the proposed development.
34.Element 3.2 of the Belconnen Precinct Map and Code reads as follows:
3.2 Active frontage R10
This rule applies to buildings fronting the main pedestrian areas and routes shown in figure 1.
Buildings incorporate display windows and shop fronts with direct pedestrian access at ground floor level.C10
Buildings achieve all of the following:
a) direct pedestrian access from main pedestrian areas
b) avoidance of extensive lengths of blank walls unrelieved by doors, display windows or the like35.In its notice of decision, the Authority stated that element 3.2 in the Precinct Code applies to the proposed development “because the block sits on the main pedestrian area along Emu Bank. The design of the building complies with neither the rule nor the criteria for this element as it is set back in carparking and does not have either “display windows and shopfronts” or “direct pedestrian access at ground level”.[17]
[17] Notice of decision at T-docs page 14
36.Mr Gell gave evidence that “the only pedestrian access to the shopfront is identified by a pedestrian crossing from the footpath along Emu Bank. It is a distance of 18 metres from the footpath to the door. This is not considered direct pedestrian access”. In the opinion of Mr Gell it was “a protracted path of travel…it will be obscured to a degree by the hedge”.[18]
[18] Witness Statement of Christopher Gell dated 19 November 2017 exhibit 7 at [30]; transcript of proceedings 22 November 2017 page 90, line 30
37.The terms “active frontage” and “direct pedestrian access” are not defined in the Territory Plan. It was suggested by the respondent that “direct pedestrian access” means locating the building “so that it is as close as possible to the footpath/public realm and where there is access from the public realm to the building by a close direct route”. This view was not supported by Ms Gallacher who noted that “direct” is defined by the Macquarie Concise Dictionary to include “proceeding in a straight line or by the shortest course; undeviating; not oblique”.[19]
[19] Respondents outline of submissions at [21]; witness statement of Rebecca Gallacher dated 20 November 2017 exhibit 5 at [7]
38.In relation to the issue of “display windows and shopfronts”, the Tribunal was told that rule R10 does not stipulate the extent or location of display windows or building entrances other than requiring that these be at ground level nor does the rule address a situation where a site has more than one frontage to a main pedestrian area.[20]
[20] Witness statement of Rebecca Gallacher dated 13 October 2017 exhibit 4 at [32]-[35];
39.Evidence was given by Ms Gallacher that “the main pedestrian entrance is directly accessible from Emu Bank North via a marked pedestrian crossing providing pedestrian priority through the carpark…R10 has been met and there is no need to consider the criterion”. Evidence was given that the hedge on this frontage would have a maximum height of 1200mm to comply with “safety in design principles near access routes”.[21]
[21] Witness statement of Rebecca Gallacher dated 13 October 2017 exhibit 4 at [36]-[37]; expert report of Jamie Dawson dated 29 November 2019 (sic)
40.As previously noted, it would appear from the plans provided to the Tribunal that the drainage easement varies in its width. No dimensions are given on the drawings but the presence of the easement would seem to preclude building work closer than about eight metres to the boundary on Emu Bank North. Mr Gell gave the distance “from the footpath to the door” as 18 metres. Ms Gallacher told the Tribunal she believed the distance was about 14 metres. It appears to the Tribunal that the distance from the site boundary to the building entry is closer to 14 metres than 18 metres.[22]
[22] Detail survey Block 83 Section 65 Belconnen dated 6 June 2106 by LANDdata SURVEYS at T-documents page 531; evidence of Rebecca Gallacher transcript of proceedings 22 November 2017 page 71, line 7
41.The Tribunal has carefully considered the evidence and expert opinions and the submissions of the parties in relation to the requirements of Element 3.2 of the Belconnen Precinct Map and Code. It is clear that the drainage easement prevents any part of any building on the site being closer to the front boundary than about eight metres. A building opening directly on to the footpath is clearly not achievable. However, the design provides a pedestrian entry to the site through the landscaped hedge with signage showing a clear route from the footpath to the front door of the proposed development and the Tribunal is of the opinion that this satisfies the requirement in rule R10 for “direct pedestrian access at ground floor level”. The rule requires directness of access not proximity.
42.The nature of the proposed development does not include a requirement for ‘display windows’ but there would appear to be a definite ‘shop front’. In the opinion of Ms Gallacher, the requirement in rule R10 for “display windows and shop fronts” is met by glazing “which will allow views into and out from the building…the extent of glazing is appropriate to the type of use proposed”. The Tribunal agrees with this opinion.[23]
[23] Witness statement of Rebecca Gallacher dated 13 October 2017 exhibit 4 at [35]
43.The Tribunal concludes that the proposed development complies with rule R10 and accordingly determines that there is no requirement to consider the related criterion C10.
Element 3.4 of the Belconnen Precinct Code reads as follows:
3.4 Setback to Lake Ginninderra There is no applicable rule. C12
This criterion applies to area d shown in figure 1.
Setbacks achieve all of the following:
a) compatibility with the desired character
b) retain a continuous plaza along the shore of Lake Ginninderra44.The Territory plan defines ‘desired character’ as:
the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code.
The Belconnen Precinct Map and Code does not contain a statement of desired character.
45.The Territory Plan defines ‘streetscape’ as:
the visible components within a street (or part of a street) including the private land between facing buildings, including the form of buildings, treatment of setbacks, fencing, existing trees, landscaping, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.
46.In the absence of any submissions from the parties, the Tribunal does not identify any tension between the differential use of ‘landscape’ and ‘streetscape’ in the provisions referred to above. For the purposes of simplicity within what has been described by Ms Gallacher as a “highly modified urban environment”, the Tribunal will use the word ‘landscape’ on the basis that the streetscape forms part of the landscape.[24]
[24] see Morozow v ACT Planning and Land Authority [2017] ACAT 79 at [45]
47.The relevant zone objectives are the objectives for the CZ6 Leisure and Accommodation Zone. As noted previously, the respondent contended that the proposed development is not consistent with objectives c), e), f) and g) of the CZ6 Leisure and Accommodation Zone.[25]
[25] Notice of decision T-documents page 14
48.Objective c) reads as follows:
c) Ensure leisure and accommodation facilities have convenient access to public transport
49.The block is close to the Belconnen Bus Interchange, and a number of routes run past it. The Tribunal is satisfied this objective is met.
50.Objectives e) and f) read as follows:
e) Ensure the location of facilities and their design and landscaping is compatible with environmental values
f) Ensure that the bulk, scale, size, design and landscaping of development is compatible with the surrounding landscape
51.The notice of decision deals with these objectives together concluding that “the arrangement and use of the space does not contribute to a desirable character of landscape at this point of Emu Bank and is detrimental to the landscape in the vicinity”. The term ‘desirable character of landscape’ is not defined. Mr Gell submitted that the setback from the footpath “does not provide a direct relationship with the street, does not contribute towards a consistent streetscape and is not compatible with the surrounding landscape”. Mr Gell further stated that the Belconnen Town Centre masterplan suggests a “preferred future outcome with parking provided in basements”. Again the Tribunal notes that the masterplan cannot be used in an assessment of the proposed development.[26]
[26] Notice of decision at T-documents page 14; statement of findings at T-documents page 30; witness statement of Christopher Gell dated 10 November 2017 at [36],[75]
52.Ms Gallacher noted that “the site layout and building design reflects the established character of the precinct (and) is arguably less intensive than what could be expected in a town centre or on this site” and she suggests that the “bulk, size, scale and landscaping of the development is consistent with the proposed use and existing development patterns in the locality”. ‘Environmental values’ is defined in the Territory Plan as “the values of the resource for extractive and instream uses by the community and intrinsic values such as the maintenance of natural ecosystems”. Ms Gallacher noted that the proposed development does not involve resource extraction or instream uses and will not impact on intrinsic values.[27]
[27] Witness statement of Rebecca Gallacher dated 20 November 2017 exhibit 5 at [32]; witness statement of Rebecca Gallacher dated 13 October 2017 exhibit 4 at [95]
53.The Tribunal concludes that the proposed development will have no impact on environmental values in the area and is of the opinion that the bulk, scale, size, design and landscaping of the proposed development is compatible with the surrounding landscape and that zone objectives e) and f) are therefore satisfied.
54.Objective g) reads as follows:
g) Encourage activity at street frontage level and provide an appropriate level of surveillance of the public realm
55.In its notice of decision, the Authority claimed that the proposed development did not meet this objective because it “will not create good street frontage level activity nor will it contribute good surveillance to the public realm. The block has four frontages and is cut off from each of them by on-site vehicle circulation and, in the critical side to the public park and lake front, by fencing designed to block pedestrian access”.[28]
[28] Notice of decision at T-documents page 30
56.Mr Gell referred to an ‘active frontage’ and stated that the proposal ignores the potentially large pedestrian market and provides no surveillance of the skate park. Ms Gallacher noted that the objective does not require an active frontage but aims to “encourage activity at street frontage level”. In her opinion, there will be increased activity at street frontage level through the movement of both vehicles and pedestrians: “in conjunction with existing activities at the Belco skate park, this development will deliver a more active environment in this location”.[29]
[29] Witness statement of Christopher Gell dated 10 November 2017 at [82-83]; witness statement of Rebecca Gallacher dated 20 November 2017 exhibit 5 at [33]; witness statement of Rebecca Gallacher dated 13 October 2017 exhibit 4 at [101]
57.The relevance of criterion C12 to the proposed development is not at all clear. The heading of the element is ‘Setback to Lake Ginninderra’ and the criterion requires retention of “a continuous plaza along the shore of Lake Ginninderra”. Neither of these ambitions is relevant for the subject site which is separated from Lake Ginninderra by various unleased land parcels and cannot sensibly be expected to contribute to a “continuous plaza along the shore” which it does not adjoin. Accordingly, the Tribunal finds that criterion C12 is not applicable in the assessment of the proposed development.
Belconnen Precinct Map and Code – Conclusions
58.The Tribunal has carefully considered the evidence and expert opinions and the submissions of the parties in connection with the Belconnen Precinct Code. The Tribunal was told on several occasions that the proposed development would not satisfy the objectives of the Belconnen Town Centre masterplan but this document has no statutory relevance.
59.As noted above, the proposed development complies with rule R10 of the Belconnen Precinct Code and criterion C12 is not applicable. The proposed development complies with all other relevant rules and criteria in the Code. For these reasons, the Tribunal finds that the proposed development is consistent with the requirements of the Belconnen Precinct Map and Code.
Issue 2: is the proposed development consistent with the requirements of the Commercial Zones Development Code?
60.The Tribunal has assessed the proposed development for compliance with the requirements of the CZDC.[30]
[30] Notice of decision at T-documents pages 14-
61.Criterion C3 of the Code relates to building design and materials and seeks “interesting, functional and attractive facades that contribute positively to the streetscape and pedestrian experience”. In its statement of findings, the Authority made no reference to “interesting, functional and attractive facades”, noting only that the building “will block sightlines, potentially reducing the attractiveness of the lakeshore as a destination…it will also continue the character of the northern commercial strip of Emu Bank around the corner and into the southern part, which is reserved for a character of community uses, access to the lake and public space”. The Tribunal has considered but has rejected these conclusions, which would seem to be based on irrelevant planning issues.[31]
[31] Statement off [30] at T-documents page 31
62.Criterion C5 of the CZDC relates to screening of plant installations and service structures. The respondent claims that “service areas are all within the loading dock” and “will not be completely screened”. This is an unfortunate misreading of the building plans. A small water tank is located at ground level on the eastern wall, however all other plant including the major airconditioning and mechanical units are at an upper level and are totally screened from view by the building parapets. The Tribunal finds the proposed development complies with this criterion[32]
[32] Statement of findings [31] at T-documents page 31
63.Criterion C14 of the CZDC relates inter alia to utility maintenance requirements. As noted earlier, Icon Water did not support the proposed development because of the location of a pylon sign within the drainage easement. This issue has been resolved by the relocation of the pylon sign away from the drainage easement. This also addressed mandatory rule R18 of the Code that which requires that buildings not encroach over easements or rights of way. There are no rights of way over the site.
64.Criterion C19 of the CZDC relates to the provision of safe and efficient access for vehicles and pedestrians and requires driveways and pedestrian entrances to be clearly visible from the front boundary. The Tribunal considered these issues in relation to element 3.2 in the Belconnen Precinct Code where it was determined that site entries comply with relevant principles for safety in design and have been accepted by the traffic experts. The Tribunal concludes that the proposed development satisfies criterion C19 of the CZDC.
65.Criterion C21 of the CZDC requires that the existing road network is able to accommodate the traffic likely to be generated by the development. The Tribunal notes that the traffic experts have agreed this requirement is now satisfied.
66.Criterion C36 requires that, where a Neighbourhood Plan exists, the development responds to the key strategies of that document. No Neighbourhood Plan exists for this site. The Tribunal notes again that the Belconnen masterplan has no statutory relevance.
67.The Authority stated that the proposed development was also inconsistent with rule R23 of the CZDC. This requires endorsement of a noise management plan and can be addressed in the conditions of approval.
68.The proposed development complies with all other relevant rules and criteria in the Code. The Tribunal accordingly finds that the proposed development is consistent with the requirements of the Commercial Zone Development Code.
Issue 3 Section 120
69.The final submissions of the respondent indicated that in relation to section 120 of the Planning Act it relied on its statement of facts and contentions and, in particular, on the evidence of Mr Gell. Mr Gell suggested that the relevant considerations in section 120 are paragraphs (a) zone objectives; (b) suitability of the land and (g) probable impact of the development.[33]
[33] Witness statement of Christopher Gell dated 10 November 2017 at [57]
70.Mr Gell had also submitted that objectives c), d), e), f) and g) of the CZ6 Leisure and Accommodation Zone are “especially relevant”. As noted previously, the Tribunal has concluded that the proposed development satisfies these objectives.[34]
[34] Witness statement of Christopher Gell dated 10 November 2017 at [58]
71.In relation to section 120 of the Planning Act, the views of Mr Gell as to the suitability of the land are based on matters already dealt with concerning traffic, setbacks and siting. It is evident that Mr Gell does not think that the proposed development is the best outcome for the site however the Tribunal is of the view that when its suitability is considered in terms of the requirements of the applicable zoning and codes, the land is suitable for the proposed development.
72.In relation to paragraph (g) in section 120 of the Planning Act, it was the opinion of Mr Gell that the impact of the development would be either unacceptable in the case of traffic and environmental issues or was largely unknown. The Tribunal however considers that all matters of impact arising are dealt with in the extensive conditions that have been imposed and that paragraph (g) has been covered.
73.The respondent has made submissions as to the way in which the Tribunal is to consider the representations that have been made. The Tribunal understands these submissions to indicate that the representations should be weighed against the mandatory planning considerations and taken into account when making discretionary assessments including the ultimate discretion to refuse the application.
74.There were a considerable number of representations received during the consultation period, including some from common interest groups. Most of the representors had been involved in the consultation process which resulted in the Belconnen masterplan and which showed the Emu Bank area to be both a primary destination and a renewal area. The tenor of the great majority of the representations supported this approach.
75.A possible increase in traffic and parking issues was a recurrent theme, as were objections to provision of ‘another’ fast food establishment on a variety of bases which included health grounds.
76.The task of the Tribunal is to review the decision on the evidence available against the background of the planning principles applicable. Community fears as to pedestrian safety and traffic congestion expressed in the representations have been addressed in the joint report of the traffic experts who have concluded that “Emu Bank is operating in a satisfactory condition” and that the proposed site access “will continue to function appropriately”. Other issues are the subject of conditions to the proposed development. The Tribunal has carefully considered community and individual views and is satisfied that development conditions will allay many of the planning concerns expressed. The Tribunal has applied existing legislation in coming to this decision.
77.As has been pointed out previously, the Belconnen masterplan does not have legislative effect and therefore cannot form the basis of this decision.
Issue 4: The Crown Lease
78.The Crown Lease for the subject land is copied at Tribunal documents page 540. The first clause of the Lease contains definitions of terms used in the Lease. These relevantly include the following.
‘premises’ means the land and any building or other improvements of the land.
‘restaurant’ means the use of the land for the primary purpose of providing food for consumption on the premises whether or not the premises are licensed premises under the Liquor Act 1975 and whether or not entertainment is provided.
‘shop’ means the use of land for the purpose of selling, exposing or offering the sale by retail or hire, goods and personal services and includes bulky goods retailing, departments store, personal service, retail plant nursery, supermarket and take-away food shop;
79.The Territory Plan defines ‘shop’ and ‘take-away food shop’ as follows.
Shop means the use of land for the purpose of selling, exposing or offering the sale by retail or hire, goods and personal services.
Take-away food shop means a shop, which is predominantly for the preparation of food and refreshments for consumption elsewhere.
80.The Lease contains a purpose clause as follows.
PURPOSE
(e)To use the premises for one or more of the following purposes:
(i)(iii) …
(iv)restaurant
(v)shop limited to the sale of entertainment, accommodation and leisure goods such as specialty items or arts, crafts and souvenirs; and,
(vi)…
PROVIDED ALWAYS THAT shop (excluding arts, craft or souvenirs) shall have a maximum gross floor area of 250 square metres per shop AND FURTHER PROVIDED THAT office shall not be permitted on the ground floor.
81.In relation to the present development application, the evidence indicates that the building contains a food storage and preparation area including a loading dock; an internal service counter; two areas for tables and chairs for consumption of food by patrons; an external ordering area for patrons in vehicles with an external payment counter and a separate delivery counter both forming part of the building. Much of the area outside the building acts as a catchment area for the vehicles of patrons using the drive-through take-away facilities.
82.Building plans show internal areas marked as ‘seating areas’. These were specified by one witness as for ‘restaurant use’ and a calculation of floor area was made. However, the internal delivery counter will be used for ordering and delivery of prepared food regardless of whether it was intended by the patron for consumption on or off the premises. Another witness referred to a hybrid use as a restaurant and take-away shop. The evidence indicated that the proposed use of the land included the preparation of food and refreshments for consumption elsewhere.
83.There was no statistical evidence which could lead to any conclusion as to whether the eat-in use was the predominant use or whether the take-away use was the predominant use. The Tribunal was left to conclude that the two uses co-existed.
84.The CZ6 Leisure and Accommodation Zone Development Table provides as follows:
On leased land, development must be authorised by a lease.
85.If the use of the land for take-away purposes qualified as the predominant use this would result in non-compliance with the Crown Lease. The Crown Lease limits the area of use as an individual shop to 250 square metres, which would include use as a take-away food shop. Although some areas were said to be related predominantly to restaurant use, no attempt was made to define any area as being of a predominantly take-away use.
86.There was also evidence that the total gross floor area of the proposed premises exceeds 250 square metres. The Crown Lease limits the area of use as a shop, which would include use as a take-away food shop.
87.In its final submissions dated 24 November 2017, the respondent submitted:
10.….. The definitions of both restaurant and take-away food shop can be applied to this single building: the difference between them is whether the sit-down area is the primary or predominant purpose of the way the building functions.
11.The amount of space devoted to take-away includes drive through: it is simply taking food away without getting out of your car.
12.By reference to the amount of space devoted to the take-away, and by reference to the occupier (KFC), the premises are better described as being for use by a take away food shop which (as allowed in the definition of that term) also has chairs and tables.
13.That use is not permitted under the Crown lease on two fronts: it is not a permitted type of shop, and in any event it is too large.
88.On the available evidence it seems likely that the predominant use of some part of the land, for example, areas marked for the ordering and delivering of food for take-away, is for the preparation etc of food for consumption elsewhere. However it is not possible to define these areas by size nor to define their relationship to other areas where such use is not clear. The Tribunal is not able to conclude as suggested by the respondent that the take-away use was the predominant use nor that any use as a take-away shop exceeded 250 square metres. In any event, clause 3(e)(v) of the lease further limits the use to which a shop may be put.
89.The applicant suggested that approval could be given for development of the premises as proposed on condition that amendment was made to the purpose clause and the development complied with that amended purpose clause.
90.To that end a draft condition was agreed to by the parties which set out very specific changes to the purpose clause of the Crown Lease. No application for change of the purpose clause had been applied for at the time of hearing, and a new decision process would have to be embarked upon in order for any change applied for to be granted if this were done.
91.In those circumstances, the Tribunal does not consider it appropriate to make approval conditional on such specific changes to the purpose clause as proposed since an application for change sets in train a process which will result in a new decision which may be subject to separate review and which is independent of the process of review undertaken by the Tribunal in these proceedings.
92.It is the view of the Tribunal that the development should be approved subject to a change of the purpose clause to authorise the use of the developed site. However, the precise terms of the application for approval should be left to the lessee, leaving any decision of approval and what would be compliance with it to later determination.
Conclusion
93.For the reasons set out above, the Tribunal is satisfied that the proposed development complies with the requirements of the Planning and Development Act 2007, the Belconnen Precinct Map and Code and the Commercial Zones Development Code and with the objectives of the CZ6 Leisure and Accommodation Zone and has set aside the decision under review and made orders on 14 December 2017 to which these reasons for decision relate.
………………………………..
Senior Member G Lunney SC
Delivered for and on behalf of the TribunalAPPENDIX 1
119Merit track—when development approval must not be given
(1)Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with—
(a)the relevant code; and
(b)if the proposed development relates to land comprised in a rural lease—any land management agreement for the land; and
(c)if the proposed development will affect a registered tree or declared site—the advice of the conservator of flora and fauna in relation to the proposal.
Note 1An application cannot be approved if it is inconsistent with the territory plan (see s 50) or the National Capital Plan (see Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), s 11).
Note 2Relevant code—see the dictionary.
(2)Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under section 148 (Some development applications to be referred) unless the person deciding the application is satisfied that—
(a)the following have been considered:
(i)any applicable guidelines;
(ii)any realistic alternative to the proposed development, or relevant aspects of it; and
(b)the decision is consistent with the objects of the territory plan.
(3)To remove any doubt, if a proposed development will affect a registered tree or declared site—
(a)the person deciding the development application for the proposed development must not approve the application unless the approval is consistent with the advice of the conservator of flora and fauna in relation to the proposal; and
(b)subsection (2) does not apply in relation to the conservator’s advice.
120Merit track—considerations when deciding development approval
In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:
(a)the objectives for the zone in which the development is proposed to take place;
(b)the suitability of the land where the development is proposed to take place for a development of the kind proposed;
(c)if an environmental significance opinion is in force for the development proposal—the environmental significance opinion;
NoteEnvironmental significance opinion—see s 138AA. Environmental significance opinions expire 18 months after they are notified (see s 138AD).
(d)each representation received by the authority in relation to the application that has not been withdrawn;
(e)if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications)—the entity’s advice;
NoteAdvice on an application is given in accordance with section 149 if the advice is given by an entity not later than 15 working days (or shorter prescribed period) after the day the application is given to the entity. If the entity gives no response, the entity is taken to have given advice that supported the application (see s 150).
(f)if the proposed development relates to land that is public land—the public land management plan for the land;
(g)the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
HEARING DETAILS
FILE NUMBER:
AT 48/2017
PARTIES, APPLICANT:
50 Emu Drive Pty Ltd
PARTIES, RESPONDENT:
ACT Planning and Land Authority
COUNSEL APPEARING, APPLICANT
Mr P Walker SC, Mr Larkings
COUNSEL APPEARING, RESPONDENT
Mr C Erskine SC
SOLICITORS FOR APPLICANT
Trinity Law
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Senior Member G Lunney SC (presiding), Senior Member R Pegrum
DATES OF HEARING:
21, 22, 23 and 24 November 2017
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