A.T Adams Consulting Pty Ltd v ACT Planning and Land Authority (Administrative Review) 2015
[2015] ACAT 43
•8 May 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
A.T ADAMS CONSULTING PTY LTD v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2015] ACAT 43
AT 14/103
Catchwords: ADMINISTRATIVE REVIEW – Planning and Development Act 2007 – consent order – publication of agreed statement of facts – tree management plan – new trees
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 55
Planning and Development Act2007 ss 119, 141, 145, 148, 155, 162
Tribunal: Professor P. Spender – Presidential Member
Date of Orders: 8 May 2015
Date of Publication: 16 June 2015
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: AT 14/103
RE:A. T ADAMS CONSULTING PTY LTD
Applicant
AND:ACT PLANNING AND LAND AUTHORITY
Respondent
CONSENT DECISION PURSUANT TO SECTION 55 OF THE
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2008 (ACT)Tribunal:Professor P. Spender - Presidential Member
Date :8 May 2015
Whereas –
a.the parties have reached an agreement as to the terms of a decision of the Tribunal that is acceptable to them; and
b.the terms of the agreement have been reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
c.the Tribunal is satisfied that a decision consistent with those terms would be within the powers of the Tribunal;
by consent, the Tribunal makes orders in the terms of the agreement signed by the parties and annexed hereto as Annexure A.
Signed.......................
Professor P. Spender Presidential Member
ANNEXURE ‘A’
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL) AT 14/103
A.T.Adams Consulting Pty Ltd
Applicant
ACTPlanning and Land Authority
Respondent
Statementof Agreed Facts
Development Application
On 7 January 2014, the Applicant lodged with the Respondent Development Application No. 201324740 (the Development Application) for Block 27 Section 1 Aranda (also known as 5 Kubura Place Aranda) (the Site), on behalf of the lessee (Greening Australia (Capital Region) Limited) (Tribunal (T) document pages 479-559). The Development Application was for:
(a)erection of new buildings/sheds which incorporate existing administration building, relocated shipping container and existing substation;
(b)relocation of steel canopy for trailer parking;
(c)removal of protected Eucalyptus bridgesiana identified as tree no. 26; and
(d) associated site and landscaping works.
On 9 January 2014, the Respondent referred the Development Application to a number of entities pursuant to section 148(1) of the Planning and Development Act 2007 (PD Act).
From 16 January 2014 to 6 February 2014, the Development Application was publicly notified pursuant to section 155 of the PD Act. The Respondent did not receive any written representations during the public notification process.
On 27 February 2014, pursuant to section 141 of the PD Act, the Applicant lodged with the Respondent further information in relation to the Development Application (T document pages 403-415).
On 15 April 2014, pursuant to section 141 of the PD Act, the Applicant lodged with the Respondent further information in relation to the Development Application (T document pages 36, and 318-329).
On 7 August 2014, pursuant to section 141 of the PD Act, the Applicant lodged with the Respondent further information in relation to the Development Application (T document pages 36, and 236-254).
The entities to which the Development Application was referred to provided the following advice to the Respondent (T document pages 28-31):
(a)The Conservator of Flora and Fauna (the Conservator) did not support the development as proposed, raising concerns about the implications of retaining and integrating certain trees (particularly of the species Eucalyptus bridgesiana in and around the proposed buildings. The Conservator also stated that there appeared to be sufficient room for alternative design options to be explored. The Conservator provided this advice by correspondence dated 31 January 2014, 14 March 2014, 16 May 2014, and 26 August 2014.
(b)On 26 February 2014, the Environment Protection Authority (the EPA) provided advice that the Development Application is supported subject to certain conditions.
(c)On 25 March 2014, the Territory and Municipal Services Directorate (TAMSD) provided advice that it supported the Development Application subject to standard conditions relating to the Use of Public Land; Design and Operational Acceptance; Temporary Traffic Management; Landscape Management and Protection Plan; Repair of Damage to Public Assets; and Notice of Commencement of Construction.
(d)On 6 March 2014 and 14 March 2014, ActewAGL Water Division provided advice that the Development Application conditionally complied with ACTEW water and sewerage network access and asset protection requirements.
(e)On 16 April 2014, the Major Projects and Transport Branch within the then Environment and Sustainable Development Directorate (ESDD) (now Environment and Planning Directorate (EPD)), provided advice that indicated support for the Development Application.
(f)On 16 April 2014, the Planning Investigations Branch within ESDD (at the time, now EPD) provided advice that aspects of the proposed Water Sensitive Urban Design did not demonstrate compliance with certain rules of the Parks and Recreation Zone Development Code.
(g)On 28 April 2014, ActewAGL Gas Networks provided advice that the Development Application conditionally complied.
(h) On 13 May 2014, ActewAGL Electricity Networks Division provided advice that the Development Application conditionally complied with the Electricity Networks requirement.
On 24 October 2014, the Respondent refused the Development Application pursuant to section 162 of the PD Act as, pursuant to section 119 of the PD Act, the Development Application was determined to be inconsistent with:
(a)the Parks and Recreation Zone Development Code; and
(b) the advice of the Conservator in relation to the proposal.
(thedecision).
Tribunal proceedings
On 17 November 2014, the Applicant filed an application for review of decision with the Tribunal (T document pages 12-24).
On 19 December 2014, the Tribunal set a timetable for the proceedings, including a hearing date.
On 21 January 2014, the parties, an expert arborist and structural engineer (both engaged by the Applicant), and an officer representing the Office of the Conservator, attended mediation on the Site. The parties reached agreement that the Development Application could be approved if certain amendments were made.
On 10 February 2015, the parties filed a joint application with the Tribunal seeking the following orders:
1.That paragraphs 3 to 8 of the orders of the Tribunal made on 19 December 2014, as amended on 2 January 2015, be deleted
2.That by 27 February 2015 the applicant file and serve:
(a) an amended development application together with associated plans and drawings showing the removal of regulated trees 20, 21, 22, 26, 28 and 29 (as referred to in the tree assessment table commencing at page 518 of the Tribunal documents) (hereafter called the Amended Development Application);
(b) a tree management plan for any work, including but not limited to demolition, construction, trenching for services (including gas, water, sewerage, storm water, electricity, telecommunications), footings and irrigation within the tree protection zone of the regulated trees to be retained on the Blocks 23 and 24, Section 1, Aranda (the Site) (hereafter called the Tree Management Plan);
(c) a statement and/or drawings (hereafter called the Statement for Trees 24 and 25):
(i)as to the construction method, including excavation for footings, of the proposed development in close proximity to regulated trees 24 and 25 (as referred to
in the tree assessment table commencing at page 518 Tribunal documents) indicating how these trees will be protected during the course of construction;
(ii)detailing how the development will withstand potential branch dropping by trees 24 and 25;
(d) a statement to the effect that the applicant, when undertaking the development, will plant a minimum of 6 new trees of an appropriate local native species (not being the same species as trees 20, 21, 22, 26, 28 and 29) in an appropriate location on the Site (hereafter called the Statement for New Trees).
3.That by 11 March 2015 the parties file and serve submissions as to whether or not the Tribunal should direct that:
(a) the development application be amended; and if so
(b) whether the amended development application, Tree Management Plan, Statement for Trees 24 and 25 and the Statement for New Trees:
(i)should be referred to the Conservator of Flora and Fauna for advice;
(ii)be publically notified;
(c) the time for deciding the application be extended pursuant to section 22P of the ACT Civil and Administrative Tribunal Act 2008.
4.That the matter be listed for a short hearing in the week commencing 16 March 2015 for directions in relation to the matters the subject of submissions in paragraph 3 above.
The parties relied on the following grounds in the joint application:
1.The parties attended mediation on 21 January 2015 and since that date have been continuing to have discussions with each other regarding how the application before the Tribunal could be resolved
2.The applicant has agreed to provide the respondent with the Amended Development Application, Tree Management Plan, Statement for Trees 24 and 25 and the Statement for New Trees.
3.The respondent, subject to being satisfied in relation to the matters set out in the Amended Development Application, Tree Management Plan, Statement for Trees 24 and 25 and the Statement for New Trees, supports the Tribunal amending the development application the subject of the current proceedings.
4.The parties, at this stage, are satisfied, subject to the views of the Tribunal, that:
(a) the development applied for in the Amended Development Application will be substantially the same as the development application currently before the Tribunal
thereby satisfying the requirement in section 144(2)(a) of the Planning and Development Act 2007 (the Act ). This is because the building work the subject of the application before the Tribunal will remain unchanged. The Amended Development Application will merely have the effect of removing 6 regulated trees within the Site. These trees will be replaced with another more suitable species.
(b) the assessment track for the development application currently before the Tribunal will not change if the application is amended in accordance with the Amended Development Application thereby satisfying the requirement in section 144(2)(b) of the Act. The assessment track will continue to be the merit track.
5.The development application currently before the Tribunal was referred to a number of entities, however, the Amended Development Application does not affect any entity other than the Conservator of Flora and Fauna (the Conservator).The parties will seek a direction that the Amended Development Application together with the Tree Management Plan, Statement for Trees 24 and 25 and the Statement for New Trees be referred to the Conservator for advice consistent with the operation of section 145 of the Act. The respondent will file and serve any advice provided by the Conservator. At this stage, the Conservator does not support the removal of trees 20, 21, 22, 26, 28 and 29.
6. Section 146 of the Act provides for the public notification of an amended development application. This section also sets out when this requirement may be waived. The parties consider that whilst it is likely that no one other than the applicant will be adversely affected by the Amended Development Application there remains a small possibility, subject to the views of the Tribunal, that a person may be adversely affected by the Amended Development Application. In addition, there may be an argument that the environmental impact caused by the approval of the amendment will do more than minimally increase the environmental impact of the development. Accordingly, the parties taking a cautious approach, will seek a direction that the Amended Development Application be publicly notified.
7. The parties respectfully suggest that the Tribunal follow, so far as is relevant, the approach in Walkington v ACT Planning and Land Authority [2010] ACAT 81 (19 November 2010) and make a direction that permits any person, following the public notification of the Amended Development Application, to:
(a) lodge submissions in relation to the Amended Development Application with the respondent (with the respondent to file and serve a copy of those submissions); and
(b) make an application to the Tribunal to be joined to these proceedings.
8. The parties envisage that if no person seeks to be joined to the proceedings then an application for consent orders will be made to
the Tribunal by the parties. On the other hand, if a person does seek to be joined to the proceedings then further directions will be required in respect of whether the person is entitled to be joined and, if so, timetable directions will be required for the filing and service of documents and the listing of the matter for a hearing.
9.The parties will seek an extension of the period for deciding the application on the basis that the extension is in the interests of justice because:
(a) the parties, at this stage have reached an agreement in relation to the application;
(b) the Act requires certain procedural steps to be undertaken before any agreement can be reduced to an application for consent orders;
(c) the procedural steps cannot be completed within the 120 day period provided for in section 22P of the ACAT Act.
On 16 February 2015, the Tribunal listed the matter for a further directions hearing on 27 February 2015. At that directions hearing the parties made submissions in relation to the joint application. Both parties agreed that the Amended Development Application should be renotified. The Tribunal directed the parties to lodge a further application for interim orders dealing with the following matters:
(a)the amendment of the Development Application;
(b)documents to be filed and served with respect to the proposed Amended Development Application;
(c)the public notification of the Amended Development Application; and
(d)details about how any representation received during the public notification process will be dealt with.
Later on 27 February 2015, the Applicant filed and served an Amended Development Application, a Tree Management Plan, a Statement for Trees 24 and 25 and a Statement for New Trees (Amended Development Application Documents).
From 4 March 2015 to 25 March 2015, the Amended Development Application Documents were publicly notified pursuant to section 146 of the PD Act in the following ways:
(a)letters were sent to the same persons that had been notified during the public notification of the original Development Application in 2014. The letters included the following statements:
If you feel an application may impact on you in any way you may wish to submit a written representation clearly stating the reasons for your submission.
Representations must be received by the Authority by close of business 25 March 2015.
PLEASE NOTE: This development application was previously refused by the Planning and Land Authority. An application has since been lodged with the ACT Civil and Administrative Tribunal to review the decision by the Planning and Land Authority to refuse the proposal. Anyone lodging a representation may apply to the ACT Civil and Administrative Tribunal to join the review proceedings (go to website or contact on (02) 6207 1740) and should attend a directions hearing at the ACT Civil and Administrative Tribunal, 1 Moore Street, Canberra City, on Thursday 2 April 2015 at 10.00 am.
(b)a sign was erected on the Site;
(c)an advertisement was published in The Canberra Times, which included the following statements:
Written representations MUST be received by close of business 25 March 2015 to be considered during the assessment of the application. ...
PLEASE NOTE:
This development application was previously refused by the Planning and Land Authority. An application has since been lodged with the ACT Civil and Administrative Tribunal to
review the decision by the Planning and Land Authority to refuse the proposal. Anyone lodging a representation may apply to the ACT Civil and Administrative Tribunal to join the review proceedings (go to website or contact on (02) 6207 1740) and should attend a directions hearing at the ACT Civil and Administrative Tribunal, 1 Moore Street, Canberra City, on Thursday 2 April 2015 at 10.00am.
(d)a notice was posted on the EPD website at >
On 4 March 2015, the Amended Development Application Documents were referred to the Conservator pursuant to section 145 of the PD Act.
On 6 March 2015, the parties filed a further joint application seeking the following interim orders:
1.That paragraphs 3 to 8 of the orders of the Tribunal made on 19 December 2014, as amended on 2 January 2015, be deleted
2.That the development application be amended as required by order
3(a).
3.That by 27 February 2015 the applicant file and serve:
(a) an amended development application together with associated plans and drawings showing the removal of regulated trees 20, 21, 22, 26, 28 and 29 (as referred to in the tree assessment table commencing at page 518 of the Tribunal documents) (hereafter called the Amended Development Application);
(b) a tree management plan for any work, including but not limited to demolition, construction, trenching for services (including gas, water, sewerage, storm water, electricity, telecommunications), footings and irrigation within the tree protection zone of the regulated trees to be retained on the Blocks 23 and 24, Section 1, Aranda (the Site) (hereafter called the Tree Management Plan);
(c) a statement and/or drawings (hereafter called the Statement for Trees 24 and 25):
(i)as to the construction method, including excavation for footings, of the proposed development in close proximity to regulated trees 24 and 25 (as referred to in the tree assessment table commencing at page 518 Tribunal documents) indicating how these trees will be protected during the course of construction;
(ii)detailing how the development will withstand potential branch dropping by trees 24 and 25;
(d) a statement to the effect that the applicant, when undertaking the development, will plant a minimum of 6 new trees of an appropriate local native species (not being the same species as trees 20, 21, 22, 26, 28 and 29) in an appropriate location on the Site (hereafter called the Statement for New Trees).
4.That by 4 March 2015 the amended development application, Tree Management Plan, Statement for Trees 24 and 25 and the Statement for New Trees:
(a) must be referred to the Conservator of Flora and Fauna for advice by the respondent; and
(b) must be publically notified by the respondent for a period of 15 working days in accordance with section 155 of the Planning and Development Act 2007 by:
(i)displaying a sign on the place to which the application relates that states the development proposed to be undertaken; and
(ii)publishing a notice of the making of the application in a daily newspaper.
5.That any person, following the public notification of the Amended Development Application:
(a) must lodge submissions in relation to the Amended Development Application with the respondent by 25 March 2015; and
(b) must, if they wish to be joined to these proceedings, make an application to the Tribunal to be joined to these proceedings by 31 March 2015 and serve a copy on each active party.
6.That by 31 March 2015 the respondent must file and serve:
(a) advice provided by the Conservator of Flora and Fauna; and
(b) any submissions received in response to the public notification of the Amended Development Application.
7.That the matter be listed for a directions hearing on 2 April 2015 at 10.00 am.
8. That the time for deciding the application be extended pursuant to section 22P of the ACT Civil and Administrative Tribunal Act 2008.
The grounds relied on by the parties for the joint application dated 6 March 2015 were in all material respects the same as the grounds relied on by the parties for the application for interim orders filed on 10 February 2015.
On 11 March 2015, the Respondent received advice from the Conservator that the Conservator did not support the Amended Development Application.
On 18 March 2015, the Tribunal made orders in the terms sought in the joint application dated 6 March 2015 (see paragraph 18 above).
On 19 March 2015, during the public notification period, the Respondent received a representation from a member of the public (the representor).
On 26 March 2015, the Respondent emailed the representor a letter, which included the following statements:
As you have make a representation in respect of the amended development application, if you wish to be joined as a party to the Tribunal proceedings you must complete and file with the Tribunal an Application for order to be joined as a party by 4.30 pm on Tuesday 31 March 2015.
Please contact the Tribunal on (02) 6207 1740 or refer to the Tribunal's website for details regarding the relevant application form and application fee.
If you apply to be joined as a party to the Tribunal proceedings, you must serve a copy of the application by 31 March 2015 on the other parties.
If you apply to be joined as a party to the Tribunal proceedings, you must also attend a directions hearing at the Tribunal on Thursday 2 April 2015 at 10.00 am.
On 27 March 2015, the Respondent filed and served the following documents:
(a)Advice from the Conservator dated 11 March 2015; and
(b)Representation from the representor dated 18 March 2015 received by the Respondent on 19 March 2015 in response to the public notification of the Amended Development Application.
At the directions hearing on 2 April 2015:
(a)The Tribunal noted that the representor must be assumed not to wish to be joined to the Tribunal proceedings as she had not applied to be joined to the proceedings, had not approached the Tribunal registry regarding being joined to the proceedings, and did not attend the directions hearing.
(b)The Tribunal requested the Respondent to prepare a document demonstrating its consideration of the representation from the representor and the advice from the Conservator (Statement by the Respondent). It was agreed that the Applicant would provide comments to the Respondent in response to the representation and advice from the Conservator for the Respondent to consider when preparing the Statement by the Respondent.
(c)The Tribunal made directions that the parties will file an application for a consent order pursuant to section 55 of the ACT Civil and Administrative Tribunal Act 2008 with accompanying material.
On 13 April 2015, the Applicant provided its comments to the Respondent on the representation from the representor and the advice from the Conservator.
On 1 May 2015, an application for consent orders was filed by the parties, together with this Statement of Agreed Facts and the attached Statement by the Respondent.
Signed................................................
Linda Hann
A legal practitioner authorised to act in the name of the Government Solicitor for the ACT
Solicitor for the Respondent
Signed.............................................
Alice Menyhart
Bradley Allen Love
Solicitor for the Applicant
STATEMENT BY THE RESPONDENT
CONSIDERATION BY THE RESPONDENT OF PUBLIC REPRESENTATION AND ENTITY ADVICE RECEIVED IN RESPONSE TO THE AMENDED DEVELOPMENT APPLICATION
Following a directions hearing on 2 April 2015, the Tribunal requested that the Respondent consider the representation from a member of the public (the representor) and the advice from the Conservator of Flora and Fauna (the Conservator) and prepare a document that demonstrated consideration by it of the issues raised in the representation and the advice. The Respondent also considered comments received from the Applicant in respect of the representation and the Conservator’s advice.
A.Representor’s representation
Pursuant to section 146 of the Planning and Development Act 2007 (the Act) the Amended Development Application was publicly notified. The representor submitted a representation after the Amended Development Application was notified, however it is noted that she did not submit a representation to the Development Application when it was first notified.
The representation by the representor raises issues with the proposal as a whole, including in relation to the Amended Development Application. Re-notification was undertaken for the amendment to the Development Application and, as such, the following responses are provided for the issues in the representation that are relevant to the amendment only, that is, the proposed tree removal.
Page 1 of the representor’s representation
The relevant issues raised in the representor’s representation include the following: the “hypocritical” removal of “mature, healthy trees” by an organisation meant to protect the natural landscape; concern over the scale of the new structures and their location requiring the trees to be removed; concern over displacing wildlife; concern over the removal of trees that form an “attractive border to the playing fields and a noise barrier for Belconnen Way” and that trees should not be removed for safety reasons from an area that was originally parkland.
ACTPLA’s Response:
Greening Australia contends that the scale of the structures is required to undertake their varied activities including propagation, sales, administration and community activities. The location of the structures has been constrained by a desire to retain existing vehicle access and buildings, present a frontage to the ovals, a utility easement through the middle of the site and a creekline towards the rear of the site. These constraints result in no reasonable alternative for the siting of the proposed development. As a result of the constraints and lack of development alternative the structure footprints are located within the tree protection zones of some trees.
The project arborist, the Conservator and the Respondent’s delegates inspected the trees in question and determined that many of the trees, while mature, are not healthy, are of a species prone to dropping limbs and that the development within their tree protection zones would likely result in their further decline and therefore they presented a significant safety concern for the staff and visitors to the new structures.
Given no development alternative, the Respondent’s view is that, as the development forces people under these trees, the trees will have to be removed due to safety concerns.
To ensure the amenity and habitat provided by the existing trees is maintained, the remaining trees on the site are to be retained and protected in accordance with a Tree Management Plan overseen by the Conservator and replacement planting of suitable native species is required.
Page 2of the representor’s representation
The issues raised in the representor’s representation relate to the removal of a certain tree that provides habitat.
ACTPLA’s Response:
This tree is identified as tree number 27 in the application documentation and is not proposed for removal. Further, this tree does not meet the criteria of a regulated tree under the Tree Protection Act 2005 and as such no regulatory approval is required to damage or remove it.
Page 4of the representor’s representation
The representor raises concern that the proposal does not meet Criterion 3 g) and h) of the Parks and Recreation Zones Development Code (the Code) in that the proposal will adversely affect naturally occurring plant communities and patterns of wildlife movement; that important natural features including existing mature trees are not conserved and that the removal of trees will create undesirable weather conditions in the new buildings.
ACTPLA’s Response:
The site does not currently contain any significant naturally occurring plant communities or act as a wildlife movement corridor as mapped by ACTMAPi. This mapping shows that the canopy connection and potential corridor is actually located on the adjacent block 29.
The amended proposal does include the removal of some existing mature trees, however where possible (where a safety concern is not present) trees are retained. The trees are within the Greening Australia lease, an urban setting that allows development and given the senescent[1] condition of some of the trees, priority was given to safety.
[1] Senescent is an arboricultural term that refers to trees of advanced old age or over-mature trees leading towards death, as defined by Draper, D.B. & Richards, P.A., 2009, Dictionary for Managing Trees in Urban Environments, CSIRO Publishing, Collingwood.
There is no rule or criterion of the Code that controls weather conditions created in the proposed buildings. As such the proposal is consistent with the Code.
Page 8of the representor’s representation
The representor raises concern regarding the potential for erosion when the trees are removed.
ACTPLA’s Response:
This issue has been considered to be adequately met in the application through the implementation of appropriate sediment and erosion control measures.
B.Conservator of Flora and Fauna advice
Advice received from the Conservator is consistent with that received for the original application confirming that the trees should be retained and protected during development as they are a high quality remnant group. The Conservator also noted that the retention of large, old Eucalyptus bridgesiana trees is generally not recommended within any type of urban development as they are prone to branch drop during senescence1.
As discussed at Item 4 above there are no reasonable development alternatives to the siting of the proposed development on the block. This has resulted in the buildings being located under the canopy of some of the trees. The development will increase the number of people under the canopy and the duration of time spent under these trees as it introduces a cafe, office space, educational learning area etc. The trees represent a risk to public safety from branch drop which will only increase with the development works and time as the condition of the trees continues to decline.
Pursuant to section 119(2)(a)(ii) of the Act a decision to act inconsistent with the advice from the Conservator and allow the removal of the trees is considered suitable given the lack of realistic development alternative and the risk to public safety.
There are no applicable guidelines for section 119(2)(a)(i) of the Act.
The approval of the Amended Development Application is consistent with the zone objectives for the PRZ1 Urban Open Space Zone of the Territory Plan, for the purposes of section 119(2)(b) of the Act.
1 May 2015
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