Allen v ACT Planning and Land Authority

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ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ALLEN AND ORS v ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2021] ACAT 88

AT 44/2021

AT 45/2021

AT 46/2021

Catchwords:               ADMINISTRATIVE REVIEW – merits review of decision to approve application for development approval for 10-unit supportive housing development on block zoned CFZ and lease variation to permit block to be used for supportive housing – whether proposed lease variation may affect concessional status of Crown lease – whether intended use is for special dwelling –  whether parking requirements for supportive housing in R1(c) of CFZDC are met – whether front boundary setbacks to Bill Pye Park and proposed ‘courtyard walls’ are consistent with desired character, where block zoned CFZ is adjacent to land zoned PRZ1 and RZ1 – whether solar access requirements for internal living spaces in R57 of MUHDC are met – whether shading from trees should be considered in assessing solar access – interpretation of requirements for principal private open space in R61/C61 of MUHDC where dwellings are in a supportive housing development on land zoned CFZ – whether principal private open space is proportionate to size of dwellings and achieves reasonable privacy and solar access – where approval inconsistent with advice of Conservator of Flora and Fauna, whether realistic alternatives to the development or parts of it have been considered – decision under review set aside and approval refused   

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 22P, 68

Common Boundaries Act 1981 ss 23, 25
Land (Planning and Environment) Act 1991 (repealed)
Legislation Act 2001 part 14.2
Planning and Development Act 2007 ss 119, 120, 235A, 235B, 253A, 258, 261, 265, 340, 407, 408A, Sch 1
Planning and Development (Community Concessional Leases) Amendment Act 2019 (repealed)
Tree Protection Act 2005 s 10

Subordinate

Legislation cited:        Apartment Design Guide (NSW)

Access and General Mobility Code, R12
CFZ – Community Facility Zone Objectives
Community Facilities Zone Development Code, R1(c)
Community and Recreational Facilities Location Guidelines Code
Crime Prevention through Environmental Design General Code
Lease Variation General Code, C1, C3
Multi Unit Housing Development Code, R25, R29/C29, R41/C41, R42A/C42A, R54, R57, R61/C61, C72, C77, R79/C79
Parking and Vehicular Access General Code
Planning and Development Regulation 2008 s 5
PRZ1 – Urban Open Space Zone Objectives
Residential Boundary Fences General Code
Residential Flat Design Code (NSW) (repealed)
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (NSW)
State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (NSW) (repealed)
RZ1 – Suburban Zone Objectives
Territory Plan, 13-Definitions

Cases cited:4THD Planning & Design Pty Ltd ACN 154 870 078 v ACT Planning and Land Authority& Ors [2021] ACAT 59

Benevolent Society v Waverley Council [2010] NSWLEC 1082
Costin & Pyke v ACT Planning and Land Authority & Anor [2018] ACAT 129
Deakin Residents Association Inc v ACT Planning and Land Authority & Anor [2015] ACAT 37
GPT Re Limited v Belmorgan Property Development Pty Ltd [2008] NSWCA…

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Details
Case
[2021] ACAT 88
Decision Date

CaseChat Overview and Summary

The applicants, Mr Allen and Mr Hubbard, sought a review of a decision by the ACT Planning and Land Authority (ACTPLA) to approve an application for development approval for a 10-unit supportive housing development on a block zoned Community and Facility Zone (CFZ) and a lease variation to permit the block to be used for supportive housing. The dispute involved the proposed lease variation's potential impact on the concessional status of the Crown lease, the intended use of the development as a special dwelling, compliance with parking requirements for supportive housing, and adherence to front boundary setbacks and solar access requirements. Additionally, the applicants argued that the approval was inconsistent with the advice of the Conservator of Flora and Fauna, as no realistic alternatives to the development had been considered.

The key legal issues before the court included whether the proposed lease variation could affect the concessional status of the Crown lease, the classification of the intended use of the development, compliance with parking requirements for supportive housing, and adherence to front boundary setbacks and solar access requirements. The court also had to determine if the approval was inconsistent with the advice of the Conservator of Flora and Fauna, as no realistic alternatives to the development had been considered.

The court found that the DA did not comply with R1(c) of the CFZ Development Code, which is a mandatory rule, and thus, the DA must not be approved under section 119(1)(a) of the Planning Act. The court also found that the DA did not comply with R41/C41, R42A/C42A, R61/C61(a), (e), and (f) of the Multi Unit Housing Development Code. The court was not satisfied that the DA complied with R29/C29(a) and (b) and R57 of the Multi Unit Housing Development Code. Furthermore, the court found that where approval of the DA would be inconsistent with the advice given by the Conservator of Flora and Fauna, the Tribunal was not satisfied that realistic alternatives to the proposed development, or relevant aspects of it, had been considered. Therefore, the decision under review was set aside and substituted by a decision to not approve the application for development approval.

ORDERS:
The Tribunal orders that:
1. The decision under review is set aside and substituted by a decision to not approve application for development approval DA2020037848 / S144C.
The Tribunal notes:
(a) The Tribunal finds that the DA does not comply with R1(c) of the Community and Facility Zone Development Code and R41/C41, R42A/C42A, R61/C61(a), (e) and (f) of the Multi Unit Housing Development Code.
(b) The Tribunal is not satisfied that the DA complies with R29/C29(a) and (b) and R57 of the Multi Unit Housing Development Code.
(c) Where approval of the DA would be inconsistent with the advice given by the Conservator of Flora and Fauna, the Tribunal is not satisfied that realistic alternatives to the proposed development, or relevant aspects of it, have been considered.
(d) The Tribunal will publish its reasons on a later date.

Orders

Orders of the court

ORDER

The Tribunal orders that:

1. The decision under review is set aside and substituted by a decision to not approve application for development approval DA2020037848 / S144C.

The Tribunal notes:

(a) The Tribunal finds that the DA does not comply with R1(c) of the Community and Facility Zone Development Code and R41/C41, R42A/C42A, R61/C61(a), (e) and (f) of the Multi Unit Housing Development Code.

(b) The Tribunal is not satisfied that the DA complies with R29/C29(a) and (b) and R57 of the Multi Unit Housing Development Code.

(c) Where approval of the DA would be inconsistent with the advice given by the Conservator of Flora and Fauna, the Tribunal is not satisfied that realistic alternatives to the proposed development, or relevant aspects of it, have been considered.

(d) The Tribunal will publish its reasons on a later date.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

By prior arrangement with the parties and with the assistance of an agreed itinerary, the Tribunal conducted a view of the block, Bill Pye Park, and the houses on Rutherford Crescent, noting the matters to which the parties wished to draw attention. In assessing issues of ‘desired character’ the Tribunal has relied mainly on its own observations rather than on the opinions of others.Applicants’ evidence Jeremy Allen, the applicant in AT 44/2021, gave a statement [exhibit A] in which he provided a detailed analysis of the development in support of his opinion that the DA does not comply with the CFZ zone objectives and relevant rules and criteria of the CFZDC, MUHDC and PVAGC. The Tribunal views much of his statement as submissions rather than evidence. Mr Allen gave oral evidence and was cross-examined. Mr Allen’s statement annexed a Tree Impact Assessment Summary Report by an arborist, Martin Jones, dated July 2021 [exhibit B]. As Mr Jones was not available for cross-examination, the Tribunal has disregarded his report. Ian Hubbard, the applicant in AT 45/2021, gave a statement [exhibit C] in which he argued, among other things, that the delegate of the authority gave insufficient attention to sections 119 and 120 of the Planning Act and that alternative community uses for the land should have been considered. He also commented on residential density and impact of the development on trees. The Tribunal views much of his statement as submissions rather than evidence. Mr Hubbard gave oral evidence and was cross-examined. Hillary Middleton, an experienced urban planner, provided a statement (exhibit D) in which she opined that the proposal is for a special dwelling rather than supportive housing and must be lodged in the impact track, and that the proposal does not comply with R1(a), C10, C11, C13 and R25 of the CFZDC, R29/C29, R48/C48, R49/C49, R77/C77 of the MUHDC, and is out of character and inconsistent with comparable densities permitted in nearby residential areas. She gave oral evidence concurrently with other planning experts and was cross-examined. Susan Conroy, a social and cultural planner, provided a statement (exhibit E) comprising a social impact assessment of the proposal focusing on safety considerations under the CPTEDGC, personal amenity and open space requirements of residents. She identified the design of the metal palisade fence bordering the park as a cause for concern, particularly its scalability and visual permeability into the PPOS of each dwelling. She considered the park, which contains a mix of trees and shrubs and negligible lighting at night, would provide opportunities for a person to observe a resident within their own private space without being seen and that the proposed fencing did not provide an effective barrier against opportunistic or intentional antisocial or criminal behaviour. Ms Conroy gave oral evidence concurrently with other planning experts and was cross-examined. The applicants tendered short statements by Jade and Lien Ly (exhibit F) and Alastair Sands (exhibit G), who live in Rutherford Crescent, describing renovations to their Tocumwal weatherboard homes. The Tribunal considers the evidence lacks relevance and has given it no weight.

Decision

Reasons for decision

On 14 April 2021, a delegate of ACTPLA approved the amended DA subject to conditions under part 7 of the Planning Act (the decision under review) and issued a Notice of Decision.[9] The conditions of approval are in Part A of the Notice of Decision (NOD), of which only some are relevant. Condition 3, headed “Further Information”, states:Within 28 days from the date of this decision, or within such further time as may be approved in writing by the…authority, the applicant shall lodge with the…authority for approval:(a) revised plans and architectural drawings, based on the relevant drawings submitted as part of the application, showing:i. further articulation of the northern frontage of the development to the satisfaction of the…authority…;ii.the proposed driveway verge crossing redesigned to ensure a minimum width of 5.5m whilst maintaining a 4m clearance to the existing verge tree, consistent with TCCS Condition 5(a);iii. an updated landscape plan, showing mass plantings of colourful native shrubs in sunny locations to support local birdlife, and deep shade tolerant species replacing weeds under the oaks, consistent with advice received from the Conservator…;iv.an updated landscape plan further limiting pedestrian access to the drip zone of Tree 29. Alternative fencing of the PPOS[10] from the NE dwelling preventing access to Tree 29 area is considered required for this condition. (Mulch, not generally suitable for general pedestrian use, is also required in the drip zone for this tree). [footnote added](b) a revised waste management plan demonstrating a commercial waste collection service managed by the business owner, consistent with TCCS condition 5(r) and (s);(c) further evidence of compliance with Rule/Criterion 3 of the Waterways: Water Sensitive Urban Design General Code, or justification against associated criteria.Note: The proposal currently has a shortfall of 3.4kL of on-site stormwater detention after utilizing 50% of the on-site stormwater retention. In its assessment, the…authority is satisfied that compliance with Rule or Criteria 3 is achievable.Information to satisfy the above conditions shall be submitted as a S165 application to the Authority via the redevelopment portal.[10] Principal private open space Condition 4, headed “Tree Management Plan”, states:(a) The development shall proceed with the approved plans and supporting documentation of ‘Landscape Management Plan & Tree Management Plan, Drg. No. 3760-G2 E, dated 10/02/2021’ and ‘Response to comments from EPSDD by DSB Landscape Architects, Project No. 3760, dated 10/02/2021.’ Or as otherwise agreed to in writing by the…authority.(b) All excavation works within the tree protection zone of trees to be retained shall be supervised by a suitably qualified Arborist to ensure the development proceeds consistent with the low impact work principles as detailed in ‘Landscape Management Plan & Tree Management Plan, Drg. No. 3760-G2 E dated 10/02/2021’.

Ratio Decidendi

Legal Principle Established

The Tribunal finds that the DA does not comply with R1(c) of the CFZDC. As this is a mandatory rule, section 119(1)(a) of the Planning Act requires that the DA must not be approved. Visitor and operational parking Although the CFZDC does not specify visitor car parking requirements, the lack of code requirements does not remove the need for a parking assessment as part of the general site and development considerations under section 120 of the Act. Both Mr Hogan and Mr McLennan assessed the need for visitor car parking under the PVAGC on that basis. We consider that adequate visitor car parking must be provided on-site and that the location of the proposed development on a blind curve of a narrow street, which is proposed to be further narrowed to improve site lines for vehicles exiting the driveway, makes it inappropriate to allow for visitor car parking to be provided off-site. We do not accept Mr Hogan’s opinion that provision of parking off-site within 100m is appropriate, noting that he also recommended that there should be localised widening of Rutherford Crescent in the location of the intended parking area to minimise impacts on through traffic movement. Accepting that the PVAGC allows visitor and operational parking to be provided off-site within 100m where appropriate, we are satisfied that it is not appropriate to do so in this case. It is reasonable to expect that visitors will park as close as possible to the nearest access point (be it via the footpath or driveway) if on-site parking is not available, which would result in cars being parked on the curve. In the Tribunal’s opinion, the location of the block and the narrowness of Rutherford Crescent means that provision of adequate on-site visitor parking is an essential requirement for any future development of the site. We accept Mr Hogan’s evidence that it is appropriate to adopt 60% as a conservative assessment of the utilisation rate of parking spaces by residents at any given time, leaving four on-site spaces available for visitor parking.[31] [31] Exhibit 15 at [15] Ms Crimmins gave oral evidence expanding on the services that may be delivered to residents on-site, which may require YWCA employees and other service providers to visit the site. Accepting that not all services will be provided to every individual, the number of tenants living there means that the potential for several service providers, as well as casual visitors, to be visiting the site at any given time is real. Although Ms Crimmins said the new facility would operate similarly to Betty Searle House and Lady Haydon House, the YWCA did not provide any empirical data about the utilisation rate of parking spaces for visitors and operational requirements at those facilities. The extent to which demands may be placed on visitor parking is difficult to gauge from Ms Crimmins’ evidence. However, we are not persuaded that anything in her evidence justifies reducing the number of on-site parking spaces below 10, even if it was permissible to do so under R1(c) of the CFZDC. We do not accept Mr Hogan’s and Mr McLennan’s assertion to the contrary.