Allen v ACT Planning and Land Authority

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.