Amarso Pty Ltd & Ors & Act Planning and Land Authority (Administrative Review) - [2012] ACAT 9

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

AMARSO PTY LTD & ORS & ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2012] ACAT 9
AT 11/62
Catchwords: ADMINISTRATIVE REVIEW – whether amended plans produced after the planning authority’s decision needed to be renotified – relevance of the Jamison Master Plan – height and scale of proposed development – compatibility of proposed development with existing or future desired character of adjacent development – the meaning of “natural ground level” – removal of regulated or potentially regulated trees – solar access – adequacy of vehicle parking space
List of legislation: ACT Civil and Administrative Tribunal Act 2008, s. 68
Planning and Development Act 2007, ss. 115, 119, 144, 146, 148, 149 and 333, and Division 7.3.3
Tree Protection Act 2005, ss. 7, 8, 15-18, 22 and 82

List or Regulations: Territory Plan 2002, Part B2C
Territory Plan 2008
Group Centres Development Code, Criteria 21,22 and 48
Parking and Vehicular Access General Code,
Sections 3.2.1, 3.2.4 and 3.2.6
Multi Unit Housing Development Code, Rules 86, 144-146, and 222, and Criterion 222

Planning and Development (Draft Variation Number 306) Consultation Notice 2011 (NI2011-273), Appendix G

List of cases: Cvetanoski and Commissioner for Land and Planning
[1999] ACTAAT 42
Griffith Narrabundah Community Association v ACT Planning
and Land Authority & Anor (Administrative Review)
[2011] ACAT 61
Land Architecture Australia and ACT Planning and Land Authority & Ors [2008] ACTAAT 33
Mainore Pty Ltd and ACT Planning and Land Authority
[2010] ACAT 18
Remont & Scott and Minister for Urban Services and Hinds [2001] ACTAAT 9
Walkington & Ors and ACT Planning and Land Authority [2010] ACAT 81

List of Texts/Papers: Jamison Group Centre – Master Plan 2002

Tribunal: Professor P. Spender, Presidential Member
Dr D. McMichael, Senior Member

Date of Orders:  2 December 2011
Date of Reasons for Decision:         15 February 2012
AUSTRALIAN CAPITAL TERRITORY)
CIVIL & ADMINISTRATIVE TRIBUNAL)
AT 11/62
RE:AMARSO PTY LTD
Applicant

AND:ACT PLANNING AND LAND AUTHORITY
Respondent

AND:TOWNSEND & ASSOCIATES ARCHITECTS PTY LTD
Party Joined (1)

AND:REDEVELOPMENTS PTY LTD
Party Joined (2)

AND:ROBYN COGHLAN
Party Joined (3)

AND:HALINA ZACHARA
Party Joined (4)

Tribunal: Professor P. Spender, Presidential Member

Dr D. McMichael, Senior Member

DATE: 2 December 2011

ORDER

The decision under review is varied as follows:

by replacing the words “in accordance with the plans drawings and other documents and items submitted with the application and endorsed as forming part of this approval” in paragraph 2 of the Decision with the following:
“in accordance with the plans, drawings and other documents tendered into evidence by the first and second parties joined as Exhibits PJ1B and PJ1C.”
by amending or imposing additional conditions of approval as follows:

(a)by adding at the beginning of the subparagraph A3(a)(iv) the following words:
“a revised site plan (based on Drawing AS100 of 18 February 2011 of Townsend and Associates Architects, tendered into evidence by the respondent as T1121 Exhibit R1) showing additional parking spaces for people with disabilities to meet the requirements of the Parking and Vehicular Access General Code;”.

(b)A3(a)(vii) (new condition)

“A plan (based on Traffic Control Device Plan Additional Off-Site Parking Arrangement - Drawing O8P300 Rev B of 10 November 2011, of Hughes Trueman Consulting Engineers, Planners & Managers) showing additional on-street and off-street parking spaces as recommended in the Parking Experts Report of 9 November 2011 (tendered into evidence by the applicant as Exhibit A10) to the satisfaction of the Authority, to be constructed at the cost of the second party joined.”

(c)By adding the following words at the beginning of paragraph B3 TREE
PROTECTION

“The trees listed as “remove” on Tree Protection Plan on Drawing 301 of 21 February 2011 of Harris Hobbs Landscapes (tendered into evidence by the respondent as T1180, Exhibit R1) are to be removed and a Tree Management Plan covering the protected trees that will remain on the site is to be prepared and submitted for approval by the Conservator of Flora and Fauna”.
………………………………..
Professor P. Spender, Presidential Member
For and on behalf of the Tribunal

REASONS FOR DECISION

Amarso Pty Ltd (“the applicant”) sought review of a decision of the ACT Planning and Land Authority (“the respondent”) made on 24 June 2011, to approve, with conditions, Development Application (“DA”) No 2010019390 seeking
·consolidation of Blocks 9, 43 and 44 Section 50 Macquarie;
·demolition of the existing buildings on Block 9;
·lease variation to permit: club, commercial accommodation use, community use excluding child care facility and hospital, drink establishment, indoor recreation facility limited to gym/personal fitness, non-retail commercial limited to office and financial establishment, place of assembly, residential use, restaurant and shop;
·construction of eight 4-6 storey buildings consisting of 250 one bedroom units, 67 two bedroom units and 15 three bedroom units;
·two level basement car parking, associated landscaping, paving, site works;
·removal of regulated trees; and
·off-site works (including works required by sale conditions).

Townsend & Associates (first), Redevelopments Pty Ltd (second), Ms R Coghlan (third) and Ms H Zachara (fourth) were joined as parties. (The first and second parties joined are collectively referred to as the “developers” in this decision.) The matter was heard on 3, 4, 7, 8, and 9, 10, 11, 28 and 29 November, 2011. The applicant was represented by Mr C Erskine SC, the respondent by Dr D Jarvis of Counsel, and the developers by Mr P Walker of Counsel. The third and fourth parties joined were self represented.
The Tribunal had before it the documents on which the respondent had based its decision (“the T Documents” and “the supplementary (ST) documents”), the Facts and Contentions of the Parties and the documents tendered in evidence (“Exhibits”).
The Tribunal made Orders in this matter on 2 December 2011 and advised that its reasons for the decision would be published in due course. The reasons are set out in the paragraphs that follow.

Background

The proposed development is to be located on a site to the south of the Jamison Group Centre public parking area. The site will comprise three adjacent blocks in Section 50, Macquarie, which are to be consolidated. The largest is Block 9, on which is located the derelict former Jamison Inn. The other two are presently unleased Territory land – Block 44 is a small triangular block lying to the east of Block 9 while Block 43 is a semicircular block lying to the west of Block 9 and separated from it by a slip road from Bowman Street to Redfern Street. It will be necessary to grant and register leases of these two blocks before the site can be consolidated.
The resultant block will be roughly triangular, approximately 15,116m²in area, bordering Bowman Street to the west, Redfern Street to the south-east and the Jamison car park to the north. It slopes down from the Redfern Street boundary generally in a north-westerly direction, but that part of it which constitutes Block 9 was excavated to provide a relatively flat area on which the Jamison Inn was constructed in the late 1960s. As the developers and the respondent contended that the height of buildings was to be measured from natural ground level, this gave rise to the need to establish what the natural ground level is and how it was to be determined.
The proposed development comprises three five story buildings facing the Jamison car park (Buildings A, B and C), four buildings of five to six storeys facing Redfern Street (Buildings D, E, F and G) and one four storey building facing Bowman Street (Building H). There will be two separate basement car parks, one of one level and the other of two levels.
Approval of the DA is subject to any relevant provisions of the Planning and Development Act 2007 (“the Planning Act”) and cannot be given if the proposed development is inconsistent with the Territory Plan 2008 (“the Territory Plan”). The site is within a CZ2 Zone under the Territory Plan and the proposed development is subject to the Group Centres Development Code (“GCD Code”) and falls within the merit track for assessment purposes. The GCD Code contains provisions affecting the scale, number of storeys and height of buildings that may be constructed in Section 50, Macquarie, and a key issue for the applicant and the third and fourth parties joined was whether the proposed development exceeded the permissible height and whether its scale was compatible with existing, or future desired character of, adjacent development.
The eight buildings will contain 322 residential units (250 one bedroom, 67 two bedroom and 5 three bedroom) as well as eleven separate commercial tenancies on the ground floor of buildings A, B and C facing the Jamison car park, ranging in size from 90-100m² to 290m², all of which will be unit titled. A number of the residential units are located on the south side of buildings A, B, C, D, E, F and G, and do not receive much, if any sunlight on 23 June (the winter solstice). An issue of concern to the third and fourth parties joined was whether this met the requirements of the Territory Plan
A number of large trees will need to be removed to allow the development to proceed. Some of these are on leased land and therefore are regulated trees under the Tree Protection Act 2005 (“the Tree Act”) while others are on unleased Territory land, but would become regulated trees when the leases for Block 43 and 44 are issued. The decision of the respondent to approve the DA was contrary the advice of the Conservator of Flora and Fauna, relying on section 119(2)(a)(ii) of the Planning Act to decide that there were no realistic alternatives to the development proposal. The third and fourth parties joined contended that there were realistic alternatives that would avoid removal of the trees.
While the parking for residents and for some visitors was to be provided on site in accordance with the provisions of the Parking and Vehicular Access General Code (“the Parking Code”) there was a short fall of parking for visitors to the residences and for the commercial leases which are to be provided in the ground floors of the three buildings A, B and C facing the Jamison car park. The respondent’s approval assumes that the shortfall will be met from the public car park and some on-street parking to be provided by the developer. This, together with the scale of the development, was the main issue for the applicant.
A major issue for the applicant and the third and fourth parties joined was whether the proposed development was consistent with the Jamison Group Centre - Master Plan 2002 (“the JMP”) developed by the respondent after community consultation in 2000-2001. The respondent and the developers considered that this master plan was no longer relevant to planning decisions, other than in providing historical background information.
The respondent’s approval imposed a number of conditions, including one relating to the submission of revised plans and drawings to address particular deficiencies in the submitted plans and drawings. These were provided by the first party joined and are contained in Exhibit R2. No party raised any issues in relation to these revisions. Further amendments were made by the first party joined prior to the hearing to address some issues that had been raised by the applicants and other objectors, and these revised drawings, known as Option B, were tendered in evidence as Exhibit PJ1C.

Witnesses
Evidence was given on behalf of the applicant by Mr Anthony De Marco, who is a Director of Amarso Pty Ltd which has been the registered proprietor of Jamison Plaza since 2002; by Ms Hillary Claire Middleton, a qualified and experienced urban planner currently employed by ACT Planners Pty Ltd, who is a Fellow of the Planning Institute of Australia and a past President of its ACT Division; by Mr Wal Kostyrko, a qualified architect, town planner and director of Wal Kostyrko Pty Ltd who is a Fellow of the Royal Australian Institute of Architects and a Member, by invitation, of the Royal Australian Planning Institute with many years experience, including with the former National Capital Development Commission (“NCDC”) and in private practice in Australia and New Zealand; by Mr Robert Nairn, a traffic and transport engineer with qualifications in economics and engineering, who has over
30 years experience in transport planning and traffic engineering and who is a Fellow of Engineers Australia and a Life Fellow of the Institute of Transportation Engineers; and by Mr Tom Brimson, who is Technical Director and National Traffic Engineering Leader of AECOM Australia Pty Ltd, who is a Fellow of Engineers Australia with many years experience in traffic engineering and planning including periods as ACT Traffic Manager and with the NCDC.
Evidence for the respondent as given by Mr George Cilliers who is technical coordinator in the Development Services Branch of the respondent. He was not the assessing officer for this DA but had familiarised himself with the proposal and all relevant documentation as delegate of the respondent. He has graduate qualifications in Arts, Urban and Regional Planning and Environmental Law and many years of experience in planning and development assessment in both South Africa and Australia; and by Mr Paul Isaks, transport specialist in the Transport Planning and Strategy Section of the City Planning Division in the Environment and Sustainability Directorate of the ACT Government, formerly the Department of Territorial and Municipal Services (“TAMS”). Mr Isaks has a Bachelor of Applied Science degree from the University of Canberra and many years experience in transport and traffic planning and management in the ACT. A witness statement prepared by Mr Sornalingam Jatheendran, who is Manager of Commercial Development, Asset Acceptance Section, in the Directorate Services Division of TAMS commenting on various aspects of the waste collection management and traffic safety within the site and proposed on-street parking was tendered in evidence, but he was not called as a witness.
Evidence for the first and second parties joined was given by Mr Ben Walker, a qualified architect and landscape architect and a Member of the Australian Institute of Architects who is an Associate of Townsend & Associates Architects (the firm engaged to undertake the architectural services for the proposed development) who was deeply involved in the design of the proposed development; by Mr Edward Streatfeild, a qualified and experienced town planner who is a Member of the Planning Institute of Australia, a Certified Practising Planner and a licensed builder and who has had many years experience as a development assessment officer with the respondent before going into private practice in 2008 and is now the Principal Planner of Resolution Planning consultancy; and by Mr Graeme Shoobridge, a qualified civil engineer with Mott MacDonald Hughes Trueman who has 37 years experience in private practice and government agencies in NSW and the ACT, particularly in traffic impact and parking assessment, road safety audits and infrastructure design. A witness statement prepared by Mr Keenan Veraar, a real estate agent with L J Hooker giving information about the number of pre-sale contracts that had been entered into for the proposed development units, the demand for units in the area, and the kinds of people likely to buy into the development was tendered in evidence but Mr Verarr was not called as a witness.

A preliminary legal issue
An issue that arose early in the proceedings was whether the amended plans (Option B) produced subsequent to the decision of the respondent, were required to be re-notified in accordance with section 146(2) of the Planning Act. Section 144 of the Planning Act provides that the respondent may, if asked by the applicant, amend a DA provided that the development applied for, after the amendment, would be substantially the same as the development applied for originally and that the assessment track would not change if the application was so amended. In the event that a decision has been made by the respondent to amend an application that has previously been publicly notified, section 146(2) provides for further public notification, but section 146(3) empowers the respondent to waive this requirement under certain circumstances. Those circumstances are that no one other than the applicant will be adversely affected by the amendment, and that the environmental impact caused by the approval of the amendment will do no more than minimally increase the environmental impact of the development.
In this case, the original proposal had been publicly notified. The Tribunal, by virtue of section 68 of the ACT Civil and Administrative Tribunal Act 2008, may exercise all the powers of the respondent and so considered whether there was a need, in this case, to undertake further public notification. In Walkington & Ors and ACT Planning and Land Authority [2010] ACAT 81, the Tribunal concluded that the amended development applied for in that case would be substantially the same after the amendment as the development applied for originally and that the assessment track would not change. However, it was concerned that some original objectors were not represented in those proceedings and therefore, in order to accord procedural fairness and to be completely satisfied that no one would be adversely affected by the amendment of the proposal, made orders requiring the developer to submit detailed drawings of the amended proposal to all parties and adjoining lessees and for the respondent to assess the amended proposal and provide a copy of its assessment to those same lessees, so that all concerned would have an opportunity to consider the amended proposal and if they so desired, to be joined as a party to the proceedings.
In the present case, the amendments that are proposed are very minor in nature compared with the amendments sought in Walkington and after consideration, the Tribunal was satisfied that the proposed development was substantially the same as that originally applied for and that the assessment track would not change. It further decided that the amendments proposed, which mainly involved reducing the height of the buildings, would not adversely affect anyone other than the applicant and would not increase the environmental impact. Consequently, it saw no need to follow the course adopted in Walkington and decided to exercise its power to waive the requirement for re-notification under section 146(2) of the Planning Act.

Issues for Consideration

The main issues that were of concern in this case have been identified in paragraphs 8 to 12 above. They may best be considered under a number of headings as follows:
·relevance of the Jamison Master Plan
·height and scale of proposed development and whether these are compatible with existing or future desired character of adjacent development;
·removal of regulated or potentially regulated trees;
·solar access to south facing units;
·impact of excess parking on Jamison car park and on traffic safety in adjacent streets.
The Tribunal will deal with them seriatim below.

The Jamison Group Centre - Master Plan

Background

In 2002, the respondent’s predecessor, Planning and Land Management, published the JMP which stated that it “establishes a framework for guiding sustainable growth and rejuvenation of the centre over the next 10-20 years” and that “to implement the master plan, a variation to the Territory Plan is required. The master plan forms the basis for the preparation of this variation” (page 2). The plan involved extensive consultation over two years with residents, businesses and community groups.

The JMP enunciated, at page 2, a “Community Vision for Jamison” which, inter alia, stated that
The community vision for Jamison is to reinvigorate and revitalise the centre to achieve a new image, and to become an outward looking centre that is highly visible and accessible from its potential catchments. The centre must become an inviting, attractive and safe place for the whole community. This vision will be reinforced in the master plan principles by:
…
·encouraging the day and night vitality and the perception of a ‘people-filled’ centre;
·…
·retaining the easily accessible car parking at the centre;
·…
·defining streets, parks and other public spaces by human scaled, robust building forms that are responsive to climate and energy efficiency.

The last of these dot points was expanded, at page 8, by
·requiring buildings to be sited to front and overlook streets;
·providing minor or no front building setbacks;
·limiting building heights to a maximum of 4 storeys or 15 metres above ground level;
·providing ground floor levels with 3 metre floor to ceiling heights; and
·requiring the base, middle and top of buildings to be clearly articulated
The JMP included an array of drawings intended to exemplify the realisation of this vision, including plans showing possible locations and scale of future developments including the site of the development under review, indications of possible building forms, future street tree plantings and parking developments. It also spelled out the matters that would need to be covered by a variation to the Territory Plan, including to:
·permit residential use at ground floor level in precinct “b’ [the subject land];
·allow a plot ratio of 2:1 for sections 48 and 50 and 1.5:1 for Section 49 as a performance measure;
·allow a maximum building height of 4 storeys or 15 metres above ground level, whichever is the greater.
These proposals were included in Part B2C of the Territory Plan 2002 (“the 2002 Territory Plan”) by Variation 202 on 29 September 2003, which adopted the specific wording of the JMP in relation to building height, while the JMP was included on the Register of Planning Guidelines under that Plan, which meant that it was required to be carefully considered by the respondent in relation to a DA. However, under the current Territory Plan, there is no longer a Register of Planning Guidelines and the JMP is not a document which is required to be considered in relation to a DA but remains accessible on the respondent’s website as a document “provided for information”.
The significance of this arises from the requirement, in Criteria C21 and C22 of the GCD Code, to have regard to the “existing or desired future character” of adjacent development. The issue was whether the JMP could be taken into account to indicate the desired future character of the Jamison precinct.
Submissions about the JMP
Dr Jarvis, for the respondent, submitted that although Master Plans were still being developed for Groups Centres including most recently for Kingston (Exhibit A8) they were not now used in the same way as under the old Territory Plan. The current procedure is to develop a precinct code which specifies land use, height and design details which will encourage development and redevelopment, and ensure that it achieves the principles outlined in the master plan (Exhibit A8 p 19).
Mr Philip Walker, for the developers, submitted that as a matter of law, the JMP was not a planning instrument and was not to be interpreted as some kind of de facto planning instrument. He observed that those drafting the Territory Plan could have specifically mentioned the JMP but chose not to do so. While there is mention of the need to consider neighbourhood plans in some parts of the Territory Plan, there is no similar reference to master plans, other than a couple of specific references at Criterion 12 of the City Centre Development Code and Criterion 68 of the Mixed Use Zone Development Code. He submitted that the JMP has no use, but even if the Tribunal were to find that it did have a use, it should be used properly in the context in which it was drawn up. He accepted that some witnesses had taken it into account but he remained of the view that it had no part to play in the current proceedings. At most, he said, it may be used for historical purposes and, where appropriate, as an extrinsic aid in interpreting the Territory Plan.
As to the desired future character of adjacent development, that was to be found in the Objectives of the CZ5 Code, where there is reference to “medium and higher density development” and in the GCD Code which sets out the character through the Building and Site Controls, the Intent of which at paragraph (b) is

              To ensure that buildings are compatible with the built form, siting and
              scale of development in adjacent areas or the desired future character[1]
              of the area established within the Plan.

He submitted that these last eleven words made it clear that the future desired character was to be established “within the Plan”.

[1] We note that elsewhere the GCD Code uses the term ‘future desired character’ but attach no significance to the change in word sequence
Mr Erskine, for the applicant, submitted that the JMP was promulgated by the respondent’s predecessor, and that it was the result of extensive public consultation and therefore must be regarded as a considered statement, and noted that the respondent is in the process of developing master plans for almost every group centre at present. It follows that they have to be seen as the respondent’s view of the future character of the areas. Unless this is accepted, there is nothing else to guide the Tribunal in determining “future desired character” under Criterion C21(a)(i).
He submitted that the fact that the JMP was published in 2002 does not make it redundant because it was intended to guide development for 15 to 20 years into the future and he noted that it still is used as a guide by those releasing land and is referred to by the respondent’s officers.
Neither Ms Coghlan nor Ms Zachara made any submissions on this issue, though each of them generally endorsed Mr Erskine’s submissions.
Consideration by the Tribunal
The Tribunal has carefully considered the submissions of the parties on this matter and the evidence before it. It notes that a number of witnesses, including those of the respondent, did make use of the JMP in arriving at their opinions about the proposed development and that even Mr Cilliers, who considered that the JMP was “not a document to be used in the development assessment process”, acknowledged that it could be referred to “in general terms for background information or to get a better understanding of the perceived future character at the time of its writing”. Indeed, Mr Cilliers, in his witness statement (Exhibit R6), went on to consider the way in which the proposed development was consistent with the JMP. This does not, of course, mean that he gave it any statutory significance.
We reject Mr Philip Walker’s argument that the future desired character is established entirely within the Territory Plan. In our view the phrase “established within the Plan” used in the Intent of the Building and Site Controls refers to the “area” - that is, the Jamison Centre as depicted in Figure A3 of the GCD Code – the future desired character of which is to be considered. While it is clear that several provisions of the GCD Code, in particular Rules and Criteria C21 and C22, are directed towards the control of building heights, the scale of development and its compatibility with adjacent development in Sections 49 and 50, Macquarie, the Tribunal is not persuaded that these alone can be said to determine the future desired character of the adjacent development.
As Mr Phillip Walker observed, Criterion C21(a)(i) offers a developer the choice of being compatible with either existing adjacent development or the future desired character of adjacent development. While the nature of the existing adjacent development can be determined empirically, that of the future desired character must, in our view, be based on something more than controls on building height and plot ratio and the only available guidance is to be found in the JMP. Indeed, we might well ask what is the point of continuing to produce master plans for group centres unless to provide some indication of future desired character.
The Tribunal accepts that the JMP may be referred to as a guide to future desired character, but in doing so we place no reliance on any drawings of building form that are in the JMP. We regard them as no more than an attempt, by an unnamed person, to give some indication of the form of possible future developments and how they might relate to other buildings, open spaces and public car parks. In this regard we note that the “Outcome Drawing” on page 9 of the JMP is specifically described as illustrating “a possible development outcome for the centre” while the drawings on pages 13 and 14 were intended to “provide guidance on height planes, building envelopes, building interface, articulation elements and uses for development on private leases”, but it was noted that “development guidelines will be prepared on a block-by-block basis prior to release” that would “reflect the broad planning and urban design principles expressed in the master plan”. These words make it clear that it is the “broad planning and urban design principles” that are the significant elements of the JMP. We note that no development guidelines have been prepared for the subject blocks, nor is there a Precinct Code (which would have taken priority over any other Codes pursuant to section 115(2) of the Planning Act).
In fact, the JMP Outcome Drawing referred to above should be a source of comfort to the respondent and the developers because in many respects it shows a development not dissimilar to what is proposed – that is, a multi-storey mixed use development in a number of buildings occupying much the same area as the proposed development, including the removal of the slip lane and incorporation of Block 43 into the development and removal of trees on the consolidated block. Nevertheless, we do not rely on the JMP as authority for any specific aspect of the proposed development, but we do regard it as indicative of the future desired character of the Jamison Group Centre.

Height and scale of the proposed development and the future desired
character of adjacent development
The issue of the height and scale of the proposed developments was of major concern to both the applicant and the third and fourth parties joined. They contended that the proposed development would be in breach of the provisions relating to height for Section 50, Macquarie, in the GCD Code, while the scale of the development was not compatible with existing adjacent development, including the Jamison Plaza and neighbouring residential development.
The relevant provisions of the Territory Plan read as follows:
2.6 Macquarie (Jamison) Sections 49 and 50
R21     Maximum building heights are 2 storeys
C 21     a) Building heights comply with all of the following:
i)are compatible with existing, or future desired character of, adjacent development
ii)are appropriate to the scale and function of the use
iii) minimise detrimental impacts, including overshadowing and excessive scale
b)   Maximum building heights are whichever is the greater of 4
      storeys or 15m above ground level
R22     Maximum plot ratios are 1:1 (100%)
C22     …..
c) Maximum Plot ratios for Macquarie Section 50 are 2:1
      (200%).
In this case, neither Rule R21 nor Rule R22 has been met, so in accordance with statement in the Introduction to the GCD Code, that proposals in the merit track have the option to comply with the rules or criteria unless the rules are mandatory, the proponent relies on complying with the relevant criteria. The Territory Plan specifies, in the Introduction to each of the Codes that where it is proposed to meet the criteria, the onus is on the applicant to demonstrate, by supporting plans and written documentation, that the proposed development satisfies the criteria and therefore the intent of the element.
The first aspect the Tribunal will address is the height of the buildings. Criterion C21(b) has the peculiar wording set out above. The word “peculiar” is used because the phrase does not appear in height controls elsewhere in the Territory Plan, which usually refer either to number of storeys or height above natural ground level, but rarely, if ever, both. The phrase is also peculiar because of its use of the words “ground level” rather than “natural ground level” and the addition of the words “whichever is the greater”. This peculiarity might be traced directly to the JMP at page 15 where these very words occur and they gave rise to prolonged debate as to their meaning during the hearing of this application. There are three issues:
(a) whether the words permit a five (or more) storey building provided it is not more than 15m in height;
(b) whether the choice of the words “ground level” was deliberate to distinguish it from “natural ground level”; and
(c) what is “natural ground level”.
The insertion of the words “whichever is the greater” into the phrase confounds the issue immensely. If it had read simply “4 storeys and no more than 15 metres” it would have been clearer. As it is, it can only be read to mean that a building may be more than 4 storeys so long as it does not exceed 15 metres in height. It would also mean that a building could be 4 storeys totalling more than 15 metres in height, but that would assume the storeys were each close to 4 metres high and such a development seems most unlikely to be proposed in present day circumstances. We are satisfied that the Criterion C21(b) allows a building of more than 4 storeys provided it does not exceed 15 m in height above ground level.
That takes us to the second issue as to whether the use of the words “ground level” was a deliberate choice. Some expert witnesses argued strongly that it was and it meant the finished ground level, while others argued equally strongly that it meant natural ground level (“NGL”). Both terms are defined in the Territory Plan as follows:

Natural ground level means the ground level at the date of grant of the lease of the block;
Finished ground level (FGL) means the ground level after completion of all excavation and earthworks.

The Tribunal does not intend to rehearse those arguments here. We are satisfied that the use of the simple phrase “ground level” was probably the result of copying the words from the JMP and that, in accordance with practice elsewhere in the Territory Plan, the words are intended to mean “natural ground level”. Had “finished ground level” been intended, it was open to the drafters of the Territory Plan to use the defined term. We also note that the term “height of building” is defined in the Territory Plan as follows:
Height of building means the vertical distance between natural ground level and the highest point or points of the building.
We acknowledge that the term used in Criterion C22(b) is “building heights” but again, that reflects the wording used in the JMP, and is not to be
distinguished from “height of buildings”.
That takes us to the question of what is the NGL in the present case. While Block 44 is probably close to its natural state, it is clear that Block 9 is not, having been excavated to provide a generally flat space for construction of the Jamison Inn. Further, Block 43 had been affected by roadworks at the intersection of Bowman and Redfern Streets.
Dr Jarvis advised the Tribunal that the definition of NGL cited above was effected by Plan Variation 109 in May 1999, and that previously it had referred to “the natural ground level before excavation or filling”. Dr Jarvis submitted that the amended version referring to the date of the grant of the lease of the block has the advantage of fixing a time by reference to which measurement is intended to occur, but that it was evident that it is still broadly intended to refer to the “natural” state of the land (ie prior to significant intervention by people). He contended that the removal of the phrase “before excavation or filling” from the definition was a recognition that there could possibly be some excavation or filling (for roads and services) associated with estate development prior to the first grant of a lease of the block.

However, the definition does not identify which lease is to be taken into account where more than one lease has been issued over a block. In this case, as the applicant observed, the most recent lease of Block 9 was issued in 2004 when the ground level was dramatically different from that which existed originally. The original lease was granted in 1969 (ST 3-6) and a survey had been done in 1965 for the estate development (ST7) which presumably shows what the NGL was when the 1969 lease was granted.

Dr Jarvis submitted that the term “grant” in the definition of NGL has been taken to refer to the original grant of a crown lease of a block, citing Remont & Scott and Minister for Urban Services and Hinds [2001] ACTAAT 9 and Land Architecture Australia and ACT Planning and Land Authority & Ors [2008] ACTAAT 33 as authorities, but in each of those cases, there had only been one lease granted and the excavations that altered the NGL had occurred after the lease was granted. Moreover, in Land Architecture, the former Administrative Appeals Tribunal ( “the AAT”) observed that

The Tribunal was told that the lease of this block was granted in 1975. The contour lines produced as a result of a survey in 2007…provide a guide to the natural ground level (NGL) but excavations and the existing building on the subject land make it impossible to accurately ascertain the NGL without a current detailed survey.

It is not clear to the present Tribunal whether, by these words, the AAT was suggesting that the NGL should be determined by the current ground level or by some combination of current and original ground levels.
This Tribunal considers that the intention of using the term “natural ground level” in the current definition is to refer to the “greenfields” situation prior to any excavation. In this respect, the Tribunal notes Mr Streatfeild’s evidence that in Draft Variation 306 to the Territory Plan, currently undergoing public , it is proposed to change the definition of Height of Building to refer to height above datum ground level, which in turn is defined as

the level of the surface of the ground as defined in a field survey…at the time of operational acceptance for greenfields development or prior to any new earthworks having occurred after that time.[2]
[2] Planning and Development (Draft Variation Number 306) Consultation Notice 2011. NI2011-273, Appendix G, p.2
The difficulty remains how to measure the height of the proposed building absent the natural ground level in much of Block 9. The problem was resolved by using a survey of the blocks undertaken in 1965 which showed the contours of the subject land prior to its subdivision (Exhibit PJ1F sheet 30). Mr Ben Walker had integrated these contours with the current contour surveys to compile an historical contour diagram of the subject land (Exhibit PJ1D) and onto which he had superimposed the footprints of the 8 buildings in the proposed development (Exhibit PJ1E). Mr Ben Walker was able then to calculate the height of each corner of each building above natural ground level and these are tabulated in Exhibit PJ1B. They reveal that, measured from NGL, no part of any of the building exceeds 15m in height.

We are satisfied that, as far as building height is concerned, the proposed development is not inconsistent with Criterion C21(b) of the Territory Plan, However, that does not, in itself, address the issues of compatibility and “scale” which comprises more than the height of a building. “Scale” is not a defined term in the Territory Plan, so we must rely on the dictionary definition which relevantly is “a certain relative or proportionate size or extent” (Macquarie Dictionary 3^rd ed) or “relative dimensions or degree” (Australian Oxford Dictionary 2^nd ed). Neither this Tribunal nor its predecessor has considered the meaning of this word.

Criterion C21(a)(i) requires building heights to be “compatible with existing or future desired character of adjacent development”; Criterion C21(a)(ii) requires building heights to be “appropriate to the scale and function of the use”; while Criterion C21(a)(iii) requires them to “minimise detrimental impacts, including overshadowing and excessive scale”. It is not self-evident what is meant in Criterion C21(a)(ii) by “appropriate to the scale and function of the use” but the Tribunal was not given any reasons to conclude that four and five storey buildings were inappropriate to mixed residential and commercial uses. However, there were differences of view as to whether the proposed building heights are compatible with existing or future desired character of adjacent development or would have detrimental impacts because they are of excessive scale.

Submissions about Height, Scale and Compatibility

Mr Erskine, for the applicant, submitted that the height, mass, bulk and scale of the development would dwarf the existing and foreseeable developments in the area. It was asserted that the site was enormous, that it rose up a hill and that whatever is built on the hill will dominate the landscape and set the planning and architectural style for future developments. Ms Middleton’s opinion was that while Building H was reasonably compliant with Criterion C 21(a), the development was otherwise of an excessive scale as it lacked gradation of heights, and was oppressive, dominating and lacking in moderation of scale at street level. Mr Kostyrko described the façade facing Jamison Plaza as “overwhelming and confrontational” and “of an inappropriate scale”.

Ms Coghlan, the third party joined, contended that the proposed development would have a much greater impact on the neighbourhood than other nearby multi-unit developments because of its dominating location. She submitted that its scale would be more sympathetic to the location if the top storeys were set back from the street, but without such setback, the fact that much of the site will be covered with large buildings extending to the very edge of the property means that the mass of the development will be overwhelming. She opined that Buildings A, B and C would dominate and overwhelm people using the Jamison car park and that businesses would be affected if too many people find the Centre has become uncongenial due to excessive building height.

Ms Zachara, the fourth party joined, expressed similar views to Ms Coghlan. She described the development as exceedingly large and too imposing for the surrounding area. She suggested that Buildings A to G would probably look better if they were one floor lower and as well as reducing their domineering effect, this would provide better solar access for those living in the lower levels of Buildings D to G and to the inner open areas of the development.
Mr Philip Walker, for the developers, did not address the issues of scale and compatibility other than to contend that one of the objectives of the GCD Code was to encourage a mix of land uses, including medium and higher density residential uses, which contributes to an active and diverse character, and that Ms Middleton had agreed that 5-6 storeys was medium to higher density. He noted that the main objections seemed to be to the appearance of the development viewed from the north, but observed that this view was from the public car park and submitted that no pedestrian would be offended by a
5 storey building situated next to a bitumen car park. While he accepted that the present view of a green hill from the car park would be lost, the Territory Plan contemplates change on the subject land so one cannot really object to it.
Dr Jarvis, for the respondent, submitted that the reference to “future’ character is an explicit recognition that new development may be different in height and scale to the existing development and that the Tribunal is entitled to have regard to the change to the character of an area that is permitted by the Territory Plan. He contended that there would be no detrimental impacts arising from the height of the proposal because it is located on a block separated by road reserves and car parks on all boundaries, which eliminates impacts caused by overshadowing, while its design and siting minimise the impact of height, the south-east elevation presenting largely as a 3 to 4 storey building. He drew attention to the fact that the residential area to the south-west is screened by mature vegetation and the slope of the land, and the residences on Bowman Street opposite the proposed site do not face it, and that, therefore, any visual impact on that area would be minimal.
Dr Jarvis also noted that “adjacent” development includes Section 49 and Block 31 of Section 50, Macquarie, zoned CZ2 and CZ1 respectively and that heights of 15m and plot ratios of 2:1 or 1.5:1 (Section 49) are permissible on these Blocks. He noted that a 5 storey building had been constructed on Block 8 Section 48 and another building of similar scale was under construction on Block 9 Section 48 and submitted that these developments provide an indication of the height and scale of future development likely on the adjacent blocks.
Consideration by the Tribunal
The Tribunal understands Ms Coghlan’s and Ms Zachara’s discomfort about what is proposed. It is clearly not what they had expected the redevelopment of the Jamison Inn site to be like, despite the extensive consultations which preceded the JMP and the indications of future development options to be found therein. However, the Tribunal is bound to consider whether the proposed development is or is not consistent with the Territory Plan and deal with it accordingly
Although noting arguments put by Mr Walker on behalf of the developers, the Tribunal finds that that the JMP provides useful guidance to the future desired character of the area. It clearly anticipates more intensive, multi-storey residential and mixed residential-commercial developments on several vacant sites surrounding the Jamison Centre including the subject site. The Tribunal accepts that the proposed development, if approved, is likely to set the standard for future developments, but that is what is envisaged by the JMP.
There is no evidence to indicate that the proposed development will have any adverse impacts on the existing adjacent residential development across Redfern and Bowman Streets, as in each case there is ample separation by roads, verges and established vegetation from the subject land, so there will be no overshadowing nor should there be any noise impact. Further, the developments there do not face towards the proposed development so there will be little, if any, visual impact.
We accept Dr Jarvis’s submission that the Territory Plan envisages development of the kind proposed on this site and that the proposal is not inconsistent with Criterion C21. Because the plot ratio is slightly less than the 2:1 maximum allowable by Criterion C22(c), it also is not inconsistent with Criterion C22. We therefore conclude that, as far as height and scale are concerned, the proposed development is consistent with the Territory Plan.

Removal of Regulated or Potentially Regulated Trees
An important issue for the third and fourth parties joined was that the approval included the “removal of regulated trees” which they considered was necessary only because the proposed development had been designed to maximise development of the site and all realistic alternatives to the proposed development had not been considered, nor had adequate consideration been given to the Objects of the Tree Act.
The decision maker stated that the application was referred to the Conservator of Flora and Fauna pursuant to Division 7.3.3 of the Planning Act, who provided advice in accordance with section 82 of the Tree Act to the effect that eleven trees proposed to be removed (Trees 2, 10, 12, 17, 19, 25, 27, 28, 29, 20 and 31 in the Tree Protection Plan on Drawing 301 of Harris Hobbs Landscapes (T1180)) were not supported for removal. The situation is complicated by the fact that the Tree Act applies only to trees on leased land (section 10 of the Tree Act). Some of the trees on the verge between Block 9 and Block 43 (27, 28, 29, 30 and 31) are on unleased Territory land and pursuant to section 333 of the Planning Act, are the responsibility of the Custodian of the land in question. However, if the consolidation of the land is ultimately approved, the unleased land comprising Block 43 and the adjacent verge will become leased land, and will then fall under the jurisdiction of the Conservator.
A similar situation arose in Griffith Narrabundah Community Association v ACT Planning and Land Authority & Anor (Administrative Review) [2011] ACAT 61 where, at paragraphs 22 to 33, the Tribunal discussed the complexities arising from the current law. As in that case, Block 9 is in an area designated as a Built-up Urban Area under NI 2010-414 and section 7 of the Tree Act and all leased land within that area is declared to be a Tree Management Precinct under NI 2010-413. Here, Block 9 is leased land so the trees of a particular size on it are regulated trees, but they are not registered trees nor is the area a “declared site” so there was no obligation to refer the matter to the Conservator under sections 119(1)(c) or 148(1) of the Planning Act.
Section 148(4) of the Planning Act seems to leave open the option for the respondent to refer a DA to the Conservator even if not required to do so, while section 149 indicates that if a proposal is referred, the entity in question is required to give advice within certain time frames.
The DA was referred to the Conservator on 3 March 2011, who provided the advice as set out above. In March 2011, it was also referred to Asset Acceptance, TAMS as the Land Custodian, who responded only in relation to Trees 6 and 7, one of which (Tree 6) was marked for removal. TAMS objected to the removal of this tree (T566) but did not comment on other trees that were on unleased land. However, when again asked for comment, in November 2011, about Trees 27, 28, 29, 30 and 31, TAMS responded in similar terms to the Conservator (Exhibit R10) explaining that they had not responded about them earlier because they understood that they were to be incorporated within the leased land and hence were the responsibility of the Conservator.
The respondent chose to act inconsistently with the Conservator’s advice, relying on the provisions of section 119(2)(a)(ii) which permits the respondent to give an approval to a development that is inconsistent with the advice of the Conservator provided that “any realistic alternative to the proposed development, or relevant aspects of it” have been considered. The decision maker gave brief explanations of this choice in its Decision at Part 3 – Public Notification and Entity Advice – in the following terms:

The DA was referred to Urban Tree Management (TaMS) and the Tree Protection Unit for advice. Both agencies supported the removal of some trees and recommended the retention of other trees… Other trees were approved for removal on development grounds under the Planning and Development Act 2008 based on design options and the impact on the design should the trees be retained; and

The applicant has provided design options with regulated trees retained. The design options identified the constraints in the designs to achieve a sustainable design outcome. The main impacts were the lack of achieving a large usable central open space, insufficient commercial frontage towards north, unintegrated and isolated pockets of open space with trees. The designs also lacked sufficient response to the intersection.
Sketches illustrating three alternative design solutions which saved the regulated trees were before the Tribunal at T1058, T1059 and T 1060 together with comments about them from Mr Ben Walker on behalf of the architects. These included the claim that the alternative site planning options used the same design principles as those used for the main proposal, but each of them was found to have deficiencies including very poor or reduced commercial frontage to the Jamison Centre; internal commercial spaces compromised or too small as a result of pushing buildings away from the perimeter closer to the centre of the site; not responding to or reinforcing the major street intersection at corner of Redfern and Bowman Streets; and isolated pockets of trees which could not be successfully integrated into the development and utilised for recreational value because of the major level differences between tree bases and ground level. All the alternative design solutions were described as inefficient and economically unfeasible for the development of a block within a commercial zone. It seems clear that the decision maker’s comments cited above are a summary of these.
The Tribunal is conscious of the fact that any developer will expect to be able to take advantage of the maximum development potential of a site, in this case, the 2:1 plot ratio and the 4 storeys or 15m building height limitations and that the three options discussed above might not be able to achieve that maximum development. Mr Streatfeild’s opinion was that the three alternative options were not compatible with the GCD Code’s requirements and allowances for height and plot ratio and that retaining all of the regulated trees would not be a realistic approach to satisfying the GCD Code Objectives.

Mr Ben Walker agreed that there were economic considerations but reminded the Tribunal that retaining the regulated trees had major implications for the design because of the need to avoid the root zones in the sloping topography. Mr Streatfeild contended that to retain the protected trees required consideration of the site cut and building and basement locations on the block. He pointed out that the tree protection zone around each tree is 2.0m from the edge of the canopy and that creating “tree islands” within a development is unrealistic and threatens the viability of the retained trees. He also considered that level changes, setback and interface issues made retention of the trees along Redfern Street unrealistic for a major development.
Mr Cilliers’ evidence was that the decision to depart from the advice of the Conservator was made only after the issue was thoroughly discussed by the respondent’s Major Projects Review Group and its Executive Policy Committee and was not simply based on the developer’s opinion. The Tribunal accepts that the other options were seriously considered by the respondent and notes that section 119(2)(a)(ii) of the Planning Act requires the respondent only to consider all realistic alternatives, not to accept them.
The Tribunal “stands in the shoes” of the decision maker and therefore must consider whether there are any realistic alternatives to the proposed development that would save the regulated trees. Taking into account the evidence that was put before it during the hearing, the Tribunal is satisfied that although alternatives have been considered, they are not realistic in accordance with section 119(2)(a)(ii) of the Planning Act. Therefore, in deciding the application in accordance with section 119(2) it will be necessary to remove the regulated trees and this removal is consistent with the objects of the Territory Plan as required by section 119(2)(b).
However, that leaves unresolved the issue that, when the leases are issued, some of the trees will become regulated trees and hence pursuant to section 8 of the Tree Act, “protected trees” and will be subject to section 15(1) of the Tree Act, which makes it an offence to damage a protected tree. Section 22 of the Tree Act would permit an application to the Conservator to undertake tree damaging activities, but that would be merely to duplicate what has already been done. The Tribunal therefore adopts the procedure used in Griffith Narrabundah Community Association and will make it a condition of approval that the trees shown as to be removed in the Tree Protection Plan on Drawing 301 of 21 February 2011 of Harris Hobbs Landscapes (T1180) are to be removed. Such a condition exempts the tree damaging activities from the controls in sections 15 to18 of the Tree Act by virtue of section 19(1)(c)(iii)A of the Tree Act.

Solar Access

The applicant and the third and fourth parties joined all contended that the proposed development failed to meet the required standard of solar access to apartments. This requirement arises from Rule R32 of the GCD Code, which is mandatory and requires all multi-unit housing to be designed to comply with Part C(5) of the Residential Zones Multi Unit Housing Development Code (“the MUHD Code”). The only aspects of the MUHD Code with which the proposed development did not comply were Rule R222 and Criterion C222. Rule R222 is not mandatory. It reads:

Development is sited to allow a minimum of 3 hours of direct sunlight onto the floor or internal wall of the main daytime living area and the front edge of any associated private open space of at least 70% of apartments between the hours of 9.00 am and 3.00 pm on 21 June (Winter Solstice).
Criterion C222 reads:

Buildings are to be sited and designed to optimise solar access to north facing windows of living areas and to private open space.
Mr Ben Walker produced drawings of the six levels of the development on which were marked the units in the proposed development that would, in his estimation, receive the amount of sunlight required by Rule R222 and those that would not (Exhibit PJ1H). This revealed that a total of 122 units would not achieve the require three hours, some 38% of the total number. He agreed that the Rule was not met because the number receiving the required sunlight fell short of 70%.
Mr Ben Walker’s evidence was that the site geometry was difficult but because they were required to provide the active street frontages, which are required by Criterion C38 of the GCD Code and the passive surveillance that is required by Criterion C207 of the MUHD Code, it was necessary to have some units facing Redfern Street which would not get direct winter sunlight, nor would some other south facing units. In response to Ms Coghlan’s suggestion that a single row of units, rather than back to back units, would solve the problem, Mr Ben Walker said that in such a configuration there would be no corridor between the units so that external access would be required.
Recognising that the development would not meet Rule R222, they had attempted to maximise the number of units that did receive the required sunlight by having the thinner, one-bedroom units facing north and by “popping out” the living spaces and balconies of the two bedroom units at the building ends to increase opportunities for solar gain. In addition, of those units that do not receive the required 3 hours solar access on 21 June, forty do receive some sunlight during those hours.
In relation to Criterion C222, Mr Ben Walker contended that they had maximised the glazing of the north facing windows and that the living areas would all receive adequate sunlight which would reflect light into the inner bedrooms. He also observed that all the units achieved an energy rating of better than 6 stars, with many achieving 7 or 8 stars, which confirms that the orientation of the development will not create a burden of high energy use.
Submissions about solar access
Mr Erskine, on behalf of the applicant, submitted that the developers had made no effort to achieve the greatest number of units with solar access. He observed that site is sloped facing north and had no impediments (such as a building blocking solar access) to having most units facing north, but they elected not to meet the Rule by rejecting possible design options such as narrower units running through the entire building, or having only one or two levels facing south. Instead, he said, they chose five storeys facing south with some units wholly or partially below ground level on the Redfern Street frontage.

The issue was whether Criterion C222 had been complied with. Mr Erskine submitted that the word “optimise” meant “to achieve the best possible result” or “to produce the maximum amount of”; however, there was no evidence that any such effort had been made to get the best possible solar access. In his submission, it was clear from the requirements in the Criterion that the buildings were to be sited and designed to optimise solar access and that the best possible or optimal result was to be assessed by reference to the development as a whole and not by reference to a unit that (by good luck) had a north-facing living area.
Mr Erskine argued that the developers’ interpretation was that Criterion C222 could be met if those units that do face north optimise their solar access, such as by having larger windows. He submitted that this interpretation could mean that a development could comply with Criterion C222 by deliberately having no north facing units, which would be the exact opposite of the intent of the solar access provisions throughout the Territory Plan and that such an absurdity cannot have been intended.
Ms Coghlan also questioned the meaning of the Criterion and submitted that a logical reading of the provision is that it envisaged all residential units having sufficient windows so that at least one of those would have some northerly orientation and that this should, preferably, be in the living room. She considered the fact that 40% of the units in the buildings have no north facing windows makes the criterion a farce if it is interpreted in the way that the respondent’s witness interpreted it.
Ms Zachara generally concurred with the views of Mr Erskine and Ms Coghlan and suggested that one floor should be removed from each building to allow greater sunlight penetration into the central open space of the development and to the lower levels of buildings D to G.
Dr Jarvis, on behalf of the respondent, relied on the evidence of Mr Ben Walker and submitted that the proposal did comply with Criterion C222, given the constraints of the site and that the extent of non-compliance with Rule R222 was small.
Mr Philip Walker, on behalf of the developers, submitted that with a consolidated block of this shape and with the requirements to build to the boundaries and to provide passive surveillance of the street there was little choice but to have some of the units facing south. In his submission, the Territory Plan recognises that it will not be possible to provide the same level of solar access with different styles of building (comparing Rules R86, 144-146 and R222). This becomes even harder when there is a requirement to provide active street frontages on a triangular block such as this. He reminded the Tribunal that those who purchased units with less than optimal solar access did not affect anyone else’s amenity.
He rejected the applicant’s suggestion that the 70% rule could be achieved by removing the south facing units, arguing that there would be no practical benefit to this. No greater level of solar access is achieved for anyone by talking away south facing units while to do so would detract from the quality of the amenity of the development, and reduce the passive surveillance which enhances the activity that would occur in Redfern Street.

Consideration by the Tribunal
The Tribunal notes that there is no obligation under the Territory Plan to “build to the boundary” on the consolidated block (as Mr Philip Walker suggested), although the requirement to provide “active frontages” to main pedestrian areas and routes may be so interpreted. However, the JMP did envisage that buildings would be required to be sited to front streets (p 8) and states (at p 6) that development should be required to build to and address access streets (including Redfern Street) and provide active frontages to key interfaces (including the public car park). Certainly, the Tribunal accepts that the commercial units on the ground floor of Buildings A to C would desirably be built to the boundary.
The Tribunal accepts that the site topography and orientation do pose design problems and that the proposed development does achieve many of the elements envisaged for mixed use development on the subject block in the JMP. We agree with Mr Ben Walker that buildings with only a single row of units would be impractical and that removing a floor from each building would achieve nothing of value in relation to solar access.

We accept Mr Erskine’s interpretation of Criterion C222, that is, that it applies to the siting of buildings, but that observation, with respect, does not make its meaning much clearer. All it seems to say is that buildings should be sited and designed so that good solar access to private open space and living areas with north facing windows is achieved as far a possible, if one is unable to meet the 70% requirement of Rule R222. In our opinion, this development has achieved that, therefore, we find that there is compliance with Criterion C222 .

Car Parking
The most controversial issue in this matter was the adequacy or otherwise of the provision of parking to meet the requirements of the proposed development. The basic requirement is found in Criterion C48 of the GCD Code, which reads:
Car parking complies with the requirements of the Parking and Vehicular Access General Code
The Parking Code sets out in some detail the parking provision rates for the various zones including commercial zones which begins at section 3.2.1 by setting out the objectives for parking and vehicular access in the commercial zones. These include issues of Amenity, Safety, Efficiency, Access, Equity, Commercial Viability and Non-Commercial Use. Section 3.2.4 sets out the locational requirements, including for Group Centres and reads as follows:

Long Stay Parking
(i)On-site or within 400m except for residential use where parking is to be on site.
Short Stay Parking
(i)On-site or within 200m
Operational Parking
(i)On-site or within 100m
Visitor Parking
(i)On-site or within 200m.
Section 3.2.5 contains Schedule 2 which specifies the parking provision rates for the commercial zones including for various types of commercial uses in group centres. These vary from 1 space per 100m²of floor space for some uses (such as cultural facility) to 10 spaces per 100m² for others (such as restaurant or drink establishment). The rates include both staff (long stay) and visitors (short stay).
Evidence about parking was given by four expert witnesses, Messrs Nairn, Brimson, Isaks and Shoobridge. The parties, at the request of the Tribunal, arranged for them to consult with a view to reducing the areas of difference between them. This they did and they produced an agreed statement, which was tendered in evidence as Exhibit A10. Subsequently each of the experts agreed to amend their witness statements that had previously been filed to conform with the matters agreed in the statement.
The matters agreed may be summarised as follows:
The secure onsite parking to be provided totals 418 spaces;
Residential long stay parking – requirement 369 spaces – all provided on site;
Residential visitor parking – requirement 81 spaces – 52 provided on site or in adjacent on-street parking to be provided; shortfall 29 spaces;
Commercial long stay parking – 3 per 100m² GFA – requirement 49 spaces – all provided on site; (absent any specific provision, this figure was agreed as a reasonable allowance for staff of commercial unit lessees)
Commercial visitor parking
(a)assuming 2 per 100m² GFA – requirement 32 – (none provided - shortfall 32 spaces (based on an overall rate of 5 spaces per 100m² GFA);
(b)assuming 7 per 100m² GFA – requirement 110 – shortfall 110 spaces (based on an overall rate of 10 spaces per 100m² GFA).
The combined shortfall in resident and commercial visitor parking was agreed to be 61 spaces assuming a commercial demand of 2 per 100 m², or 139 assuming a commercial demand of 7 per 100m² GFA. The difference arises from disagreement among the parties as to the appropriate rate to apply for commercial parking, which as stated above, varies with different commercial uses.
There are 11 commercial tenancies proposed for the ground floors of buildings A, B and C, ranging in size from about 90m² to over 2,000m² (T1133) and the permitted commercial uses include club, commercial accommodation use, community use, drink establishment, indoor recreation facility, non-retail commercial limited to office and financial establishment, place of assembly, restaurant and shop. No one was able to forecast the uses to which the commercial spaces would be put, but the lower demand rate used in the agreed statement was based on an overall requirement of 5 spaces per 100m², which assumes a mix of uses ranging from low to high demand, while the higher demand rate was based on an overall requirement of 10 spaces per 100m², which assumes that all the commercial uses would be of the kind with the highest demand (such as restaurant or drink establishment).

Whatever the shortfall, the issue of concern to the applicant and the third and fourth parties joined was whether, and if so how, the shortfall could be accommodated. During their consultations, the traffic experts identified (on a preliminary basis) 67 potential additional spaces that could be provided either within the existing public car park on Block 31 Section 50 (29 spaces) or on Bowman and Redfern Streets (38 spaces) – a total of 67 spaces. However, they emphasised that these would require more detailed consideration as to their design and safety by road traffic engineers before they could be assumed as available options and it was made clear that they would need to be provided by the developer as there were no government funds available. Nevertheless, it seemed clear that many, if not all, of them could be provided and would assist in reducing the shortfall substantially.

Much evidence was given about the availability of parking in the public car park adjacent to the subject site. Mr De Marco, a director of the applicant company which owns the Jamison Plaza, was particularly concerned about the demand for parking in the public car park that would be created by the proposed development. He supported redevelopment of the Jamison Inn site, but not at this scale. He contended that it would put unsustainable pressure on parking and traffic management in the Jamison area (which was already a problem at times) and could lead to patrons going elsewhere. His company had spent a considerable amount of money on improving the car parking arrangements and he had been trying to acquire additional land by direct grant to further improve the parking, so far without success.

Other evidence included the results of a number of surveys of the occupancy rate of available parking spaces and about the peak demand for parking at particular times. Much of this evidence focussed on whether the parking was available within 200m or 400m of the proposed development (which is required under section 3.2.4 of the Parking Code, as discussed above) and how that distance should be measured.

Section 3.2.4 of the Parking Code requires that if visitor parking is not provided on site, then it may be found within 200m of the site, save for long stay parking (which is defined in the Parking Code as “generally longer than 4 hours duration”) for commercial uses which must be within 400m. While not explicit, it seems clear that the off-site parking is to be found in publicly available on-street or off-street car parking areas.

The Introduction to the Parking Code sets out the following guidelines under the heading Using the code:

In cases where the physical constraints of a site make on-site provision impracticable, or the Territory may consider it undesirable for efficiency, traffic operation, pedestrian amenity or other reasons for the specified parking to be provided totally on-site, special arrangements may be negotiated or requirements may be waived at the discretion of the Territory. In such situations the ability to consolidate parking in publicly accessible off-street locations provides a superior outcome. Costs can be reduced by eliminating the need for costly on-site basement car parking, and greater efficiency can be achieved through the increased potential for shared and complementary use

and under the heading Calculation of parking provision requirements,
after setting out the basic approach to calculating the requirement, the
Parking Code states:
However, the performance approach adopted in these codes provides the flexibility to enable a proposal to be supported where the proponent can demonstrate to the satisfaction of the Territory that the objectives can be met either by provision of a lesser on-site rate or by utilising spare capacity in publicly available on-street or off-street parking. The utilisation of spare capacity in on-street and off-street parking areas is at the discretion of the Authority having regard to, inter alia, the potential demand which may be generated by a particular proposal as well as the potential for nearby lessees to seek to expand their activities and lay claim to a proportion of the available capacity in publicly available on-street and off-street car parking areas.

These words raise a number of issues that need consideration, in particular the concept of “spare capacity”, which is not defined.

A matter on which there was considerable disagreement was the precise level of parking that should be provided for commercial short term visitors. Some witnesses took the view that an “average” provision of 5 spaces per 100m²GFA would be sufficient, given that there was likely to be a range of uses made of the 11 commercial units. Others insisted that provision should be made for the “worst case” scenario in which all the units would be occupied by restaurants, bars and other uses requiring 10 spaces per 100m²GFA. In each case, it was agreed that 3 spaces per 100m²GFA for staff would be provided on site, leaving 2 spaces or 7 spaces per 100m² GFA to be provided elsewhere, yielding the alternative shortfalls of 32 or 110 set out above. There was no way that this difference of opinion could be resolved.
A second issue was just what public parking spaces were available within 200m and 400m of the subject site and from where and how the distances should be measured. While it is clear that there are a large number of spaces in the public car parks on Block 31 immediately adjacent to the northern boundary of the subject site, and part of Block 45 adjacent to the north-east, and part of Block 36 to the north of Block 31, the evidence was that the remainder of Block 36 was also developed and used as a car park, even though it is zoned CZ2 and could, at some stage be redeveloped under the same Rules and Criteria as apply to the subject site. The “approved” public car parks are identified in the GCD Code at Figure B3 and are subject to Rule R31 and Criterion C31 which broadly require that any development on these sites would need to retain the existing level of car parking and accommodate on-site any additional parking generated by the development.
Mr Nairn stated that the number of spaces in the car parks within 200m of the subject site was 327 (excluding disabled or permit spaces). If all those within the area bounded by Bowman Street were counted (not just those within 200m) the number rose to 654 and, if those spaces to the east of Bowman Street were included, the number rose to 744 spaces (Exhibit A15 page 3). Surveys of the level of occupancy of these car parks were undertaken by Mr Nairn and Mr Isaks on different days and using somewhat different methodologies, but the Tribunal will not attempt to analyse them in detail here. It suffices to note that there are times during the week (apart from Sunday morning which will be dealt with separately below) when all the car parks are full or almost full, in particular on public service pay days between 9.30 am and 1.30 pm. At other times and on other days, there is a substantial vacancy rate, but these vacant spaces were not always within 200m of the proposed development.
The question of how to measure the 200m and 400m provoked some discussion. There was general agreement that it should be measured from the property boundary (although that would mean that some of the southernmost buildings in the proposed development were a further 100m or so from the public parking) but whether it should be measured in a straight line or whether it should take account of any impediments to straight-line walking was a matter of dispute. The evidence of Mr Brimson was that the 200m limit was based on 3 minutes walking time which translated to about 230m but subsequently 200m was adopted by traffic planners. He did not agree that this was done to take into account any deviations from a straight-line walk.
A related issue was whether the spaces to be counted were to be within the 200m limit, or whether the whole of a car-park should be counted provided one of its boundaries was within the 200m limit. These issues could not be fully resolved by the evidence before the Tribunal – they remained matters upon which the expert opinions differed.
A complicating factor was that the Trash and Treasure Markets took place on Sundays on a portion of the north-eastern car park at Jamison between about 8.00am and 1.30 pm, operating under licence from the ACT Government and had done so since 1974. According to Mr Nairn’s evidence, they occupied 185 of the available car parking and a parking survey conducted by him on 18 September 2011 revealed that no vacant spaces were available within the whole of the Jamison centre between 8.00 am and 12.30 pm and that there were 79 cars parked illegally at 9.00 am. A survey conducted by Mr Brimson on Sunday, 11 September 2011, revealed a deficit of 61 spaces, comprising 48 illegally parked vehicles, 18 vehicles searching for a parking bay and 5 empty spaces – “vehicle un-parking” (Exhibit A23, page 8).
Mr Isaks contended that as this was a weekly event which occurs outside normal business hours, it should not be used to restrict development in other parts of the Group Centre. He had monitored the parking at the Trash and Treasure Markets in October 2011 and found 121 cars parked illegally. He advised that he had been discussing this issue with Parking Operations and they were considering options to deal with it, including encouraging the use of unused car parks at Canberra High School and Aranda No 2 Oval. He also suggested that tighter controls on the current illegal car parking might be contemplated.
Mr Shoobridge also took the view that the Tribunal should not take into account the parking demand created on Sunday mornings by the Trash and Treasure Markets. He observed that the Markets were established at a time when there was unused car parking at Jamison, but that it may now be desirable to consider relocating them. He observed that the JMP envisaged some development taking place on the northern car park, and if that happened it might well be necessary for the Markets to move. In the meanwhile, he considered that better policing of parking on Sundays would ease the situation and observed that people will make up their own minds as to whether to come to the Trash and Treasure Markets or to visit residents of the proposed development on Sundays.
Evidence was also given about the likely timing of parking demand by short-term visitors to the proposed development. Mr Nairn’s original evidence was that there was substantial short-term “social” visiting of friends during weekdays that would conflict with peak demand for customers of the Jamison Centre and because social visits tended to be twice as long as shopping or personal business visits, they needed to be weighted by a factor of about two. An alternative view was that a significant part of the commercial short-term visitor demand would be in the evening by patrons of restaurants and bars and that the timing of visits to residents would adjust to take account of parking availability. There was little empirical Canberra data to support either view, other than a 1997 Canberra/Queanbeyan Household Interview Travel Survey which indicated that most visits to friends and relatives took place during the day, with a second smaller peak in the evening (Exhibit A17 paragraphs 24, 25 and figure 4). However, it is to be noted that only 4.21% of all trips were to visit friends and relatives.

An issue raised by Mr Nairn was that of equity, the basic principle of which he defined as “no-one should be penalized to provide gain for others”. Equity is one of the objectives of the Parking Code for commercial zones at section 3.2.1. It is there defined as:
The maintenance of an adequate supply of public parking for the level of development and activity approved in the centre.
Mr Shoobridge had stated that, in his view, this objective would be achieved (except for the need to find a remedy for the overspill of parking during the Trash and Treasure Markets on Sundays) but Mr Nairn disagreed, as he contended that the existing patrons of the Jamison Centre would be forced to walk longer distances or travel to less convenient destinations due to the potential future parking shortage. Mr Shoobridge reminded the Tribunal that the former Jamison Inn was one of the original developments at Jamison and that the public car park was intended to serve the needs of all the adjacent lessees. Based on the approved plans and applying current parking requirement rates, he estimated that the Jamison Inn would have had an excess demand of about 50 spaces during the day, but as it was now derelict it was not putting any load on the public car park.

Submissions about car parking

Mr Erskine, on behalf of the applicant, submitted that the proponents of this development had not demonstrated that its excess parking requirements could be met by utilising spare off-site public parking, nor had they taken into account the potential for nearby lessees to expand their activities and lay claim to a proportion of the available capacity.
In relation to the demand generated by the proposed development he submitted that the Tribunal should not adopt 5 spaces per 100m² GFA as an “average” demand for the commercial units as there was neither a mathematical nor a logical basis for it. In his view, there was every reason to think that with 322 new apartments on the doorstep, the commercial units are likely to develop into a strip of restaurants, cafes and bars which would create a demand of spaces 10 per 100m² GFA and that if there was to be any discount from this rate, it should only be modest.
Mr Erskine further submitted that the evidence supported the view that social trips overlapped very considerably with shopping or personal business trips. He noted that the peak demand for parking was on Thursdays, Fridays and Saturdays, after public service pay-days and it was reasonable to expect that the peak demand for commercial units parking would be at the same times. In his view, it was clear that there was insufficient parking within the southern and western car parks and that there was not always sufficient parking in the northern car park, which is intended for mixed use development. Because the latter is not zoned as a public car park, it would only be required to replace existing parking if the Land Development Agency imposed this as a condition of sale.
He observed that the JMP envisaged mixed use developments on all the car parks save the western car park and that the current Crown Lease for the Jamison Centre allowed it to effectively double in size. The potential for current lessees to expand their activities and lay claim to a proportion of the available capacity (as the Parking Code provides) was very high indeed. Why then, he asked, should the current proposal be permitted to claim virtually all the capacity in the public car parks and in doing so, make it unlikely that a future developer could develop the northern car parks as envisaged in the JMP because of the enormous amount of parking that would have to be replaced in such a development?
Mr Erskine also rejected Mr Isaks’ proposition that if a parking area’s boundary was within 200m of the proposed development, then the whole of that parking area should be considered as within 200m. He said this defied the whole logic of the distances in the Parking Code which are derived from convenient walking distances as Mr Brimson’s evidence showed. If Mr Isaks’ view was correct, then a visitor to Building G in the proposed development who had to park in the northern car park might have a walk of well over 300m.
Ms Coghlan was critical of the extent of tandem parking proposed for the development which she considered inefficient and in excess of the 50% of the total spaces provided for 2 or more bedroom units permitted under the Parking Code. In her submission, this resulted from the floor plan of the buildings being designed to incorporate two rows of residential units. She suggested that the best solution to this and other problems would be a new design that comprised only a single row of units in each building, or by removing one whole storey from some or all of the buildings, any of which would reduce the need for car spaces so that the demands of the Parking Code could be met.
Ms Coghlan was also critical of the developer’s proposed on-street parking to accommodate the shortfall (in part), in particular, those proposed for Redfern Street which she said were not close to anything save buildings D to G. While regular visitors might learn to use them, they would not be congenial places to park as Redfern Street catered largely to through traffic and those leaving the Jamison Centre. She was also concerned about the joint traffic experts’ suggestion that more on-street parking could be provided on Bowman and Redfern Streets immediately adjacent to the complex, as neither site was particularly safe for parallel parking on the roadside.
Ms Zachara was also concerned about the suggested additional parking on Bowman Street, particularly, on the western side opposite Building H and the two entrances to the development which, together with parking in the eastern side of the street as proposed by the traffic experts, she considered, would be too congested for such a small street. This would lead to safety problems and there would not be places to leave shopping trolleys after they had been emptied, leading to theft of the trolleys and their use in damaging property.
Dr Jarvis, on behalf of the respondent, submitted that while it was conceivable that all the commercial units would be used as club, bar or restaurant, the evidence was that this was unlikely as all of the units were 90 to 100m² GFA other than one in building C which was 290m² GFA and that, with this configuration, a mix of restaurant, shop and office uses was likely, possibly with a gym. It was, therefore, not appropriate to adopt the “worst case” highest commercial rate of 10 spaces per 100m²GFA, which would be inconsistent with the flexible approach permitted by the Parking Code. In his submission,
5 spaces per 100m²GFA would be an appropriate rate because a proportion of visitors to the commercial units would be residents of the development who would walk to these venues and, in accordance with Mr Shoobridge’s evidence, this rate was consistent with the original planning of the Jamison Group Centre, which was to have 12,000m²of commercial GFA and 640 publicly provided car spaces. He noted that the planned capacity for commercial space was yet to be reached, even with the additional 1,580m² in the proposed development.
Dr Jarvis also rejected Mr Nairn’s suggestion that it would be inequitable for existing shoppers to have to compete for parking spaces with new visitors generated by the proposed development. He submitted that the publicly-provided car parks in the Centre were provided for the benefit of all users of the centre, and that existing residents and shoppers had no prior claim to the parking spaces. He contended that if some of these short-stay users were displaced into the northern car park, they would nevertheless be well within the permitted 200m of the shopping centre.
Dr Jarvis did not support the proposal that additional on-street and off-street parking spaces should be provided at the developers’ cost. He submitted that if the rate of 5 spaces per 100m² GFA for the commercial units was used, the shortfall was only 61 spaces and, with the exception of Sunday mornings, there was sufficient parking supply in the northern car parks to accommodate some or all of that demand. In his submission, the northern car parks were within 200m of the proposed development, because Mr Isaks’ evidence was that there was a long standing convention or practice in the ACT to take account of the available spare capacity as long as the “crow flies” distance between the nearest boundary of the development and the car park boundary was less than the 200m specified in the Parking Code and, in his view, weight should be given to the convention in the interests of administrative consistency. Furthermore, the Parking Code required the parking spaces to be generally within the specified distances and the use of that word has been held to imply flexibility, for example in Mainore Pty Ltd and ACT Planning and Land Authority [2010] ACAT 18.
Regarding the evidence about available parking spaces, Dr Jarvis submitted that that of Mr Isaks was to be preferred, because unlike Mr Nairn, he had included all of the car parks in his surveys. He had concluded that there were 120 to 132 unoccupied spaces within the Bowman Street parking areas during busier periods of weekdays, though Mr Isaks had conceded in his oral evidence that Mr Nairn was likely to have picked up the absolute peak demand because his surveys were done every half hour.
However, Dr Jarvis agreed that if the Tribunal was concerned about the number of spaces available in the current car parks, it could require a combination of reliance on existing spare capacity, some on-street provision additional to the 23 proposed in the DA, and some new off-site provision as suggested in the traffic experts joint report, but these would need to be at the expense of the developer.

Dr Jarvis submitted that the temporary problems caused by the Trash and Treasure Markets on Sunday mornings should not burden the proposed development, because despite their 30 year history, they were only a temporary use under licence from the ACT which owns the car parks. Mr Isaks had indicated a number of new measures that were being considered to address the problems they caused.

126. Finally, Dr Jarvis drew attention to the fact that while the basement car parking met the Parking Code’s requirements for disabled parking, it did not meet the requirement for disabled residential visitor and commercial spaces on the ground floor. The Parking Code required 3% of the 159 spaces, that is, 5 spaces, to be disabled spaces, but only 2 had been provided initially and a third space had since been identified adjacent to Building H. He submitted that the Tribunal should make it a condition of approval that 2 additional disabled spaces should be provided on site.

127. Mr Philip Walker, on behalf of the developers, observed that the applicant, Amarso Pty Ltd, did not own the car park and had no right to assume a prior claim to the spaces occupied by its customers. The car park was available for the Group Centre as a whole which includes this development and was also available to the Jamison Inn. He submitted that the applicant cannot complain if its tenant’s customers have to walk 200m to its entrance, only if they are required to walk excessively more than 200m and noted that Amarso appeared to have closed off one entrance when it refurbished the centre which had reduced access to the Plaza from the car parks.

Mr Nairn’s theory of “equity” was also rejected by Mr Walker. which he argued was designed to protect the interests of the status quo. It assumed that no person who would presently park close to the Jamison Centre should be required to park any further away, irrespective of whether the car park concerned was within 200m of the Centre. In his submission, there was no basis for the application of this principle in either the Territory Plan or the Parking Code.
Mr Philip Walker also rejected Mr Nairn’s contention that applying the “worst case” scenario to the commercial visitor parking provision was based on the respondent’s precedent, because Mr Isaks’ evidence was that the Authority does not apply such a worst case rule and has not done so here. Moreover, such an approach would pay no attention to the issue of parking efficiency
(Objective (c) at section 3.2.1 of the Parking Code). Mr Shoobridge and Mr Isaks agreed that the Parking Code discourages the oversupply of car parking and Mr Nairn’s approach would result in an overprovision of car parks and a waste of resources. Mr Brimson was realistic enough to agree that oversupply of parking was undesirable for economic reasons and that something less than the highest rate would be acceptable. Mr Walker submitted that the Tribunal should adopt the 5 spaces per 100m² GFA rate because people with experience consider it a reasonable number.

Mr Philip Walker then submitted that Mr Nairn’s car park survey figures suggest that at many times there is enough car parking for all in the car park, even on his “worst case” scenario, and if a more realistic approach is taken, there is more than enough at all times. However, if the Tribunal finds that more public car parks are desirable, then there is capacity to house additional car parking in the streets.

He also noted that while the Trash and Treasure Market was an authorised use under licence, it was not an approved use under the Territory Plan and therefore was not required to be taken into account under Objective (e)(i) at section 3.2.1 of the Parking Code (the maintenance of an adequate supply of public parking for the level of development and activity approved in a centre). In his submission, the solution for any parking problems that arise on Sunday mornings lies with the management of the Trash and Treasure Markets and there was no evidence to suggest that alternative parking sites could not be used if properly directed.
Consideration of Parking Issues by the Tribunal
It is evident that the Jamison Centre car parks are, on occasions, full. Nevertheless, with the exception of long-stay car parks, such as those used by office workers, any car park rarely remains “full” for very long. They are usually in a continual state of flux, with parked cars leaving and new cars arriving looking for a parking place. The timing of arrivals and departures is entirely fortuitous – sometimes a number of places will become vacant and remain so for some time, while at other times they will be filled almost instantaneously.
This brings us to the issue of what is meant by “spare” parking. Ms Coghlan asserted that, based on a Port Macquarie survey, a car park needed a 15% buffer of vacant spaces to accommodate arrivals and departures without “cruise parking”, but that evidence was not tested in relation to the development under review. Whether that is so or not, the evidence here is that for much of the time on most days, there are numbers of vacant spaces among the 748 parking spaces identified by Mr Isaks, all of which are within 200m of either the Jamison Centre or the proposed development (Exhibit R8).
The AAT referred to “spare parking capacity” in Cvetanoski and Commissioner for Land and Planning [1999] ACTAAT 42 at [61] and [62] but did not consider the meaning of the term. The Australian Oxford Dictionary (2^nd ed) definitions of “spare” include “not required for ordinary use’ and “reserved for emergency or occasional use” and “not wanted or used by others”. The Tribunal accepts that the vacant spaces may be regarded as “spare” though they will not necessarily be “spare” all of the time.
The Tribunal do not accept that it is necessary to provide for the “worst case” scenario of 10 spaces per 100m² GFA for commercial visitor parking. We consider that it is highly improbable that all the commercial demand will occur at peak hours at the highest level, but more likely that there will be some increased demand during the lunch hour if there are a number of restaurants/cafes in the commercial units and another increase in the evening, but it will clearly depend on just what mix of businesses occupy them. It is conceivable that they may all be occupied by low demand businesses. We consider that allowing 5 spaces per 100m²GFA is a reasonable compromise. That being the case, the surplus parking demand is 61 spaces, and even if the rate is increased to 7 per 100m² GFA, the shortfall becomes only about 100.
While we understand the concerns of Ms Coghlan and Ms Zachara about the safety of the proposed on-street parking in Bowman Street, we accept the advice of the parking experts that up to 67 additional spaces could be provided either on-site or in extra on-street spaces (as shown in Exhibit A10) subject to them satisfying traffic engineering and road safety requirements and will make that a condition of approval, with the spaces to be provided at the cost of the developers.
If an additional 30 to 40 spaces are required, we consider that they can be found from the hundreds of car parking spaces within 200m of the boundary of the proposed development. The evidence is that this number of spaces will be available for most of the time and to that extent they are “spare”. We take note of the evidence that the former Jamison Inn had an entitlement to about 50 spaces in the public car park and consider it equitable that this number of spaces should be available to the replacement development.
There may be occasions (other than Sunday mornings) when residential or commercial visitors have to seek out a vacant space by circling the car park (as Canberra motorists are used to doing) or even park further than 200m away on other occasions. We consider that this will happen only rarely at peak hours and expect that visitors will adjust their visiting hours if they find it inconvenient to do so. It is also important to recognise that the proposed development will bring some hundreds of new residents to Jamison, many, if not all of whom, may be expected to use the shops at the Centre, usually without generating any parking demand. These new patrons should compensate for any present customers who may abandon Jamison should the parking become too inconvenient for them.
The Tribunal agrees that the problems arising from the Trash and Treasure Markets on Sunday mornings should not be an impediment to approval of this proposed development. We agree that the excess parking demand arising from the weekly markets should be managed by encouraging the use of other available public parking not far away and by more effective policing to reduce illegal parking.
Finally, we accept Dr Jarvis’ suggestion that an additional 2 disabled parking spaces should be provided on site so that the development complies with the Parking Code’s requirements for disabled parking. This will also be a condition of approval.
Traffic
The Tribunal notes that, in their joint report (Exhibit A10 page 3) the parking experts expressed a view that their preference was for a roundabout to be constructed at the intersection of Bowman and Redfern Streets. However, the evidence of Mr Sornalingam Jatheendran was that the Territory and Municipal Services Directorate did not consider the intersection to be unsafe (Exhibit R19 at [20]). Further, Mr Shoobridge’s evidence was that in November 2010, the Jamison Plaza traders were not willing to support a roundabout at this intersection and expressed a preference for a Tee-intersection (Exhibit PJ1P at [41] and [42]).
The Tribunal considers that the evidence about the need for a roundabout at this intersection is inconclusive and expresses no view about the issue, other than to note that the approved plans (T1214) provide for a Tee-intersection.
………………………………..
Ms L. Crebbin, General President
For and on behalf of the Tribunal

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO: AT 11/62

APPLICANT: AMARSO PTY LTD

RESPONDENT: ACT PLANNING AND LAND AUTHORITY

PARTY JOINED 1: TOWNSEND & ASSOCIATES ARCHITECTS PTY LTD

PARTY JOINED 2: REDEVELOPMENTS PTY LTD

PARTY JOINED 3: ROBYN COGHLAN

PARTY JOINED 4: HALINA ZACHARA

COUNSEL APPEARING: APPLICANT: Clayton Utz Solicitors

RESPONDENT: ACT Government Solicitor
PARTY JOINED 1 & 2: Kamy Saeedi Lawyers

SOLICITORS: APPLICANT: J. Cumming

RESPONDENT: P. Mathie
PARTY JOINED 1 & 2: T. Mylecharane

OTHER: APPLICANT:

RESPONDENT:

TRIBUNAL MEMBER/S: Professor P. Spender, Presidential Member

Dr D. McMichael, Senior Member

DATE/S OF HEARING: 28 & 29 November 2011 PLACE: CANBERRA

DATE/S OF DECISION: 2 Dec 2011 PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: