Bakas & Ors & Act Planning and Land Authority & Ors (Administrative Review)

Case •

[2011] ACAT 43

•

24 June 2011

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BAKAS & ORS & ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2011] ACAT 43

NO:AT10/102, AT10/103, AT10/104, AT10/105 and AT10/108

Catchwords:             ADMINISTRATIVE REVIEW – Planning and Development – variation of lease – land in “designated area” under the National Capital Plan – effect of s. 131A – relative roles of the Commonwealth and Territory planning authorities – lease conditions that limit building design – National Capital Authority community consultation procedures – whether applicant in AT10/108 will suffer material detriment.

List of legislation:     Australian Capital Territory (Planning and Land Management) Act 1988 (CTH), s 12

Planning and Development Act 2007 (ACT), ss 7(f), 120, 131A, 143, 144, 146 and chapters 7 and 13

List of Regulations:   National Capital Plan (2009) and subsequent amendments Planning and Development Regulation 2008, Schedule 1

Territory Plan 2008

List of cases:              Jewel Food Stores Pty Ltd v Ministerfor Environment Land and Planning (1994) 122 FLR 269

McKenzie v ACTPLA et al [2004]ACTSC 80

Save the Ridge v ACT and Anor [2004] ACTSC 13

Wythesand ACT Planning and Land Authority & Anor (Administrative Review) [2011] ACAT 11

Watson v ACTPLA and Ors (Administrative Review) (No2) [2010] ACAT 7

List of Texts/Papers: Janice Gray and Brendan Edgeworth, Property Law in New South Wales (2003)

National Capital Authority, Commitment to Community Engagement (July 2010)

National Capital Authority, Report on Consultation Block 9 Section 33 Reid (April 2011)

Tribunal:               
  Dr D. McMichael, Senior Member
  Mr R. Nichols, Senior Member

Date of Orders:       24 June 2011

AUSTRALIAN CAPITAL TERRITORY                   )

CIVIL AND ADMINISTRATIVE TRIBUNAL   )     

NO:AT10/102, AT10/103, AT10/104, AT10/105, AT10/108,

RE:TONY & JOANNA BAKAS

Applicants- AT10/102

AND:       BEN & JOSEPHINE        CAGGIANO
                 Applicants-AT10/103

AND:       LMB & LM RANKIN
                 Applicants- AT10/104

AND:       JULIE DOYLE
                 Applicant-AT10/105

AND:       SABINE WYTHES
                 Applicant- AT10/108

AND:ACT PLANNING AND LAND AUTHORITY

Respondent

AND:       HINDMARSH PROPERTY       PTY LTD
                 Party Joined

Tribunal:               Dr D. McMichael, Senior Member

Mr R. Nichols, Senior Member

DATE:  24 June 2011

ORDER

1.The Tribunal orders that the decision under review made on


12 October 2010 be varied, by amending the draft lease referred to in Condition A 6.3 of the approval as follows:

a)   to  restrict residential use to the first floor and above and limited to a maximum gross floor area of 14,000 square metres; 

b)   by the addition at the end of clause 3(e) Lighting, the words “and such lighting is to be designed and operated so as to minimise the impact of lighting upon adjoining residential blocks”;

c)   by the addition in clause 3(h) Service Areas, the words “and minimise the impact on the adjoining residential blocks” to follow the phrase “all service areas”;

d)   by inserting a new subclause within clause 3 as follows:

NOISE MANAGEMENT PLAN. That the lessee shall submit with any application to the National Capital Authority for the development of the land for residential purposes a noise management plan prepared by a person suitably qualified in assessment of environmental noise and endorsed by the Environment Protection Authority. The noise management plan should detail the design, siting and construction methods which will be used to minimise the impact of noise generated from activities on the premises upon users of the premises and upon the amenity of adjoining blocks.

2. Being satisfied that it does not have jurisdiction to review application AT10/108 because the applicant lacks standing, the Tribunal orders that the application be dismissed.

...............................

Don McMichael

Presiding Member

REASONS FOR DECISION

  1. Mr and Mrs Bakas, Mr and Mrs Caggiano, Mr and Mrs Rankin, Ms Doyle and Ms Wythes (“the applicants”) have sought review of a decision made pursuant to section 162 of the Planning and Development Act 2007 (“the P&D Act”) by the ACT Planning and Land Authority (“the respondent”) on 12 October 2010 to approve with conditions Development Application (“DA”) 201017880. The DA sought to vary the Crown lease to add to the lease purpose clause “residential restricted to the first floor and above and limited to a maximum gross floor area of 14,000 square metres”. A variation of a lease falls within the meaning of “development” as defined in section 7(f) of the P&D Act and therefore the provisions of Chapter 7, Development Approvals, of that Act apply.

  1. The DA relates to Block 28 Section 19 Campbell (“the subject land”) which has a frontage to Constitution Avenue to the south, and a short frontage to Blamey Crescent to the east. It is currently occupied by a single storey building which is the national headquarters of the Returned and Services League of Australia (“the RSL”).  It is within a “Designated Area” under the National Capital Plan (“the NCP”) and consequently, pursuant to section 12 of the PALM Act, “works approval” must be obtained from the National Capital Authority (“the NCA”) for any buildings.  The land is not zoned in the Territory Plan.

  1. The applicants in this matter are residents of Campbell most of whom live in close proximity to the subject land.  Mr and Mrs Bakas, Mr and Mrs Caggiano and Mr and Mrs Rankin were represented initially by Mr P Walker of Counsel on the first two hearing days and by Mr D Mossop of Counsel on the last two hearing days.  Ms Doyle and Ms Wythes were self represented.  Dr D Jarvis of Counsel appeared for the respondent.  Mr G McCarthy of Counsel appeared for the party joined, Hindmarsh Property Pty Ltd, who have entered into an agreement with the RSL to develop the subject land and are acting on their behalf.

  1. Evidence was given on behalf of the applicants by Mr P Cohen, a town planner and Director of Campbell Dion Pty Ltd.  The applicants Ms J Bakas,


    Mr B Caggiano, Mr L Rankin, Ms J Doyle and Ms S Wythes also gave evidence. Evidence on behalf of the respondent was given by Ms S Messer who is the Principal Officer of the Development Assessment Leasing Team within the ACT Planning and Land Authority.  She is the person who made the decision under review, as delegate of the respondent.  Evidence for the Party Joined was given by Mr A. Adams, a town planner who is a Senior Director in the Consultancy, Town Planning Section of CB Richard Ellis (V) Pty Ltd, and also by Mr B. Smith, a Development Manager with Hindmarsh Property Pty Ltd, which is responsible for the development of the subject land.



  2. The matter was initially heard on 16 and 17 February 2011 as a result of which the Tribunal adjourned to make an interlocutory decision concerning the extent of the Tribunal’s power to insert conditions in a lease of land in a Designated Area as part of a lease variation application. ).   Subsequently, the hearing was resumed on 20 and 27 May 2011.  The Tribunal took a view of the subject land and the properties of several of the applicants, in company with the parties and their representatives and witnesses. The substantive part of the interlocutory decision of 2 March 2011 and its reasons are recorded below (their original paragraph numbering has been retained.

Interlocutory Decision and Reasons (2 March 2011)

[4] In his decision dated 8 February 2011 dealing with an appeal by Ms Sabine Wythes on the question of her standing as an applicant, Senior Member Anforth considered, inter alia, the role of the Tribunal in approving changes in land use in designated areas(Wythesand ACT Planning and Land Authority & Anor (Administrative Review) 2011 ACAT 11). After hearing submissions from Mr Stawski, solicitor appearing for the respondent, he concluded that in his view, s 131A of the P&D Act did not authorise the respondent to make a decision on land uses other than to affirm whatever the permitted use is under the National Capital Plan and it had no role to play in approving the building upon the land. This, he said, was no true decision at all.



[5] However, recognising that there were other objector parties to the appeal who were not present at the hearing of Ms Wythes' appeal on standing, he considered that the substantive issues raised should be heard by a different Tribunal which might take a different view on the futility of the applications.  At a subsequent directions hearing the parties had been requested to provide written outlines of their submissions on the Tribunal’s powers. 



[6] The matter was heard by the present Tribunal on 16 and
17 February 2011.  The Tribunal decided that, as a matter of efficiency and clarity, the extent of the Tribunal’s powers should be considered prior to hearing evidence and submissions on substantive issues, lest the latter become futile.  Those submissions are dealt with in this statement. The hearing was adjourned so that the Tribunal could reach conclusions on the issues raised.


The Extent of the Tribunal’s Power

[7] The applicants’ facts and contentions and witness statements contended that the Tribunal should include, within any lease variation to allow residential use, conditions that would place limitations on the development to ameliorate some anticipated adverse impacts on the amenity of adjacent properties.  In particular they referred to conditions to avoid overlooking of the private open space of immediately adjacent properties and for attenuation of noise likely to arise at weekends from residential use.



[8] Mr McCarthy submitted that “To place conditions on the Crown lease that would limit, control or otherwise affect the kind of development that may be constructed on the subject land would contravene the Australian Capital Territory (Planning and Land Management) Act 1988 (CTH) (hereafter “the PALM Act”) and the P&D Act.” He considered the sole and simple function of the respondent was to regularise the Crown lease so that it accords with a permissible use under the National Capital Plan. Dr Jarvis agreed with him.



[9] Mr Walker, for some of the applicants, suggested however that
Mr McCarthy’s view led to the conclusion that the role of the respondent (and now the Tribunal) in determining the lease variation was merely to “rubber stamp” the land use permitted by the NCP. In his submission, it was open to the respondent, and to the Tribunal, to impose conditions on the residential use that would prevent any material detriment to the applicants, through its consideration of the relevant matters listed in s 120 of the P&D Act, to which s 131A did not apply.




[10] Ms Doyle submitted that the NCA had agreed to limit residential use to the first floor and above and to a maximum gross floor area of 14000 m2, but those limits were not included in the respondent’s approval and she wanted to know why. Ms Wythes drew attention to the NCP provisions that limit the height of buildings adjacent to residential development to 12m and submitted that this too should also have been written in to any approval.

Consideration of the Issues

[11] The issues raised go to the question of the relative roles of the NCA and the respondent and their administration of the NCP and Territory Plan respectively.



[12] The subject land is within a “designated area”, that is, it is Territory land that has been specified as such in the NCP as having “the special characteristics of the National Capital”. Pursuant to section 12 of the PALM Act no works are to be carried out in a “designated area” unless they are approved by the NCA. According to Dr Jarvis, until 2004, the conventional view had been that the NCA had exclusive power to approve works in a “designated area” but this was overturned by the findings of Crispin J. in Save the Ridge v ACT and Anor [2004] ACTSC 13. In that judgement his Honour considered firstly the relevant Commonwealth legislation and in particular the PALM Act. Inter alia he said:



[38] The legislative power provided by s 22 of the Self Government Act is limited by the provisions of s 23 of that Act but that section does not refer to planning laws. Section 28 provides that a provision of an enactment has no effect to the extent that it is inconsistent with a Commonwealth law, but that such a provision shall be taken to be consistent with such a law "to the extent that it is capable of operating concurrently with that law". Hence, a Territory enactment could not authorise works in a designated area without the approval of the National Capital Authority but the fact that such approval is required by a Commonwealth law does not, of itself, exclude the possibility that a provision of a Territory enactment requiring further approval by the ACTPLA might operate concurrently with that law. ....
[43]  Whilst the object of the National Capital Plan is to ensure development in Canberra and the Territory in accordance with national significance, the object of the Territory Plan is to provide the people of the Territory with an ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation. It is true that the Assembly is not required by the terms of s 25 to make planning laws with those objectives in relation to land in designated areas, but the section does not appear to deny it power to make laws to achieve those objectives even in designated areas

.



[13] Clearly a dual planning approval system exists and there is a potential overlap of functions between the Commonwealth and Territory planning authorities. Dr Jarvis advised that immediately following the above case and to avoid this overlap, the Territory legislature made a regulation which expressly exempted development in “designated areas” from the requirements for development approval by the Territory. Since that time the relevant Territory planning legislation, the Land (Planning and Environment) Act 1991 has been repealed and replaced by the P&D Act.

[14] The P&D Regulations Schedule 1 exempts various developments from requiring development approval and to replace the previous exemption it includes section 1.109:



A development in a designated area if-
 the development does not involve the variation of a lease; and
The development complies with the general exemption criteria that are applicable to the development.

[15] Dr Jarvis drew the Tribunal’s attention to the Explanatory Statement which accompanied this amendment to the regulations that created section 1.109.  It stated that:



The interrelationship between territory land and designation under Commonwealth law is a complex matter. The Territory has exempted effectively all development in a designated area from requiring any territory approvals requiring only lease variations to be subject to approval processes. (p2).

[16] The Tribunal can only draw the conclusion that being aware of the Save the Ridge decision and in the context of dual approval systems, the legislature elected to retain power over the variation of leases but not to deal with matters of essentially local significance for construction works in designated areas.  This of course leads to the question implicit in the applicants’ case, as to whether in the absence of any approval by the Territory, consideration by the NCA fully addresses questions of the impact on local amenity issues when its focus is primarily on national capital issues.

[17] The application before this Tribunal however is one which seeks only to vary the lease and does not seek approval for the design and siting or construction of any development. Although there is an existing Works Approval from the NCA for a six storey building with some higher elements on the subject land, if residential use becomes permissible under the lease a quite different development proposal may be submitted to the NCA for works approval by the party joined. Consequently, this Tribunal has no knowledge of what development might ultimately be planned and submitted for works approval on the subject land.



[18] The P&D Act contains two provisions of particular relevance to lease variations such as the current application i.e. sec.131A and sec 120.



131A Development proposal for lease variation in designated
Area

(1)This section applies to a development proposal that is a variation of a lease in a designated area.

(2) Section 50 (Effect of territory plan), section 65 (Effect of draft plan variations publicly notified) and the territory plan do not apply in relation to the development proposal.

(3) The development proposal must be dealt with under the provisions of this Act (other than any territory plan-related provisions) that apply in relation to the merit track.

(4) However, if the impact track applies to the development proposal under section 123 (b), (c), (d) or (e), the proposal must be dealt with under the provisions of this Act (other than any territory plan-related provisions) that apply in relation to the impact track.

(5) In this section:

territory plan-related provision means a provision of this Act that
applies a development table, code, rules or criteria, objectives for a zone, statement of strategic directions, or anything else in the
territory plan.

[19] Since the development application is for a variation of a lease in a designated area then section 131A applies. Subsection (3) provides that such an application is to be dealt with under the “merit track” provisions of the Act (but excluding any Territory Plan-related provisions) and thus parts of section 120 come into play.

[20] Section 120 defines a range of matters that must be considered by the respondent when deciding applications in the merit track.

S120 Merit track—considerations when deciding development
Approval

In deciding a development application for a development proposal
in the merit track, the decision-maker must consider the following:

(a) the objectives for the zone in which the development is
proposed to take place;

(b) the suitability of the land where the development is proposed to
take place for a development of the kind proposed;

(c) each representation received by the authority in relation to the
application that has not been withdrawn;

(d) if an entity gave advice on the application in accordance with
section 149 (Requirement to give advice in relation to
development applications)—the entity’s advice;

(e) if the proposed development relates to land that is public
land—the plan of management for the land;

(f) the probable impact of the proposed development, including
the nature, extent and significance of probable environmental

impacts.

[21] It was accepted by the parties that subsections (a) and (e) were not relevant in this case - (a) because it is a Territory Plan matter and
(e) because the land is not “public land”.


[22] In relation to s 120 (f) Mr Walker dealt with the contention that because this was only a lease variation, as an administrative act it had no impact. He referred to the decision in Jewel Food Stores Pty Ltd v Ministerfor Environment Land and Planning (1994) 122 FLR 269 at 279 where Higgins J. in reference to a lease variation said:



“it is, I think, permissible to have regard to the consequences which that approval authorises. That must include the prospect that the development thereby permitted will be carried out”

[23] Mr Walker referred to the Save the Ridge case cited above and submitted that it showed that the Commonwealth law related to the NCA and National Capital Plan did not “cover the field” and consequently there is scope for the Territory (and ultimately the Tribunal) to consider issues and conditions regarding local amenity.



[24] The Tribunal notes that whilst the PALM Act did not “cover the field”, the P&D Act itself limits the scope of planning considerations in designated areas, as noted above. The question is what conditions, if any, might usefully be imposed within those limits? The Tribunal notes that in approving an earlier lease variation for the subject land, the respondent had restricted use of the then proposed development for bank, bar, café, cooperative society and restaurant to the ground floor, which apparently was not considered to be unacceptable or ultra vires the power of the respondent.



[25] Dr Jarvis argued firstly, that it was premature and impracticable to devise lease conditions in the absence of a specific design proposal and secondly, prescribing detailed conditions of design and siting was the function of the NCA, with the Territory having no role. The respondent’s position was that the only matters to be considered were those that are provided for in s 120 as modified by s 131A and that was the approach the respondent had taken.



[26] Ms Messer, who had made the decision to vary the lease as delegate of the respondent, gave evidence that she had considered the relevant matters required by s 120 and concluded that none of them stood in the way of approval of the DA, but some conditions had been applied, for example in relation to assessment of the site for contamination and written advice from the Environment Protection Unit that the site was suitable for the proposed development. She admitted that while she had referred in the Public Notification and Entity Advice Section of her Decision to there being a condition of approval requiring the applicant to prepare a Noise Management Plan prior to any residential use, no such condition was contained in the Decision itself, only an Advisory Note to the Lessee. She agreed that it could have been better phrased.



[27] Mr Walker tendered a lease issued by the Territory in 2010 for Block 6 Section 24 City to confirm his submission that leases can contain provisions that go substantially beyond the mere recitation of uses permitted by a Plan, and that these do deal with substantial construction issues. The Tribunal noted that this lease was a form of holding lease, issued for a term of 90 months, requiring the lessee to construct municipal works in order to subdivide land. Whilst illustrating flexibility in the nature of leases it is not necessarily an appropriate model for the more usual long term leases such as the subject of this appeal.  

Conclusion

[28] The Tribunal does not accept the proposition that in terms of the uses that might be permitted under a Crown lease it is simply a matter of reflecting in the Lease Purpose clause those uses permitted by either the Territory or National Capital Plans.  The Tribunal accepts the applicants’ submission (reflecting the Tribunals own experience) that it is common within a lease to limit the range of uses permitted by a planning instrument.  It is also common for a lease to impose quantitative restrictions on uses that are permissible under the Territory Plan, such as by limiting gross floor area or the number of units, or by restrictions on location such as “only on the ground floor”.  These conditions go directly to the use of the land or building and generally do not derive directly from standards in the Territory Plan but arise as a result of some planning objective sought to be achieved. 



[29] Furthermore, if the NCA had sought conditions to be inserted in the lease, it would have been competent for the respondent (or this Tribunal) to impose them. The Tribunal therefore considers that in broad principle in assessing the potential lease purpose the Tribunal is able to contemplate the way in which the land might be used for that purpose, and insert any relevant conditions in the lease that it thinks, on the evidence before it, might be necessary arising from consideration of the relevant matters in s 120 of the P&D Act.



[30] The Tribunal does however accept the proposition that the range of matters it can consider and consequently the range of conditions which might be inserted in a lease are greatly curtailed by the provisions of section 131A. Clearly the wording of sec 131A (3) and (5) in particular are comprehensive in preventing consideration of the provisions of the Territory Plan. However, the Tribunal is satisfied that it is competent to consider conditions that might be inserted in the lease, but such conditions should be restricted to conditions which bear directly on the way the land or building is to be used as distinct from conditions on the form or siting of the building that are derived from the provisions of the Territory Plan.



[31] The applicants’ fear that the NCA in assessing an application for works approval will not adequately assess issues of impact on local amenity such as are contained in the Territory Plan. Whether that fear is justified or not is not a matter for this Tribunal to address.  However, it notes the recent NCA publication Commitment to Community Engagement (July 2010) which sets out a strong commitment to community and stakeholder consultation in relation, inter alia, to works approval.  Nor is it this Tribunal’s role to constrain the NCA by inserting conditions in the lease which find their genesis in the Territory Plan.  The applicants should pursue matters relating to a future works application directly with the NCA and conceivably the respondent may see it as being within its role to be an advocate to request the NCA to address various local planning issues.



[32] The Tribunal concludes that the adjourned proceedings should be resumed to hear evidence and submissions on the substantive issues including possible conditions that might be appropriate for insertion into the lease, if the Tribunal were to reach the conclusion that the decision should be varied.

Interlocutory Decision (2 March 2011)

[33] Being satisfied that the Tribunal has power to consider whether any further conditions should be attached, should it decide to vary the decision under review, the hearing will be resumed at a date to be fixed to hear from the parties as to what such conditions, if any, might be.

PROPOSED LEASE CONDITIONS

  1. At a Directions Hearing on 7 April 2011, the applicants were directed to provide a list of conditions that they would wish to see inserted in the lease. Written responses were made by O’Connor Harris on behalf of applicants Bakas, Caggiano and Rankin and identified nine issues of concern and accompanying conditions to ameliorate those concerns. [For convenience, the conditions drafted by these applicants are quoted below].   Ms Doyle identified these issues and an additional two.  Ms Wythes identified a further three issues.  The resumed hearing on 20th and 27th May focussed on evidence and submissions related directly to the issues raised by the applicants, and they are considered below under the citation of the proposed conditions. However, we will first deal with some general considerations.



    The basis for lease conditions

  2. The respondent did not provide any evidence that indicated that the Territory had any specific policies about the circumstances under which conditions were inserted in leases to achieve planning objectives.  The Tribunal is therefore unaware of any departmental policy or practice about the range of conditions appropriate for leases.  Ms Messer indicated that the assessment focussed on the nature of the use rather than any resultant buildings.  Both Dr Jarvis and
    Mr McCarthy submitted that lease conditions should only go to the use of the land and should not attempt to control the design or siting of the buildings.  These latter conditions were in their view more appropriately dealt with at the Works Approval/Development Application (construction) stage.

  3. The applicants tendered a number of leases issued by the Territory to demonstrate that conditions of the sort that they wished to see imposed in the lease were not without precedent.  Some of these were in designated areas. The Tribunal was given no clear understanding of the circumstances surrounding any of these leases.  As Dr Jarvis observed, we know nothing about the background, context, negotiations or the involvement of the NCA.   Some were holding leases, issued for short periods, to facilitate the construction of public infrastructure and subdivision of land for which long term leases would then be issued.  Others included conditions which required the preparation and approval of plans for what might be described as property management issues, e.g., bush fires, heritage, environment and landscaping.

  1. Having reviewed the leases tendered, the Tribunal finds no examples where lease conditions go directly to protecting the amenity of adjoining lessees.  Whilst some conditions relate to protecting the public, these appear to be during the construction phase arising from holding leases. The lease for Block14 Section 22 Barton provides for “service areas to be screened from public view”, but a similar condition is in the draft lease forming part of the decision under review.

  1. The Tribunal understands the view put by Dr Jarvis and Mr McCarthy that lease conditions should only relate to the use of the land rather than building design and siting, particularly in the situation where the NCA ultimately will make the decision about the building works approval.  However, it did not consider that the evidence for this approach was sufficiently compelling to justify strict adoption of it.



    Other Constraints on Conditions that might be imposed

  2. The Tribunal was reminded that the lease already provides for a range of commercial uses.  The provisions in the lease for those uses are not under review in this matter.  The proposed use for residential is in addition to those uses and there is no basis on which the Tribunal can make assumptions about the mix of uses or the physical arrangements for them that might eventuate.  As a consequence, any conditions would need to be related only to the residential use but not in a way that limits the other authorised uses.  

    The role of the National Capital Authority

  1. It is the NCA that will give works approval for buildings on this site, but it has

    no legislated role in the lease variation process. The Tribunal was disadvantaged by the fact that no representative of the NCA was called to give evidence about the NCA’s role and practices in relation to works approval applications, nor whether it held any view about the appropriateness of any lease conditions such as have been proposed by the respondent.

  1. The applicants are concerned that the NCP contains very few strict limitations that would protect their amenity and are concerned that the Authority will not have regard to their concerns. It seems clear from the NCA’s approval for the commercial building in 2009 that is considerably higher in parts than the general 25 metre height above kerb limit prescribed in Part T8 of the NCP, and from the evidence of Mr Cohen, that the Authority adopts a flexible approach and exercises discretion in the application of numerical standard such as height limits. In Mr Cohen’s view, this is because they assess outcomes from a qualitative rather than a quantitative viewpoint. He says their focus is on urban design outcomes, particularly in the Central National Area of which Constitution Avenue is a part.



  2. Mr. McCarthy tendered the NCA publication dated July 2010 entitled “Commitment to Community Engagement” that details the Authority’s current protocols for seeking and considering public comment.  He also tendered a “Report on Consultation” dated April 2011 which summarised and responded to the public comment in relation to a multi storey residential development on Block 9 Section 33 Reid, also in Constitution Avenue. These publications appear to be a relatively recent response to public criticism about the NCA’s perceived lack of consultation. Mr Cohen contended that the NCA was now committed to a structured consultation process prior to granting works approvals. Mr Adams also acknowledged greater consultation by the NCA in recent times.

  1. The Tribunal is satisfied that there is no basis for a belief that the applicants and other residents will not have an adequate opportunity to express their concerns about a future works approval application for residential development or that those concerns will not be fully considered by the NCA.  There remains uncertainty however over the degree to which the NCA will give weight to local amenity issues as compared with its goal of achieving national capital design objectives.

    Proposed Conditions

    (i)         Gross Floor Area     

    Proposed Condition:   A maximum GFA for building to be 20,000m2 with     residential use only above first floor and not to exceed 14,000m2 GFA.

  1. The development application lodged with the respondent proposed that residential development be “restricted to the first floor and above and be limited to a maximum Gross Floor Area (“GFA”) of 14,000 square metres”. This provision was included in the notice of public consultation and in the referral of the proposal to other authorities including the NCA (P&D Act, sections 146, 148). Moreover, the decision of the respondent was “to approve subject to conditions the proposal for a variation to the Crown lease to permit residential use in accordance with the documents and items submitted with the application” (emphasis added).  However the provision for GFA restriction as sought was omitted in the draft Crown lease which formed part of the approval documents.  Ms Messer said she considered it was the prerogative of the NCA to determine the nature of any building that may be constructed on the land.  She stated that the GFA limitation was deleted because she considered the restriction was inconsistent with the NCP and, in her view, would limit the NCA’s ability to consider a development permitted by the Plan.  Dr Jarvis argued that it would be premature and arbitrary to include a limit on residential use in the absence of drawings which indicate a possible outcome.

  2. The applicants argued that the provision should be reinstated.  Additionally, they requested that the total GFA of the building be restricted to 20,000 square  metres. As to this latter request, no supporting evidence was provided in justification.

  1. It was common ground that a “works approval” had been granted by the NCA in November 2008 for a commercial building which, according to Mr Adams, had a GFA of 23,400 square metres.  In November 2009 a lease variation was approved by the respondent which permitted a range of commercial developments and the draft lease attached to the decision included no restriction on GFA.  We were told that this lease variation has now been registered.

  1. No evidence was put to the Tribunal as to the impact of a residential building with a GFA in excess of 14,000 square metres on the applicants.  Given their other concerns, however, it is apparent that the applicants seek to minimise the extent of a residential building with its potential impacts of overlooking, noise etc.  Mr Smith contended that circumstances had changed since the application for 14,000 m2 residential use was made and that the lessee would not now want that limit reinstated.

  1. Mr Mossop submitted that because the application itself limited the extent of GFA to 14,000 m2, the removal of the condition was beyond the respondent’s power. Mr Mossop submitted that it was not open to the respondent to approve a substantially different proposal from that which had been applied for. That would require either an application from the developer to amend the application pursuant to Section 144 of the Act, which would necessarily require its re-notification for further public consultation, or a decision by the respondent to amend the proposal, which would also require re-notification in accordance with section 146. That had not occurred.

  1. The Tribunal notes that in McKenzie v ACTPLA et al [2004] ACTSC 80 (2 September 2004) Crispin J made the following observations about the submission of amended plans during a Tribunal hearing.

    I can see no reason to doubt that the Tribunal could take into account any proposal put forward to meet concerns expressed by objectors or, indeed, by the Tribunal itself.  It would clearly not be entitled to consider a completely different development application and the difference between these two situations may depend upon questions of degree.

  2. Tribunals in recent times have shown great latitude in accepting amended plans from developers which reduce the scale and impact of their proposals to meet objectors concerns.  However, in this case, although related to a development application for a lease variation, the change made by the respondent is one which increases development rights in the face of public objection.  It has done this without public notification or consultation with the original referral entities.  There are safeguards in the Act (sections 144 and 146) to ensure that revised schemes are communicated to interested parties to allow comment.  Even formal errors in an application cannot be corrected if the correction “would adversely affect someone other than the applicant” (sec 143(2).  The changes made at the point of decision in this case circumvented those safeguards.

  1. The Tribunal considers that the respondent erred in increasing the residential  GFA beyond that sought in the development application and, consequently, will require that the GFA limit of 14,000 m2 be reinstated, but recognises that this will not necessarily satisfy the concerns of the applicants.  This decision of the Tribunal is not based on the merits of the proposal and is not intended to prohibit the lessee from pursuing a new development application for a further variation to increase the residential GFA should that be desired. 

(ii)Service Areas

Proposed condition:  Service areas should be screened from view and positioned to ensure there is no adverse impact (noise, odour or vehicle movement) for existing adjacent residents.

  1. The applicants were concerned as to the likely impact of waste storage and its access arrangements (see also Site Ingress/Egress below).   They pointed out that the location of the waste storage facility for the approved commercial building was along the northern boundary of the site, immediately adjoining the properties of Mr and Mrs Caggiano (Block 26) and Mr and Mrs Rankin


    (Block 27).  They considered that any waste storage facility should be relocated to the eastern side of the property, with access to it only from Blamey Crescent. This would result in its separation from existing residences by RSL Park which abutted the eastern boundary of the subject land.

  1. Mr Mossop indicated that the existing clause in the draft lease, with minor adjustment, would be appropriate. His suggestion was that rather than simply screening from public view, the words “minimise the impact on the adjoining residential blocks” be added.  Given that an existing lease condition substantially addresses the applicants’ concerns, the Tribunal endorses the amendment suggested by Mr Mossop and will make it a condition of the lease.

(iii)      Quiet Enjoyment
Proposed condition:  The lessee shall permit no nuisance to be created and shall not derogate from the quiet enjoyment of lessees of adjacent leases.

26.     Whilst Mr Cohen considered the juxtaposition of a multistorey building with single dwellings was unusual, that did not, in his opinion, lead to a conclusion that this constituted a general threat to quiet enjoyment that required the imposition of an unusual condition in the lease. Whilst it is usual for Crown leases to include a clause referring to quiet enjoyment, (see clause 4 of the draft lease for example), the concept of “quiet enjoyment” does not necessarily extend to all forms of nuisance (including noise) that may arise from neighbouring properties over which the lessor has control (for a discussion, see Janice Gray and Brendan Edgeworth, Property Law in New South Wales (2003) at [11.23]).



  1. The Tribunal considers that the term “no nuisance” is subjective and would raise issues of compliance which could be problematic for both the lessee and the respondent.  In his final submissions, Mr Mossop submitted an alternative condition to deal specifically with the question of noise.  This was based on a request from the Environment Protection Authority, when it commented on the DA. The respondent appeared to accept that request because in its decision it referred to an intention to require a Noise Management Plan as a condition of approval, but it failed to include such a requirement, rather making it an Advisory Note to the lessee. The Tribunal will order that as a condition of the lease, a Noise Management Plan is to be prepared to the satisfaction of the Environment Protection Authority, prior to the seeking of any works approval for residential use from the NCA.

    (iv)       Privacy/Overlooking
    Proposed condition:  Any part of a building used for residential purposes should not overlook adjacent residential blocks.

  1. Overlooking and privacy is a primary issue for the applicants.  Ms Bakas described the existence of the large windows of the living rooms of her house facing south as well as her bathroom toilet and laundry and her concern that her privacy in these rooms would be affected by adjacent residential development.  She also spoke of the importance of her rear yard for entertaining and recreation and her expectation that residents of a multi storey residential building with balconies would severely impact on the privacy of it.  Mr Caggiano gave evidence about the configuration of his house to benefit from the prevalent southerly views, and that he also had a rear porch which is used regularly. His gardens are used for family and recreational pursuits.  He considers overlooking by multi-storey residential development will be very intrusive and that they will lose a very significant part of their amenity. Mr Rankin’s evidence was in similar vein, with main bedroom, sunroom and kitchen and en suite windows to the rear. He considered that they would be highly unlikely to have any privacy at all in the rear of their house and yard.

  1. Ms Bakas provided diagrams showing relative heights of the approved commercial building and the houses on Blocks 25, 26 and 27 as well as their relative locations.  She has qualifications that include studies in plan drafting and surveying.  The accuracy of the drawings was not challenged.  The drawings in part show the potential lines of site from a building of the dimensions and location indicated in the plans of the approved commercial building.  The commercial building would rise approximately 4 to 5 levels above the floor levels of the 3 existing houses.  Her drawings indicated that there would be direct lines of sight from the upper levels of the approved commercial building into the premises and back yards of the Bakas, Caggiano and Rankin residences (although no effect of any screening vegetation was shown). 

  1. According to Mr Cohen, the separation of the commercial building from the residential block boundaries would be between 32 and 53 metres. The houses are set back approximately 10-15 metres from their rear boundaries. Mr Smith stated that a residential building aligned on the Constitution Avenue frontage would be required to be built to the same setback from Constitution Avenue, but would probably have a lesser depth than the approved commercial building because of the difference in access requirements, light and safety issues as well as other residential design parameters so that its depth might be 22 metres as compared with 30 -35 for a commercial building. On this basis a residential building fronting Constitution Avenue could be around 8-10 metres further away than the distances shown in Ms Bakas drawings. i.e. approximately 40-60 metres from the block boundaries.

  2. A problem with interpreting the data provided by Ms Bakas is that it is based on the approved commercial building. Mr Smith considered that a revised scheme for residential development could involve multiple buildings.  However, this was a matter of conjecture as he said no designs had been done.

  3. Mr Cohen was questioned about reasonable standards of separation between buildings to protect privacy and overlooking.  He indicated it was a subjective judgement and he was not aware of any available reports, studies or standards that assisted.  He referred to the standards in the Urban Housing Code regarding interfacing, which for one and two storey buildings required a separation of
    12 metres between windows or balconies of adjoining dwellings.   However, he considered this was of no direct relevance to buildings where there was a considerable height difference.

  4. Mr Cohen identified the statutory planning provisions as being unusual with the possibility of a residential building of seven storeys immediately abutting an RZ1 zone in the Territory Plan, where only single dwelling houses (or dual occupancies) of not more than two storeys are permitted.  He considered that normally there was a gradation of height limits between such extremes.  In his view, such a gradation would limit overlooking issues. He also noted that the problem of overlooking decreases with increasing distance.

  5. The Tribunal notes that the effect of the NCP, if the numerical standards were applied, could result in a 12 metre (3 - 4 storeys) building being interposed between the existing residences and the proposed 25 metre building on Constitution Avenue. The evidence did not lead to an appreciation of the relative levels of such a building or the degree of screening it might create, but it would be closer to the block boundaries and some degree of overlooking of the adjacent properties would be likely. However it would result in the sort of gradation Mr Cohen favoured. Such a building however was not proposed as part of the commercial development and, consequently, that element of the NCP was not achieved. Mr Cohen observed that some degree of overlooking is inevitable and suggested that some variation of the condition proposed above would be necessary to avoid an absolute prohibition.

  6. The Tribunal does not find any basis for imposing a condition that precludes overlooking. To some degree, it is a common feature of many residential developments and the difficulty is in establishing what is unreasonable. If, as the evidence suggests, a multi storey building would be setback 40-60 metres from the rear boundary, and with the possibility of a three to four storey building interposed between it and the boundary, with further 15 metres separation to the existing houses, then there is no immediate proximity. However, it is simply conjecture to foreshadow what sort of building may be undertaken other than in relation to the Constitution Avenue frontage.

  7. The Tribunal concludes that in the absence of any persuasive evidence that demonstrates actual rather than presumed overlooking, given that the likely placement of building or buildings is unclear, and the likely distance of separation of possible buildings, it should not impose a lease condition of the sort requested. 

  8. It is clear also to the Tribunal that it is constrained by the requirements of section 131A of the P&D Act. The Territory Plan has specific provisions related to amenity and privacy of surrounding properties. In the Multi Unit Housing Code each of the RZ1, RZ2, RZ3, RZ4, and RZ5 Zone Specific Controls contains an Element 2, Building and Site Controls, which has an Intent that specifically addresses these questions and specific height, setbacks or building envelope controls, to achieve it.

  9. The issue is best assessed in the context of an application with specific plans of the design and siting of buildings, and that will fall to the NCA.  The applicants will have the opportunity to make their comments to the NCA on that specific application. 

    (v)Privacy: Vegetation

    Proposed condition:  Vegetation and trees are to be planted to screen existing

    residences on the north boundary to a height of 10m.

  10. The Tribunal notes that the draft lease which forms part of the decision includes clause 3(d) which requires landscaping plans to be prepared and approved by the NCA.  Under the NCA community engagement processes, residents will have the opportunity to comment on a specific landscaping proposal when an application for works approval is made.  Whether or not 10 metre high screening is desirable will depend on the design of the buildings and the outdoor spaces and the extent of overshadowing. For example, Ms Bakas’ drawings suggest that, at least for her property, a 10 metre high screen would be excessive even in relation to the approved commercial building.  The Tribunal considers that the character of landscaping is best resolved in the context of a specific works approval for buildings.  It also notes that adjoining lessees have the option of landscaping on their own land.  The Tribunal will not impose the proposed condition.



    (vi)       Privacy: Fencing

    Proposed condition:  Provide acoustic barriers so situated as to minimise noise impact upon existing adjacent residents.



  11. No specific evidence was put forward in support of this condition.  The Tribunal considers that without details of building location, parking, open space or setbacks, it is not possible to determine whether or not acoustic barriers are necessary. As noted above, under the heading of Quiet Enjoyment, the Tribunal is requiring a Noise Management Plan to be prepared and approved by the Environment Protection Authority.  As a consequence, we do not consider the condition above is appropriate or necessary.


  1. Building Height

    Proposed condition:  Restrict the height of the building to RL 593 -25 metres above the adjacent kerb.  The building should transition down in scale to a maximum of 3 storeys -12 metres above natural ground level – on the northern elevation



  1. The applicants are concerned that the previously approved commercial building exceeded the 25 metre general limit. As a consequence, they seek to have the


    25 metre limit inserted as a condition of the lease so that they become mandatory. 

  2. The National Capital Plan provisions for this site are found in Appendix T8.  Within a section  headed “Building Height and Form” are number of provisions relating to height.  These include:

    Building heights will generally be medium rise up to 25 metres above adjacent kerb levels to retain the landscape backdrop of the inner hills of Central Canberra.


    Minor building elements that extend building heights above 25 metres will be considered where this enhances the architectural quality of the building, and fosters energy efficiency, indoor amenity and appropriate urban scale.


    Building height should transition down in scale to a maximum of 3 storeys (generally 12 metres above natural ground level) to be sympathetic to scale of adjoining suburbs of Reid and Campbell.

    Also included in the section is a diagram entitled Indicative Building Height and Form which shows a 25 metre high building zone on the Constitution Avenue frontage and a 12 metre high building zone in the northern portion of the subject land.

  1. The Tribunal observes that the NCP has specific provisions that relate to building height and whilst these are different in nature to those under the Territory Plan it is not the Territory’s role to try to enforce a different way of interpreting the NCP provisions by making the general standard mandatory.  Since the NCP provisions for height are written in discretionary terms, the NCA should not be fettered in the discretion which the Plan gives. The Tribunal considers the condition is not justified.

    (viii)   Site Ingress/Egress
    Proposed condition:  Access from Blamey Crescent should be restricted for services only. Main road access should be from Constitution Avenue.

  2. The applicants seek to limit access from Blamey Crescent to the subject land to service vehicles only.  The effect of this, based on the footprint of the proposed commercial building, would be to restrict the location of waste management facilities to the east of the site and away from the adjacent residential blocks.

  1. Mr Cohen indicated that the access issue was related to the noise likely to arise in accessing the waste management facilities. He agreed the condition sought by the applicants needed redrafting to achieve its objective. He noted that Constitution Avenue at present had no turning lanes, storage bays or deceleration lanes, and that access of waste collection vehicles from it might be hazardous.

  1. Mr McCarthy referred to a recent press release from the Commonwealth Minister for Infrastructure and Transport in which he announced a $42 million “gift” to the ACT for the redevelopment of Constitution Avenue. Such upgrading is aimed at reconstructing the carriageway to the condition envisaged in the NCP, but Mr Cohen said that detailed plans were not yet available and, therefore, there was a degree of uncertainty about future traffic arrangements.

  1. The Tribunal notes that the eastern access from Blamey Crescent, as shown on the approved plans for commercial development, was in fact not on Block 28 but rather across the adjoining public Open Space which is known as RSL Park. The plan proposed a small public car-parking area on that land for use by visitors to the Park. No evidence was given as to whether or not the Territory government had agreed with this arrangement, or whether it would do so in the context of a new configuration of Constitution Avenue and a revised intersection with Blamey Crescent.

  1. The Tribunal recognises the desirability of locating waste storage and collection facilities at a distance from adjacent residential properties, but considers that in the absence of traffic engineering advice, with the details of the announced upgrading of Constitution Avenue being unknown and the future building form unclear, it would be inappropriate for the Tribunal to contemplate inserting a condition in the lease as sought by the applicants. The provision of access will be better dealt with in the context of a specific building scheme and the NCA plans for Constitution Avenue, at the time of a works approval application.



    (ix)       Lighting

    Proposed condition:  Building lights (and any outdoor lighting) on the northern side of the site should be restricted to ensure minimal light overspill for existing adjacent residents.

  2. The existing lease and the draft which forms part of the decision contains


    clause 3(e) which requires the provision of external lighting.  The Tribunal considers that it is appropriate to modify clause 3(e) as suggested by Mr Mossop to address the applicants concerns and it will so order.

    (x)        Noise

    Proposed condition (Ms Doyle):  Provide double glazing or a suitable alternative noise mitigation system to any north facing apertures in the residential part of the building.



  3. No evidence was provided to support this request.  It is not apparent that a multi storey residential building, if set back 40-60 metres from the block boundaries of  adjacent houses, will necessarily generate greater noise impact than other forms of residential development.  As noted above, the Tribunal’s order will require the preparation of a Noise Management Plan based on a specific building design which should address the issue.

    (xi) Electricity and Communications

    Proposed condition (Ms Doyle): All to be underground on rear boundary of site.

  4. No evidence was provided in support of this request. Nowadays, it is common in residential redevelopment for the undergrounding of power to occur. However, there was no evidence or technical advice to justify the incorporation of such a condition in the lease. It may be that a new building may satisfactorily arrange underground power connection from Constitution Avenue or alternatively a direct connection underground from an existing power transmission pole. If the intention of the condition is to remove existing power poles and lines along the common boundary then that could have implications for connections to some applicants’ houses. The Tribunal notes that Ms Doyle’s property is not adjacent to the development and to that extent she is not materially affected.

  1. Ms Wythes made a written request that conditions be inserted in the lease to deal with parking, the number of one bedroom units, landscaping with mature species and privacy screening. She did not provide evidence or make any submissions on these issues.  The Tribunal therefore has not considered them. 

STANDING OF MS WYTHES

  1. Dr Jarvis submitted that Mr Anforth, the earlier Tribunal, had erred in granting standing to Ms Wythes and he now sought an order that her application (AT10/108) to be a party joined be dismissed for want of standing.  In the earlier hearing (Wythes v ACTPLA [2011] ACAT 7), Mr Anforth noted that the solicitor for the respondent had conceded that “the nature of the Applicant’s [Ms Wythes] objections were the same (or not materially different) from that of the other objectors...”. Other parties to this appeal were not present during that hearing which was concerned with Ms Wythes’ standing. Mr Anforth observed that “the issue of the Applicants standing is not so clear cut and free from evaluative judgement as to lead to the necessary finding that she lacks standing” and that this could best be considered further in the context of hearing the evidence of the other objectors. Mr Anforth could not “see any public benefit (being) gained in depriving the Applicant of the opportunity to be heard”. In the event, Ms Wythes did participate in the substantive hearing, but that does not mean that the question of her standing was settled.

  1. The relevant test for standing is found in the P&D Act, Schedule1 at column 1, item 4, in which an “eligible entity” may seek a review of a decision where “the approval of the development application may cause the entity to suffer material detriment”. An analysis of these provisions is given in Watson v ACTPLA and Ors (Administrative Review) (No2) [2010] ACAT 7 and this Tribunal adopts that approach.

  2. Ms. Wythes resides approximately 300 metres from the subject land, in a street which has no direct connection with either Constitution Avenue or Getting Crescent. Having heard the submissions of both Ms Wythes and the other parties about possible impact of a development which may occur as a result of the lease variation proposed in this application, the Tribunal concludes that
    Ms Wythes will not suffer any material detriment of the kind outlined in Watson. As a consequence Ms Wythes is not an eligible entity for the purposes of Chapter 13 of the P&D Act and the Tribunal lacks jurisdiction to consider her appeal.

CONCLUSION

  1. The issues raised by the Applicants in this case are generally all issues that residents could expect planning authorities to consider in assessing development applications.  Development of this land is complicated for both developer and residents by the fact that two separate planning authorities have planning jurisdiction; the respondent has jurisdiction for administration of the lease while the NCA under the National Capital Plan has jurisdiction for works approval of buildings.

  2. This Tribunal’s function is related only to reviewing the decision on the lease variation to permit residential development. Its powers are circumscribed by section 131A of the P&D Act to not consider any Territory Plan related provisions. The Tribunal has no knowledge of what building works may ultimately go on the land and, therefore, cannot predict what its impacts may be in any precise way. In particular, the question of overlooking and privacy which is of considerable concern to the applicants is one dealt with in the Territory Plan in its provisions relating to setbacks, height and building envelope controls.

  3. Notwithstanding that the Tribunal’s orders do address some of the applicants’ concerns, ultimately it will be the NCA’s decision on a specific works approval application that will determine whether or not they are unreasonably affected by any residential development.  It will be up to the residents (with the possible assistance of the respondent) to make representations to see that their concerns are addressed.

..............................
  Don McMichael
Presiding Member

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Gingell v ACT Planning and Land Authority (Administrative Review) [2016] ACAT 10