Baptist Community Services - NSW and Act & Act Planning and Land Authority & Ors (Administrative Review)
[2012] ACAT 58
•22 August 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BAPTIST COMMUNITY SERVICES – NSW AND ACT & ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2012] ACAT 58
AT 5 of 2012
Catchwords: ADMINISTRATIVE REVIEW- planning and development – proposed development of a multi-unit Retirement Village in a RZ1 zone – whether reconsideration plans lodged at appeal hearing should be subject to public notification - whether proposal is consistent with lease purpose clause – meaning of Homes for aged persons and purposes ancillary thereto – definition of Retirement Village in Territory Plan – whether proposal is consistent with objectives of an RZ1 zone – meaning of low density environment – whether proposal addresses key strategies of the Red Hill Neighbourhood Plan – whether traffic generated by proposed development has been correctly calculated - whether the existing road network can accommodate the traffic generated – whether parking provision meets the requirements of the Multi Unit Housing Development Code - whether parking provision for Montague Units will lead to overflow visitor parking in Supply Place – whether proposed changes to Supply Place driveway will provide a safe shared pedestrian/vehicle environment.
List of Legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT) s 68(2)
Aged Care Act 1997 (Cth)
Aged Persons Homes Act 1954 (Cth) ss 2, 3, 6 & 7
Land (Planning and Environment) Act 1991 (ACT).Land (Planning and Environment) Consequential Provisions Act 1991 (ACT) ss 24 & 25
Leases (Special Purposes) Act 1925 (ACT).Leases (Special Purposes) Ordinance 1925-1943 (Cth)
Planning and Development Act 2007 (ACT) ss 53, 54, 55, 120, 144, 145, 146, 162(1)(b), 165(3)(o), 165(3)(p) & 193
Retirement Villages Act 1999 (NSW)
Retirement Villages Bill 2011 (ACT)
Retirement Villages Bill 2012 (ACT)
List of Regulations: Fair Trading (Retirement Villages Industry) Code of Practice 1999 (NI 1999-277)
Territory Plan 2002
Territory Plan 2008
Multi Unit Housing Development Code
Parking and Vehicular Access General CodeRZ1 Suburban Zone – Objectives and Development Tables
Territory Plan Variation 302 (NI 2011-573)
List of Cases: AMC Projects Pty Ltd and ACT Planning and Land Authority [2006] ACTAAT 13
Davidson v ACT Planning and Land Authority (Administrative Review) [2009] ACAT 39
Edquist and Price & ACT Planning & Land Authority (Administrative Review) [2011] ACAT 64
Finlayson & Ors v ACT Planning and Land Authority & Ors (Administrative Review) [2009] ACAT 35
McKenzie v ACT Planning and Land Authority[2004] ACTSC 80
[2004] ACTAAT 21
Pashilidis and ACT Planning and Land AuthorityRaphael and Ors & ACT Planning & Land Authority (Administrative Review) [2010] ACAT 89
Walkington & Ors & ACT Planning and Land Authority (Administrative Review) [2010] ACAT 81
List of Texts/Papers: ACTPLA, Canberra Spatial Plan (2004)
ACTPLA, Red Hill Neighbourhood Plan (September 2004)
Roads and Traffic Authority of NSW, Guide to Traffic Generating Developments Version 2.2 (October 2002)
Tribunal: Dr D. McMichael Presiding Member
Ms W. Corby Senior Member
Date of Orders: 22 August 2012
Date of Reasons for Decision: 22 August 2012AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 5 of 2012BETWEEN: BAPTIST COMMUNITY
SERVICES – NSW & ACT
Applicant
AND: ACT PLANNING AND LAND AUTHORITYRespondent
AND: ANTHONY PHILLIP GAY
GAVIN ALEXANDER BACK
MELISSA BENNETT
JOHN COPLAND
ROHAN PITCHFORD
Parties Joined
TRIBUNAL: Dr D. McMichael Presiding Member
Ms W. Corby Senior Member
DATE: 22 August 2012
ORDER
1.The decision under review is confirmed and the development application refused.
………………………………..
Ms L. Crebbin, General President
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
1.Baptist Community Services – NSW & ACT (“the applicant” or “BCS”) has sought review of a decision, following reconsideration, made on 20 December 2011(“the reconsideration decision”) by the ACT Planning and Land Authority, now subsumed within the Environment and Sustainable Development Directorate (“the respondent”) to confirm its original decision to refuse approval for Development Application (“DA”) No 201018564.
2.The applicants had sought approval for the demolition of an existing nursing home and retirement village complex (Morling Lodge) on Block 65, Section 8, Red Hill (“the subject land”), and to construct on the site 114 ‘independent living units’ (“ILUs”) in five buildings with attics, a wellness and fitness centre, basement car parking, and associated facilities, landscaping, paving and other site works. The redeveloped complex is to be known as Gracewood, Red Hill. The original DA was accompanied by detailed plans (“the original plans”). In seeking reconsideration of the original refusal, the applicant had submitted revised plans (“the reconsideration plans”) which were intended to address the issues that were of concern to the respondent when it refused the original DA. The reconsideration plans included a reduction in the number of units to 107, but in its reconsideration decision, the respondent again refused approval.
3.After applying to the Tribunal for review of the reconsideration decision, but before the application was heard, the applicants produced a further set of amended plans (“the appeal plans”), which again sought to address the remaining issues of concern to the respondent. These included reduction of the number of units to 100, removal of the attics, and dividing two of the originally proposed buildings into four smaller buildings. Following consideration of these plans, the respondent made written submissions to the Tribunal indicating that, subject to the imposition of a number of conditions, it would be prepared to approve the DA on the basis of the appeal plans.
4.A number of residents living adjacent to or nearby the subject land who were original objectors to the proposed development remained opposed to the development and were joined as parties to the proceedings. They were Mr Anthony Gay, the lessee of a block which adjoins the subject land to its west; Mr Gavin Back, one of the lessees of a block that is one block removed from the Supply Place entrance to the subject land; Ms Melissa Bennett, one of the lessees of a block which adjoins the subject land to its north; and Dr John Copland, lessee of a block which abuts Dr Pitchford’s block to its west.
5.Dr Rohan Pitchford was also joined as a party because, although not an original objector, he purchased a block (immediately adjacent to part of Block 65) only a few months prior to this application and was considered to have interests that were affected by the proposal.
The Hearing
6.The matter was heard on 14, 15, 16, 17 and 18 May 2012 and on 28 June
2012. On 14 May 2012, the Tribunal viewed the site in the company of the parties and their representatives. It had before it the documents on which the respondent had based both its original decision and its reconsideration decision (“the T Documents”), the Statements of Facts and Contentions of the Parties, and documents tendered in evidence. It was also assisted by a scale model of the proposed development (which was not tendered as an exhibit).7.The applicant was represented by Mr C. Erskine SC of counsel. The respondent was represented by Mr P. Walker of counsel. The parties joined were unrepresented. Dr Copland was overseas and unable to attend the first five days of the hearing, but was present on 28 June 2012 for submissions.
8.Evidence was given for the applicant by Mr Douglas Melloh, a Senior Associate of Stanton Dahl Architects, the architects of the proposed development, who has had significant experience in the planning and design of facilities within the aged care sector; Ms Annette Hili who is the General Manager, Care Systems Division of the applicant and has had 15 years of experience in the aged care industry in both operational and corporate roles; Mr David Field, a traffic engineer who is a senior consultant and Principal of Northrop Consulting Engineers Pty Ltd and has been managing its Canberra Civil/Traffic Business Unit for about four years; and Mr Paul Cohen, an experienced and qualified town planner with over 30 years’ experience in Canberra, who is a Director of Campbell Dion Pty Ltd.
9.A witness statement and accompanying plans prepared by Ms Deborah Matthews, a Registered Landscape Architect with Scenic Landscape Architecture, was tendered by Mr Erskine. Ms Matthews did not give oral evidence. Mr Erskine also tendered portions of a statement by Ms Deb Barnes, Director, Town Planning, with CB Richard Ellis Pty Ltd (“CBRE”) which comprised correspondence with the respondent about the purpose clause of the lease.
10.In addition, Ms Rebecca Stockley, a senior consultant with CBRE and Ms Christine Purdon, a qualified and experienced town planner who is a full-time Director of Purdon and Associates, had prepared witness statements for the applicant commenting on planning issues. These statements were tendered in evidence by Mr Gay as he had referred to them in his own witness statement. Neither Ms Stockley nor Ms Purdon was called to give oral evidence.
11.Evidence was given for the respondent by Mr Paul Isaks, transport specialist with the Transport Planning and Strategy Section of the City Planning Division in the Environment and Sustainable Development Directorate. Mr Isaks has had some 22 years’ experience in assessment of transport-related aspects of development applications.
12.Four of the parties joined, Mr Gay, Mr Back, Ms Bennett and Dr Pitchford, gave evidence on their own behalf. In addition, Mr Robert Nairn, a qualified and experienced traffic and transport engineer with many years experience in Canberra, gave expert evidence in support of Dr Pitchford. Dr Copland gave no evidence but was present on the final day and made a brief submission.
The Proposal
13.The subject land is a generally rectangular block of 22,683m2 area with its long axis oriented generally east-west, with an appended narrow extension from its north-west corner which provides access to Supply Place. It has a 98m frontage to Hicks Street which runs generally north-south and provides the main access to the subject land via two driveways. Its northern boundary is 241m long and abuts the rear of a number of properties fronting Pelsart Street, Sirius Place and Supply Place. Its western boundary is about 99m and abuts the rear of four properties fronting Golden Grove. Its southern boundary abuts St Bede’s Primary School.
14.The land is held by the applicant under a Crown lease issued on 24 February 2011 to replace the original lease which was granted in 1966 under the Leases (Special Purposes) Ordinance 1925 and pre-dated ACT self-government and the preparation of the Territory Plan. The purpose clause in both the original lease and the renewed lease limits the use of the land to “a Home for aged persons and purposes ancillary thereto”.
15.It was developed in the 1960s as Morling Lodge, which comprises both eighteen ILUs and a hostel/nursing home for 105 residents. There is also a small administration building adjacent to the nursing home. The ILUs are built in six blocks – three on the eastern portion of the subject land near to the Hicks Street frontage containing nine units and three on the western portion containing another nine units. Access to the former is by the two driveways from Hicks Street, while access to the latter is via a driveway from Supply Place. Access to parking for staff was also mainly via the Supply Place driveway.
16.The applicant is constructing Gracewood Griffith, a new nursing home to which the existing residents of Morling Lodge nursing home will be transferred in due course. All but one of the ILUs are now vacant, the former residents having been accommodated elsewhere.
17.The proposed development will involve the demolition of all existing buildings and some reshaping of the land on which the applicant originally proposed to construct a complex of two storey buildings (some with attics) containing 114 ILUs and five common rooms. Parking for 145 vehicles was to be provided, mostly in basement car parks. The reconsideration plans reduced the number of ILUs to 107 and the number of parking spaces to 136.
18.The appeal plans further reduced the scale of the proposed development by eliminating the attics, reducing the number of ILUs to 100 and the number of common rooms to two. In addition, the pitch of the roofs was reduced from 22º to 15º and the width of the eaves was reduced from 1.2m to 0.6m, both of which were to assist in reducing the bulk of the buildings. The two buildings proposed for the western part of the site, Montague and Nadgee were each split into two buildings to achieve a more domestic character. Car parking was reduced to 130 places. The Supply Place driveway was redesigned as a shared zone for vehicles and pedestrians accessing the Montague elements.
19.While the changes proposed in the appeal plans resolved many of the issues of concern to the respondent, there remained a number of matters of concern to the parties joined which are dealt with below. In addition, the respondent indicated that, if the appeal plans were to be approved, it would seek to have imposed a number of conditions of approval to deal with as yet unresolved matters.
Applicable Law
20.The proposed development is subject to the provisions of the Planning and Development Act 2007 (ACT) (“the Planning Act”) and to the Territory Plan 2008 (“the Plan”). Under the Plan the subject land is within an RZ1 Residential Zone, and is therefore subject to the RZ1 Suburban Code - Objectives and Development Tables. Because of the nature of the proposed development it is subject to the Multi Unit Housing Development Code (“the MUHD Code”), as well as a number of General Codes, in particular the Parking and Vehicular Access General Code (“the Parking Code”).
21.The proposed development falls within the definition of a Retirement Village in the Plan, thus it will also be subject to the provisions of the Fair Trading (Retirement Villages Industry) Code of Practice 1999 (NI 1999-277) (the “ACT Code of Practice”) which is primarily concerned with the management and the rights of residents of Retirement Villages. [1]
[1] In some other jurisdictions, Retirement Villages are subject to separate Acts. A Retirement Villages Bill was introduced into the ACT Legislative Assembly on 16 November 2011, but was not passed. A revised Bill, based largely on the NSW Retirement Villages Act was introduced by Ms Mary Porter MLA on 6 June 2012.
An initial question of law
22.A question that arose early in the hearing was whether, in accordance with certain provisions of the Planning Act, the appeal plans should be subject to further public notification. It was contended that the request by the applicant that the Tribunal approve the appeal plans constituted a request to amend the DA and as such, was subject to section 144 of the Planning Act. Section 144(1) provides that, at the request of an applicant, the authority (in this case the Tribunal) may amend the application, but section 144(2) provides that it must not do so unless satisfied that
(a) the development applied for after the amendment will be substantially the same as the development applied for originally; and
(b) the assessment track for the application will not change if the application is amended.
23.Mr Back in particular contended that the appeal plans were not substantially the same as the development applied for originally and should be made the subject of a fresh DA. He identified the changes that had been made to the plans including:
·The redesign of the buildings;
·The re-siting of the buildings;
·An increase in the number of buildings from 5 to 9;
·The removal of all illegal 3rd storey apartments;
·The redesign of apartments;
·Changes in the number of ancillary facilities, such as common rooms;
·Changes in the ground level of buildings;
·Changes in the Gross Floor Area, plot ratio and site cover;
·Changes to the Supply Place driveway.
24.Mr Gay also identified a number of changes that had been made to the proposed landscaping including the location, number and kinds of plants to be used and noted the there were likely to be many other changes in the appeal plans. It was his assertion therefore that the alterations were significant and that a new DA should be submitted.
25.Mr Erskine submitted that the Tribunal or its predecessor, the ACT Administrative Appeals Tribunal (“the AAT”) and the ACT Supreme Court had provided guidance on the question of whether re-notification of an amended application was required. In particular, the AAT in AMC Projects Pty Ltd and ACT Planning and Land Authority [2006] ACTAAT 13 at [5] had made it clear that where “the differences between the development application and the revised proposal involve no demonstrated or apparent increase in the impact of the revised proposal on potential objectors or the public beyond that which might be attributable to the publicly notified development application, there is no reason for the Tribunal to not consider that revised proposal”. Mr Erskine said that in this case, the appeal plans demonstrate that the amendments have made the proposal smaller hence, it will have less impact. Further, the works proposed to be done on the Supply Place driveway were in response to the respondent’s concerns about safety and were not of the kind that would result in rejection of a proposal.
26.Mr Walker submitted that it was open to the Tribunal to approve the appeal plans as the amendments proposed only served to reduce the impact of the development. He contended that the development for which approval was now being sought would be substantially the same development as it would have been if the original plans had been approved. There was minimal, if any, increase in environmental impact and there was no need for re-advertisement.
Consideration of the issue
27.The Tribunal has carefully considered the contentions of the parties joined and the submissions of the applicant and respondent on this issue. It has also taken note of previous decision of this Tribunal, in particular those in Finlayson & Ors v ACT Planning and Land Authority & Ors (Administrative Review) [2009] ACAT 35; Davidson v ACT Planning and Land Authority (Administrative Review) [2009] ACAT 39; and Walkington & Ors & ACT Planning and Land Authority (Administrative Review)[2010] ACAT 81. Its attention was also drawn to the decision of the ACT Supreme Court in McKenzie v ACT Planning and Land Authority
[2004] ACTSC 80.
28.The Tribunal has previously considered at length the circumstances in which a revised proposal should be subject to further public consultation in Finlayson, Walkington, and Davidson. The legal position is that this Tribunal, by virtue of s 68(2) of the ACT Civil and Administrative Tribunal Act 2008, is empowered to review the decision made by the delegate of the Authority on 20 December 2011 to confirm its earlier decision to refuse the DA on reconsideration under section 193 of the Planning Act. In undertaking the review the Tribunal does so as if it was the Authority and is bound to act in accordance with the provisions of the Planning Act relating to consideration of DAs.
29.Pursuant to section 144 of the Planning Act, an applicant may seek and the Tribunal may accept an amendment of a DA, but the Tribunal could also, pursuant to section 162(b) of the Planning Act, approve the original DA with conditions. The first issue before this Tribunal is whether the changes proposed to be made to the development as set out in the appeal plans should be dealt with as conditions of approval (in the event that the Tribunal did decide to approve the development) or whether the appeal plans should be considered as a request for amendment of the DA.
30.
The case law provides some guidance on the extent of the changes to a DA that may be made before it becomes, in effect, a new application. In McKenzie, at [18] and [19], Crispin J stated that what needs to be considered is whether the amended plans involved such a substantial departure from those originally submitted as to properly be regarded as a different application rather than a revision of some aspects of the original application which could properly be considered by the Tribunal.
31.
In Pashilidis and ACT Planning and Land Authority [2004] ACTAAT at [32] and [35], the AAT found that while the new plans involved design changes, the essential ingredients of the two plans were sufficiently similar as to not justify a conclusion that the new plans involve the making of a fresh application. It suggested that whether the changes made to the plans of a DA involved the making of a fresh application or an alteration of the original plans involved matters of degree.
32.
The question of the relationship between sections 144 and conditional approvals under sections 162(1)(b) and 165 has not been considered in depth by this Tribunal or its predecessor. Section 144 clearly relates to a request by the developer to amend a DA. By contrast section 162(1)(b) allows the Tribunal to approve a DA with conditions and section 165 sets out in some detail the kinds of conditions that might be imposed under section 162(1)(b). Most are of a kind that do not relate to design and siting considerations, but rather to the timing, staging and standard of development or to steps that must be taken to vary existing leases, licences and approvals.
33.
However, those in subsections 165(3)(o) and 165(3)(p) read
(o) that plans, drawings and specifications or other documents be prepared by the applicant and lodged with the planning and land authority for approval before the development or a stated part of it starts;
(p) requiring changes to be made to any plan, drawing, specification or other document forming part of the application for approval.
Mr Walker submitted that these provisions were sufficient to enable the Tribunal to approve the proposed development, either by requiring the appeal plans to be submitted for approval before development starts (under section 165(3)(o)) or by requiring changes to be made to the reconsideration plans that reflect the amendments shown in the appeal plans (under section 165(3)(p)).
34.
While the provisions of sections 162(1)(b) and 165 are available to be used in circumstances where the applicant has submitted a revised set of plans containing changes to aspects of the proposed development as is the case here, or where the Tribunal has decided that changes should be made in the light of evidence and submissions at hearing, we do not think that that absolves us from considering whether or not this is an amended proposal that falls under section 144.
35.In this case, we consider that the changes proposed in the appeal plans are extensive and that it would not be appropriate to ignore the provisions of sections 144, 145 and 146. We prefer to regard the presentation of the appeal plans to the Tribunal as a request for amendment of the DA and, hence, subject to section 144 considerations.
36.While we acknowledge that the appeal plans contain numerous changes to what was proposed in both the original plans and the reconsideration plans, we do not think that they are sufficient to reach a conclusion that the development now proposed is not substantially the same as the original proposal. The proposal now is to develop a retirement village of independent living units, in two storey buildings with mainly basement parking, with vehicular access via driveways from Hicks Street and Supply Place, and to landscape the surrounding grounds. While the proposed attics have been removed and the pitch of the roofs altered, two buildings have been split into four and others re-arranged, we agree that the changes made are of a kind which ameliorate the impact of some aspects of the original proposal, but do not alter its essential character. There will be no change in the assessment track for the proposal. We conclude that the requirements of section 144(2) have been met and we will therefore amend the DA under section 144(1) and consider the appeal plans as being the proposal by the applicant in these proceedings.
37.The consequence of doing so is that we must consider the application of sections 145 and 146 of the Planning Act. Section 145 requires an amended DA that had, prior to the amendment, been referred to an entity under Division 7.3.3 to again be referred to that entity, but subject to section 145(4) which provides that this need not be done if the Tribunal is satisfied that the proposed amendment does not affect any part of the application in relation to which the entity to which it was referred made a comment. In this case, the original DA was referred to the Conservator of Flora and Fauna, the Department of Territory and Municipal Services (“TAMS”) (now the Territory and Municipal Services Directorate), ActewAGL (Electricity Networks Division), ActewAGL (Gas Networks Division) and the ACT Environment Protection Authority.
38.The Tribunal is satisfied that the amendment does not affect any part of the application in relation to which any of these entities made a comment other than TAMS, which drew attention to the need to stop “through traffic” between Hicks Street and the Supply Place Driveway by taking appropriate measures. The amendments proposed endeavour to respond to those comments. Pursuant to section 145, should the Tribunal approve the development, it would be a condition of approval that the reconsideration plans for the driveways be referred to TAMS for comment.
39.Section 146 requires the authority, for an amended application that has previously been publicly notified, to publicly notify the amended version. However, that requirement may be waived under sub-section 146(3) if the authority is satisfied that
3(a) no-one other than the applicant will be adversely affected by the amendment; and
3(b) the environmental impact caused by the approval of the amendment will do no more than minimally increase the environmental impact of the development.
40.We see nothing in the proposed amendments that will adversely affect anyone other than the applicant. The changes to the proposed development that would be effected by the amendments would reduce the impact that the proposal would have on the neighboring properties, as they will reduce the bulk of the buildings, the overall size of the development and the amount of traffic that will be generated. Similarly we consider that the amendments proposed are unlikely to increase, minimally or at all, the environmental impact of the proposal; indeed, in our view, it is likely that the proposed amendments would reduce the impact on the environment as compared with the original proposal. Consequently we intend to waive the requirement of section 146(2).
The Issues
41.The concerns of the respondent were largely resolved by the amended plans but, as indicated above, it proposed a number of conditions that it considered should be imposed if the amended DA is approved. Those conditions are set out in Attachment A to the respondent’s Statement of Facts and Contentions and for the most part are standard conditions that would be attached to any similar development approval. A few were requirements for further amendment of the plans to ensure compliance with particular provisions of the Plan, in particular the MUHD Code, but these did not arise as issues during the hearing.
42.The concerns of the parties joined were not identical, but their issues may be grouped and summarised under the following headings:
(a)whether the proposed development is permissible under the lease purpose clause;
(b)whether the scale of the proposed development is consistent with the objectives of an RZ1 Zone and demonstrates a response to the key strategies of the Red Hill Neighborhood Plan;
(c)whether the proposed development will impact adversely on the landscape character of the neighbourhood;
(d)issues related to traffic and parking including:
(i)Whether the traffic movements generated by the proposed development have been correctly calculated;
(ii)Whether the interests of St Bede’s school have been adequately considered in relation to traffic in Hicks Street and safety of school children.
(iii)whether the traffic movements generated by the proposed development will adversely affect the safety of residents of Supply Place;
(iv)whether the parking arrangements for the development are adequate and in particular, whether the parking for the Montague units will lead to unacceptable levels of visitor parking in Supply Place;
(v)whether the proposed re-development of the Supply Place driveway will be effective in ensuring safety of pedestrians using that entrance and reduce the speed of vehicles exiting via that driveway.
We will consider each of these issues in the paragraphs that follow.
Issue (a) Whether the proposed development is permissible under the lease
purpose clause
43.Mr Gay, Mr Back and Dr Pitchford all submitted that the proposed development was inconsistent with the Crown lease purpose clause and that as a consequence, the DA should not be approved. Ms Bennett also considered that the proposal was inconsistent with the lease purpose clause.
44.The original Crown lease of the subject land (T1380-1382) was issued on 4 March 1966 under the Leases (Special Purposes) Ordinance 1925-1943 (Cth) which, following self government, became the Leases (Special Purposes) Act 1925 (ACT). This Act was repealed by section 24 of the Land (Planning and Environment) Consequential Provisions Act 1991 (ACT), while section 25 of that Act provided that a lease granted under the repealed Act was taken to have been granted under the Land (Planning and Environment) Act 1991 (ACT). The current Crown lease was issued in 24 February 2011 (T1699-T1704) following surrender of the original lease (T1380-T1383).
45.The purpose clause of the original lease provided that the subject land was to be used only for “a Home for aged persons and purposes ancillary thereto”. On 23 November 2007, Ms D Barnes, of CBRE emailed the Leasing Section of the respondent inquiring as to whether construction of a number of self contained dwellings for the aged would be considered to be within the existing purpose clause.
46.It appears that the initial reaction of the leasing section (by letter of 10 December 2007 which was not provided to the Tribunal) was that the use of the land in this manner could not be supported, On 24 January 2008, Ms Barnes wrote to the Assistant Principal Officer, Leasing Section, referring to the 10 December 2007 letter and setting out in some detail the nature of the proposed dwellings (which were then referred to as Independent Living Units or ILUs) and requesting legal confirmation of the earlier decision noting that there were already 18 approved ILUs on the site. On 14 February 2008, Mr G Allen, Manager, Leasing Section, responded, advising her that on reconsideration of the issues his opinion was that the use of the land for ILUs was “not inconsistent” with the purpose clause of the Crown lease.
47.Subsequently, when the lease was renewed in February 2011, the wording of the purpose clause remained unchanged.
48.Mr Gay noted that there was no definition of “Home for aged persons” in the original Crown lease and he observed that the applicant had, during the course of consideration of this matter, changed its description of the proposed development from the original “Residential Care in the form of Independent Living Units” to “Retirement Village” which he described as a basic alteration that warranted a new DA.
49.After traversing the history of the terminology and the opinions of various expert witnesses, Mr Gay contended that a “Retirement Village” was not an “aged persons’ home”. His principal concern was that a “Retirement Village” is for persons aged 55 or older and he did not accept the applicant’s evidence that “the occupants would be largely retirees in “the 70-80+ age bracket” or that the proposed development could properly be described as “a Home for aged persons”.
50.He also rejected the suggestion that the development would facilitate “ageing in place”, a term which he considered applicable to a complex of ILUs, Hostel and Nursing Home on the one site where a resident could move from one to the other as their care needs increased. He observed that only limited care services were to be provided at Gracewood Red Hill, while the nearest facilities for higher care were at Carey Gardens, some hundreds of metres away, or at Gracewood Griffith some 2 kilometres away.
51.The evidence of Ms Hili was that what the applicant proposes to develop is a Retirement Village that would be operated under a Retirement Village Scheme in a manner similar to the way that other Baptist Community Service Retirement Villages are operated elsewhere and that the intention is to cater for older people, generally in the over 70 age bracket who are ready to enter this kind of aged care accommodation.
52.Ms Hili stressed that their marketing would be directed at that older demographic and not to younger 55 year olds looking for an “Active Retirement/Lifestyle” facility. However, she did not exclude the possibility of some younger persons being admitted as residents in appropriate circumstances such as a 55 year old with significant health issues, nor would they refuse entry to a person still working a couple of days a week part-time.
53.Ms Hili also referred to the applicant’s Service Delivery Model, which she said was based on the “Ageing in Place” philosophy. This, she said, refers to the linking of care and support services to the places where older people prefer to live. It enables the provision of a range of services to assist clients to remain living in their choice of accommodation for as long as possible. .
54.Ms Hili stated that from a Residential Aged Care Facility (“RACF”) perspective, this is extended by offering accommodation and care within the facility for clients that will meet low-level, high-level or dementia specific needs in the same place of residence. However, due in part to recent improvements in aged care arrangements, the applicant is committed to providing retirement living homes that are designed so that residents have a greater quality of life and are able to age in place without necessarily having to move to an RACF. These arrangements make it possible for seniors to receive low or high-care service and nursing assistance at home, thus removing the need to move as a result of changing care needs.
55.Mr Cohen, Ms Stockley and Ms Purdon all addressed the question of the Lease purpose clause and each of them concluded that what was proposed was not a RACF but a Retirement Village and that such a Village would be consistent with the phrase “a Home for aged persons and purposes ancillary thereto”.
56.Dr Pitchford and Mr Back in a joint submission drew attention to the fact that the purpose clause referred to “Home” rather than the more explicit “nursing home” and that use of a term with a capital letter usually signifies that it is a defined term. There is however, no definition of "Home" in the lease, nor in the related Aged Persons Homes Act 1954 (Cth). In their submission, although the clause was badly drafted, it was intended to give effect to the Government’s limited decision, which they contend was to enable development of a nursing home funded under the 1954 Commonwealth Act. They submitted that there was no evidence that the Commonwealth’s intention or decision was to approve development of anything else and there was no reason why a lease would have been granted for any wider purpose.
57.Mr Erskine endorsed Mr Back’s and Dr Pitchford’s view that the lease purpose clause was not a model of legal drafting and observed that courts and tribunals had grappled with the wording of these clauses for decades.
58.Mr Erskine, on behalf of the applicant, submitted that a lease purpose clause has the potential to guide the use of a block of land for up to 99 years and it cannot be interpreted strictly according to the precise requirements of a particular era. In any event, the 1954 Act encompassed a wide range of aged care accommodation and was not textually confined to nursing homes. Accommodation of the kind proposed for this development has been in existence in the aged care field for generations and Morling Lodge has included ILUs of the kind proposed in this development for some 40 years, during which time there had been no complaint that they violated the lease purpose clause.
Consideration of the issue59.There is no definition of “Home for aged persons” in the Plan. Earlier versions of the Plan (e.g. Territory Plan 2002) included a definition of Residential Care Accommodation which read:
the use of land by an agency or organization that exists for the purposes of providing accommodation and services such as the provision of meals, domestic services and personal care for persons requiring support. Although services must be delivered on site, management and preparation may be carried out on site or elsewhere.
Included under the heading “Some Common Terminology” adjacent to this
definition were (among others) “nursing home” and “Retirement Complex”.60.This definition was carried over into the 2008 version of the Plan under the Umbrella Term “Residential Use” but was supplemented by two additional definitions – “Retirement complex” and “Supportive Housing”. Retirement complex was defined as meaning
The use of land for permanent residential accommodation for persons aged 55 or over and which consists of a grouping of self-care units as well as a hostel and/or nursing home accommodation together with ancillary facilities provided for the use of residents. Ancillary facilities may include chapels, medical consulting rooms, meeting rooms, recreational facilities, therapy rooms, kiosk facilities and the like.
61.The Plan was amended in 2011 by Variation 302 (Notifiable Instrument NI 2011-573) to replace the term “Retirement complex” with the following terms and definitions:
Retirement Village means premises where older members of the community or retired people live, or will live, in independent living units or serviced units, under a retirement village scheme
and
Retirement village scheme, for a retirement village, means a scheme under which a person may –
(a)enter into a residence contract with the scheme operator for the retirement village; and
(b)on payment of an in-going contribution, acquire personally or for someone else a right to live in the retirement village, however the right accrues; and
(c)on payment of the relevant charge, acquires personally or for someone else a right to receive one (1) or more services in relation to the retirement village.
An important change was that the specification of “persons aged 55 years or older” was replaced by “older members of the community or retired people”. In addition, the definition of Supportive Housing was amended to specifically exclude “Retirement Village”.62.The Variation was concerned with the Community Facility Zone and its Objectives and Development Code. The explanatory notes accompanying the Variation stated that these definitions were introduced to achieve consistency between that Code and the Retirement Villages Bill 2011 (which has since been replaced by the Retirement Villages Bill 2012– see footnote to paragraph 21 above.)
63.Although the context of these new definitions was a revision of the Community Facility Zone policies, both Residential Care Accommodation and Retirement Village are permissible developments, assessable under the Merit Track, in an RZ1 Zone in which the proposed development is located. (The Tribunal notes that Morling Lodge is dealt with under the Community Facilities section of the Red Hill Neighbourhood Plan. We consider that it may have been better to have rezoned the subject land as Community Facility Zone under Variation 302 to the Plan, given that the two blocks to the south of the subject land are already zoned Community Facility. Furthermore, such a zoning change would have prohibited any possibility of unit titling of the proposed development.)
64.The definition in the Plan of “Residential Care Accommodation” reflects the kinds of aged care facilities covered by the current Aged Care Act 1997 (Cth) and generally known as “hostels” or “nursing homes” of which the main part of Morling Lodge is an example. In our opinion what is proposed by the applicant does not meet the Plan’s definition of Residential Care Accommodation because, although some services are proposed to be provided (such as assistance with shopping and visits by health service providers), they are not, in our opinion, services of the kind envisaged in the definition. It seems clear to us that what is being proposed in this development is consistent with the definition of “Retirement Village” under the Plan.
65.The Retirement Villages Act 1999 (NSW) defines a “retired person” as “a person who has reached the age of 55 years or who has retired from full-time employment”. However, the definition of “Retirement Village” in the ACT Code of Practice makes no reference to the age of the eligible residents, only that they are to be “predominantly or exclusively occupied by retired persons”. There is no definition of the meaning of the word “retired”.
66.While it seems to be generally accepted that retirement villages are intended to cater for persons aged 55 or more, there seems at present to be no statutory basis for this in Territory law.
67.The question to be decided is whether a Retirement Village operated in the manner described by Ms Hili falls within the meaning of the words in the purpose clause “Home for aged persons and purposes ancillary thereto”. Ms Purdon’s written evidence was that she had been advised that the lease of the subject land was granted to enable development of a nursing home under the (now repealed) Commonwealth Aged Persons Homes Act 1954 though she gave no oral evidence and the accuracy of that advice was not tested.
68.Assuming Ms Purdon was correct, the purpose of the Aged Persons Homes Act (section 3(1)) was
To encourage and assist the provision of suitable homes for aged persons, and in particular homes at which aged persons may reside in conditions approaching as nearly as possible normal domestic life, and in the case of married people, with proper regard to the companionship of husband and wife.
69. Section 6 (1) of that Act read
Where the Director-General is satisfied that a building or buildings
erected or to be erected, or purchased or to be purchased, by an eligible
organization is or are intended to be used permanently by or on behalf of the organization as a home or homes for the accommodation of aged persons, he may, in his discretion, approve that building or proposed building or those buildings or proposed buildings as a home for the purposes of this Act
Section 7(1) provided that
The Director-General may, in his discretion on behalf of the
Commonwealth, make a grant of moneys in accordance with this Act to an
eligible organization as assistance towards meeting the capital cost of an
approved home.
70.The Aged Persons Homes Act defined “aged person” (section 2) as
a man who has attained the age of sixty-five years or a woman who has attained the age of sixty years and includes the wife or husband of an aged person residing or desiring to reside with the aged person.
71.While this suggests that the original lease purpose was for housing of people who, in 1966 when the original lease was granted, were regarded as of normal retirement or pensionable age, it does not indicate that any particular kind of “home” was a requirement of the Act. The reference to “conditions approaching as nearly as possible normal domestic life” is not inconsistent with the independent living units of the type proposed by the applicant.
72.Nevertheless, the Tribunal has to decide whether the development proposed, which is a Retirement Village as presently defined in the Plan, is consistent with the lease purpose clause which permits “a Home for aged persons and purposes ancillary thereto”. The fact is that the current Crown lease was issued by the Leasing Section of the respondent in February 2011 and is subject to the current provisions of the Plan. The evidence is that the Leasing Section was satisfied that a Retirement Village was encompassed within the phrase “Home for aged persons and purposes ancillary thereto” at that time.
73.The applicant could have applied to vary the purpose clause when the lease was renewed in February 2011 to include “Retirement Village” but it did not. Presumably, the applicant relied on the information set out in the letter from Mr Allen in 2008. It would still be open to the applicant to seek to have the lease varied in this manner, although that might attract a Lease Variation Charge. Mr Erskine observed that a lessee would not normally seek to vary a lease purpose clause if there was no compelling reason to do so.
74.The Tribunal considers that the proposed development, if managed in the manner described by Ms Hili, would constitute “Home(s) for aged persons” and thus would not be inconsistent with the Crown lease purpose clause.
75.We consider there is no basis for requiring a new DA on the grounds advanced by Messrs Gay, Back and Dr Pitchford. As Mr Walker observed, if at any time the development is found to be operating in a manner that is inconsistent with the phrase “Home for aged persons” then compliance action can be taken.
Issue (b) Whether the scale of the proposed development is consistent with the objectives of an RZ1 Zone and demonstrates a response to the key strategies of the Red Hill Neighborhood Plan
76.Section 120 of the Planning Act requires that, when deciding a DA for a development proposal in the merit track, the decision maker must consider a number of matters, including (a) the objectives for the zone in which the development is proposed to take place. In addition, Criterion 87 of Part C1 of the MUHD Code provides that
Where a Neighbourhood Plan exists, development demonstrates a response to the key strategies of the relevant Neighbourhood Plan”.
77.The relevant objectives of an RZ1- Suburban Zone are as follows:
(a) create a wide range of affordable and sustainable housing choices within a low density residential environment to accommodate population growth and meet changing household and community needs
(b) Ensure development respects and contributes to the neighbourhood and landscape character of residential areas
78.There is a Red Hill Neighbourhood Plan, prepared by the ACT Planning and Land Authority in September 2004 after extensive community consultation. Its Key Strategies for Residential Areas are:
· Provide a diversity of housing choices for single, couples and families of different sizes and ages in appropriate locations.
· Promote high-quality residential development that is sympathetic to the existing garden suburb neighbourhood character in terms of scale, form and landscape setting.
79.Ms Bennett, in particular, drew attention to the provisions of sections 53 and 55 of the Planning Act. Sub-section 53(1) provides that “the objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone”. Sub-section 55(2) provides that “a code must be consistent with each objective for the zone to which the code relates”. She submitted that the code rules and criteria must be cast, interpreted and applied in a way that achieves the policy outcome set by the objectives. For RZ1 residential zones the policy objective, she contended, is a low density environment.
80.Ms Bennett’s particular concern was with the density of the proposed development. While acknowledging that the Plan did not define “low, medium or high density housing” she contended that the proposal could not, on any reasonable interpretation, be seen as consistent with the “low density” objective of the RZ1 zone in which it is to be built. Objective (a), by inclusion of the phrase “within a low density residential environment” which is not included in either the RZ2 or RZ3 objectives, confirms that RZ1 residential zones are a ‘low density environment’. Ms Bennett submits that high density development within a low density environment by its very nature irreversibly changes the character of the low density environment.
81.Mr Cohen addressed the question of “density” at some length in his witness statement. He observed that the MUHD Code, Part A (Zone Specific Controls) at Part A(1) – RZ1 – Suburban Zones, includes Element 1- Restrictions on Use which states that the Intent of the Element is:
To allow a limited level of additional housing to meet changing community needs and preferences whilst ensuring development is of a density that is compatible with adjoining development.
82.Mr Cohen noted that the Plan did not define “compatible” but the dictionary definitions referred generally to “capable of existing together in harmony” and “agreeing or corresponding in character or qualities”. He noted that while the Plan includes built-in controls that directly or indirectly operate as de facto determinants of density, including plot ratio, height limits, setbacks and in some circumstances parking requirements, and that a development must be consistent with those controls, it was nevertheless possible to design additional residential developments that overload infrastructure, or were of a scale, bulk or massing that did not harmonise with existing development. Hence, he said, it was considered necessary in the Plan to apply a further condition that requires new development, particularly multi unit development, to be compatible with existing development which, in this instance, is predominantly detached housing with some dual and triple occupancies included in the mix.
83.Mr Cohen contended that the proper approach to density in the present case was to consider the proposed development in relation to the pattern of adjacent development, noting that “adjacent” is different from “adjoining”. In his view, adjacent development comprehended the whole of Section 8 (and part of Section 11) between Hicks Street and La Perouse Street, and between Nuyts Street, Golden Grove and Pelsart Street (Exhibit 23 Figure 2).
84.Mr Cohen acknowledged that dwellings per hectare was a basic measure of density, but considered that where different types of dwellings are compared, such as medium or high density against single dwellings, it had limited value. He preferred to use the percentage or the area covered by buildings (site coverage). Mr Cohen contended that site coverage was useful in assessing the ratio of built form to domestic open space and provided a measure of spatial separation between buildings and accordingly a “feel” for the level of amenity offered by the zone.
85.In his analysis of site coverage in the adjacent area, he excluded Block 69, immediately to the south of the subject land (St Bede’s School) and Block 66, immediately to the south of St Bede’s School (Catholic Care) which, because of the small site coverage on each block would, he contended, cause a statistical bias. He estimated that in his nominated precinct, site coverage ranged from 15% to 45% with a median of 24% and a mode of 23%. He observed that some of the blocks with low site coverage also lacked well developed landscaping and speculated that they could be redevelopment prospects.
86.By contrast, he said, the proposed development has a site coverage of 33.4% (reduced in the appeal plans to 31.3%) which was higher than the median for the precinct, but he noted that 13% of the dwellings in the precinct had higher site coverage than the proposed development. He contended that what was important was that the ratio of building to land of the surrounding blocks was comparable with that of the proposed development.
87.Because the proposed development now consisted of nine two-storey buildings of similar height to surrounding development and which are massed and articulated so as to reflect adjacent residential development, Mr Cohen saw Block 65 as providing a transition from the open space/institutional character of Blocks 66 and 69, to the residential character of the areas to the north, east and west of the subject land.
88.Mr Cohen observed that if the proposed development were intended as a multi-unit housing development he would be concerned about increased traffic and parking and potential increases in demand on passive recreation areas and community facilities such a schools and libraries. However, because of the nature of the facility and the age range of the anticipated occupants he would expect their requirements for recreation facilities to be met largely within the complex itself.
89.In summary, Mr Cohen submitted that compatibility is determined by the quantitative and qualitative balance of the design and the impact of the resulting buildings and their occupants on the surrounding area, their demand for services and their impact on existing traffic routes. His analysis of the proposed development in terms of its architectural design, its relationship with surrounding development, its contribution to the streetscape and its impact on traffic in the area led him to conclude that it would be compatible with the existing development in the area to an extent that satisfied the requirements of the Plan.
90.Ms Purdon also addressed issues of compatibility and density in her tendered witness statement, covering many of the same issues as did Mr Cohen. She concluded that while the proposed development was different from development in the surrounding area, the various provisions in the Plan that refer to character do not require development to be the same. In her opinion, because the design of the proposal incorporated built form and landscape elements that give the area its particular feel or character, the proposed development would complement and be compatible with the character of the surrounding area.
91.Ms Purdon adopted a different approach from Mr Cohen to the measurement of density. She used dwellings per hectare and persons per hectare as a measure, as well as site cover. She estimated the density of the surrounding area (which covered the same area as Mr Cohen’s precinct) at 9 dwellings per hectare, compared with 44 units per hectare in Gracewood; 26 persons per hectare as compared with 48-59 persons per hectare for Gracewood; and 25% (average) site cover as compared with 33% for Gracewood. From these figures, she concluded that even though the site and population density of the proposed development would be higher than the adjoining area, it would be of a density that was compatible with the adjoining area and would fit within the low density residential environment.
92.Mr Gay was critical of Mr Cohen’s analysis, observing that his chosen precinct included an RZ2 zone. Mr Gay had instead selected a smaller sample, using the 17 blocks actually abutting the proposed development (excluding St Bede’s School). His calculations indicated that a greater percentage (88%) of the blocks had a site coverage less than that of Gracewood compared with what Mr Cohen had calculated (82%) and that the average site coverage (24.29%) was a little less than Mr Cohen’s (25.03%).
93.Mr Gay also rejected Mr Cohen’s “transition” hypothesis because instead of a progression from small to large site coverage, his analysis showed that the blocks to the south had site coverage of 20.49%, whereas Gracewood had 31.3% and the other blocks to the north and west averaged 26.54%, which indicated that Gracewood, instead of being a transition, was an aberration.
94.Mr Back and Dr Pitchford also contended that the density of the proposed development was too high. Although they recognized that there was no set test for density in the Plan, they relied on a range of figures for the proposed development compared with those of the surrounding area, for example plot ratio, number of dwellings per hectare, number of residents per hectare compared with percentage site coverage, set out in Table 1.
Table 1
TEST COMPARISON BLOCKS PROPOSED DEVELOPMENT PLOT RATIO Not greater than 35% 64.3% DWELLING DENSITY 9 dwellings per hectare 44 dwellings per hectare NET RESIDENTIAL COVERAGE 19.4 residents per hectare 70 residents per hectare SITE COVERAGE 25% 33.4% (amended to 31.3% in appeal plan sk00-a, Exhibit 2) 95.Dr Pitchford and Mr Back submitted that although the applicant had chosen site coverage as the appropriate test for density, they considered that this measure has a serious drawback because it does not distinguish between single storey and multi-storey buildings. Consequently, a single storey residence and a multi-storey residence with the same footprint would have the same site coverage notwithstanding that the latter would have more dwellings; more residents; greater bulk and scale; and greater congestion issues. They preferred the tests of Plot Ratio, Dwelling Density and Net Residential Density which, in each case, showed that the proposed development was significantly denser than the surrounding blocks.
96.In particular, Dr Pitchford and Mr Back drew attention to the Plot Ratio of 64.3% compared with the 35% maximum in their comparison blocks. They observed that the MUHD Code imposes a maximum Plot Ratio of 35% for dual occupancy on ‘standard blocks’ in an RZ1 zone. A standard block is defined in the Plan as being a block with an area greater than 500m2 that was originally leased or used for the purpose of single dwelling housing. Because the subject block does not fall within this definition and thus this plot ratio limit does not apply, they considered that this constituted a loophole that had been used to create an island of medium density in a low density zone.
97.Mr Erskine submitted that the Tribunal should recognize that section 120 required the zone objectives to be “considered” by a decision maker, not the need for a decision maker to be satisfied that a proposal complied with them all. Indeed it was unlikely that all could be complied with and it was a question of weighing up conflicting considerations. In this case, the particular issues are density and residential character. He submitted that the Tribunal should accept Mr Cohen’s evidence as to density. He pointed out that there had been an aged care facility constructed on the subject land since the lease was first granted and therefore this should be taken into account in determining the character of the neighbourhood.
98.Mr Erskine contended that the proposed development was of a residential character in its design, would fit within the allowable building envelope and was well articulated and so reflects a domestic character when viewed from Hicks Street. He also submitted that the Red Hill Neighbourhood Plan, like other Neighbourhood Plans, had little statutory force and should not be afforded undue weight, despite the importance attached to it by the parties joined.
99.Mr Walker submitted that while he agreed generally with Ms Bennett’s submissions concerning the relationship between the zone objectives and the manner in which the Code rules and criteria must be interpreted, this did not mean that every development had to be of the same low density as the adjacent housing. The objective refers to a range of affordable housing within an RZ1 zone which respects the neighbourhood character and in his submission the proposed development does that.
100.Mr Walker noted that section 53 of the Planning Act indicated that the codes are intended to achieve the policy objectives for a zone and in this case, the codes had been met. It had been accepted in earlier cases by the Tribunal (Raphael and Ors & ACT Planning & Land Authority (Administrative Review) [2010] ACAT 89; Edquist and Price & ACT Planning & Land Authority (Administrative Review) [2011] ACAT 64) that if the controls are met, then the objectives are presumed to have been met. However, he conceded that it cannot be said that the development assessment process stops after consideration of the rules and criteria in a development code and that there is no room for considering the objectives separately as well. Moreover, there would be no purpose in “considering” the objectives if nothing further could occur once that had been done.
Consideration of the Issue
101.Issues of the density of proposed developments have arisen frequently in recent planning matters before this Tribunal and its predecessor. Generally this has been in cases where RZ2 zones that permit multi-dwelling development abut RZ1 zones where it is prohibited (other than dual occupancies) or where existing single residential development is being replaced by multi-dwelling development in an RZ2 zone. As has been observed by several of the parties in these proceedings, there is no set measure of density in the Plan, but the concepts of low density, medium density and high density residential development are referred to at various places within it.
102.Our attention was drawn to the 2004 Canberra Spatial Plan where medium density is defined as 25-60 dwelling per hectare, while high density is defined as over 60 dwellings per hectare; however that document has no status in relation to deciding this matter.[2]
[2] Section 105 of the Planning Act requires the Executive to make a Planning Strategy for the ACT and until recently, by virtue of section 440 of that Act, the Canberra Spatial Plan 2004 was considered to be part of that Strategy. Pursuant to section 431(1) of the Planning Act, section 440 expired on 31 March 2011 and there is at present only a draft Planning Strategy. However, section 109(3)(a) of the Planning Act made it clear that the Planning Strategy was not a relevant consideration for decisions under chapter 7 of the Act, which includes reconsideration decisions.
103.Mr Melloh’s view was that, as the block in question was not a “standard block” development and thus not constrained by a plot ratio limitation, then provided it remained within the building envelope established by setbacks, height limitations and met the private open space requirements and interface distances in the MUHD Code, it would satisfy the zone density objective (Exhibit 3, p 9).
104.The Tribunals’ decisions in Raphael and Edquist and Price should be distinguished from the current application because in each of those cases what was proposed was multi-dwelling development in an RZ2 zone. The Tribunals considered that, given that the RZ2 zones were introduced specifically to facilitate more intensive development including multi-dwelling development, it was reasonable to accept that complying with the MUHD Code provisions would satisfy the objectives.
105.By contrast, in this case what is being proposed is a medium density development within an RZ1 zone. The question to be decided is – does it meet the objectives of an RZ1 zone, in particular to
(a)Create a wide range of affordable and sustainable housing choices within a low density residential environment to accommodate population growth and meet changing household and community needs
and to
(b)Ensure development respects and contributes to the neighbourhood and landscape character of residential areas
whereas the objectives of an RZ2 zone include
(a)Create a wide range of affordable and sustainable housing choices to accommodate population growth and meet changing household and community needs
and to
(b)Ensure that development addresses the street and the existing neighbourhood characteristics in scale, form and site development.
There are important differences in the objectives, including the absence of the words “in a low density environment” from the RZ2 objective (a) and “respects and contributes to the neighbourhood and landscape character of residential areas” from RZ2 objective (b).
106.There can be little disagreement that the proposed development will assist in providing an increase in number and, arguably, a wider range of housing choices to meet changing household and community needs, in that it will cater for that sector of the population which is ageing and seeking to downsize from larger single dwellings with the attendant responsibility for grounds and garden maintenance and especially for those who are in need of some (and often an increasing) level of care. There was little information provided at the hearing as to whether the proposed housing is “affordable”, but it will presumably be affordable to some sections of the community.
107.There is no reason to consider that it is not “sustainable” despite the lack of definition of the meaning of that term in relation to housing. Mr Melloh’s uncontested evidence was that the design aspires to achieve zero emissions development that includes passive solar design principles, high levels of thermal mass, high levels of insulation and double glazing; low maintenance and environmentally sustainable building materials are to be used; water harvesting is to be utilized and the collected waters used within the building where permitted and in all new landscaped areas across the site.
108.The main concern with the proposal in relation to the first objective is whether it maintains the “low density residential environment” envisaged for the zone and in relation to the second objective, whether it can be said to “respect and contribute to the neighbourhood and landscape character of the residential area”? We do not think so. We agree with the parties joined that site coverage alone is not an adequate measure of density. The Tribunal considers that viewed overall, this development will be considerably denser than the adjacent development and could not be considered to be low density, nor to respect and contribute to the neighbourhood character of the residential area.
109.The subject land is zoned as RZ1. What is being proposed is significantly greater in density, by any reasonable measure, than the neighbourhood in which it is to be located.
110.A Retirement Village is an assessable development in an RZ1 zone. Ms Bennett suggested that, as compared with the applicant’s proposal, a complex of 50 to 70 units would allow for higher quality buildings in a low density environment, with less impact on neighbouring properties, an increase in green space, better amenity and access for residents and reduction in traffic. While we do not accept all of Ms Bennett’s criticisms, we agree that it is the scale of the proposed development that makes it inappropriate. A smaller scale facility may have raised no more objection from the community than Morling Lodge has done over the last 40 years or so. As it is, the level of community concern about this proposal had been unusually great and generally sustained over a number of years.
111.We should add that we do not think that the architecture and landscape of the applicant’s proposal is significantly different from that of the neighbourhood and to that extent, the Tribunal considers that the second of the Zone objectives set out above would be met.
112.A further consideration is whether the proposed development addresses the Key Strategies of the Red Hill Neighbourhood Plan. While we are satisfied that, for the reasons set out above, the proposal addresses the first of them:
Provide a diversity of housing choices for single, couples and families of different sizes and ages in appropriate locations
we do not believe it addresses the second, in that it does not
Promote high-quality residential development that is sympathetic to the existing garden suburb neighbourhood character in terms of scale, form and landscape setting.
As we have indicated above, the Tribunal considers that the proposed development is not “sympathetic” in terms of scale with the existing neighbourhood character.
113.Mr Cohen referred to the “Intent” of Element 1 - Restrictions on Use in the MUHD Code at Part A(1) – RZ1 – Suburban Zones. The Zone Specific Controls - Restrictions on Use is to
ensure buildings are compatible with, and complement, the built form, siting and scale of surrounding properties and are of an appropriate residential character
While there are no specific Rules or Criteria relating to multi dwelling developments (other than dual occupancies) in RZ1 zones in this part of the Code, the Intent of the Controls restricting use cannot be ignored.
114.We note that in its assessments of the original plans and the reconsideration plans the respondent’s view was that “the built form did not have a domestic character and was not compatible with the locality that comprises detached single dwellings on large blocks in well landscaped settings” and “the built form is not of a scale compatible with existing development in the area” and “the bulk and scale of the proposal is inconsistent with RZ1 objectives and results in a development that does not respect the neighbourhood character of the area”. In relation to the Reconsideration plans, the respondent observed that “the changes to the Hicks Street façade which is considered acceptable have not been adequately carried through to the rest of the development to reduce bulk and scale”.
115.In its Statement of Facts and Contentions, the respondent accepted that the appeal plans reduced the proposed Retirement Village to 100 units and associated facilities, reduced the plot ratio, revised the roof forms and increased spatial separation and concluded that, as amended, the DA was largely consistent with the applicable Codes. It therefore withdrew its opposition to approving the proposal, subject to some conditions.
116.While the Tribunal agrees that the appeal plans have gone some way towards reducing the bulk and scale of what was originally proposed, we do not think that the changes made are sufficient to achieve the level of compatibility with the adjacent residential development that is an objective of an RZ1 Zone.
Issue (c) Whether the proposed development will impact adversely on the landscape character of the neighbourhood
117.Ms Bennett was particularly concerned about aspects of the impact of the proposed development on the landscape character of the neighbourhood. She submitted that while the proposed development may meet the quantitative rules of the MUHD Code, the physical reality compromises space for soft green infrastructure envisaged in the area under the Red Hill Neighbourhood Plan and covered by the landscape objectives of the RZ1 residential zone objectives.
118.She submitted that Red Hill’s garden landscape and natural spaces represent a unique heritage in which trees, open space and wildlife play a central role and that green urban infrastructure needs to be valued as vital infrastructure that requires planning, maintenance and investment. In her submission, the proposed development does not demonstrate respect for any of these values, nor does it demonstrate a plan for well developed landscaping integrated into the initial design.
119.Ms Bennett estimated that the amount of natural grassland currently in the Morling Lodge complex was 45% but that would reduce to approximately 5%. There would also be a 30% reduction in trees. In essence, she contended, the landscape plan struggles to respond to a tightly framed set-back setting.
120.Mr Cohen analysed the landscape setting of the neighbourhood in some detail, but concentrated on the impact of the proposed buildings on the streetscape. He concluded that, because the proposed development was sited on the concavity of a slight bend or curve in Hicks Street, there would be little or no impact on the streetscape whether looking south or north along Hicks Street and that even when viewed at right angles to the street frontage, the two storey building height, strong articulation, side setbacks between buildings, hipped roof form and low ridge lines would reflect the domestic character of the neighbourhood. However, he did not address the broader issues raised by Ms Bennett.
121.Ms Purdon drew attention to the objective of the zone and the provision of the Red Hill Neighbourhood Plan that referred to neighbourhood character, and in particular to those sections of the Plan that outlined the future character of Red Hill. It envisaged that “the majority of Red Hill will remain predominantly low density, single dwelling on generous blocks” and while acknowledging that some change would occur, asserted that ”whatever the change, the low-density character, established street trees and mature garden settings will remain”.
122.After analyzing the characteristics of the area, Ms Purdon concluded that it exhibited the characteristics of garden city suburbs – buildings address the street and hence other dwellings across the street and front landscaping generally dominates the built form especially when viewed obliquely. Based on the plans she had been provided with, she considered that the buildings in the proposed development, while typically larger than the detached dwellings in the adjoining residential area, nevertheless incorporated many of the features that give the surrounding area its existing character.
123.Ms Purdon asserted that the development would retain many of the regulated trees on the site and that the landscape plan would add to the planting, while the mature trees that are to be retained would provide a landscape backdrop to the development. She concluded that while different, the proposed development would complement and be compatible with that character. However, she too did not address the broader issues raised by Ms Bennett.
Consideration of the Issue
124.There is no objective test available for the extent of landscaping that is required in a redevelopment such as is proposed here. The MUHD Code, at Part C1 – Element 5 Amenity, includes among its stated Intent
(c)To ensure landscaping creates a pleasant, safe and attractive living environment and assists to blend new development into the streetscape and neighbourhood
Under section 5.5 of this Element, Landscaping, there is no Rule, only Criterion 94 which requires that:
A survey and evaluation of existing trees is undertaken and a comprehensive landscape design, indicating the size and type of species proposed, is submitted for consideration.
125.Such a landscape plan was developed by Ms Deborah Matthews, a Registered Landscape Architect (Exhibit 6) and was considered by the respondent at both the original plans and the reconsideration plans stages. In its reconsideration decision, the respondent concluded that the northern and western setbacks did not provide for adequate deep rooted evergreen planting to maintain privacy for adjoining blocks, nor provide visual relief and soften the building bulk. The respondent noted that existing overhead powerlines on adjoining blocks to the rear might restrict deep root planting in close proximity to the rear boundary of the subject land. At that time, the respondent concluded, inter alia, that the proposal as then envisaged was “inconsistent with…the key strategies of the Red Hill Neighbourhood Plan in relation to bulk and scale of the development and poor response to the surrounding neighbourhood”.
126.Mr Gay contended that the appeal plans indicated changes to the number and type of trees to be planted along the boundaries as compared with those shown in the reconsideration plans, but no evidence as to the extent or significance of these changes was given, nor was Ms Matthews called to give evidence. The respondent did not address these changes when providing comment on the appeal plans.
127.The Tribunal accepts that the proposed development would, if approved, significantly alter the existing landscape of the subject land if for no other reason than that the siting of buildings would require the removal of a number of shrubs and trees. However, the Tribunal does not consider that such a development would seriously diminish the garden suburb characteristics of the neighbourhood. We accept Ms Purdon’s view that, by the retention of a number of the regulated trees and the new plantings planned, the proposed development would eventually blend into the landscape of the surrounding area.
Issues related to traffic and parking
128.The parties joined raised a number of inter-related issues arising from the provision of parking in the proposed development and from estimates of the traffic movements likely to be generated by residents and visitors as well as staff and service providers. Of particular concern was their likely impact on the amenity and safety of residents of Supply Place and on the safety of children attending St Bede’s School. We will address these concerns which we have summarized under the following headings:
i.Have the traffic movements generated by the proposed development been correctly calculated?
ii.Have the interests of St Bede’s school been adequately considered in relation to traffic in Hicks Street and safety of school children?
iii.Will the traffic movements generated by the proposed development adversely affect the safety of residents of Supply Place?
iv.Will the parking arrangements for the Montague units lead to unacceptable levels of visitor parking in Supply Place?
v.Will the proposed re-development of the Supply Place driveway be effective in ensuring safety of pedestrians using that entrance and reducing the speed of vehicles exiting via that driveway?
i.Have the traffic movements generated by the proposed development been correctly calculated?
129.The MUHD Code in Part B, General Development Controls, Element 4, Parking and Site Access, at Criterion C37 specifies “The existing road network can accommodate the amount of traffic that is likely to be generated by the development”. There is no relevant Rule.
130.There was much conflicting evidence about the number of traffic movements likely to be generated by the proposed development. The three traffic and parking experts (Messrs Field, Isaks and Nairn) were asked to confer and try to reach agreement where possible on these issues, but they were unable to agree on the appropriate traffic generation rates to be used (Exhibit 11).
131.The traffic analysis undertaken by Northrop Consulting Engineers in June 2010 for the original development proposal relied on the recommended trip generation rates for Housing for Aged and Disabled Persons, section 3.3.4 in the October 2002 version 2.2 of the NSW Roads and Traffic Authority’s Guide to Traffic Generating Developments (“the GTGD”). This was said by Northrop to be “widely accepted in the ACT as the local authorities do not provide a guide for traffic generation developments”. It is to be noted that the GTGD qualifies the rates given by observing that “site by site variations from the average are not taken into account” and that “departures from the average generation rates for individual development proposals may be adopted, in which case such a departure should be justified with relevant supporting facts”.
132.The GTGD averages for Housing for aged and disabled persons are:
Daily vehicle trips [3] = 1 - 2 per dwelling
Evening peak hour vehicle trips = 0.1 – 0.2 per dwelling
[3] A trip is considered to be a single vehicle movement from point A to point B; a
return trip from point A to point B and back is counted as two trips.
and in 2010 Northrop used these to calculate a maximum of 228 vehicles per day (“vpd”) and 23 vehicles per hour (“vph”) from the 114 units then proposed. By comparison they estimated the traffic generated by the current facility to be between 101 vpd and 119 vpd, with the number for peak hour being 11 to 12 vph.
133.Based on these estimates, Northrop concluded that
The traffic increase from the proposed development is minor and would not have significant impact on the traffic flow in the roads surrounding the proposed development.
In reaching this conclusion, Northrop relied on its own survey of existing traffic conditions and on traffic counts conducted by Roads ACT in September 2007 on La Perouse Street and Monaro Crescent. However, it was noted that no traffic counts were available for Hicks Street, Nuyts Street, Pelsart Street or Supply Place.
135.Following the preparation of the reconsideration plans, Northrop revised their earlier analysis to take into account the reduction in the number of units proposed and also revised their estimate of traffic generated by the current facility. For the then proposed development, the daily traffic was estimated at between 106 and 212 vpd and the peak hour traffic between 11 and 22 vph. For the current facility the revised figures were for daily vehicle trips between 218 and 236 vpd and for peak hour traffic between 22 and 24 vph. The significant increase in the daily traffic from the current facility appears to be mainly due to a more careful analysis of the likely traffic generated by staff and the use of different rates for the traffic arising from self-care unit residents compared with the high-care facility residents.
136. Northrop had also arranged for additional traffic counts in the adjacent streets between 19 and 25 September 2011, including Supply Place, Nuyts Street, Hicks Street, Quiros Street, Golden Grove, and Pelsart Street as well as further counts in La Perouse Street and Monaro Crescent, and concluded that
When compared with the current traffic volumes, the traffic increase from the proposed development is minor, and would not have any significant impact on the traffic flow din the roads surrounding the proposed development.
137. Mr Field gave oral evidence in support of the Northrop studies which he had reviewed. He accepted that the GTGD rates were based on studies undertaken at a number of “Homes for the aged” in Sydney in March-April 1981 (which included RACFs as well as Retirement Villages – Exhibit 19) and that they had not been updated to reflect current circumstances. Nevertheless, he was comfortable with using the GTGD rates in the ACT, though he asserted that ACT developers did not follow them slavishly but sometimes relied on information gathered from other projects.
138. Mr Isaks also had regard to the GTGD rates for retirement villages or similar when estimating the number of trips likely to be generated by the proposed development (but acknowledged in cross examination that the GTGD rates could be “a bit on the low side’). He concluded that the traffic likely to be generated by it was unlikely to add significantly to traffic volumes on either Supply Place or Hicks Street and that it would be well within the volumes permitted by each street’s classification in the road hierarchy. These he said were up to 300 vpd for Supply Place and up to 1,000 vpd for Hicks Street.
139. The Northrop analysis was strongly criticized by Dr Pitchford in particular who, in his Statement of Facts and Contentions (Exhibit 29) contended that reliance on the GTDG seriously biased downwards the estimates of likely traffic generation. In a detailed analysis, he contended that recent Australian studies showed that trip making for non-work trips observed in Melbourne did not decrease significantly until 80 years of age and that the 2 vpd rate used by Northrop should be at least double that number. Dr Pitchford relied in particular on the evidence of Mr Nairn who considered the GTGD rates inappropriate for Canberra.
140. Mr Nairn had compared trip generation rates based on surveys in Sydney (2001) and Canberra (1997) which showed that the latter were over 60% higher than those in Sydney. Mr Nairn had also analysed the growth in daily car trips per person in Canberra from 1976 to 1997 which showed a growth rate of 1% per annum and from these data he calculated the likely trip rates for Canberra in 2012 at between 3.306 and 3.350 vpd, while the peak hour rates were between 0.594 and 0.643 vph for all people. These he adjusted to 2.63 vpd for persons over 65 and 3.93 vpd for retired/disabled persons based on data from the 1997 Canberra survey. From this he estimated that the traffic likely to be generated by the proposed development would be 473 vpd or more than double that of the existing development, and peak hour traffic at 107 vph or almost five times more than the Northrop estimate. His conclusion was that the amenity of neighbouring residential areas would be adversely affected by the additional traffic generated by the proposed development.
141. Mr Nairn supported his views with preliminary results from data collected in a 2009 traffic survey which he had undertaken for Territory and Municipal Services (Exhibit 13). These, he contended, showed that the personal trip rates by car in any day increased substantially among older age groups, peaking at 5.59 for those over 65 years, though their peak hour trip rates were lower than those in the 25-34, 35-44 and 45-54 yeas age groups. Further, the trip rates by age showed significant increases over the 1997 rates in all driving age categories. In addition, household vehicle ownership rates had increased from 1.62 vehicles per dwelling in 1997 to 1.86 in 2009. He contended that these data supported his opinion that the traffic generation rates used in the Northrop reports were quite inappropriate in estimating the traffic impacts of the proposed development.
142. Mr Field agreed that it would be preferable to use localized data, but observed that Mr Nairn’s figure of 5.59 trips per day for over 65's was not broken down into retired and non-retired, nor did it distinguish between trips from home and trips away from home, nor take into account the number of passengers. In his opinion, the figure was too high to reflect the circumstances of a Retirement Village.
143. Mr Isaks, under cross-examination, said that even at 5 trips per vehicle per day, both Supply Place and Hicks Street have the capacity to cope with it, given their current levels of usage and their design capacity.
144. The Tribunal is not satisfied that the GTGD rates are appropriate for use in the ACT in 2012 but notes that there are no current published data about car ownership and usage by residents of ACT retirement villages, an absence that was acknowledged by the traffic experts. Car usage in retirement villages is not something that can be accurately predicted in advance and is unlikely to remain constant over time. At any time it will depend on the number of residents in the units, the age and state of health of the residents, and whether or not they are car owners and drivers.
145. Ms Hili’s evidence was that with the appeal plans’ proposal of 100 units, and based on data from other BCS retirement villages, the development was likely to have between 120 and 150 residents at any one time and that car ownership was likely to be between 40% and 60%. BCS experience has been that a number of clients enter retirement villages with a motor vehicle but, for various reasons, subsequently decide to sell it. Sometimes, residents find they are not using it as often as anticipated, due to transportation being made available within the village. Other clients move in when they are older and have already decided to do without a vehicle. Because it is anticipated that many of the daily needs of residents would be met within the development, those who have cars will travel to and from the site infrequently and typically between 10.00am and 2.00pm. As a consequence, Ms Hili considers that that anticipated traffic impact of the proposed development will be significantly less than the current situation in which over 81 people (staff) are accessing the site at progressive intervals daily, compared with the three staff proposed for Gracewood Red Hill.
146. Ms Hili supported her estimate of the likely number of residents by comparing data from other BCS retirement villages in New South Wales (Exhibit 14) which showed that for comparably sized Villages in Sydney (at Baulkham Hills and Marsfield) the number of units occupied by couples was between 8.84% and 14.4%, while the number of car spaces used was about 50% of the number of units. Across all BCS Retirement Villages, her evidence was that of 358 residents, only 140 (39.3%) have use of an allocated parking spot. She also gave evidence that the average age of entry into BCS Villages over 5 years ranged from 65.1 to 77.6 for males and from 69.1 to 80.0 for females.
147. Ms Hili’s evidence was given some support by data gathered by Ms Purdon in a telephone survey she had undertaken of a number of retirement villages in the ACT in February 2012 and which was referred to in Ms Purdon’s witness statement. The Tribunal notes that Ms Purdon was not called to give oral evidence and thus the validity of the data could not be tested. Based on that data, she concluded that currently in the ACT the average age of self care residents included in the telephone survey is in the mid to late 70s, the average length of stay was variable but generally in excess of 10 years, a majority are female, the occupancy rate is between 1 and 2 persons per unit but generally closer to 1, and a majority of residents own a car (Exhibit 24).
148. If Ms Hili’s evidence about the anticipated occupancy of the proposed development proves to be accurate, then the 100 units now proposed would probably house 140 persons, of whom about 70 would have a car and allotted parking space. If each car was used daily at the rates proposed by Mr Nairn, they would generate traffic movements of about 350-400 vpd, most of which would be via the Hicks Street entrances and about one quarter via the Supply Place entrance driveway. However, these are average figures and it is likely that they will rise and fall depending on the circumstances of the particular cohort of residents at any one time.
149. It is conceivable that in the first few years of occupancy of the new village there would be a cohort of younger retirees, perhaps active couples each with a car. It may then be that over time they would age in place and the number and level of use of cars would reduce, until exiting residents were gradually replaced by a new intake of younger more active residents. The Tribunal accepts that this is pure speculation but nevertheless, it has to be considered as a possible scenario. The question remains, is the traffic likely to be generated by the proposed development, the residents of whom may include at least some active, car owning, relative young retirees, able to be accommodated by the existing road network.
150. Messrs Field and Isaks were satisfied that it would, but Mr Nairn was not able to agree in the absence of current traffic data. The traffic experts did agree however that, if the higher trip rates based on the 2009 travel survey were applied, the increase in traffic flow would have some adverse impact on the amenity of neighbouring residential areas.
151. The Tribunal is unable to arrive at any useful conclusion on this issue, beyond being satisfied that if Gracewood Red Hill were to operate as Ms Hili has suggested, then the adjacent roads would have the capacity to cope with any additional traffic generated and that Criterion C37 would be satisfied. However, uncertainty about the age of potential residents and their level of car ownership and usage make it difficult to be confident that Ms Hili’s evidence will necessarily reflect the reality of the currently proposed development, if it proceeds.
ii. Have the interests of St Bede’s Primary School been adequately
considered in relation to traffic in Hicks Street and safety of school
children?152. Suggestions were made by various objectors to the original proposal that the interests of St Bede’s Primary School (“St Bede’s”), which adjoins the proposed development to the south, had not been adequately considered. An initial concern was that there had been little or no consultation with St Bede’s management and St Bede’s had lodged an objection to the proposal, expressing particular concern about the likely impact of increased traffic and of on-street parking arising from the proposed development on the safety of students. However, it appears that following discussions between Mr Kennedy of BCS, Mr Melloh and the School Principal, their concerns were allayed as the School does not seem to have objected at the reconsideration stage nor did it seek to be party to the current proceedings.
153. Nevertheless, Mr Back and Ms Bennett each raised the question of the safety of school children in their Statements of Facts and Contentions. Ms Bennett contended that the amount of traffic spilling into Hicks Street would be far in excess of what would normally be expected and would jeopardize the safety and functionality of access to the school at peak school hours. She considered that children attending St Bede’s would be significantly more at risk from the increase in traffic and parking and potentially dangerous traffic movements that would result from the proposed developments.
154. Mr Back contended that Northrop’s had failed to address the issues raised by St Bede’s in its revised reports or to even note the existence of St Bede’s or
the implications of it being located immediately adjacent to the subject land.
155. Mr Field’s evidence was that Northrop had made some observations of the traffic at St Bede’s at school drop-off (8.15am – 9.15am) and pick-up (2.30 pm – 3.30 pm) times but these peaks were entirely different from those of a retirement village and they did not consider there would not be any conflict, especially as they did not expect that there would be any significant increase in traffic in Hicks Street arising from the proposed development
156. Mr Isaks observed that not all vehicles leaving the proposed development via the Hicks Street driveways would go past St Bede’s, as a proportion would turn left towards Pelsart Street or Golden Grove, though he could not estimate the percentage that would do so. Nevertheless, he reiterated his view that the traffic in Hicks Street arising from the proposed development would not be greatly different from that which is generated by the present facility.
157. The Tribunal accepts that the peak school hours occur at times when traffic to and from the proposed retirement village is likely to be low. Even though the Tribunal is unable to reach any conclusion as to the actual number of vehicle movements that will occur in Hicks Street as a result of the proposed development, it is satisfied that there is unlikely to be any significant difference in the impact of traffic from the proposed development on the safety of children and their parents during school drop-off and pick-up hours from that which currently exists.
iii. Will the traffic movements generated by the proposed development
adversely affect the safety of residents of Supply Place?158. As indicated in previous sections, the Tribunal is unable to be satisfied that the GTGD rates are appropriate for use in relation to this development in 2012. If Mr Nairn’s highest traffic generation rates (5-6 vpd) are correct, the 25 units that will use the Supply Place driveway will generate about 125-150 movements each day.
159. This may well be less than the current usage of the Supply Place driveway which presently caters for up to 81 staff, as well as some ILU residents and their visitors and some service vehicles. Northrop estimated that the total traffic using Supply Place at present amounts to 214 vpd. Dr Pitchford considered this to be an overestimation, because his observations were that many fewer than 81 staff used the parking area accessed from Supply Place. However, the Tribunal had no means of establishing the precise level of staff usage of that car park.
160. The evidence was that the staff of Gracewood Red Hill will not use the Supply Place entrance, nor will most service suppliers (though no doubt some will when servicing the Montague units). All waste collection vehicles will enter from Hicks Street.
161. Even if Dr Pitchford is correct and the present staff usage of the Supply Place entrance is less than Northrop’s estimate, the Tribunal is satisfied that the traffic to and from the proposed development via Supply Place will cause no greater risk to Supply Place residents than that which presently exists and that Supply Place has the capacity to accommodate this anticipated traffic flow.
iv. Will the parking arrangements for the Montague units lead to
unacceptable levels of visitor parking in Supply Place?162. Mr Gay and Dr Pitchford contended that the proposed development would provide inadequate parking for the Montague units and this would result in visitors parking in Supply Place. They noted that the two Montague buildings now proposed contain 25 units [4] . The basement parking for those buildings provide 25 spaces, with three additional spaces outside Montague North.
[4]163. Mr Gay and Dr Pitchford consider that the number of parking spaces likely to be required by the residents for their own cars would be greater than has been anticipated by the applicants, leading to insufficient parking spaces available to visitors. Dr Pitchford further contended that some visitors to the Nadgee North and South units would choose to use the Supply Place entrance in order to seek parking at less walking distance from those units. In addition, Mr Nairn’s evidence was that many people are reluctant to utilize basement car parking. These factors would result in visitors parking in Supply Place, which would be an excessive burden on such a small street and negatively impact on the safety and amenity of Supply Place residents.
164. The MUHD Code at Part B General Development Controls, Element 4, Parking and Access, provides at Criterion C38 that
Car and bicycle parking complies with the requirements of the Parking and Vehicular Access General Code and AS 2890.1 – The Australian Standard for Off-Street Parking and the Bicycle Parking General Code.The Parking Code specifies at section 3.1.5 Schedules of parking provision rates for residential zones, for Retirement complex:
1 space /self-care unit plus 0.5 spaces/hostel or nursing home unit or bed plus 1 space/staff residential unit plus 0.5 spaces/non-resident peak shift employee. Note: above rates for retirement complex include visitor car parking requirements.
165. Mr Field’s evidence was that the parking to be provided in the proposed development as a whole was more than sufficient to meet these requirements. A total of 130 parking spaces are proposed, whereas the requirement is for 104 spaces (including 14 disabled spaces) – 100 for the 100 units and 4 for non-resident staff. As there were no staff residential units or hostel or nursing home beds, no parking provision was necessary for them. Mr Field dismissed the suggestion that visitors to Nadgee units might choose to use the Supply Place parking, because they would have access to basement parking below the Nadgee buildings which would be more convenient.
166. Mr Field also pointed out that even though the parking requirements applied to a development as a whole and not to individual elements of it, the parking to be provided for the Montague buildings did comply with the rates prescribed.
167. Ms Hili’s evidence was that between 40% and 60% of licensees of BCS Retirement Village units elsewhere acquired a car parking space (for which they had to pay) and very few asked for two spaces. She saw no reason to suppose that Gracewood Red Hill would be any different. Even at the highest parking space occupancy experienced elsewhere, she contended that there would still be more than sufficient parking for both residents and visitors.
168. Applying Ms Hili’s figures to the Montague buildings, there would be at most 15 basement spaces required by residents, leaving 13 for visitors. However, if all 25 units in the Montague buildings, even for a short time, were to require just one parking space each, then there would be only the three outside spaces available nearby for visitors, one of which is a disabled space. In this event, it seems likely that there would on occasions be overflow parking in Supply Place. Of course, visitors could make use of other available parking within the complex although this might involve a longer walk to the Montague units but as Dr Pitchford pointed out in his Statement of Facts and Contentions at Appendix Table 1, the distances to other car parks are not great.
169. While it may be true, as Mr Nairn suggested, that some drivers are reluctant to use basement car-parking, the Tribunal was not provided with any independent evidence about this and in any case observes that there are three ground-level parking spaces adjacent to Montague North building.
170. Notwithstanding the possibility that on occasions there may be overflow parking from the proposed development in Supply Place, the Tribunal does not consider that the proposed development should be rejected on that ground.
The Tribunal concludes that the parking provisions for the Montague buildings and the proposed development satisfy the requirements of Criterion C38. (The Tribunal accepts that there may need to be some review by the relevant ACT authorities the current Parking and Vehicular Access Code so as to ensure that it reflects current data and trends.)v. Will the proposed re-development of the Supply Place driveway be
effective in ensuring safety of pedestrians using that entrance and reduce the speed of vehicles exiting via that driveway?171. Dr Pitchford, Mr Back and Mr Gay each expressed their concern about the measures proposed to address safety issues for traffic and pedestrians who will use the Supply Place driveway. The current proposal is illustrated in drawing sk26-a of the appeal plans (Exhibit 2) and Dr Pitchford and Mr Back did not accept that it would provide a safe “shared zone” for pedestrians using that entrance to the complex. Nor did they consider it would be effective in limiting the speed of motor vehicles exiting the Retirement Village by that route. Mr Gay was concerned that the driveway was narrow and there would not be a 1.5m planting zone separating the driveway from the side boundary as required by Rule R76 of the MUHD Code.
172. The current proposal differs in a number of ways from that which was submitted with the reconsideration plans (T673) in which the concept of a “pedestrian-vehicle shared zone” was presented for the first time. In its assessment of that proposal, the respondent noted that the driveway complied with the minimum width requirement, but considered that there was insufficient information to demonstrate that pedestrians would be able to access Supply Place safely, due to the limited space available on both sides and the obscured sightlines along the driveway. It observed that if a dedicated pathway were to be provided, the driveway would not comply with the minimum width requirements to allow vehicles to pass.
173. The revised scheme in the appeal plans is not significantly different from that in the reconsideration plans, but it does depart from the earlier concept of having some sections of the driveway for vehicle use and a separate section for pedestrian use. The latest proposal is to make the whole of the driveway a shared pedestrian-vehicle zone, removing a proposed narrow section adjacent to where a village sign would have been located and introducing a couple of short “ramps” to encourage vehicle speed reduction.
176. Dr Pitchford’s evidence (which included some video images) was that vehicles frequently exited the present facility at higher than safe speeds. Because there were three driveways of adjacent dwellings opening into Supply Place close to the Gracewood Red Hill driveway, he asserted that the risk of accident was high and would be increased by what he believed to be the increased traffic that would eventuate from the proposed development.
177. There was considerable debate among the parties about just how the driveway would function, how vehicle speed could be reduced and how to ensure the safety of pedestrian users. The issues were not resolved. Various suggestions were made about where speed humps and stops signs might be located, and what measures might be taken to prevent vehicles falling into Dr Pitchford’s front yard which is below the western side of the driveway.
178. Any failure to meet Rule R76 of the MUHD Code may have been resolved by the applicant relying on the Criterion C76 which does not prescribe the 1.5m planting zone, but instead requires driveways and access roads to “allow safe and efficient vehicle movement” and to provide “a high quality pedestrian priority environment". Whether those requirements would be achieved by the applicant’s proposed changes to Supply Place is not self-evident.
179. The Tribunal recognizes that a paved driveway from Supply Place to the current development has been in use by both pedestrians and vehicles for many years. No evidence was presented that there had been any accidents involving either pedestrians or vehicles during that time. The images provided by Dr Pitchford indicate that some vehicles are driven at what appears to be excessive speed when exiting the subject land and some evidently do not obey the Stop sign that is placed at the Supply Place end of the driveway. The Tribunal observed the closeness of the driveway exit into Supply Place to the driveways of immediately adjacent properties and noted the potential for collisions that exists. However, the fact that there do not appear to have been any collisions or incidents suggests that most drivers recognize the risk and exercise caution.
180. The Tribunal is satisfied that the driveway as now proposed will be as safe, if not safer, than what presently exists. By some judicious clearing of vegetation the sight lines can be improved and by installing ramps and speed humps vehicle speed can be reduced. We also accept that the distinctive paving proposed and signage will remind users that it is a shared pedestrian-vehicle zone where caution needs to be exercised when using, entering and exiting the Supply Place driveway. The only aspect that does concern us is the location of the external disabled parking space which would require disabled persons to cross the driveway near to the basement ramp entrance/exit. In our view, it could be better located. However, we do not consider that the proposal should be rejected on this account or because of the proposed changes to the Supply Place driveway.
Conclusions
181. The Tribunal recognizes the efforts that have been made by the applicant to create a redevelopment scheme for the Morling Lodge facility that would provide a high quality living environment for older persons who decide to enter a retirement village. However, in doing so, the applicant has proposed a development of a scale that still cannot, in our view, be said to be “within a low density environment” nor can it be said to “respect and contribute to the neighbourhood”. It remains therefore inconsistent with the first and second objectives of an RZ1 zone. Nor do we consider that what is proposed would be sympathetic to the existing garden suburb neighbourhood character in terms of scale and form and hence, in our opinion, it does not adequately address one of the key strategies of the Red Hill Neighbourhood Plan.
182. As we have noted, there could be traffic and parking problems arising from the proposal, depending on the number and level of usage of cars by residents, especially those in the Montague buildings. These potential problems could be avoided by a smaller development in the order of 50 to 70 units, including a reduction in the number of units in the Montague buildings. Such a reduction in size would in all probability overcome the inconsistencies with the zone objectives and the key strategies of the Red Hill Neighbourhood Plan.
183. The Tribunal concludes that for the reasons given above, the application for development approval should be refused.
………………………………..
Ms L. Crebbin, General President
For and on behalf of the Tribunal
PUBLICATION DETAILS
TO BE PUBLISHED
PART A FILE NO: AT 5 of 2012
APPLICANT: BAPTIST COMMUNITY SERVICES – NSW & ACT
RESPONDENT:ACT PLANNING AND LAND AUTHORITY
PARTIES JOINED: ANTHONY PHILLIP GAY, GAVIN ALEXANDER
BACK, MELISSA BENNETT, JOHN COPLAND
& ROHAN PITCHFORDCOUNSEL APPEARING: APPLICANT: Mr C. Erskine SC
RESPONDENT: Mr P. Walker
SOLICITORS: APPLICANT: Nelson & Co, Solicitors
RESPONDENT: ACT Government Solicitor
OTHER: APPLICANT:
RESPONDENT:
PARTIES JOINED: In person
TRIBUNAL MEMBER/S: Dr D. McMichael, Presiding Member
Ms W. Corby, Senior Member
DATE/S OF HEARING:14, 15, 16, 17 & 18 May PLACE: CANBERRA
& 28 June, 2012DATE/S OF DECISION: 22 August 2012 PLACE: CANBERRA
The appeal plans (Exhibit 1) show Unit numbers to 26 in Montague North and
South, but in fact there are only 25 units as number 14 is missing from drawing A404 /2.
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