BDH Projects and Ors & Act Planning and Land Authority (Administrative Review)
[2011] ACAT 79
•25 November 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BDH PROJECTS and ORS & ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2011] ACAT 79
AT 8 of 2011
Catchwords: ADMINISTRATIVE REVIEW- multi unit housing development in RZ2- zone objectives- scale form and site development - suitability of the land; s.120(b), Planning and Development
Act 2007 - private open space- clothes drying- basement carpark access for vehicles and disabled- density- dwellings per hectare
List of legislation: Planning and Development Act 2007, s. 120
List of Regulations: The Territory Plan, Multi Unit Housing Development Code
List of cases: Edquist & Price v ACT Planning and Land Authority (Administrative Review) [2011] ACAT 64
Lourandos and Yiannokopoulos & ACT Planning and Land Authority and ORS (Administrative Review) [2011] ACAT 25
Raphael and ORS & ACT Planning and Land Authority (Administrative Review) [2010] ACAT 89
BDH Projects v ACT Planning and Land Authority
(Administrative Review)[2010] ACAT 37
Tribunal: Mr Brian Hatch. Senior Member
Date of Orders: 25 November 2011
Date of Reasons for Decision: 25 November 2011
AUSTRALIAN CAPITAL TERRITORY )
CIVIL& ADMINISTRATIVE TRIBUNAL ) AT 8 of 2011
RE:BDH PROJECTS
Applicant
AND:ACT PLANNING AND LAND AUTHORITY
Respondent
AND: ALLAN & MARION
BURNS
Party Joined (1)AND: IAN & JADE BARGES
Party Joined (2)AND: RITA & ROD COLES
Party Joined (3)AND: MAUREEN SHOLLY
Party Joined (4)AND: KERRIE BYRNE
Party Joined (5)AND: MATTHEW &
MELISSA GEYSEN
Party Joined (6)AND: STEVE MOUTAFIS
Party Joined (7)
TRIBUNAL: Mr B. Hatch, Senior Member
DATE: 25 November 2011
ORDER
1.The decision under review is confirmed.
………………………………..
Mr B. Hatch
Senior Member
REASONS FOR DECISION
This is a review of a decision of the Respondent to disallow, subject to conditions,
a proposal for:·the consolidation of Blocks 15 and 16 Section 50 Division of Duffy;
·the variation of the lease to permit 14 residential units;
·the demolition of the 3 existing dwellings and outbuildings on Blocks 15 and 16 of Section 50 in the Division of Duffy;
·the construction of 1 and 2 storey buildings comprising 14 residential units;
·the construction of a basement car parks; and
·associated landscaping, paving and other site works.
The proposed development is at 8 and 10 Mokoan Place in Duffy. It is at the end of Mokoan Place, which is a cul-de-sac. The end of Mokoan Place widens into a turning circle for vehicles and the proposed development is on this turning circle.
The 2 blocks were first developed in the early 1970s. The remainder of Mokoan Place is single dwellings of a similar age and type.
THE ISSUES
The proposed development is in the RZ2 Suburban Core Zone.
The original decision by the Respondent noted problems with the building envelope and setbacks. Those issues had been resolved to the satisfaction of the Respondent in the reconsideration phase. The parties barely touched on these issues during the hearing over 4 days. I find that setbacks and building envelope are consistent with the Territory Plan (the TP).
The first issue is in relation to section 120 of the Planning and Development Act 2007 (the Land Act) which states:
120 Merit track—considerations when deciding development
approvalIn deciding a development application for a development proposal
in the merit track, the decision-maker must consider the following:(a)the objectives for the zone in which the development is
proposed to take place;
(b)the suitability of the land where the development is proposed to
take place for a development of the kind proposed;
(c)each representation received by the authority in relation to the
application that has not been withdrawn;
(d)if an entity gave advice on the application in accordance with
section 149 (Requirement to give advice in relation to
development applications)—the entity’s advice;
Note Advice on an application is given in accordance with section 149
if the advice is given by an entity not later than 15 working days
(or shorter prescribed period) after the day the application is
given to the entity. If the entity gives no response, the entity is
taken to have given advice that supported the application (see
s 150).(e)if the proposed development relates to land that is public
land—the plan of management for the land;
(f)the probable impact of the proposed development, including
the nature, extent and significance of probable environmental
impacts.
Paragraphs (e) and (f) are not relevant to this proposal, but the remainder of
section 120 is, to varying degrees. Paragraphs (c) and (d) are also relevant but not in contention in so far as each representation was taken into consideration.
Traffic and vehicle access was also an issue. In many similar cases this issue is raised, but rarely has any impact on the final decision. This matter is different to many such other matters due to the nature of Mokoan Place.
Private Open Space (POS) was also raised as an issue together with site facilities. See Rules 89, 90 and 97 of the Multi Unit Housing Development Code in the TP.
10. The basement carpark and access to it for both vehicles and disabled people was also an issue.
11. Density was also an issue, but one I do not see as very relevant in the RZ2 context.
CONSIDERATION
12. Section 120 requires the decision maker to consider the objectives for the zone. Those objectives (ZO) are:
RZ2 – Suburban Core Zone
Zone Objectivesa)Create a wide range of affordable and sustainable housing choices to accommodate population growth and meet changing household and community needs
b) Ensure that development addresses the street and the existing neighbourhood characteristics in scale, form and site development
c) Facilitate efficient use of existing social and physical infrastructure and services in residential areas close to commercial centres
d) Provide opportunities for home based employment consistent with residential amenity
e) Provide for a limited range of small-scale facilities to meet local needs consistent with residential amenity
f)Promote energy efficiency and conservation and sustainable water use
13. I consider that objective a) is met. I attended the site and the surrounding areas with the parties for a view. While much of Duffy is single dwellings there is also a range of multi unit developments in the suburb. The development is part of creating housing choice. No one development can be expected to provide a full range of housing choice, but as the area surrounding this development has a mix of single dwellings and a range of multi unit developments, this development assists in maintaining and perhaps enhancing that wide range.
14. As to whether the housing is affordable there was no direct evidence. The term is not defined. Sustainable is also not defined. There was also no direct evidence in relation to sustainability. The Tribunal in Edquist & Price v ACT Planning & Land Authority (Administrative Review) [2011] ACAT 64 said:
38. ZO (a) uses the adjectives “affordable” and “sustainable” without defining either. Mrs Purdon gave evidence that “affordable” commonly refers to housing where the lowest 40% of income earners pays no more than 30% of that income on housing. However, as the term is not defined in the Territory Plan, we are left to ponder to whom this housing would be affordable. No planning document will mention unaffordable housing, as such a concept is almost unimaginable: there would normally be someone who could afford the most expensive housing. We conclude that “affordable” must relate to the area in which the housing is located. The proposed development is in an area of Canberra that is generally regarded as a desirable residential location and where housing prices are generally high. Affordable would then relate to the person who may aspire to live, and can afford housing, in such an area. As such, we do not accept the evidence of Mrs Purdon that the term relates to people on a lower income. This proposed development appears to us to be relatively affordable to the people who would live in the Griffith area.
39. As to the meaning of “sustainable” this is a word that has come widely into use in recent decades, probably as a result of the concept of “sustainable development” enunciated by the World Commission on Environment and Development in its 1987 report “Our Common Future”. The Territory Plan includes, at part 2.1, a Statement of Strategic Directions, of which section 1 is entitled Principles for Sustainable Development, which stresses the need for planning processes to balance economic vitality, community well-being and environmental quality. While the word has a clear meaning in relation to development of human societies, it seems to us that it no clear meaning in relation to residential housing. Dr Jarvis submitted that it related to energy efficiency and more efficient use of infrastructure and that the RZ2 zone helped to achieve this through avoiding greenfields suburban expansion. If that is so, then this development may be considered sustainable.
15. I have relied on the plans as drawn and the view of the area. My conclusion is that the proposed development would be affordable for the Duffy area. I am not able to form an opinion either way in relation to sustainability.
16. The next ZO is for the development to address the street and the existing neighbourhood characteristics in scale, form and site development.
17. The issue of scale, form and site development is one that turns on the facts of a case and that includes the type of development and where it will be.
A development may be suitable for one location and not for another. This development meets a number of the requirements of the TP but not all. Even where it met all TP requirements I consider that this development does not meet the ZO for scale, form and site development.
18. My reason for this decision is the location of the development. Mokoan Place is a cul de sac. Evidence was given by the objectors that having cars parked at the end of the street in the turning circle means that large vehicle have difficulty turning. Having seen the street I accept that evidence. This development will generate more traffic from both residents and visitors. As is human nature some of these will park in the street. Had this street opened up at another point to allow through traffic the extra vehicles using and parking on the street may not have been a problem. But that is not the case. It is the nature of this street and the position of the development at the end of the street that creates particular difficulties. In particular it is the scale of the development that renders this development unsuitable.
19. My decision is not meant to suggest that either another type of development could not take place on Mokoan place, or indeed something similar to this proposed development at the other end of Mokoan Place; or that cul de sacs generally may have this same problem for developments.
20. The remaining parts of the ZO were not in contention and I make no finding in relation to them.
21. The next issue is the suitability of the land as referred to in section 120 (b). This term is also not defined in the Land Act. The Tribunal dealt with the issue in Lourandos and Yiannokopoulos & ACT Planning and Land Authority and ORS (Administrative Review) [2011] ACAT 25 where the Tribunal said:
216. However, regarding the “suitability” of the land, we do not have any useful evidence or submissions as to what is meant by “suitability” nor can we find any relevant authority to guide us. It may well be intended to refer to aspects of geophysical suitability (such as soil type, water table etc) or to environmental suitability (liability to flooding, or presence of endangered species, or soil contamination etc) or to social suitability (amenity of neighbouring land users, traffic and safety etc.). It is arguable that the subject land is suitable for multi unit housing because it is close to many other multi unit developments, but that may not be sufficient to deem it “suitable” in every circumstance. We agree with Mr Erskine that its “suitability” can only be usefully assessed when a firm development proposal is submitted for approval.
22. It may be that the drafters of the TP have left the term undefined so that a variety of issues that may be relevant may be taken into account. There are not even some non-exhaustive examples so loved by modern drafters to “guide” the decision maker. I agree with the Tribunal in Lourandos that “suitability” can only be usefully assessed when a firm development proposal is submitted for approval.
23. I find that the land as proposed for this development is not suitable for this development. The reason for this is essentially the same as for the development not complying with ZO b). The design of Mokoan Place as a narrow street that has a near right angle bend in it, and ends with a turning circle which makes the subject land not suitable for a development of this scale. Larger vehicles will have difficulties using the street, and this will be a common problem for rubbish trucks, but also a variety of other service vehicles and emergency vehicles. The subject land is close to other multi unit developments of vary sorts but that in itself does not make this land suitable; there is no evidence that the land is not suitable for environmental reasons or geophysical reasons.
24. There may be other issues that may make land not suitable. I consider that Lourandos is not meant to be an exhaustive list.
25. An important issue is POS and the site facilities. Mr Moutafis gave extensive evidence on this matter, as did Mr Ray Brown, the assessing officer from the Respondent. The TP has both Rules and Criteria. Where a development fits within the Rule then it complies with that Rule and the matter is at an end. Where it does not meet a Rule then the Criteria may be relied upon, although not all Rules have corresponding Criteria. Rule 89 says:
R89
Except as provided for in Rule 92, at least one
area of private open space is provided per
dwelling to meet the following minimum area and
dimension requirements:
a) 10% of the average block area per dwellingb) 6m x 6m
26. Criteria 89 says:
C89
Private open space is of dimensions to suit the
projected requirements of the dwelling’s
occupants and to accommodate both outdoor
recreation needs as well as providing space for
service functions such as clothes drying anddomestic storage.
27. It should be noted that C89 refers to clothes drying facilities and storage. The reason for his can be seen in Rule and Criteria 97:
R97
a) External clothes drying facilities are
provided as follows:
i) dwellings at ground floor level:
minimum area of 6 m2
ii) dwelling wholly located at upper floor
level:
minimum area of 2 m2.
b) The clothes drying facilities are screened
from public view and are exclusive of private
open space requirements.C97
Dwellings are provided with adequate externalclothes drying facilities.
28. I consider that these Rules and Criteria need to be assessed as one when dealing with POS in a development in RZ2. The evidence of Mr Brown was helpful in this regard. The area of 6x6m does not simply mean 36 square metres. Such
a dimension can be provided for by a circle, for example, with a diameter of
6 metres. Such a circle has an area of 28.3 square metres. Mr Brown gave evidence that the POS for all the units, except perhaps unit 1, fail to meet R89 as the space is too narrow. In the opinion of Mr Brown, of the 13 units only units 1 and 13 have adequate POS according to C89; units 7 and 8 are somewhat constrained.
29. Mr Brown also had concerns about the fences on either side of the POS. The fences are 1.8 metres high and Mr Brown gave evidence at pages 232-233 that:
As we’ve seen from the fencing plan the fences that are flanking the units on each side in order to ensure privacy between adjoining units is 1.8 metres high. So the people using ‑ expected to use those spaces are confronted with a narrow private open space area flanked by fences which are essentially over eye height for a person and, you know, approximately the height of an adult person.
Those areas would be limited in ‑ the flexibility to use those areas for recreation purposes would be limited by the length and narrowness of the space, or the narrowness of the space, and there would be a sense of being constrained by the high fences, which are identified as Colorbond fences, and although the spaces face due north, those fences would also contribute to some degree of shadowing in the morning and the afternoon that could not be compensated for by the sort of width you would get in a six by six open space.
30. Mr Brown also gave evidence in relation to R97 and C97. The proposed development does not comply with R97. In relation to R97, Mr Brown considered that the clothes drying facilities as shown on the drawings intrude into the already narrow POS.
31. The evidence of Mr Moutafis did not assist me. He relied on the common open space as evidence that C89 is met. I disagree with that evidence. Mr Den Hertog also gave evidence. He is the architect who designed this proposed development. His evidence was that the site is constrained, and that accounts for the design of the POS but that he considers that the POS meets C89.
32. Mr Den Hertog also prepared some revised drawings to show how the common area across the northern edge of the land could be allocated to the units in order to increase open space. I am unable to see any point in these revised drawings. The strip of land along the northern border is left as common land as it is a sewerage easement. That land cannot be fenced in any way due to the requirements of ACTEW, the relevant authority with respect to the easement.
33. I considered that Mr Den Hertog saw himself not as an independent expert but as an expert who was giving evidence as an advocate for his design. In that regard,
I have placed less reliance on his evidence. Mr Brown gave evidence as the decision maker and I accept his evidence.
34. I conclude that the POS fails to meet R89, and also fails to meet C89. This is exacerbated by the failure to meet C97. I accept that the spaces are too narrow, are overly intruded to by clothes drying facilities, and suffer from an amount of overshadowing due to the height of the fences and the narrowness of the spaces.
35. The access to the basement carpark is inadequate. The TP refers to the Australian and New Zealand Standard. That Standard requires a width for a 2 way driveway as 5.5 metres. The proposal only allows for 4.895 metres and so does not comply.
36. The drawings also make no real allowance for disabled access. Mr Den Hertog gave evidence that this could be alleviated by the provision of a stair-lift device. This device seems to carry a person, but makes no allowance for mobility aids such as a wheelchair. Mr Brown gave evidence that any such device would require the ability to carry both a person and a mobility aid. Mr Den Hertog did give evidence as to such a device, but his evidence was brief and poorly defined on this issue. Mr Brown gave evidence that he would require further information about such a device before agreeing that it may be appropriate.
37. I consider that the access to the basement by way of the vehicle ramp and disabled access is inadequate and fails to meet the requirements of the TP. It may be that an appropriate lift could be installed, but how that may impact on the basement design and in particular the stairs and vehicle ramp is unclear at best, and largely unknown to me. Any such re-design would need to be properly undertaken and sent to the Respondent.
38. A further issue for the basement is R17 and C17 of the Multi Unit Housing Code which states:
R17
On a standard block (or blocks resulting from the
consolidation of these blocks), ramps accessing
basement car parking are not permitted forward
of the building line, where the block is less than
30 m wide as measured at the street frontage.
Ramps comply with the relevant Australian
Standard.C17
Ramps to be limited in their extent to maintain
streetscape amenity and allow safe and efficientvehicle and pedestrian movement.
39. The ramp as designed is forward of the building line and the street frontage is 24.97 metres and so does not meet R17. The shape of the proposed consolidated block may mean that C17 is met, but I make no decision on that considering the other failing of this proposal which may mean a major change in the basic design of any future development.
40. A final issue is in relation to density of the proposed development. Much time was taken up on this issue. The Tribunal considered this issue in Raphael and ORS & ACT Planning and Land Authority (Administrative Review) [2010] ACAT 89 T 89 and also in BDH Projects v ACT Planning and Land Authority [2010] ACAT 37. In BDH the Tribunal said:
67. With the exception of the two RZ4 blocks to the south of the subject site on Eggleston Crescent, the residential density in the adjoining neighbourhood varies between some 13 dwellings per hectare in the RZ1 zone to an average of 16 dwellings per hectare in the RZ2 zone, ranging between 15 and 25 dwellings per hectare. The Tribunal accepts that, because of their proximity to the subject site, the two RZ4 blocks cannot be ignored when assessing the character of the neighbourhood. Nor should they be given undue weight, given that they constitute only two blocks and a small part of the neighbourhood. The existing neighbourhood character is predominantly low density, and the most relevant comparisons are with the nearby RZ1 and RZ2 zones.
68. Whether one regards 51 dwellings per hectare as at the high end of low density or the low end of medium density, the Tribunal’s assessment is that the proposed development is out of character with the existing residential density in the neighbourhood.
41. It appears to me that the Tribunal did not see “density’ as a helpful measurement. This is borne out by the ZO for RZ2 making no mention of density, and density not being defined. But the Zone Specific Controls for RZ2 in the Multi Unit Housing Development Code says:
Intent:
To allow a moderate level of flexibility to accommodate a variety of additional housing to meet changing community needs and preferences whilst ensuring development is of a density that respects adjoining development
42. The BDH view was expanded upon in RAPHAEL where the Tribunal said after noting the Intent quoted above:
23.The Tribunal accepts the evidence of these two witnesses and affirms that the task before it is to determine whether the proposal meets either the Rules or the Criteria listed in the Code rather than some other measure of density. The Tribunal also accepts the submission of Mr McCarthy that while the Rules are specific, the Criteria require a measure of judgement to be exercised and in doing so they can be construed by reference to the Intent. The Intent is not to be seen as some separate or additional ground for consideration. The reference to”density” in the Intent should therefore be seen as an outcome derived by application of the controls.
24.As a consequence the number of dwellings per hectare is unhelpful for an assessment as to compliance with either the Objectives of the RZ2 zone of the Code or the Intent of Element 1 of the Zone Specific Controls. The Tribunal also notes that even though the Canberra Spatial Plan is taken to make up the planning strategy for the ACT (s 440), s109(3)(a) indicates that it is not a relevant consideration for decisions on development approvals.
43. Mr Brown prepared a density analysis for the subject development and surrounding developments. The surrounding developments range from
19 dwellings per hectare (D/H) to 44 D/H, and the proposed development would be 57 D/H. If this development were of the same scale but only 10 units it would have a density of 44 D/H. That would have little bearing on the other problems facing the development such as suitability and traffic, although it may have some affect on POS although I draw no conclusions about that issue.
44. I agree with the RAPHAEL decision that D/H is unhelpful. I cannot see that the number of dwellings on this site as being the problem. Whether or not it may be helpful in other RZ2 cases will depend on the nature of a proposed development.
CONCLUSION
45. The proposed development fails to meet the ZO for scale form and site development; it fails to meet the requirement that it be suitable within the terms of section 120(b) of the Land Act. The POS is poorly designed and fails to meet R89, and I accept the evidence of Mr Brown and from my own perusal of the drawings that C89 also cannot be met. The basement carpark fails to meet a number of rules, but I consider that if the remainder of the development had been appropriate that the basement carpark could have been dealt with by re-design and proper consideration of disabled access.
DECISION
46. The decision under review is confirmed.
………………………………..
Mr B. Hatch
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO:
APPLICANT:
RESPONDENT:
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: BRIAN HATCH, SENIOR MEMBER
DATE/S OF HEARING: 30, 31 May; 1 June; 4 July 2011; final submissions received 4 August 2011 PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0
4
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