BONANSEA AND ACT PLANNING & LAND AUTHORITY
[2007] ACTAAT 21
•12 September 2007
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:BONANSEA AND ACT PLANNING & LAND AUTHORITY [2007] ACTAAT 21 (12 SEPTEMBER 2007)
AT07/13 & 20
Catchwords: Land and planning – application to review order to remove unapproved structures and refusal to approve retrospective development application to approve structures – Blandfordia 5 heritage place – advice of Heritage Council against approval of structures – circumstances in which planning authority can make decision inconsistent with Heritage Council advice – adequacy of provision for parking.
Administrative Appeals Tribunal Act 1989, s 37
Heritage Act 2004, ss 20, 25, 27, 60, 61
Land (Planning and Environment) Act 1991, ss 229, 230, 231, 256, 277, 275, Sch 4, part 4.1
Bonansea and Commissioner for Land and Planning [2001] ACTAAT 4 (13 February 2001)
Tribunal:Mr M H Peedom, President
Ms P O’Neil, Senior Member
Dr D McMichael, Senior Member
Date:12 September 2007
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT07/13 & 20
LAND AND PLANNING DIVISION )
RE: ALBERT BONANSEA
ApplicantAND: ACT PLANNING &
LAND AUTHORITY
Respondent
CORRECTION OF ERROR
Tribunal : Mr M H Peedom, President
Ms P O’Neil, Senior Member
Dr D McMichael, Senior Member
Date : 17 September 2007
Pursuant to section 44A of the Administrative Appeals Tribunal Act 1989 the decision in matter AT07/20 dated 12 September 2007 is amended in accordance with the following:
Under the heading “Re: AT07/20”, second line: delete “aide” and insert “aside”.
…………………………
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT07/13 & 20
LAND AND PLANNING DIVISION )
RE: ALBERT BONANSEA
ApplicantAND: ACT PLANNING &
LAND AUTHORITY
Respondent
DECISIONS
Tribunal : Mr M H Peedom, President
Ms P O’Neil, Senior Member
Dr D McMichael, Senior Member
Date : 12 September 2007
Decisions :
Re: AT07/13
The decision under review is varied by deleting the requirements of the direction for the removal of:
- The Tilt-a-Door to the carport; and
- Fibrous sheeting and demountable shelves to the side of the carport.
Re: AT07/20
The decision under review declining to exercise the discretion of the respondent to approve the application is set aide and substituted by a decision that the application is approved.
…………………………..
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT07/13 & 20
LAND AND PLANNING DIVISION )
RE: ALBERT BONANSEA
ApplicantAND: ACT PLANNING &
LAND AUTHORITY
Respondent
REASONS FOR DECISIONS
12 September 2007 Mr M H Peedom, President
Ms P O’Neil, Senior Member
Dr D McMichael, Senior Member
The decisions under review
This matter involves the review of two decisions made by the ACT Planning and Land Authority (“the respondent”). The first decision, with which AT07/13 is concerned, was to make an order on 21 March 2007 under section 256 of the Land (Planning and Environment) Act 1991 (ACT) (“the Land Act”) requiring Mr Albert Bonansea (“the applicant”) to demolish or remove certain structures that had been built on Unit 1 Block 11 Section 3 Griffith (“the subject land”) in association with approved extensions to the original house on that block. The second decision, with which AT07/20 is concerned, was made on 17 May 2007 pursuant to section 230 of the Land Act and was to refuse an application made by the applicant on 26 March 2007 to gain retrospective approval for some of the works the subject of the demolition and removal order. The first decision is reviewable by virtue of section 277(1)(a) of the Land Act, while the second decision is reviewable by virtue of section 275(1) and Schedule 4, part 4.1 of the Land Act. Because they concerned the same issue, both matters were heard together.
Background
2. The subject land is located on the corner of Murray Crescent and Stokes Street, Griffith. It is included in the Blandfordia 5 Housing Precinct (which is on the ACT Heritage Register) but the house in question was not an “identified house” (to which additional specific heritage requirements apply) within the Precinct. The house in question (“the original dwelling”) was built around 1946, facing Murray Crescent. It was a simple brick and tile-roofed bungalow typical of the time, with a driveway along its northern side boundary. Whether or not it had an original garage at some time is not known, but prior to the extensions commenced by the applicant in 2003, it had a simple metal carport aligned with the northern side boundary, located towards the front of the block approximately in line with the front of the original house.
3. At some time, a second dwelling (Unit 2) was built behind the original dwelling, facing Stokes Street, and Block 11 Section 3 was unit titled. The effect of this unit titling was to reduce the back yard of the original dwelling to a relatively narrow strip of land.
4. Following preliminary discussions with the Heritage Council (“the Council”) and (then) Planning and Land Management, on 11 March 2003 the applicant submitted Development Application (“DA”) 20031085 seeking approval for the construction of an extension to the original dwelling, erection of a carport with a tiled roof supported by brick pillars and demolition of an existing sunroom, together with associated landscaping. The extension consisted of a master bedroom and ensuite on the northern side of the original house situated towards the rear, with the carport in front of it. The carport was to be open at the front and on its northern side, partly open on its southern side but enclosed by the original house on part of the southern side and by the extension at the rear.
5. Because the property was in the Blandfordia 5 Housing Precinct, the application was referred to the Council for comment. On 23 May 2003, the Council assessed the proposed development against the Specific Requirements then applying to Blandfordia 5 contained in Variation 102 to the Territory Plan (“the Plan”), though its advice was “informed” by Draft Variation 173 which was soon to come into effect. It found that the proposal was unlikely to detrimentally impact on the heritage values of the place and was consistent with the Specific Requirements, provided that the front of the carport was set back 500mm from the building alignment. DA 20031085 was approved by the respondent on 20 June 2003.
6. In August 2003, the applicant sought approval of amendments to the approved plans in DA 20031085(C) which were again referred to the Council. The Council replied on 20 August 2003, noting that the amendments included a general increase in floor areas of the master bedroom and the carport and that the latter had been brought forward about 180mm and would therefore be much closer to the building line than the 500mm setback that Council had requested. While the 500mm setback was mandated by the Specific Requirements for identified dwellings, this was not an identified dwelling and Council was unable to enforce its request. The Council further noted that the increased width proposed for the carport must result in a reduction of the original 740mm setback from the northern boundary, though this was not shown on the plans submitted. Nevertheless, the Council did not object to the proposal and it appears that the amended plans were approved on 27 August 2003.
7. On 12 December 2003, the applicant sought approval to yet another amended DA 20031085(D) which sought approval to the erection of brick piers 1200mm high on either side of the front gate and the driveway entrance and for a floor to ceiling storage unit extending about 2 to 3 metres along part of the northern side of the carport behind one of the front brick pillars. This too was referred to the Council which advised the respondent on 16 December 2003 that the brick pillars at the entrances had been built to a height of 1500mm, which exceeded the 1200mm height prescribed in Variation 173 and that agreement had been reached with the applicant to reduce the pillars to 1200mm. Taking this into consideration, the Council did not object to the storage unit, though it noted that it:
greatly reduces, but does not completely exclude, visual penetration to the rear of the block and softening landscape separating Unit 1 from the neighbouring residence
and observed that:
[t]he intention of Variation 173…is to conserve ‘the harmonious integration of low-density built forms within a mature landscape setting’ – an intent which excludes wall-to-wall development [and that] the development of Block 11 Section 3 Griffith, Units 1 and 2, has a much greater than desirable density and generally does not contribute to streetscape in Blandfordia 5.
In the light of this advice, DA 20031085D was approved by the respondent on 16 December 2003.
8. It appears that the building work was completed and the enlarged house occupied by tenants for some two years. However, at some stage the open sides of the carport were enclosed by walls made of fibro-cement sheeting affixed to timber frames for their full length, with demountable shelving along these walls, while a metal Tilt-a-door was fitted at the front, thus converting the approved carport into a fully enclosed garage. Furthermore, the brick pillars at the entrance and front gate remained 1650mm high and each had been fitted with a 1650mm high metal gate.
9. On 8 June 2006, after many months of prompting, the applicant lodged a further DA (DA 200602749) seeking retrospective approval of the unapproved developments, and this too was referred to the Council for advice. The Council replied on 19 July 2006, to the effect that it did not support the proposed addition of a double-fronted carport door as it was not consistent with the mandatory requirement 3.2(b) of Variation 173 in relation to Blandfordia 5. It noted that the existing vehicular gates did not comply with the mandatory guideline 2.6a and therefore should be removed. It advised that the pedestrian gates (sic) and pillars should be reduced in height to 1.2 metres and integrated into the hedge planting to comply with guideline 2.6c. Council also did not support the further enclosure of the carport with provision of increased storage shelving.
10. This DA was refused by the respondent on 4 September 2006, with the provisos that the brick pillars could remain if reduced in height to 1200mm and the front gate (but not the driveway entrance gates) could remain. According to the respondent, in spite of several prompts from them, the applicant failed to take any action to deal with the unapproved developments so that, on 25 January 2007, the applicant was advised that the respondent was considering issuing an order against him under section 256 of the Land Act for non-compliance with an approval.
11. Such an order was made on 27 March 2007 to take effect from 23 April 2007 unless the decision was appealed to the Administrative Appeals Tribunal. It required the applicant to:
(1) comply with the terms of an approval to undertake development; and
(2)demolish a building or structure, or part of a building or structure, that has been constructed or erected without approval or permission required under a territory law;
and advised that this direction could be met by the:
- removal of the driveway gates and the reduction in height of the supporting pillars to 1200mm above NGL;
- reduction in height of the pedestrian gate and its supporting pillars to 1200mm above NGL;
- removal of the Tilt-a-Door from the front of the carport;
- removal of the fibrous sheeting and demountable shelves to the side of the carport*; and
- submissions of plans with the unapproved structures removed and showing the approved pillars and gates and the approved heights.
(* It is to be noted that some of the shelving along the northern side of the carport had already been approved as part of DA 20031085D).
12. It is the decision to make this order that is the subject of AT07/13.
13. On 19 January 2007, the applicant attempted to lodge yet another DA seeking approval to the carport walls and demountable shelving and the Tilt-a-Door but the respondent considered that the application was not in assessable form nor were the fees associated with the application paid. However, following the issuing of the order, the applicant did lodge DA 200701115 on 26 March 2007, in which he again sought approval to the Tilt-a Door and the walls and demountable shelving in relation to what was now shown on the plans as a garage. This application was notified to ten neighbouring lessees for the period 4 April to 20 April 2007 and on 30 April 2007, advice was again sought from the Council.
14. While no submissions on the proposal were received from neighbours, the Heritage Council advised on 11 May 2007 that the proposed development would have a major detrimental impact upon the heritage values of the place. The Council’s full reasons were not provided to the Tribunal in the T-Documents, but they were detailed at hearing in evidence by the Chair of the Council, Dr Michael Pearson, to which we refer below.
15. In the event, the application was not determined by the respondent before the expiration of the prescribed period and was thus deemed to be refused, but to bring the matter to finality, Mr Aaron Oshyer, as delegate of the respondent, on 17 May 2007, declined to exercise the discretion available to him under section 230(3) of the Land Act to approve the application after the prescribed period. It is this decision that is the subject of AT07/20.
16. This extensive history is necessary background to the matters before the Tribunal for review. It was accepted by all parties that the applicant had agreed to remove the gate from the driveway entrance and to reduce the height of the brick pillars at the driveway entrance and at the pedestrian entrance and the pedestrian gate to 1200mm. What is now at issue is whether or not approval should be given to the enclosing of the original carport by walls, demountable shelving and a Tilt-a-Door, in order to make it a garage, or whether these additions should be removed and the carport reinstated. The matter turns on the impact that these additions have on the heritage values of Blandfordia 5 Housing Precinct and whether or not the mandatory specific requirements for this Precinct originally set out in Variation 173 and now included in the ACT Heritage Register must or should be enforced.
The hearing
17. At the hearing of the appeals the applicant was represented by Mr C Erskine of counsel, while the respondent was represented by Dr D Jarvis, of counsel. The Tribunal had before it documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1989 (“the T Documents”) and documents tendered in evidence on behalf of the parties. Evidence was given by Mr R Pegrum while written statements were admitted in evidence from Mr A Bonansea and Mr Jack Diaz on behalf of the applicant. Evidence was given by Mr O Pankhurst and Dr Michael Pearson, while a written statement from Mr B Green was admitted in evidence on behalf of the respondent.
18. The Tribunal feels obliged to express its dissatisfaction with the adequacy and presentation of the T Documents in this matter. The documents provided to the Tribunal were incomplete in a number of respects and arranged in a manner which created difficulty in their use. In some cases, approved plans were intermingled with unapproved plans, while two critical documents were missing, these being the advice of the Heritage Council to the respondent of 1 May 2007 and a drawing submitted by the applicant as part of DA 20031985(D) on which the Heritage Council based its advice of 16 December 2003. The absence of this drawing led to considerable waste of the Tribunal’s time as evidence was given by at least one witness based on a misunderstanding of what had been approved in relation to that application, which made a significant difference to the contentions of the respondent. It is incumbent on agencies whose decisions are under review by the Tribunal to ensure that the T Documents are as complete as is necessary for the Tribunal to follow the course of the decision-making that took place, and to present them in an intelligible, logical manner.
The applicant’s evidence
19. Mr Erskine noted that, while the primary reason for refusal of the most recent application was its alleged detrimental impact on heritage values, a secondary reason was that the installation of demountable shelving along either side of the garage and the presence of an inwards swinging door, reduced the internal dimensions of the parking space in the garage to below that specified for “double covered space” in the Residential Design and Siting Code for Multi-Dwelling Developments, Appendix III.2 of the Territory Plan (“the Code”), that is, to less than 6m by 5.5m.
20. Mr Erskine stated that the internal dimensions of the garage with shelving in place were 5.7m by 5.485m (a mere 15mm short of the required width) and that this space had proved quite acceptable to tenants over four to five years. As to the width, if any future user found the space too small, the demountable shelving could easily be removed to yield an internal width of 5.7m. In addition, the applicant had given evidence that the inwards swinging door could easily be reconfigured to swing into the dwelling rather than the garage, should the internal length prove to be a problem for a future occupier. Mr Erskine contended that the garage should not be refused on that account.
21. In relation to the impact of the proposal on the heritage values, Mr Erskine stressed that it was the area of Griffith known as the Blandfordia 5 Housing Precinct that had been listed and not this particular dwelling, so that the heritage values that were at issue were those of the Blandfordia 5 Housing Precinct generally. Indeed, he observed that the original house on this block was not an “identified original building” (that is, an original building constructed no later than 1940 to which additional specific requirements applied) in either the original Blandfordia 5 citation contained in Variation 102 to the Plan, or the amended version of the citation, once contained in Variation 173 to the Plan but now included in the Heritage Register (which is accessible on the Environment ACT website).
22. Mr Erskine considered that the main issue of concern seemed to be the nature of the door that had been fitted to the carport. He drew attention to the Specific Requirements for Blandfordia 5 in the Heritage Register. Of particular relevance was Objective 3.2 - Garages and Carports for Residential Blocks, which was:
To retain the historical pattern of garages sited towards the rear of the block, where they are not visually prominent in the streetscape and the form of the original dwelling is not impacted by the inclusion of a garage under the dwelling roof form.
23. The Specific Requirements for this Objective fell into two groups – those which were mandatory and those which were subject to the discretion of the respondent. The Mandatory Requirements for Garages and Carports are:
3.2a (Which concerns basement parking and is irrelevant here)
3.2b No more than the equivalent of a double garage or double width carport shall be visible to the street. Garage doors visible to the street shall be single car width.
24. The relevant Discretionary Requirements are:
3.2c New garages or carports should be sited or adjacent to the site of the original garage, otherwise new garages or carports should:
·utilise the original driveway
·retain a setback from the side boundary not less than the original garage and be no closer than 1.5 metres to a garage, carport or outbuilding on an adjacent block, and
·where located within 2 metres of a side boundary, have a wall height along the side closest to the boundary that is less than 3 metres above natural ground, and
·be set back from the nearest front face of the dwelling toward the rear of the block a minimum distance equal to the external width of the proposed garage or carport, and
·have a ridge height lower than the existing dwelling and a roof form that appears separate from the main form of the dwelling; and
·utilise scale, form, details and materials that complement the original dwelling.
(3.2d relates to the setback of garages on corner blocks and while this is a corner block, the requirements are aimed at houses built diagonally on such blocks and are mainly intended to keep new garages behind the building line of adjacent dwellings, which is achieved in this case.)
25. In relation to 3.2c, the unit titling of the block made it impossible to build on or adjacent to the site of any older garage that may have existed at the rear of the undivided block. The original driveway had been utilised, the ridge height was lower than that of the original dwelling, the roof form did result in the garage appearing to be separate from the main dwelling, and it was constructed of similar materials. While the front of the garage was set back only a short distance from the front face of the dwelling and was built close to the northern property boundary, the fact was that this location had been agreed to by the Heritage Council and approved by the respondent. Consequently, it seemed that the structure was generally consistent with the discretionary requirements.
26. The only part of specific requirement 3.2b which it failed to meet was that which required garage doors visible from the street to be of single car width. While it appeared to be acceptable in relation to heritage values to have an open double carport, or even a double garage with two single doors, it seemed to be unacceptable to have a double-width garage with a double-width door. He suggested that, given that double-width garages were allowable, it was difficult to understand what part of objective 3.2 the restriction to single-width doors in specific requirement 3.2b was intended to achieve.
27. Mr Erskine drew attention to a number of properties nearby which had double garages with doors, some of which were double-width doors, while others had two single-width doors. One was only a short distance away in Murray Crescent (Block 2, Section 13) and, as evident from photographs tendered by him, had a wide garage with what appeared to be a single white double-width door (even though the plans for this extension, which were later tendered by Dr Jarvis showed two separate single-width “panelift” doors). Mr Erskine noted that, according to the evidence of Mr Pankhurst, this particular extension had been approved on 20 June 2006, that is, some years after Variation 173 came into effect, though he acknowledged that the double-width garage door might not have been approved.
28. Mr Roger Pegrum, who is a Fellow of the Royal Australian Institute of Architects, a member of the Planning Institute of Australia and a former member of the Heritage Council, gave evidence on behalf of the applicant. He considered that specific requirement 3.2b was of greater significance and validity on sites containing identified dwellings. He had recently viewed the subject block from the public realm on several occasions and noted that the materials and finishes of the carport structure complemented the existing house, the piers and lintel beams being constructed in red face brick and the roof covered with recycled terracotta tiles. The door was 5170mm wide and 2400mm high, faced with flat sheet material with applied battens to give visual interest to the vertical surface and painted a dark grey to match the windows of the house. The proportions of the carport and the door were pleasing and in keeping with the scale of the house.
29. He considered that the door had no harmful impact on the immediate or wider precinct and observed that, because of the consistent use of materials and the hedge at the front of the property, the presence of the carport and door would be apparent only to a pedestrian or motorist who paused to look up the driveway. The door would certainly be less intrusive to passers–by than the backs of two cars (and no doubt other items) that would be visible in an open carport.
30. He rejected the view of the Council that the development as now proposed for approval would be “likely to have a deleterious impact on the streetscape values of the Blandfordia 5 Housing Precinct”. He considered it insupportable to suggest that the addition of a garage door, which was behind the building line, could have “a major detrimental impact” when only four years earlier the Council had supported the carport as being “unlikely to have any substantial detrimental effect” on the heritage values. He emphasised that the Blandfordia 5 Precinct was not a museum - that it does and must change. While some proposed changes should be prevented in order to maintain the heritage values, others such as this were of a minor nature and could be accommodated. The heritage requirements were designed to protect the character of Blandfordia and the proper question to be asked is “does a structure damage the heritage values?”. In this case, he considered that putting a door on the carport was a positive step.
31. In cross-examination, Dr Jarvis drew attention to the September 2000 ‘Assessment of Garden City Planning Principles in the ACT’ by Andrew Ward, to which Mr Pegrum had referred in his witness statement, and asked Mr Pegrum whether it was not clear from that analysis that the space between dwelling and the location of garages to the rear of blocks were features of garden city planning. Mr Pegrum considered that the most significant feature was individual houses on individual blocks. What made a garden suburb were the street plantings, the verges and the gardens in front of dwellings. Dr Jarvis reminded Mr Pegrum that in evidence he had given in an earlier case (Bonansea and Commissioner for Land and Planning [2001] ACTAAT 4 (13 February 2001)), he had specifically identified the space between houses as essential components of the garden city concept as adapted in Canberra.
32. Mr Pegrum rejected the idea that garages at the rear of the block were a feature of garden city planning. While he agreed that when garages were built at the time of the original buildings they were most likely to be at the back of the block, in his view, this was just what happened at the time. He also rejected the suggestion that double garages violated the principle of garden city planning as Ward suggested.
33. Dr Jarvis then asked him about the setback of the garage from the building line which was less than the 500mm recommended by the Council. Mr Pegrum agreed that it was less than what would have been desirable, but said this was not an important building and observed that the reduced setback had been agreed to by the Council. What was at issue was what the door of the garage looked like from the street.
34. Dr Jarvis suggested the carport as originally approved would have allowed some view through the structure into the rear of the block and towards the vegetation along the boundary and into the space created by the driveway of the adjacent block and that the installation of the walls, the shelving and the door had taken away that visual element which he suggested was important to the streetscape of the precinct. Mr Pegrum responded that the carport as originally approved (with the master bedroom extension behind it) had effectively removed any capacity to see through to the rear of the block. Even without the door, the gap through which any view could be obtained would be very narrow. However, he agreed that approval of the extension and carport had broken the rhythm of spaces between adjacent dwellings.
35. In general, Mr Pegrum considered that the specific requirements of the heritage citation should be applied in a sensible way and that some dwellings in the precinct were already so different from the identified original dwellings that they should not be subject to the precise details of those requirements, provided the general principles were retained.
36. Mr Erskine submitted that since any problems arising from the size of the garage can be easily resolved, the only significant matter before the Tribunal was the heritage issue. He reminded the Tribunal that the heritage citations are no more than guidelines under the Land Act and section 231(2) of that Act allows the Tribunal to make a decision that is inconsistent with the advice of the Council. He stressed that the “place” that had been listed on the Heritage Register was Blandfordia 5 Housing Precinct, not this particular dwelling, which was not even an identified dwelling warranting special consideration. In his submission, specific requirement 3.2b did not make any sense other than in its application to identified original dwellings which still had their backyards in which replacement carports or garages could be located. To apply this requirement to the subject block would not contribute in any way to the preservation of the garden city planning concept for which Blandfordia 5 was listed.
37. He suggested that the development proposed was a reasonable development and design solution and he was unaware of any alternatives, given that there was a requirement to provide two car parking spaces and the only place to do that is where the garage is now located. He further submitted that the construction of the master bedroom and carport were not seen by the Council as having any significant adverse effects on the heritage values of the precinct, so that it was difficult to see how the enclosing of the carport could now be said to have a major detrimental impact. On the contrary, he submitted that the only way in which those heritage values could be affected through enclosing the carport was the possible loss of glimpses into the landscape through the partly open northern side, probably over the roof of a parked car and it was absurd to suggest that this was a major detriment. He considered that any confusion that may have existed as to the side of the carport on which the 2-3 metre length of shelving had been approved did not affect Mr Pegrum’s evidence, since his opinion would only be strengthened by the fact that it was part of the northern side that contained the shelving, thus limiting any view even further.
38. He submitted that there are numbers of similar double garages in the vicinity, many of which had been built with approval after the original heritage citation came into effect and at least one since the present citation took effect Many of these are identified houses, yet there seems to have been no refusal of these developments, which casts doubt on the strength and importance of the impact of such developments that is being suggested by the respondent. Furthermore, the double-width garage door has been in place for some time and the most recent proposal to approve it was notified to neighbours, yet no one has objected to it.
39. He submitted that a decision by the Tribunal to overrule the advice of the Council and approve the development would, on balance, be consistent with the objects of the Plan, including by providing improved parking and greater security to the residents, while still respecting the heritage values of separate dwellings in a garden setting for which Blandfordia 5 was listed.
Evidence of the respondent
40. Mr Owen Pankhurst, Acting Team Leader, Development Assessment North Central, of the Development Services Branch of the ACT Planning and Land Authority gave evidence on behalf of the respondent. Mr Pankhurst has degrees in landscape architecture and horticulture. He has been working with the respondent since 2001 and was the project officer charged with assessment of both the original development application for the extension and carport and for the later development applications that were refused.
41. Mr Pankhurst gave evidence about the failure of the garage to meet performance measure D5.3, the minimum dimensions for parking spaces required under the Code. These requirements had been formulated with reference to the Australian/New Zealand Standard AS2890.1 for Off-Street Parking. While he agreed that, by reference to the Australian Standard, the width of the garage would be sufficient for two vehicles, the encroachment into the car space closest to the living room caused by the internal access door and the constraint of the garage door resulted in the length of that car space being approximately 4.9m, which was significantly less than what is deemed necessary for a small car, let alone a larger car.
42. He contended that these departures from the performance measures were inconsistent with the relevant performance criterion P5.1:
Resident and visitor car parking to be provided according to the projected needs of the dwelling
and the relevant objective O5.1:
To provide sufficient and convenient parking for residents, visitors and service vehicles.
43. Mr Pankhurst contended that as a consequence the garage as constructed did not meet the projected car parking needs of the development. He suggested that unless the internal access door was altered to make it a sliding door or some other option to increase the length of the garage internally, the existence of the garage door could not be approved. However, he agreed that rehanging the door so that it opened into the master bedroom extension rather than the garage would resolve this problem.
44. Mr Pankhurst also commented on the photographic evidence tendered by the applicant which showed a number of dwellings with double garage doors in the nearby area. He had established from the respondent’s records that all but one of these had been approved prior to the introduction of Variation 173, in which more stringent requirements regarding garages and carports were introduced. The one exception was that referred to earlier by Mr Erskine and, in that case, he noted that the garage was set back a substantial distance (about 5.5 metres) from the building line. While it was an Identified Dwelling, because of its substantial setback he did not consider that the white double-width garage door was unduly prominent – noting that the white colour matched the existing trim of the dwelling.
45. Mr Pankhurst drew attention to the provisions of section 231(2) of the Land Act which allows the respondent to make a decision inconsistent with any advice provided by the Heritage Council, provided that it as satisfied that:
(a) the following had been considered -
(i) all applicable heritage guidelines;
(ii) all reasonable development options and design solutions;
(iii) any prudent and feasible alternative to the proposed development, or relevant aspects of it; and
(b) as far as practicable, the decision avoids or minimises and adverse impact on the heritage significance of the place; and
(c) on balance, the decision is consistent with the provisions of the territory plan.
46. Mr Pankhurst said that the respondent considered that the development application was inconsistent with the applicable heritage guidelines, viz the Conservation Requirements for the Blandfordia 5 Housing Precinct, with particular reference to intrinsic features 1(vii) and 1(xii) as well as the Specific Requirements 3.2b, 3.2c and 3.2d. Intrinsic feature 1(vii) is:
Patterns of modest dwellings in a generous garden setting whereby the gardens enhance the streetscape and form a buffer of landscaped open space between adjacent dwellings
While intrinsic feature 1(xii) is:
Garages sited towards the rear of the block to deliberately down play the presence of a utilitarian structure in the streetscape and to give emphasis to the garden setting of each dwelling.
47. Mr Pankhurst drew attention to the fact that when Variation 173 was introduced, the accompanying Explanatory Statement noted that among the main changes to the specific requirements was:
Built Form and Identified Dwellings
Garages and carports are to be set to the rear of dwellings to protect the form of dwelling and to ensure they are not visually prominent in the streetscape
and he took it that the intent was to “increase specific requirements to prevent (sic) garaging in the precinct being located and designed so as to reduce its prominence in the streetscape as had been evidenced in proposals approved under the previous requirements.”
48. Consequently he contended those requirements should not be ignored. He considered that the carport development as now proposed added to the adverse impact on the heritage values because the addition of the walls and the double door increased its appearance of bulk and its prominence in the streetscape and reduced the visibility of landscaped areas between the development and the adjacent dwelling.
49. In response to cross examination by Mr Erskine, Mr Pankhurst opined that there were other options that might have been considered for the carport and for the master bedroom but these had not been submitted for consideration by the applicant. He agreed that given that the master bedroom had been built where it was, there was now no other feasible location for the carport, but said that while it might well be reasonable for the residents to want greater security for their parked cars by having the carport enclosed, this was not in conformity with the heritage requirements. He agreed that the colour of the door made it less obtrusive than if it were painted white.
50. Mr Pankhurst also gave evidence about what he considered would be the consequences of removing the door and the northern wall of the carport on the capacity for a passer-by to see through to the adjacent landscaping and open space, but it later emerged that he was under the mistaken impression that the 2 to 3 metre stretch of wall and attached demountable shelving proposed in DA 20031085D and approved on 16 December 2003 was on the southern side of the carport, that is, the side nearest the original dwelling, whereas it later emerged that it was approved to be on the northern side, that is, nearest to the adjacent dwelling. Consequently, Mr Pankhurst’s evidence about the extent of any view that might be obtained should the unapproved walls be demolished, was flawed and of no assistance to the Tribunal.
51. Dr Michael Pearson also gave evidence for the respondent. Dr Pearson is currently Chair of the Heritage Council, and an Adjunct Professor in Cultural Heritage Management at the University of Canberra. He is also Managing Director of his own business, Heritage Management Consultants Pty Ltd, and has extensive experience in heritage conservation.
52. Dr Pearson said that in approving the original development (DA20031085) the Council had been aware of the requirements at that time proposed to be included in Variation 173 and, while recognising that the carport (as then proposed) would not satisfy all the new proposed discretionary requirements, for example, not being set back sufficiently from the line of the nearest front face of the dwelling, the Council concluded that it would not be unduly visually prominent in the streetscape nor would it unduly impact on the form of the original building. It considered that the open sides and face of the carport reduced the prominence of the structure in the landscape and that the gap left between the carport and the front of the dwelling, and the open nature of the carport structure, gave the appearance of separation that did not adversely impact on the original dwelling or the views into the site from the streetscape.
53. By comparison, in relation to the DA under review, the Council considered that the proposed double-width garage door clearly did not comply with mandatory requirement 3.2b, and it did not support the further enclosure of the sides of the carport. Council reasoned that the intention of mandatory requirement 3.2b was to support objective 3.2 by reducing the visual prominence of garage doors in the streetscape, by breaking up the bulk of double doors into smaller single door components. In this case, the proposed garage front wall was virtually in line with the front wall of the dwelling and could not fail to be prominent in the streetscape. In addition, the enclosing of the carport on three sides substantially changed the perceived scale of the structure in relation to the dwelling and made it appear much more like a garage under the dwelling roof, which the objective tries to avoid.
54. Dr Pearson said that the Council considered that the openness of the carport would retain some element of transparency, or “permeability” through the block to the neighbouring block. The spaces between adjacent houses were an important part of the garden city concept for Blandfordia, hence the desire to retain them as much as possible. In response to cross-examination by Mr Erskine, Dr Pearson disagreed that there would be only a very narrow view through the carport as a result of the northern-most brick supporting pillar and the approved wall and shelving. He contended that there would be a perception of openness and that a viewer would “see through” the brick pillar. While there was certainly some loss of “permeability” it would still read as an open structure with a different and separate roof.
55. As to the colour of the door, while conceding that the grey colour made it less intrusive than might some other colour, Dr Pearson did not think its colour was the main consideration. The heritage requirements referred to the size of the door and because of its bulk it would remain intrusive, albeit that it was not as big as some on nearby blocks. He reiterated that the main issue for the Council was that there should be some sense of “permeability” of the structure – that it should read as an open building.
56. He was concerned that the heritage values of garden city precincts like Blandfordia were prone to decay through small but incremental erosions of the quality and character of the streetscapes and the urban landscape that give such areas their significance. He observed that while the current matter could be painted as a trivial and pointless exercise, it was not, because if the controls set out in the heritage guidelines are not maintained through the development approval process, the overall significance of the suburb will be irretrievably eroded.
57. Dr Jarvis submitted that the development approved in 2003 had in fact had an adverse impact on the heritage streetscape values of the Blandfordia 5 Housing Precinct in that it undermined the dominance of the original buildings (because it was set back only minimally from the building line and joined by its roof structure) and because it removed part of the landscaped separation from the adjacent dwelling and reduced the visibility of the landscape setting at the side and rear of the block. Approval of the enclosure of the carport as proposed in the DA would only add to that adverse impact, by increasing the appearance of bulk of the structure, thus further reducing the dominance of the original dwelling and increasing the prominence of the garage in the streetscape, while further reducing the visibility of landscaped areas between the development and the adjacent dwelling.
58. Because the adverse effect was not minimised but increased, in his submission, a decision to approve the proposal would be inconsistent with the requirements of section 231(2)(b) of the Land Act which requires the Tribunal to be satisfied that any such decision avoids or minimises any adverse impact on the heritage significance of the place. The Tribunal should therefore affirm the respondent’s decision and sustain the order.
Consideration of the Issues
59. The decisions under review are inter-related. It is convenient to focus on the deemed refusal of DA 200701115, because if that decision is affirmed, the order to remove certain structures will stand (subject to some clarification of its wording). If the DA decision is set aside, then the order will need to be reconsidered. [In the material that follows, the issues related to the brick pillars at the front gate and driveway entrance and the gates associated therewith will not be considered, as it is accepted by all parties that they will be reduced in height as required by the previous approval and that the driveway gate will be removed.]
60. The Tribunal stands in the shoes of the respondent and is bound by the provisions in the Land Act relating to consideration of advice from the Council. The Council must provide advice to the respondent when a development application is referred to, in accordance with the provisions of the Heritage Act 2004 (ACT) (“the Heritage Act”). It is important to recognise that it is not the advice provided by the Council that is under review by the Tribunal, but only the decisions made by the respondent in the light of that advice.
61. Section 20 of the Heritage Act requires the Council to keep a register of heritage places which, by virtue of section 20(4), must include each heritage guideline. Section 25 permits the Council to make heritage guidelines in relation to the conservation of the heritage significance of places including, inter alia, about residential heritage precincts. Section 27(1) provides that a function under the Heritage Act must be exercised in accordance with any applicable guidelines, while section 27(2)(a) provides that subsection (1) applies in particular to the giving of advice to the Planning and Land Authority under section 60, particularly in relation to ways of avoiding or minimising the effect of development on the heritage significance of a place.
62. Section 229(4) of the Land Act requires the respondent to give the Council a copy of each development application that relates to a place registered under the Heritage Act, together with copies of each objection or comment received by it relating to the effect of the development on the heritage significance of the place. Section 60 of the Heritage Act requires the Council to advise the respondent of the effect of such development applications on heritage significance. Section 61 of the Heritage Act provides that that advice must include an outline of the effect of the development and ways of avoiding or minimising the impact, together with advice of any conditions that the Council considers should be imposed.
63. Section 231(1) of the Land Act provides that the respondent must consider any comments provided by the Council, but section 231(2) allows the respondent to make decisions inconsistent with the Council’s advice, subject to its having considered the matters set out in paragraph 62 above.
64. In this case, the Council advised the respondent that DA 200701115 should not be approved because it was considered to be inconsistent with the specific requirements relating to garages and carports contained in the Blandfordia 5 Housing Precinct Heritage Citation. The assessing officer, Mr Pankhurst, gave evidence that, having considered the matters set out in section 231(2) of the Land Act, he did not consider it appropriate to make a decision inconsistent with the Council’s advice, and that view was incorporated into the formal decision made by Mr Oshyer as delegate of the respondent.
65. However, the Tribunal must itself consider whether a decision inconsistent with the Council’s advice should be made, and in doing so it must address the matters specified in section 231(2).
66. The first of these is to consider all applicable heritage guidelines. The applicable heritage guidelines are those applying to the Blandfordia 5 Housing Precinct and much evidence about them was given. The critical guideline is that contained in specific requirement 3.2b, that:
No more than the equivalent of a double garage or a double width carport shall be visible to the street. Garage doors visible to the street shall be of single car width.
67. While the first sentence of this specific requirement is met by the proposed development, the second clearly is not. However, the Tribunal finds difficulty in understanding what purpose is served by the requirement. The relevant objective is to reduce the visual prominence of garages and carports in the streetscape but we are at a loss to see how the provision of two separate single doors to an allowable double garage will make it less prominent from the street. On the contrary, the evidence indicates that this particular double-width door is not visually prominent in the streetscape, and certainly is less prominent than those of some other nearby garages, including some which comprise two single-width doors. This particular garage is not very wide and in our opinion, it might not be possible to place two single-width doors side by side across its front. It would, of course, be a ludicrous suggestion that only one single-width door should be allowed. In our opinion, the specific requirement, although stated to be mandatory in the heritage citation, in this case should not be enforced.
68. The second matter to be considered is “all reasonable development options and design solutions”. To some extent, alternative design solutions have been canvassed in the preceding paragraph. The only other development option seems to be to remove the garage door altogether. While this would resolve the problem created by the second sentence of specific requirement 3.2b, we are not persuaded that it is a reasonable option. It seems to us reasonable for a development of this kind in close proximity to the Manuka commercial centre to be allowed the security that would be provided by a garage door, especially as there is now direct access to the dwelling from the back of the garage. Nor are we persuaded that the reinstatement of an open carport would yield a better design solution, for the reasons advanced by Mr Pegrum – that is, that a view of the backs of two cars, together with the miscellaneous household items such as wheelie bins likely to be stored there was unlikely to enhance the streetscape more than that of a well designed and appropriately-coloured garage door.
69. The third matter to be considered is whether there are “any prudent and feasible alternatives to the proposed development, or relevant aspects of it”. Again, it could be argued that to return the structure to an open carport was a prudent and feasible alternative, but we have already indicated that, in our opinion, an open carport would not be a prudent alternative in the particular circumstances of this dwelling. We do not consider that imposing a requirement that the double-width garage door be replaced by two single-width garage doors is either a prudent or a feasible alternative, for the reasons outlined in paragraph 67 above.
70. The Tribunal also has to be satisfied that, “as far as practicable, the decision avoids or minimises any adverse impact on the heritage significance of the place” (section 231(2)(b)). We received conflicting evidence from Mr Pegrum and Dr Pearson on the extent to which approval of the DA would have deleterious effects on the heritage significance of Blandfordia 5 Housing Precinct. While Dr Pearson was concerned to try to retain some sense of openness or “permeability” in the structure, Mr Pegrum contended that any such quality had already been compromised by the original decision to allow the master bedroom to be built behind the carport, thus blocking off any view to the rear, and further compromised by the decision to approve a 2-3 metre stretch of demountable floor-to-ceiling shelving along the northern side of the carport, which limited any side view through the carport to a very narrow slot that would be impeded by any parked vehicles. We agree with Mr Pegrum and consider that any adverse impact on the heritage significance of the place has already occurred through the developments already approved and we note that the respondent conceded this in its statement of fact and contentions at paragraph 10. We also note that, when notified to neighbouring lessees in April 2007, no objections to the DA under review were received. We do not believe that approval of the garage door and the remaining walls will have any further adverse impact or, if there is to be any impact, we consider that it is minimised.
71. Finally, by section 231(2)(c) we need to be satisfied that, on balance, the decision is consistent with the objects of the Plan. It is not clear what is meant by the word “objects” (which is not included in the dictionary accompanying the Land Act).
72. The Object [singular] of the Territory Plan is set out in Part A1 of the Written Statement and reads:
To ensure, in a manner not inconsistent with the National Capital Plan, that the planning and development of the Territory provides the people of the Territory with an ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation.
73. It is accompanied by a series of Goals phrased in very general terms, as follows:
2.1 Sustainable Development
Continued development and change to accommodate economic and population growth, but in a manner which upholds community values…and establishes the ACT as a model living environment for the 21st Century;
2.2 An Efficient, Healthy and Liveable City
Management of urban growth and change within a metropolitan framework which promotes an efficient pattern of development coupled with cost-effective provision of transport, infrastructure and services and which maximises lifestyle quality and choice
2.3 Economic Vitality
Diversification and expansion of the economy by building on the Territory’s environmental quality, accessibility, capital city advantages, human resources, and skills base; strengthening regional links; fostering innovation; and rewarding enterprise.
2.4 Community Wellbeing
A caring and harmonious society in which both individual and collective rights are respected; divisions are minimised; there is fair and reasonable access to adequate services and facilities; and proper concern for community health and safety.
2.5 Environmental and High Quality Design
Continuing enhancement of the Territory’s natural, built and cultural environment, including conservation of heritage and other valued features and with an emphasis on high quality, creative design of new development, urban spaces and landscape settings.
74. Part A2 of the Plan sets out a range of Strategic Principles which are intended to indicate how the Object and the Goals of the Plan are to be achieved, while Part A3 contains Plan Administration Policies and, in Section 9, sets out matters to be taken into account in consideration of land use and development proposals. In particular, Section 9.3 lists some 25 matters that are to be carefully considered where relevant to the proposal, including such things as:
(e) impacts on the visual amenity and landscape or streetscape of the area;
(f) impacts on the character and appearance of any building, area of architectural, historic, aesthetic or scientific interest, or otherwise special cultural or heritage value;
Further, there are throughout the Plan numerous Objectives, for example, those contained in the various Appendices such as the Residential Design and Siting Codes.
75. All of these might reasonably be regarded as “objects” of the Territory Plan and it would be impractical to consider each and every one of them. We prefer to take the broad view and ask whether the proposal is generally consistent with the Object and Goals in Part A1 of the Plan, as set out in paragraphs 72 and 73 above.
76. We believe that the proposal can be considered to:
- contribute to sustainable development through change to accommodate economic and population growth in a manner which upholds community values;
- promote an efficient pattern of development which maximises lifestyle quality and choice;
- demonstrate a proper concern for community safety; and
- enhance the Territory’s built environment through high quality, creative design while having no, or minimal, adverse impacts on the heritage values of the area.
Consequently, we conclude that, on balance, a decision that was inconsistent with the Council’s advice (that is, a decision to approve the DA) would be consistent with the objects of the Territory Plan.
77. In the discussion above, we have concentrated on whether or not the double-width garage door should be approved and have paid scant attention to the question of the side walls of the garage. This is because, if the door is to be approved, the presence or absence of side walls becomes irrelevant, since any “permeability” that might have existed without the door will have been wholly lost. Were we inclined to refuse approval to the garage door, we would have turned our minds to any separate effects that might arise from enclosing the sides of the garage completely with walls, but that will not be necessary.
78. Finally, we do not regard the fact that the internal measurements of the garage fail to comply with the performance measures D5.3 of the Code as warranting disallowance of the garage. The Code provides that proposals which do not meet the performance measures may still be considered in terms of whether they meet the relevant objectives and performance criteria. The relevant objective (O5.1) and performance criterion (P5.1) are set out in paragraph 42 above. In our opinion, the garage will provide sufficient and convenient parking for residents, while visitors and service vehicles will be able to park in the driveway in front of the garage, or in adjacent street parking. The respondent’s witness agreed that, should two large cars need to be parked, the garage would be able to meet the projected needs of the dwelling by removal of the demountable shelving and by re-hanging the access door. Consequently, the proposal is not inconsistent with those requirements of the Plan.
Conclusion
79. We conclude that the correct and preferable decision is to approve the existing double-width garage door for the reasons outlined above and it follows that the side walls and demountable shelving (to the extent not already approved) should also be approved. We will set aside the respondent’s decision declining to exercise his discretion in relation to DA 200701115 and substitute a decision that the application is approved. We will vary the order made on 21 March 2007 by deleting the requirements for removal of:
- the Tilt-a-Door to the carport; and
- the fibrous sheeting and demountable shelving to the side of the carport,
(noting that in doing so, the requirements that the brick pillars at the driveway entrance and the front gate are to be reduced in height to 1200mm, and that the gate to the driveway is to be removed, remain in force).
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NOS: AT07/13 & 20
APPLICANT: ALBERT BONANSEA
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT: MR C ERSKINE
RESPONDENT: DR D JARVIS
PARTY JOINED:
SOLICITORS: APPLICANT: BRADLEY ALLEN LAWYERS
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED:
OTHER:APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
MS P O’NEIL, SENIOR MEMBER
DR D MCMICHAEL, SENIOR MEMBER
DATE/S OF HEARING: 30 & 31 AUGUST 2007 PLACE: CANBERRA
DATE OF DECISION: 12 SEPTEMBER 2007 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
0
0