Brewer & Quinn & Ors and Act Planning & Land Authority
[2009] ACTAAT 1
•5 February 2009
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:BREWER & QUINN & ORS AND ACT PLANNING & LAND AUTHORITY & ANOR [2009] ACTAAT 1 (5 FEBRUARY 2009)
AT08/72, 73, 75-78
Catchwords: Land and planning – review of decision approving multi-unit residential re-development in A10 area – design and streetscape – parking – traffic – private open space – clotheslines – disabled access – property values - overlooking
Administrative Appeals Tribunal Act 1989, s 37
Land (Planning and Environment) Act 1991, ss 8, 230, 237, 245
Planning and Development Act 2007
AMC Projects Pty Ltd and ACT Planning & Land Authority & Ors [2006] ACTAAT 13 (2 May 2006)
Stoddart & Ors and ACT Planning & Land Authority & Anor [2007] ACTAAT 27 (21 December 2007)
Whitfield and ACT Planning & Land Authority & Ors [2008] ACTAAT 5 (26 February 2008)
Tribunal:Mr M H Peedom, President
Ms P O’Neil, Senior Member
Dr D McMichael, Senior Member
Date:5 February 2009
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT08/72, 73,
LAND AND PLANNING DIVISION ) 75-78
RE: HELEN BREWER &
GREG QUINN
Applicant in AT08/72RE: JOHN MAGUIRE
Applicant in AT08/73RE: RAYMOND WALTERS
Applicant in AT08/75RE: IAN & KAREN
GARRITY
Applicant in AT08/76
RE: PETER & MAREE
MITCHELL
Applicant in AT08/77
RE: JAMES & JEAN
STODDART
Applicant in AT08/78
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
AND: DAVID SHEARER
Party Joined
DECISION
Tribunal : Mr M H Peedom, President
Ms P O’Neil, Senior Member
Dr D McMichael, Senior Member
Date : 5 February 2009
Decision :
The decision under review is varied by:
deleting paragraph 8(a)(ii);
adding after the word “evidence” in paragraph 8(c)(iii) the words “to the satisfaction of the respondent from a qualified and independent traffic engineer approved by the respondent.”;
amending paragraph 8(c)(iv) by deleting the words “the ACT Parking and Vehicular Access Guidelines” and substituting the words “performance measure D5.11 of Appendix III.2: Residential Design and Siting Code for Multi-Dwelling Developments.”;
adding paragraph 8(c)(vii) as follows:
“evidence to the satisfaction of the respondent from a qualified and independent traffic engineer approved by the respondent of efficient vehicle manoeuvrability in the basement
(1) to and from each vehicle parking space, and
(2)for a vehicle that has entered the basement in circumstances where all vehicle parking spaces are occupied to exit the basement, and
an amended basement plan if required.”
adding paragraph 8(c)(viii) as follows:
“the erection of a clothesline on the balcony of unit 2 and unit 10 fixed to the north facing screen adjoining the wall on the balcony at a height not exceeding 1.4m or the installation of a clothes dryer in unit 2 and unit 10.”;
adding paragraph 8(c)(ix) as follows:
“a revised driveway and fence plan showing deletion of the words “2m High” from the Fence Legend for F1 fencing.”
……………………………
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT08/72, 73,
LAND AND PLANNING DIVISION ) 75-78
RE: HELEN BREWER &
GREG QUINN
Applicant in AT08/72RE: JOHN MAGUIRE
Applicant in AT08/73RE: RAYMOND WALTERS
Applicant in AT08/75RE: IAN & KAREN
GARRITY
Applicant in AT08/76
RE: PETER & MAREE
MITCHELL
Applicant in AT08/77
RE: JAMES & JEAN
STODDART
Applicant in AT08/78
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
AND: DAVID SHEARER
Party Joined
REASONS FOR DECISION
5 February 2009 Mr M H Peedom, President
Ms P O’Neil, Senior Member
Dr D McMichael, Senior Member
Background
The applicant in each of these applications has sought the review of a decision made by a delegate of the respondent in relation to a development application. The decision, dated 21 August 2008 and made pursuant to section 230 of the Land (Planning and Environment) Act 1991 (“the Land Act”) was to approve the development application subject to conditions imposed pursuant to section 245 of the Land Act.
2. Each applicant is the owner of land adjoining or nearby the site on which the approved development is proposed to be constructed (“the subject land”) and was an objector to the development application pursuant to section 237 of the Land Act. The party joined was the applicant for approval of the development application on behalf of the lessee of the subject land.
3. As many of the issues were common to all of the applications the Tribunal directed that they be heard together.
4. This development application is to be assessed under the provisions of the Land Act. The Land Act was repealed and replaced by the Planning and Development Act 2007 on 31 March 2008, when a new Territory Plan also came into effect. However transitional provisions require this application to be considered under the Land Act and the version of the Territory Plan in force at the date of the development application. A decision cannot be made that is inconsistent with the Territory Plan (section 8 Land Act).
The development application
5. The subject land, which comprises Blocks 20 and 21, Section 69, Division of Evatt, is located at 19 and 21 Norton Street, Evatt. The development application proposes that the Crown leases of the two blocks be consolidated so as to form a single block; the variation of the purpose clause of the consolidated lease to permit 11 residential dwellings; the demolition of the existing dwellings and outbuildings; the erection of one single storey building and two buildings each containing a second storey element; common basement car parking for all 3 buildings; and associated landscaping and other works.
6. The area of the subject land will be 1825.14m2 with a frontage to Norton Street of about 70m and to the two arms of Gleadow Street, each of about 25m. The central single storey building is to contain 3 one bedroom units and the buildings at either end are each to contain 1 one bedroom unit and 2 two bedroom units at ground level and 1 one bedroom unit with an external balcony at second floor level. A basement with a single entry point on the eastern arm of Gleadow Street is to contain garages for 11 residents’ vehicles and 3 visitor car parking spaces.
The hearing
7. The applicants were self-represented at the hearing on 20-23 January 2009. One of the applicants, Mr G Quinn gave evidence on behalf of himself and Ms H Brewer. A statement of facts and contentions prepared by each of the applicants was admitted in evidence without objection by the other parties.
8. The respondent was represented by Mr G McCarthy, of counsel. He called Mr P Isaks and Ms R Singh to give evidence.
9. Mr Isaks is a transport specialist with the Office of Transport in the Department of Territory and Municipal Services (“TAMS”). He holds a Bachelor of Applied Science degree and has had 19 years’ experience with transport-related aspects of development applications both in the office of the then ACT planning authority and in TAMS.
10. Ms Singh holds a post graduate diploma in town planning and is a graduate in Architecture from the Centre for Environmental Planning & Technology, Ahmedabad, India. She is a corporate member of the Planning Institute of Australia and is a certified practising planner.
11. The party joined was represented by Mr P Walker, of counsel, who called Mr P Cohen to give evidence. Mr Cohen is a qualified urban and regional planner and a certified practising planner.
12. A number of documents were tendered in evidence by the parties during the course of the hearing and the Tribunal had before it the documents required to be lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1989. The Tribunal also undertook a site inspection of the subject land and surrounding area in the presence of the parties and/or their representatives to enable it to better understand the evidence presented during the course of the hearing.
13. The issues which were raised at hearing and in the material lodged by the applicants with the Tribunal pursuant to its directions and the conclusions which we have reached in relation to them are as follows.
Design/streetscape issues
14. The Territory Plan contains policies and guidelines made under it which, the applicants submitted, were not satisfied by the development application.
15. In particular, it is an objective of the Part B1 Residential Land Use Policies of the Territory Plan to:
a)foster high quality living environments in both new and developing areas which contribute to Canberra’s landscape character.
16. Further, an objective of the Area A10: Residential Core policies which apply to the subject land is:
· To ensure that development respects existing streetscapes and adjoining development ………
17. These policies were relied upon by some of the applicants in support of their contention that the proposed development was neither of high quality nor respectful of the existing Norton Street/Gleadow Street streetscape character.
18. The policies relied upon by the applicants are not, however, to be read in isolation. They are required to be balanced with other objectives of the Part B1 policies which include:
b)respond to the social and economic changes that are affecting housing provision and choice;
c)create a wider range of affordable and sustainable housing choices throughout the ACT that will accommodate population growth and meet changing household and community needs;
The quality and style of a living environment achieved by a development subject only to objective 1(a) is likely to be different to that achieved by a development subject also to objectives 1(b) and 1(c).
19. In relation to the Part A10 policies the applicants identified the second storey component of the two end buildings as failing to show respect for the predominantly single storey dwellings in the surrounding Norton Street/Gleadow Street streetscape.
20. Evidence was given on this issue on behalf of the party joined by Mr Cohen. He identified a number of features of the proposed development to explain the basis upon which he had formed the opinion that the proposed development did not fail to respect the existing streetscape. They included the separation of the development into three building components opposite to and broadly reflective of the scale of development on the opposite side of Norton Street; the articulation of the front façade of the 3 buildings created by their design and separation; the front building setbacks in Norton Street being insignificantly different to those of the existing buildings; the interest that would be added to the view from the road by the emphasis given by the second storey elements to the vertical street geometry; the different treatment of surface materials; the muted colours to be used; the blend in architectural style that currently existed in the streetscape; the extensive plantings proposed forward of the buildings on both the subject land and the verge areas; the restriction in the plot ratio of the proposed development to 46%, less than the 50% maximum specified in Control 3.6(i) of the Residential Land Use Policies; and the restriction in height of the second storey elements to about 2m lower than that permitted in both core and non-core residential areas.
21. The Tribunal has addressed the issue under consideration in a number of cases involving proposed developments in A10 core residential areas including AMC Projects Pty Ltd and ACT Planning & Land Authority & Ors [2006] ACTAAT 13 (2 May 2006) and Whitfield and ACT Planning & Land Authority & Ors [2008] ACTAAT 5 (26 February 2008). It also examined the streetscape features of the area in which the development is proposed in an appeal against an approval of an earlier development application made in respect of the subject land (see Stoddart & Ors and ACT Planning & Land Authority & Anor [2007] ACTAAT 27 (21 December 2007)).
22. It is unnecessary to repeat what was said in those cases. It is sufficient to note that the A10 policies do not require the existing building style to be replicated. Such an approach would plainly undermine the intention of policies which are designed to facilitate more intensive development than was previously permitted.
23. Having examined the plans of the proposed development and undertaken a site inspection, we see no reason not to accept the evidence of Mr Cohen that the proposed development respects the existing streetscapes. Nor is there any basis for a finding that the proposed development fails to foster a high quality living environment in a re-developing area.
Parking
24. It was contended by some of the applicants that the provision made for parking in the basement of the proposed development was inadequate and unworkable. In particular, they contended that the dimensions required for the parking spaces proposed would not meet requirements under the Territory Plan and that the turning circles for the vehicles of residents and their visitors would not permit their convenient manoeuvring. They also contended that visitors to the premises on the subject land would find greater convenience in parking their vehicles in Norton Street adjacent to the building entrances, rather than parking in the basement.
25. Plans prepared in August 2008 on behalf of the party joined to respond to the conditions of approval of the development application showed 6 single garages, 5 double garages and unenclosed visitor car parking spaces delineated by surface line markings for 3 vehicles. The visitor car parking spaces were 5.8m in depth. One of them was 2.4m, one was 2.7m and the other 2.8m in width. The width of the aisle from which access to the garages and visitor car parking spaces would be obtained varied from 5.95m to 6.550m. Further plans prepared in December 2008 on behalf of the party joined and tendered in evidence (Exhibit 12) showed the three visitor car parking spaces each at 2.8 m wide, with commensurate reduction in the dimensions of other elements of the basement plan.
26. A plan produced in evidence by Mr Quinn plotted with the swept path of a vehicle exiting from visitor car space 3 appeared to show inadequate space for a vehicle to reverse into the aisle and then proceed in a forward direction without making contact with the projecting wall of a stairwell. Mr Quinn gave evidence that in plotting the path of the vehicle he had merely transposed the swept path of a vehicle from visitor car space 2 as drawn by the party’s joined engineer on a plan of the basement.
27. We note that the basement plan used by Mr Quinn shows a different depth of the visitor car parking spaces to that shown on the approved basement plan. It appears to be a revised version of the approved basement plan. The accuracy of the transposition of the swept path of the vehicle on the basement plan was challenged by Mr Walker. However, no evidence was provided to the Tribunal by any party to enable a reliable assessment of the path of a vehicle reversing from visitor car space 3.
28. Control 5 of Appendix III.2 Residential Design & Siting Code for Multi-Dwelling Developments (“the Code”) specifies objectives, performance criteria and performance measures in relation to vehicle parking and access. Relevantly to the issue under consideration they provide as follows:
O5.1To provide sufficient and convenient parking for residents, visitors and service vehicles.
O5.4To ensure streets and access ways provide safe and convenient vehicle access to dwellings and provide for service vehicles.
P5.1Resident and visitor car parking to be provided according to projected needs of the dwelling and taking into account:
………
· the provision of public car parking easily accessible to visitors;
……….
·efficient location and use of car spaces and access ways including adequate manoeuvrability for vehicles between the street and the front boundary.
Minimum Dimensions of Parking Spaces
D5.3 Single covered space: 6m x 3m
Double covered space: 6m x 5.5m
Hardstanding space: as per D5.10Sightlines
D5.4As specified in AS 2890.1 – The Australian Standard for Off-Street Parking
P5.5Car parks, access ways, driveways and internal roads to allow comfortable, safe and efficient vehicle movement and good connections to the existing street network, while minimising loss of on-street parking.
Parking Space and Access Dimensions
D5.9Hardstanding car spaces, minimum dimensions: 4.9m x 2.6m
………………
D5.10If entry to a car space is from the end (other than direct from a street), the minimum width of the access lane is as follows:
Angle to Access Lane Width of Access Lane
45o 3.5m [error corrected]
60°4.9m
90°6.4m
…………….
D5.11Where efficient 90° parking layout is constrained, the access way width may be reduced provided the width of car spaces is increased as follows:
Car Space Width Access Width
2.8m5.8m
3.0m5.2m
29. Control 5 also contains provisions specifying the minimum number of car parking spaces for residents and visitors based upon the number of bedrooms contained in each dwelling. Provided that the requirements as to the dimensions of the parking spaces and the manoeuvrability of vehicles within the basement were satisfied, there was no contention at the hearing that the number of parking spaces specified in Control 5 were satisfied.
30. Reference was also made during the course of the hearing to the ACT Parking and Vehicular Access Guidelines dated October 2000 (“the Parking Guidelines”). They contain provisions in relation to the layout and dimensions of parking spaces and the paths of access to them in off-street parking areas. The Parking Guidelines adopt the requirements specified in the Australian Standard for Parking Facilities, Part 1: Off-street Car Parking (“AS2890.1-1993”). AS2890.1-1993 has, in fact, been replaced by a new Australian Standard for Parking Facilities, AS2890.1-2004.
31. In his evidence, Mr Cohen said that AS2890.1-1993 was unclear as to whether it applied to residential off-street car parking but the current (2004) standard had introduced a new vehicle user class that specifically made reference to residential car parking.
32. The respondent and the party joined submitted that resolution of the issue under consideration should be resolved by the imposition of a condition that was designed to ensure that the standard specified in AS2890.1-2004 was satisfied. Mr Garrity, however, submitted that neither standard should be the determinant of compliance and that the matter should be resolved in accordance with Control 5 of the Code. In support of his submission, he drew attention to the following statement in clause 1.3 of the Parking Guidelines:
Any specific requirements for the provision of parking and access in areas subject to the National Capital Plan or to other Guidelines under the Territory Plan would take precedence over the requirements specified in these Guidelines.
He also drew attention to the definition of “planning guideline” in Part D of the Territory Plan which states:
Planning Guideline means any map, plan, guideline, standard, code, or other like document adopted by Authority for the purpose of guiding planning decisions.
33. In the course of her evidence Ms Singh stated that it was the practice of the Authority/respondent to apply the current Australian Standard in resolving parking issues in basements because the Code made reference to it and because the respondent considered that Control 5 in the Code had greater relevance to ground-level garages and hard-standing parking areas rather than basement car parking.
34. The only reference which appears to an Australian Standard in Control 5 is in performance measure D5.4 which specifies “AS2890.1 – The Australian Standard for Off-Street Parking”. D5.4 deals with sightlines that are to be achieved in off-street parking areas. It provides no basis for the adoption of an Australian Standard, current or otherwise, as the relevant performance measure for Control 5 in respect of matters other than sightlines. If, as Mr Cohen’s evidence suggests, the terms of AS2890.1-1993 made it unclear that it applied to residential off-street parking areas when the Parking Guidelines were introduced, there seems to be even less basis upon which to apply AS2890.1, current or otherwise, as the standard to satisfy the Code’s performance measure, which in most cases do not normally require further evidence of compliance with the objectives and performance criteria of Control 5. Nor do we find anything in the references in Control 5 to “hardstanding space”, “access lanes” and “car spaces” to prevent their application to basement car parking. Indeed it is difficult to find any basis for adopting the lower standard of compliance contained in the current Australian Standard, when it was accepted by Ms Singh that columns and other obstructions usually to be found in basements were not ordinarily present in other parking areas.
35. We accept that it would be open, despite the failure of a development application to meet a relevant performance measure, nevertheless, to be approved if it were found to meet the relevant objectives and performance criteria. However, in the light of Mr Cohen’s evidence that the basement area is capable of compliance with Control 5, in particular performance measure D5.11, we consider that the performance measures in Control 5 should be adopted as the standard for compliance with that control. In light also of the lack of expert evidence to demonstrate how such compliance could be achieved, it would be appropriate for Condition 8(c)(iv) of the approval of the development application to be amended to require the performance measures of Control 5 of the Code in relation to parking space and access aisle dimensions to be met. We also consider that a further condition (8(c)(vii)) should be added in the following terms:
evidence to the satisfaction of the respondent from a qualified and independent traffic engineer approved by the respondent of efficient vehicle manoeuvrability in the basement
(1) to and from each vehicle parking space, and
(2)for a vehicle that has entered the basement in circumstances where all vehicle parking spaces are occupied to exit the basement, and
an amended basement plan if required.
In the absence of such evidence, approval of the development application would be precluded.
Traffic
36. It was contended by Mr Stoddart that, irrespective as to the adequacy of parking provided for residents and visitors in the basement, they would find greater convenience by parking in Norton Street because of the closer access from such a position to the front entrance of each of the buildings. Vehicles parked in such a position, he asserted, would obscure the vision of motorists turning left from the western arm of Gleadow Street into Norton Street and create a traffic hazard. This prospect, he said, would result in the development application failing to satisfy Objective O5.2 of the Code which states:
O5.2To ensure that parked vehicles do not obstruct the passage of vehicles on the carriageway or create traffic hazards.
37. It is to be noted that the front entrances to the two end buildings are in close proximity to the two existing dwellings and that there has been no recorded history of accidents in the area. Mr Stoddart suggested that the only reason accidents had been avoided was that the residents of both of the existing houses had used common sense and not parked their cars near these corners. Mr Stoddart produced in evidence a photograph of a vehicle parked in Norton Street near the intersection in question in support of his contention that a potentially dangerous situation would exist.
38. In her evidence, Ms Singh acknowledged the possibility that a visitor to the subject land for a period of short duration may choose to park his/her vehicle in Norton Street. She considered, however, that a visitor for a longer period of time would be likely to take advantage of the security afforded by the basement parking provided.
39. Mr Isaks also gave evidence on the issue raised by Mr Stoddart. Mr Isaks had previously given evidence on the same and other traffic issues at the hearing of the earlier (Stoddart) appeal to the Tribunal. On that occasion the Tribunal concluded that the traffic generated by the proposed development would not significantly affect safety in the area and nor would any car parking on Norton Street that arose as the result of the development create unacceptable hazards that could not be dealt with by traffic calming measures.
40. The effect of Mr Isaks’ evidence in both cases was that any cars parked in Norton Street near the intersection in question would require vehicles entering Norton Street from the western arm of Gleadow Street to exercise greater caution to watch for oncoming traffic than might otherwise be the case. He considered, however, that the need for greater caution was unlikely to be associated with more than a few seconds delay and was the kind of situation that was commonplace in Canberra.
41. We see no reason to change the conclusion that was arrived at in the earlier appeal. We would add, however, that apart from the fact that it was not established that the vehicle shown in the photograph was parked legally or otherwise, the re-location of the car parking entrance to the basement to the eastern arm of Gleadow Street can be expected to result in vehicles associated with the proposed development entering Norton Street from the eastern arm of Gleadow Street where the obstruction to vision anticipated by Mr Stoddart is unlikely to exist. Nor do we see any basis for a finding that the drivers of other vehicles entering Norton Street from the western arm of Gleadow Street would not exercise the same commonsense attributed by Mr Stoddart to the residents of the existing dwellings and their visitors.
42. In relation to the convenience of the basement parking provided for by the development application, we accept that there may be occasions upon which motorists visiting the premises on the subject land as well as the residents, especially for a short period, may choose to park their vehicles in the street. The provisions of Control 5 set out above do not dictate an absolute standard of convenience. They do not require the quality of the living environment of a permitted multi-unit development to be outweighed by the convenience of motorists. In the context of the totality of the policies and guidelines which apply to the proposed development they are standards that are required to be balanced against other standards that are required to be met.
43. In our opinion, the parking arrangements proposed for the residential units which they are designed to serve can properly be regarded as convenient.
Private open space
44. Performance measure D4.1 of the Code is entitled ‘Minimum Dimensions of Private Open Space’ and provides:
The average area of private open space per dwelling is not less than 60% of the average area of the block per dwelling less 50m2.
The total required area of private open space on any multi-unit housing block is the average area of private open space per dwelling multiplied by the proposed number of dwellings on the block.
45. Performance measure D4.2 provides:
Location and dimensions of private open space:
· For each attached or detached house, provision of at least one area of useable private open space that is screened from public view, directly accessible from an indoor daytime living area and meets the following minimum area and dimension requirements:
Minimum Area 10% of the average block area per dwelling
Minimum Dimension 6 metres
· Minimum dimension of private open space on balconies: 1.8m
46. There was no disagreement between the parties that the private open space provided for each unit satisfied the minimum dimension specified in performance measure D4.2. Mr Quinn, however, submitted that, in her calculation of the total area of private open space required by performance measure D4.1, Ms Singh had incorrectly included areas that were not properly to be regarded as private open space. The areas which he identified included the spaces between the 3 buildings, the use of which was intended to include the storage of waste bins; the area designed as the private open space of unit 1 in which area shrubs were growing and proposed to be retained; pathways in front of the proposed units; and other areas shown in the landscape plan of the approved development as containing plantings of various kinds.
47. Ms Singh did not disagree with Mr Quinn’s calculation that if the areas identified by him were excluded from the calculation of the total area of private open space required by performance measure D4.1, there would be a deficit of 73m2. She disagreed, however, that such areas should be excluded from the calculation of the total area of private open space specified in performance measure D4.1. The only areas, she contended, which should be excluded from the area of the subject land were the area of the building footprint and the driveways and that there should be added the area of the balconies. When so calculated the total area of private open space (1089.4m2) was almost double the area specified in performance measure D4.1.
48. “Private open space” is defined in Part D of the Territory Plan as follows:
Private open space means an outdoor area within a block useable for outdoor living activities, and may include balconies, terraces or decks but does not include any area required to be provided for the parking of motor vehicles and any common driveways and common vehicle manoeuvring areas. Up to 25 per cent of any part of private open space may be roofed over, except that a balcony may be entirely roofed over.
49. The rationale of Mr Quinn’s submission was that the notion of private open space is directed at the space used for the private enjoyment of the resident of each unit and that Ms Singh’s calculation had, impermissibly, included areas that were available for the common use by all of the residents.
50. The definition of “private open space” does not, in our opinion, support Mr Quinn’s submission. There is nothing in the terms of the definition of private open space to exclude areas that are available for the common use of all of the residents of the subject land. The reference in the definition to “an outdoor area within a block” (emphasis added) suggests the contrary.
51. Whilst it is arguable that the use of an area for the storage of waste bins is not properly to be regarded as an outdoor living activity in the context of Control 4 of the Code, we see nothing to exclude the use of the other areas identified by Mr Quinn from being regarded as available for outdoor living activities, which include but are not confined to, for example, gardening and contact with other unit residents.
52. We conclude that even by allowing for the exclusion of an area for the use of storage of waste bins for the residents, the total amount of private open space exceeds that specified as the total area of private open space in performance measure D4.1.
Clotheslines
53. Some of the applicants contended that the design of the upper level units made it likely that the residents of them would hang their washing on the balconies of the units and be exposed to public view thereby lowering the tone of their neighbourhood.
54. In order to address the applicants’ apprehensions the respondent proposed that a condition be imposed on any approval of the development application that required a clothesline to be fixed in a location on the slatted screens adjacent to the living room window on each of the balconies. A computer generated image of the balcony and evidence given by Mr Cohen made it apparent that only a small section of any clothesline fixed in such a position would be visible from the street.
55. Whilst the evidence does not enable any finding to be made that the design of the balconies of the units was likely to result in a detrimental impact on the amenity of the neighbourhood the imposition of such a condition, which was not opposed by the party joined although not accepted as necessary, would reduce whatever potential for the applicants’ apprehensions to be realised and we are disposed to impose such a condition.
Disabled access
56. Mr Maguire contended that there was inadequate evidence that units 5 and 6, which appeared from revised plans of the development application to have been identified to be adapted for disabled access, were configured to enable them to be so adapted and that the party joined should be directed to install a stair climber from the basement to access those units.
57. Control 3.11 of the Part B1: Residential Land Use Policies of the Territory Plan requires that:
10% of the dwellings of any multi-unit housing development consisting of 10 or more dwellings shall be designed to meet the relevant Australian standard or building code for adaptable housing, or other guidelines adopted by the Authority for adaptable housing.
58. On behalf of the party joined, Mr Cohen gave evidence that the dimensions of spaces and openings of units 5 and 6 were consistent with the relevant standards and that the stairwell to the basement was wide enough for a stair climber and that a drawing provided by the applicants contained specifications for a device of that nature.
59. It would be inappropriate for the Tribunal to make any approval of the development application conditional upon a requirement for a stair climber to be installed in any building. The requirement of Control 3.11 is that the buildings be adaptable in the relevant way, not that they be adapted. We are satisfied on the basis of Mr Cohen’s evidence and the absence of any contrary evidence that the requirements of Control 3.11 are satisfied by the development application.
Property values
60. Mr Maguire submitted that the proposed development would be likely to attract the “lower end” buyers to the market and, over time, would reduce the value of existing nearby residential properties.
61. No evidence was provided to the Tribunal in support of this submission and it would be inappropriate for the Tribunal to make any assumption about the impact of any approval on the value of surrounding properties, particularly as the policies of the Territory Plan in relation to A10 areas include the retention of a moderate level of flexibility to accommodate a wider variety of additional housing and to assist in creating a more sustainable pattern of urban settlement by providing for more housing to be developed. These policies give effect to one of the more broadly stated objectives of the Residential Land Use Policies to respond to social and economic changes that are affecting housing provision and choice and the creation of a wider range of affordable and sustainable housing choices that will accommodate population growth and meet changing household and community needs (see Objectives 1(b) and (c)). These objectives are required to be balanced against other objectives which include the need to safeguard the amenity, safety and special qualities of established residential areas (see Objective 1(d)).
62. Although not necessarily unrelated, issues of amenity, safety and special qualities of a residential area are different to the issue of the value of property within the area. The focus of the Tribunal’s consideration is required to be upon the former issues in the context of the planning policies made applicable by the Territory Plan. We have addressed those issues elsewhere in these reasons for decision.
Overlooking
63. Condition 8(a)(ii) of the decision under review required the party joined to lodge with the respondent for approval a revised plan showing that the ground level of the private open space of units 7, 8, 9 and 11 (adjacent to Block 9) be retained at natural ground level. The approved driveway and fencing plan required the fence on the boundary of the subject land and Block 9 to be a 1.8m high lapped and capped timber fence or a 2m high colourbond fence, with neighbour’s approval.
64. The condition was designed to protect the residents of Block 9 from overlooking from units 7, 8, 9 and 11. The lessee of Block 9 indicated his agreement to the approval of the plans (which show a 1.8m fence on top of a 0.5m high retaining wall) without these conditions and the respondent and the party joined have requested their deletion.
65. On this basis, we agree to their deletion.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NOS: AT08/72, 73, 75-78
APPLICANTS: HELEN BREWER & GREG QUINN; JOHN MAGUIRE; RAYMOND WALTERS; IAN & KAREN GARRITY; PETER & MAREE MITCHELL; JAMES & JEAN STODDART
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: DAVID SHEARER
COUNSEL APPEARING: APPLICANTS:
RESPONDENT: MR G MCCARTHY
PARTY JOINED: MR P WALKER
SOLICITORS: APPLICANTS:
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTY JOINED: JS O’CONNOR, HARRIS & CO
OTHER: APPLICANTS: SELVES
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: 20-22 JANUARY 2009 PLACE: CANBERRA
DATE OF DECISION: 5 FEBRUARY 2009 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
2
0