Carter and Act Planning & Land Authority
[2007] ACTAAT 23
•23 October 2007
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:CARTER AND ACT PLANNING & LAND AUTHORITY & ORS [2007] ACTAAT 23 (23 OCTOBER 2007)
AT07/28
Catchwords: Land and planning – application to review decision conditionally approving multi-dwelling development – A10 area policies – streetscape – plot ratio – private open space – parking – access and sight lines – traffic – waste waster and flooding – waste management – fences and courtyard walls.
Administrative Appeals Tribunal Act 1989, s 37
Land (Planning and Environment) Act 1991, ss 229, 230, 237, 245
AMC Projects Pty Ltd and ACT Planning & Land Authority & Ors [2006] ACTAAT13 (2 May 2006)
Griffith/Narrabundah Community Association Inc. & Ors and ACT Planning & Land Authority & Ors [2005] ACTAAT34 (21 December 2005)
Moulis and ACT Planning & Land Authority & Ors [2006] ACTAAT 24 (4 July 2006)Pacific Seven Pty Ltd v Knox CC (1993) 11 AATR 325
Tribunal: Mr M H Peedom, President
Dr D McMichael, Senior Member
Mr R Nichols, Member
Date: 23 October 2007
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/28
LAND AND PLANNING DIVISION )
RE: NICK & ASPA CARTER
Applicant
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
AND: RICK MCRAE &
DEBRA DENEHY
MARK HENNOCK &
ROBYN BONDIETTI
URBAN DESIGN &
DRAFTING
Parties Joined
DECISION
Tribunal : Mr M H Peedom, President
Dr D McMichael, Senior Member
Mr R Nichols, Member
Date : 11 October 2007
Decision:
The decision under review is varied by:
adding the following clauses to clause 9(a):
(xiii) the deletion of front fencing to Units 8. 9, 10 and 11;
(xiv) the front fencing to Units 1, 2, 3, 4, 5, 6 and 7 as black powder
coated pool style fencing;
(xv)the enlargement of basement plan to accommodate two further car
parking spaces sized in accordance with performance measure D5.9 in Appendix III.2 of the Territory Plan; and
(xvi)the steps on the western side of the landing of Unit 1 re-located to
the eastern side of the landing.
deleting clause 9(c)(iii); and
adding the following clauses to clause 9(c):
(xix)the external elevations and floor plans of Unit 13 to be changed to
those shown for Unit 14; and
(xx)the area created by the deletion of Unit 14 be included within the
private open space of Unit 13 or within common property.
........................................
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/28
LAND AND PLANNING DIVISION )
RE: NICK & ASPA
CARTER
Applicant
AND: ACT PLANNING AND
LAND AUTHORITY
Respondent
AND: RICK MCRAE &
DEBRA DENEHY
MARK HENNOCK &
ROBYN BONDIETTI
URBAN DESIGN &
DRAFTING
Parties Joined
REASONS FOR DECISION
23 October 2007 Mr M H Peedom, President
Dr D McMichael, Senior Member
Mr R Nichols, Member
The decision under review
This is an application to review a decision made by a delegate of the respondent on 14 May 2007. The decision, made pursuant to section 230 of the Land (Planning and Environment) Act 1991 (“the Land Act”), was to approve a development application subject to conditions imposed pursuant to section 245 of the Land Act.
The development application
2. The development application related to land at Blocks 26, 27 and 28, Section 17 Division of Holder (“the subject land”). The subject land has an area of 2692.29m2 and a street frontage to Coane Street of approximately 65.5m. The north-western side boundary adjoins an area of urban open space (Block 34) containing a pedestrian pathway and is designed as part of a floodway system. The boundary to that space is approximately 63m in length and the width of the space is approximately 18.5m. It is planted with eucalyptus trees and falls approximately 6m from the southern boundary to the northern corner. Vegetation within the streetscape comprises a mix of native and exotic trees and large shrubs.
3. Development within the area surrounding the subject land is generally single storey detached residential dwellings. Multi-unit development exists within the adjacent section to the south. The style of development is mixed with some blocks being recently redeveloped. Most dwellings have a front setback of approximately 6 or 7m.
4. The development application sought approval for the:
(a)consolidation of the Crown leases over the subject land;
(b)variation to the consolidated lease to provide for multi-unit housing for not less than one (1) and not more than fourteen (14) dwellings;
(c)demolition of the existing detached houses, sheds and car accommodation;
(d)erection of 4 two storey buildings consisting of 14 residential dwellings; and
(e)associated landscaping, car parking, paving and other site works.
The hearing
5. Following public notification of the development application pursuant to section 229 of the Land Act, the respondent received over 100 objections made pursuant to section 237 of the Land Act. The applicants, Mr N and Ms A Carter, and the parties joined, Mr M Hennock and Ms R Bondietti and Mr R McRae and Ms D Denehy, lodged objections to the development application. They were represented at the hearing by Mr McRae and Ms M Bondietti. The other party joined, Urban Design and Drafting (“UDD”), lodged the development application on behalf of the lessees of the subject land. It was represented by Mr G Walker, a legal practitioner. The respondent was represented by Mr G McCarthy, of counsel.
6. The applicants and the parties joined who objected to the development application (“the objectors”) did not call any witnesses to give evidence on their behalf but lodged a comprehensive statement of facts and contentions outlining the grounds of their objection to the development application and a statement in reply to the material lodged with the Tribunal on behalf of the other parties. They also cross-examined the witnesses called by the other parties to give evidence at the hearing and made a submission to the Tribunal.
7. Evidence was given on behalf of UDD by Mr J Farrelly, an architectural draftsperson who prepared the plans of the development application; Mr P Cohen, a qualified urban and regional planner; and Mr B Cusack, a civil engineer.
8. Evidence was given on behalf of the respondent by Ms C Oshyer, a landscape architect employed by the respondent as a town planner in a range of roles associated with the assessment of development applications; by Mr P Isaks, a transport specialist employed by the Office of Transport in the Department of Territory and Municipal Services (“TAMS”); and by Mr J Peryman, an engineer employed by TAMS to assess waste management proposals.
9. The Tribunal also had before it the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1989 (“the T documents”) and undertook a site inspection of the subject land during the course of the hearing in the presence of the parties’ representatives.
10. Whilst initially opposed to the imposition of some of the conditions imposed by the delegate, Mr Walker informed the Tribunal at the hearing that his client did not maintain that position and now supported the decision under review but subject to some modification of those conditions identified by Mr McCarthy during the course of the hearing.
11. At the conclusion of the hearing the Tribunal gave its decision orally and confirmed the decision in writing given to the parties on 11 October 2007.
12. We set out in these reasons the significant issues raised by the parties for consideration during the course of the hearing and our conclusions in relation to them.
Impact on streetscape and amenity
13. The subject land is located in an area that is subject to the area A10: Residential Core Policies of the Territory Plan (“the A10 policies”).
14. The A10 policies have the following as their objectives:
· To ensure development respects existing streetscapes and adjoining development, or contributes to the desired future suburban character of the area as defined by an approved master plan.
· To retain a moderate level of flexibility to accommodate a wider variety of additional housing close to facilities and services to meet changing community needs and preferences.
· To assist in creating a more sustainable pattern of urban settlement by providing for more housing to be developed close to identified commercial centres.
(Emphasis added)
15. The objectors contended that the streetscape had not been properly defined or assessed by the respondent and that the development proposal would not fit into the existing streetscape. In a statement of facts and contentions the objectors discussed the term “streetscape” and provided an analysis of streetscapes in Holder. The analysis identified three streetscape settings viz, access streets, unit development access streets and collector streets. Whilst this may usefully assist in an understanding of the streetscape typologies in Holder, the Tribunal is of the view that even to consider the proposed development in the context of a general access street typology would be using too wide a context. Other access streets may have a different mix of building setbacks, street trees, private landscaping and building form.
16. We note also that the objectors’ statement of facts and contentions asserted that its principal author had tertiary qualifications and employment experience upon which the analysis had been based. However, no evidence was given by the author. While the Tribunal is not bound by rules of evidence, it should give greater weight to evidence given by a witness with relevant qualifications and expertise whose evidence has been tested than to the untested assertion of a person whose qualifications and expertise are not made known.
17. Both Mr Cohen and Ms Oshyer gave evidence in relation to streetscape. It was Mr Cohen’s opinion that Coane Street had two distinct streetscape units and that the area of relevance to this application was that part of Coane Street that lies south of Orr Street. Houses in this part of Coane Street are single storey detached houses, predominantly of brick construction with tiled hip roofs. Mr Cohen observed that street trees are planted quite close to the kerb and, together with domestic landscaping, screen much of the housing from the oblique view from the road. The road has layback kerbs. The lowest point in the road is at the corridor of urban open space which abuts the subject land on its north. This corridor contains a paved walkway and was described as a floodway.
18. Mr Cohen considered that the combination of the hilly street, close flanking mature eucalypts and domestic screening provided the street with a somewhat intimate character which (in the absence of an approved master plan) the proposed development was required to respect. In his opinion the arrangement of the buildings of the proposed development with respect to boundaries, variations in building height resulting from landform and benching and the mix of form and orientation would to some degree reflect that of the original development and would fit into the existing urban fabric. He also considered that the overall effect of the placement of built elements, the significant spaces from the end of Block 3, the oblique angles of the walls of Block 1 and the 18m wide area of urban open space would militate against any suggestion of overcrowding in the view from the road and, as a consequence, there would be no diminution in the streetscape value.
19. Ms Oshyer stated that, in her opinion, the proposed development respected the streetscape and adjoining development. She identified the fact that the development is to be broken into 4 separate buildings, the building facades are articulated, the parking is to be provided in basements and that the slope of the land resulted in roof heights similar to the heights of nearby buildings.
20. Whilst the proposed buildings are of two storeys this is the height identified under the performance measures of the Residential Design & Siting Code for Multi-Dwelling Developments (“the Code”) and which are considered to satisfy the objectives and performance criteria in most cases. As the subject land is close to the lowest part of this section of Coane Street this also reduces the degree of visual intrusion.
21. The urban open space corridor which abuts the subject land on the northwest was said to be 18 metres wide. It provides a substantial separation from the existing houses in that direction. With the deletion of unit 14 as required by a condition of approval, there is only a small proportion of building form in close proximity to abutting residential blocks.
22. Other more detailed aspects of potential impact on adjoining development are dealt with hereunder particularly in relation to the controls of the Code.
23. The Tribunal accepts the expert opinions of Ms Oshyer and Mr Cohen that, having regard to the design characteristics identified by them and the context of the surrounding streetscape and development, the design of the proposed development respects the existing streetscape and adjoining development and we consider that in that regard it is not inconsistent with the objectives of the Territory Plan.
Plot ratio
24. Control (g) of the A10 policies restricts the maximum plot ratio of development to 50% of the total block area. According to Ms Oshyer’s calculation the plot ratio of the proposed development was 50.32%, subsequently revised by re-calculation as 50.5%. Because the assessed plot ratio exceeded the maximum permitted, a condition of the approval of the development application required the deletion of one of the 14 units, unit 14. Its removal, according to her calculation, would reduce the plot ratio to 47.5%.
25. “Plot ratio” is defined in Part D of the Territory Plan as:
the gross floor area in a building divided by the area of the site.
26. “Gross floor area” is defined as:
the sum of the area of all floors of the building measured from the external faces of the exterior walls, or from the centre lines of walls separating the building from any other building, excluding any area used solely for rooftop fixed mechanical plant and/or basement car parking.
27. The site area of 2692.29m 2 of the subject land was taken by the respondent from data contained within ACTmapi, a mapping database produced by the respondent. According to a survey undertaken on behalf of UDD by a registered surveyor, the site area was 2692.6m2. The difference is insignificant and does not affect the conclusion which we have arrived at in relation to the issue under consideration.
28. It was submitted on behalf of the objectors that, in the calculation of the gross floor area of the development, a number of areas falling within the terms of the definition of “gross floor area” had not been included by the respondent. The areas identified by the objectors were porches adjoining the entrance doorways of each unit, pedestrian movement space within the basement car parks and staircase voids.
29. The areas of the porches were not included within the respondent’s calculation of gross floor area because they are not enclosed on the sides otherwise than by the doorway entries that they surrounded. As there are no exterior walls to the porches from which a measurement is able to be taken from their exterior faces, the porches were properly excluded by the respondent from the calculation of gross floor area.
30. In AMC Projects Pty Ltd and ACT Planning & Land Authority & Ors [2006] ACTAAT13 (2 May 2006) at paragraph 35 the Tribunal noted that the definition of “gross floor area” excluded “any area used solely for basement car parking”. It concluded, however, that the definition did not prevent the ordinary interpretation of a specifically permitted use including approval to the use of things reasonably ancillary or incidental to the specifically permitted use. It relied upon Pacific Seven Pty Ltd v Knox CC (1993) 11 AATR 325 at 329 as authority to support that conclusion and noted that a more restrictive interpretation would exclude access to and from parked vehicles.
31. We note also that in Moulis and ACT Planning & Land Authority & Ors [2006] ACTAAT 24 (4 July 2006) the Tribunal excluded from the calculation of gross floor area areas for access to storage in a basement car park because any such area would occupy only a very small portion of the basement compared to the area used for car parking and that access to the storage spaces was indistinguishable from the car park access. From an examination of the plans of the development application we reach the same conclusion in this case.
32. We therefore conclude that the calculation of gross floor area should not include an area for pedestrian access within the basements.
33. In accordance with the usual method of calculation of gross floor area the Tribunal only calculates stairwells once, as this component is not considered to be floor area for subsequent levels (see Griffith/Narrabundah Community Association Inc. & Ors and ACT Planning & Land Authority & Ors [2005] ACTAAT34 (21 December 2005). That approach is required to be modified in this case because part of the area of the staircase void at the upper floor level has been covered by shelves. But we note that the shelf areas were included by the respondent in the calculation of the gross floor area.
34. We find that the gross floor area of the proposed development does not exceed the maximum permitted by control (g) of the A10 policies with the deletion of the unit as required by the condition of approval.
Private open space
35. A diagram attached to the objectors’ statement in reply appeared to show a number of circles with a 6m diameter extending beyond the area of enclosed private open space of some of the units of the proposed development. We note that the depiction of a 6m diameter circle within areas designated as private open space is the usual and an effective method of demonstrating compliance with performance measure D4.2 of the Code. Performance measure D4.2 requires that each dwelling have at least one area of useable private open space that is screened from public view, directly accessible from an indoor daytime living area which meets, inter alia, a minimum dimension requirement of 6m.
36. Apart from unit 1 the extent to which the 6m diameter circle shown on the diagram extends beyond the area of private open space is insignificant. In her evidence, Ms Oshyer stated that her examination of the plans of the development application showed that, apart from unit 1, the area of private open space for each unit exceeded the minimum dimension specified in performance measure D4.2. Measurements specified on the plans of the development application appear to confirm her conclusion.
37. A rectangular area designated as private open space for unit 1 that adjoins its daytime living area is approximately 6m x 4m. It does not, therefore, meet the minimum dimension requirement. That area of private open space, however, extends into an irregular shaped area that substantially exceeds the 6m minimum dimension.
38. A condition of the decision of the Tribunal requires that steps on the western end of a deck protruding into the area of private open space of unit 1 be relocated to the eastern end of the deck. Compliance with that condition would practically result in the larger area of private open space being readily accessible from the daytime area of unit 1.
39. Under control 4 of the Code a failure to meet a performance measure does not necessarily result in a refusal to approve a development application. In such a case the proposal is able to be approved if it satisfies the relevant objectives and performance criteria.
40. In the circumstances of this case, we consider that the private open space for unit 1 would meet the reasonable recreational needs of its occupants as required by objective O4.1 and satisfy the relevant performance criteria of control 4.
41. We therefore conclude that the development application as approved by the decision under review and as varied by the Tribunal would satisfy the requirements for private open space.
Parking
42. The development application originally lodged by UDD proposed to provide parking for the 14 units then planned in two separate basement car parks, joined by a short pedestrian walkway and stairs. This layout was necessitated by the slope of the land, with the southern car park (Basement 1) at a higher level than the northern one (Basement 2) and each was accessed by a separate entry/exit ramp from Coane Street, with a 4.8 m wide perforated security roller door situated at the bottom of each ramp.
43. The original proposal provided 14 unallocated parking spaces in each basement, but because of the need for adaptable parking spaces to cater for the two adaptable units which were required by the respondent to be provided, revised plans reduced the number of spaces in Basement 1 to 12 (including two adaptable spaces), an overall total of 26 places of which 4 were identified for visitor use.
44. A matter of concern to the respondent and to the objectors was whether the parking spaces proposed to be provided met the requirements of the Territory Plan and this was made complex by differences between the parking requirements specified in the Code and the requirements set out in the ACT Vehicular Parking and Access Guidelines (“the parking guidelines”) which are on the Register of Planning Guidelines and which, by virtue of clause 9.2(b) of Part A3 of the Territory Plan are required to be given careful consideration.
45. Section 5 of the Code provides, as a performance measure, that the minimum number of parking spaces required is:
D.5 Resident Parking per Dwelling
- one bedroom dwelling 1 space
- two or more bedroom dwellings 2 spaces
or
where all parking is shared in a
development of more than 2 dwellings 1.5 spaces
Visitor Parking per Dwelling 0.25 spaces
(developments of more than 2 dwellings)
46. With the condition of approval 9(a)(i) that the number of units be reduced to 13, the respondent concluded that the amended parking provision met the requirements, on the basis that all parking (save the 2 Adaptable Spaces) was to be shared. That is, that the 13 units required 1.5 spaces each, a total of 20, with a further 4 for visitors, a total of 24 and in fact 26 were to be provided.
47. By contrast, the parking guidelines do not make any provision for all parking to be shared. They indicate at clause 3.5.1 that for each one bedroom unit, 1 space is to be provided and for each two or more bedroom unit, 2 spaces are to be provided, with the proviso that 1.5 spaces are sufficient for 2 bedroom units where all parking spaces can be shared. It would seem that this precludes shared parking for three bedroom units. As there are 11 three bedroom units and 2 two bedroom units in the revised development, together with the 4 visitor spaces a total of 29 spaces would be necessary (assuming the 2 bedroom units parking is shared). The objectors contended that this was the more appropriate standard and that, as a consequence, the parking to be provided was inadequate.
48. This tension between the parking requirements in the Code and those in the parking guidelines has been evident for some time. The guidelines were adopted in 2000 and the citation of the shared parking provisions at clause 3.5.1 is footnoted to indicate that
The Territory Plan is currently being reviewed with a view to revising the standards in the Design and Siting Codes to comply with these Guidelines.
However, despite the passage of 7 years, no such revision has been made.
49. It is impossible for the Tribunal to know what the actual demand for parking spaces in the proposed development will be. Because this development is in an A10 area, it may be that residents will be likely to use cars less frequently because they will be close to neighbouring retail centres, but that does not mean that they will own fewer cars. There is no empirical evidence available to the Tribunal as to what level of car ownership prevails in similar multi-dwelling developments on which any useful opinion as to parking demand can be based.
50. At the hearing, Mr Farrelly drew attention to plans that he had annexed to his statement of facts and contentions which had been submitted to the respondent in connection with his request for reconsideration of the respondent’s decision (but which had not been acted upon nor tendered in evidence). One of these indicated that two additional parking spaces could be provided by a small increase in size of Basement 1 opposite the foot of its access ramp. He indicated his willingness to construct these additional spaces, and offered to explore the option of adding a third extra space by enlarging the basement to the south.
51. Both the applicants and the respondent indicated that the latter suggestion would need further investigation, as any additional excavation to the south could have impacts on the 3.5 m wide sewer and stormwater easement (which will extend along the southern boundary) and on the land available for deep-rooted planting.
52. The Tribunal considered these suggestions but concluded that the addition of the 2 extra parking spaces in the location indicated on the plan submitted for reconsideration would bring the available parking spaces to 28 and, in its view, that would be sufficiently close to the higher number of spaces indicated by the parking guidelines to provide a satisfactory solution. Consequently, the Tribunal added a condition to the approval requiring the provision of two additional parking spaces of dimensions that meet the requirements of performance measure D5.9 of the Code. With the exception of the two adaptable spaces and the four identified visitor spaces, it will be for the body corporate to allocate the available spaces between unit-holders.
53. Condition 9(a)(ix) of the respondent’s approval is that an intercom system be installed near the driveway entrance to the basement (sic) allowing communication to each unit so that visitors are not excluded from using the parking area. The explanation of the decision in the respondent’s Findings of Material Questions of Fact makes it clear that an intercom system is to be installed at the entrance of both basements.
Access and Sightlines
54. Both basements are to be accessed by ramped driveways constructed in accordance with the requirements of performance measure D5.8 of the Code and separated from each other by a distance of not less than 13 metres. The entry ramps are 5.5 m wide, except for a portion of the entry ramp to Basement 1, which narrows to 4 m wide. The respondent considered that the driveways satisfied the requirements of the Territory Plan and that even though the narrower portion of the entry ramp to Basement 1 would not allow entering and leaving cars to pass each other in that section, it considered that there was adequate space within the basement and on the basement ramp before the security door to permit a vehicle to wait while another vehicle passed.
55. The developer sought permission for the removal of three street trees from the Tree Management Section of TAMS which was granted because the trees in question, though healthy, were not part of the formal street planting for Coane Street. However, it was a condition of approval that four replacement trees are to be planted in line with the existing street trees, at least 3 metres away from any driveway and at least 8 metres from each other.
56. The objectors contended that there would be a lack of clear sightlines for motorists leaving the complex which could pose a threat to cyclists and pedestrians using the carriageway of Coane Street (which has no footpaths). They considered that drivers would have poor visibility when emerging from a basement excavation on a cross slope of approximately 11% gradient. They contended that the assessment by the respondent failed to take into account the role of the verge on government land in ensuring clear sight lines, by allowing the wheelie bins for waste disposal to be collected from the verge.
57. They noted that condition of approval 9(b)(i) required the developer to lodge revised landscape plans showing:
The mature height of plants and any structures within a right triangle formed on each side of the driveway (sic) with dimensions of 2m along the at (sic) front boundary and 2.5m from the front boundary along the edge of the both (sic) driveways shall not exceed 700mm (to comply with AS 2890.1 – 2004)
and interpreted this to be “clear recognition of the need to take action on the site”.
58. AS 2890.1: 2004 is the Australia/New Zealand Standard for Parking Facilities, Part 1: Off Street car parking and reference to Figure 3.3 helps to understand this condition. At the top of each ramp where it meets the property boundary, triangular areas on either side (“sight triangles”) are to be kept clear of obstructions to visibility. In our opinion, the condition imposed will achieve this objective. No expert evidence was adduced by the applicants as to any problems that might arise with regard to sight lines of drivers emerging from the basements, nor were any submissions made by the objectors regarding alternative proposals or conditions.
59. Under the circumstances, the Tribunal is not persuaded that there will be any safety concerns arising from the sight lines for vehicles exiting the proposed development that would differ from those of any other residential development on the subject land. It therefore does not propose to vary the respondent’s decision in this regard.
Traffic
60. The objectors were concerned that the number of additional residences resulting from the proposed development would have an adverse impact on traffic in Coane and neighbouring streets.
61. They asserted that Coane Street had a pavement width of 6.2m, with wide ‘drains’ or ‘kerbing’ on either side, each 0.7m wide. Relying on the Guideline known as AMCORD (the Australian Model Code for Residential Development) they concluded that Coane Street should be classified as a type 4 access street with a carrying capacity of 300 to 1,000 vehicles per day (vpd). They accepted that the present usage of Coane Street was about 290 vpd and that there would be an additional 54 vpd arising from the proposed development, which they contended could take Coane Street beyond its carrying capacity.
62. They also considered that insufficient attention had been paid to the fact that Coane Street feeds into Pearson Street which is of similar design to Coane Street and runs between Williamson Street to the west and Blackwood Terrace to the north. Currently they assessed it as carrying over 1,800 vpd, even though its maximum allowable volume was, according to AMCORD, 1,000 vpd and they contended that the additional traffic exiting Coane Street into Pearson Street would cause a deterioration of an already unacceptable situation. In their opinion, the increase in traffic volume that would result from expansion of medium density redevelopment in this part of Holder under the A10 zoning would worsen an already serious situation and the road network was not sufficient to support it.
63. A traffic impact statement relevant to the proposed development had been prepared for UDD by Mr Paul Cohen. Mr Cohen did not claim to be an expert in traffic but had relied on AMCORD in preparing the statement (which was included in the T Documents).
64. According to Mr Cohen, Coane Street had a carriageway width of 7.6m when measured in accordance with AMCORD, Element 2.1, Table 1, Footnote 4 (Annex E) which made it a type 5 access street with a carrying capacity of 1,000-2,000 vpd. Mr Cohen explained that he had measured the width of the carriageway from the outer edges of the layback kerbs, relying on footnote 4 which reads: “The carriageway width is measured from kerb invert at outer edge of edge strip”. In addition, Mr Cohen classified Pearson Street as a collector street, with a carrying capacity of 1,000-3,000 vpd, again based on AMCORD, Element 2.1 Table 1.
65. In Mr Cohen’s opinion, the additional 54 vpd arising from the proposed development would increase the indicative traffic volume to 344 vpd, which represented an increase from 29% to 34% of the indicative maximum volume for Coane Street and he would not expect these low levels of traffic generated by the proposal to reduce the existing amenity of the precinct or unacceptably delay the clearing of traffic from the street under everyday circumstances.
66. Further evidence on traffic was given by Mr P Isaks. Mr Isaks relied on the AUSTROADS Guide to Traffic Engineering Practice – Traffic Studies (2004) as modified to reflect current experience in the ACT for traffic generation rates. He too concluded that an additional 54 vpd would be generated by the proposed development and contended that this was a comparatively minor (and in his view negligible) increase in overall traffic movement, which would be well within the traffic and environmental capacity of Coane Street. Mr Isaks has a Bachelor of Applied Science degree from the University of Canberra and has 18 years’ experience in the assessment of transport-related aspects of development applications.
67. In response to cross-examination by the objectors’ representative, Mr Isaks said that in assessing the carrying capacity of Coane Street he had used the 1993 ACT Code for Residential Development, which was not on the Register of Planning Guidelines but was based on AMCORD. Assigning a street to a particular classification required consideration of a number of parameters, while assessing the carrying capacity was a matter of experience. For an access street, the carrying capacity could be anything between 0 and 2000 vpd.
68. While he agreed that Pearson Street had a similar geometry to Coane Street, he had not measured its slope nor assessed its actual usage. However, he estimated that it would not be anywhere near 2,000 in any one direction, because there was not enough residential development to generate that level of traffic, but there would be some hundreds of vpd at either end, noting that traffic using Pearson Street will distribute in several directions, mainly to Blackwood and Williamson Streets. He did not think the traffic generated by the development would have any impact on Pearson Street.
69. When questioned about how to measure the width of a street, he said that it was measured from kerb to kerb, and where there was a layback kerb, it could be from either the centre of the gutter or the outer edge.
70. Having regard to the expert evidence given by Mr Isaks which was supported by Mr Cohen’s analysis, and the absence of any contrary expert evidence, the Tribunal is not persuaded that the additional vehicle movements generated by the proposed development will have any significant impact on the carrying capacity of Coane Street, nor will it unacceptably affect traffic flow in Pearson Street.
Wastewater and Flooding
71. The objectors expressed concern about the potential for flooding on the site, arising from:
- flash runoff over the yards of adjacent properties;
- on site flash runoff;
- overflow of the stormwater drain along the northwest boundary of the site; and
- accumulation of water at lower levels, due to impeded drainage.
72. They contended that the area of the catchment of the site was approximately 11 hectares and that a rough calculation indicated that a 30 minutes worst-case thunderstorm could lead to 1000m3 of water flowing past the site, a volume substantially greater than the storage tank required by the respondent.
73. They were also concerned that the flash runoff may find its way into the basement and noted that the approval stipulated that drainage from the basement be directed into the sewer, which could result in serious problems for the neighbourhood.
74. A stormwater management plan and an external services plan, prepared by Mr Cusack, was tendered in evidence on behalf of UDD and Mr Cusack gave evidence about these plans. Mr Cusack is a civil engineer, with a Bachelor of Engineering degree from the University of Sydney, specialising in fluids and hydrology, and with 15 years’ experience in practice. He explained that the plans were prepared to deal with stormwater retention and detention on the subject land and drew attention to a 90,000 litre below-ground concrete tank which was proposed to be located in the north-east corner of the site adjacent to the floodway, through which all building and site stormwater is to pass before discharge from the site. He said that the bottom half of this tank would retain 45,000 litres of runoff and stormwater for onsite purposes such as irrigation, while the top half would form a reservoir for discharge of excess water through a 140mm diameter pipe to the adjacent floodway.
75. In response to a question from the objectors’ representative, Mr Cusack said that he had not considered off-site water, but he did not think there was any likelihood of a back-up of flood waters into the retention tank, because in times of flood the water would be flowing downhill past the tie and would tend to suck the water out of the tank.
76. Ms Oshyer gave evidence on behalf of the respondent that the excavation for the basement would need to meet the requirements of the Building Code of Australia, which addresses basement construction and water flow, and that building approval would not be granted if the development did not comply with the Building Code.
77. Mr Farrelly gave evidence on behalf of UDD that the site was elevated above the 100 year flood levels for the urban open space to the north-west of the site. He indicated that it was intended to use landscape features such as interceptor drains and retaining walls to capture any runoff from properties above the site and divert it around the site. He also stated that it was not anticipated that the garages would be subject to flooding from overland flows, but that it was intended to install drains, sumps and automatic pumps to clear water from these unlikely events.
78. Mr McCarthy noted that ACTEW had approved the proposed treatments of stormwater in principle (subject to the submission of an application to discharge non-domestic waste to sewer) and suggested that the respondent was in no position to question the conditions which ACTEW had required UDD to comply with.
79. Given the absence of any expert evidence to the contrary, the Tribunal is satisfied that the proposals to deal with stormwater runoff are satisfactory.
Waste Management
80. The objectors contended that the decision of the respondent regarding how waste (following occupation of the units) should be managed was flawed, suggesting that the development application was not assessed solely on its own merits and that there was evidence of a willingness to flaunt the Development Control Code for Best Practice Waste Management in the ACT (“the Waste Management Code”). They submitted that the inability to provide for on-site collection indicated over-development of the site and suggested that alternative design options should be explored.
81. The original development application sought approval for kerbside collection of “wheelie bins” (mobile garbage bins or MGBs) with the bins of units 1, 8, 9, 10 and 11 being stored within the boundaries of each unit, while units 2-7 and 12-14 would utilise a common storage area to the south of unit 11. This proposal was referred to Mr Peryman of TAMS who drew Mr Farrelly’s attention to the section of the Waste Management Code which provided that developments of 11 or more units should utilise a hopper rather than MGBs for waste and 240 litre red and blue MGBs for recycling instead of the smaller yellow-top MGBs. However, Mr Peryman invited Mr Farrelly to “share his design methodology” with him.
82. In emails exchanged on 11 December 2006 that were included in the T Documents, Mr Farrelly argued that kerbside collection was appropriate for this development because the length of the front boundary (64.5m) provided ample room and that 14 units (as then proposed) should be acceptable, even though it exceeded the prescribed number in the Waste Management Code. While he acknowledged that skips/hoppers and waste enclosures would serve the purpose that they are required for, he did not consider it the best design outcome and asserted the use of MGBs would allow for “a holistically enhanced development”. He pointed out that the proposed waste enclosure to the south of unit 11 would be shaded by the 2-storey unit and would provide direct access to the designated kerbside collection area. Further, the environment of the development would not be impacted by waste collection trucks entering and exiting the site.
83. It appears there were discussions between them because on the following day, Mr Peryman gave his approval to the kerbside collection, by return email in the following terms:
Further to our earlier discussions, I provide the following comments while taking into account the following considerations (sic)
1.The site opportunities and constraints that you describe below.
2.The breach of the ten unit rule is minor, and one off.
3.This site is in now (sic) way comparable to the Magnolia Mews development as discussed.
4.There are existing mobile garbage bins collection services satisfactorily conducted in Coane Street.
5.This concept is supported as presented, for this site only.
Appropriate entry made in Asset Acceptance Objective.
84. Following initial assessment of the original development by the respondent fresh plans were submitted including a March 2007 version that was also referred by Mr Farrelly to Mr Peryman for comment. This plan apparently showed a proposal for the use of one 1.5m3 hopper for waste to be collected twice a week and 5 x 240 litre MGBs for recyclables to be collected once a fortnight. However, because the successive plans were not renumbered for each iteration, it is impossible to be certain just which plan that was or indeed whether it was presented to the Tribunal. In any case Mr Peryman also supported this proposal and again advised Mr Farrelly that an appropriate entry had been made in the Asset Acceptance Objective.
85. In the event, the respondent decided to support kerbside collection, but required deletion of the waste storage facility proposed near the southern boundary as well as the area designated for waste collection on the verge, and instead required the provision of a waste enclosure for storage of MGBs used by units 2, 3, 4, 5, 6, 7, 12 and 13 located near the southern driveway ramp, the enclosure to be behind the building line and screened from the street. In addition, the MGBs for units 1, 8, 9, 10 and 11 were to be located in a storage area within their front courtyards, screened from the street.
86. Mr Peryman gave oral evidence at the hearing. He is Projects Planning Approvals Officer in the Asset Acceptance Section of TAMS. He has tertiary qualifications in land, engineering, survey drafting and building. He explained that he had considered several proposals from Mr Farrelly and observed that while the Waste Management Code provided that developments of more than 10 units should be served by hoppers and that was his preferred position, nevertheless there is an element of flexibility for those developments that are just over 10 units. The goal of the Waste Management Code was to achieve best practice in relation to waste management and sections 2.1 and 2.2 indicated this. Although he had not visited the site, the plans indicated that the tightness of the site made on-site collection arrangements difficult, while the length of kerb available for kerbside collection was more than sufficient for the number of MGBs involved.
87. Ms Oshyer, in her witness statement which was tendered in evidence, said that the respondent was aware that Mr Peryman had supported both kerbside collection and on-site collection, but after careful consideration of the Waste Management Code and of Asset Acceptance’s advice, it had concluded that kerbside collection was supportable. Consequently the development application had been approved on that basis, but had required re-location of the development application area proposed for storage of MGBs so as to minimise the adverse effects on unit 11.
88. The evidence before the Tribunal suggests that, because of the slope of the land and the location of the proposed buildings, it would be difficult to site an appropriate on-site collection area that would not require garbage collection vehicles to reverse from the site onto Coane Street (which the Waste Management Code states should be considered only if essential and after traffic and public safety issues have been addressed). Further, the length of frontage available on the amalgamated block provides more than sufficient space for the placement of MGBs from the 13 units now proposed. As these MGBs will be stored in an enclosure or screened areas in front yards, they will not impact adversely on the streetscape or the amenity of residents or passers-by. Nor do we believe there has been any breach of due process in arriving at the respondent’s decision.
89. Consequently we see no reason to vary the respondent’s decision regarding arrangements for waste collection.
Fences and courtyard walls
90. The development application proposed the construction of fencing on or near the front of the Coane Street boundary and the north-western side boundary facing the area of urban open space. The objectors contended that the fencing proposed would fail to meet the requirements of relevant planning guidelines.
91. Control 3.9 of the Part B1 Residential Land Use Policies of the Territory Plan states:
Fencing shall not be erected in front of the building line except where provided for in planning guidelines or development conditions released prior to the issue of a lease. This restriction does not apply to courtyard walls that are in accordance with the relevant Residential Code set out in Appendix III.
92. It is a condition of the approval given by the Tribunal’s decision that the fencing at the Coane Street frontage of units 8-11 be deleted. It is unnecessary, in that event, to address the objectors’ objections to that part of the fencing as contained in the plans of the development application.
93. The ACT Planning and Land Authority “Residential Boundary Fences Interim Guideline for Residential Areas in the ACT” (“the interim fencing guidelines”) are “planning guidelines” as that term is defined by Part D of the Territory Plan (see also clause 1.2 of the interim fencing guidelines). The interim fencing guidelines are therefore included within the exception to the prohibition in clause 3.9 upon the construction of fencing in front of buildings. They are also entered on the Register of Planning Guidelines and, hence, required by clause 9.2(b) of the Part A3 policies of the Territory Plan to be carefully considered in determining whether or not to approve the development application.
94. Clause 3.3.1 of the interim fencing guidelines specifically permits fences on “front” boundaries that are “side frontages to public walkways and parks” (see also definition of “front boundary” in Part D of the Territory Plan). We consider that the boundary on the north-western side of the land falls within these descriptions and that fencing of the kind proposed is permitted by the relevant planning guidelines. However, in order to minimise the visual impact of the fencing on users of the footpath, we have imposed a condition, as recommended by the respondent, that the front fencing of units 1-7 should be black powder-coated pool-style fencing.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT07/28
APPLICANT: NICK & ASPA CARTER
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTIES JOINED: RICK MCRAE & DEBRA DENEHY; MARK HENNOCK & ROBYN BONDIETTI; URBAN DESIGN & DRAFTING
COUNSEL APPEARING: APPLICANT: N/A
RESPONDENT: MR G MCCARTHY
PARTIES JOINED: N/A; MR G WALKER (FOR URBAN DESIGN & DRAFTING)
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTIES JOINED: TRINITY LAW (FOR URBAN
DESIGN & DRAFTING)
OTHER:APPLICANT: MR R MCRAE &
MS M BONDIETTI
RESPONDENT:
PARTIES JOINED: MR R MCRAE &
MS M BONDIETTI
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DR D MCMICHAEL, SENIOR MEMBER
MR R NICHOLS, MEMBER
DATE/S OF HEARING: 9-11 OCTOBER 2007 PLACE: CANBERRA
DATE OF DECISION: 11 OCTOBER 2007* PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:* ORAL DECISION GIVEN WITH WRITTEN REASONS TO BE PROVIDED.
1
0
0