CROWN HOLDINGS NO. 2 PTY LTD AND ACT PLANNING & LAND AUTHORITY
[2007] ACTAAT 22
•22 October 2007
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:CROWN HOLDINGS NO. 2 PTY LTD AND ACT PLANNING & LAND AUTHORITY [2007] ACTAAT 22 (22 OCTOBER 2007)
AT07/30
Catchwords: Land and planning – application to review decision to approve multi-unit dwelling development in A10 area subject to condition that one dwelling be deleted and regulated tree be retained – status of advice of Conservator of Flora and Fauna about tree protection – significance of tree protection – consideration of broader strategic objectives of Territory Plan.
Administrative Appeals Tribunal Act 1989, s 37
Land (Planning and Environment) Act 1991, ss 222, 229, 230, 231, 245
Legislation Act 2001, s 152
Tree Protection Act 2005, ss 10, 82, 83, 105, 1078,
Tribunal: Mr M H Peedom, President
Dr E McKenzie, Senior Member
Mr R Nichols, Member
Date:22 October 2007
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/30
LAND AND PLANNING DIVISION )
RE: CROWN HOLDINGS
NO. 2 PTY LTD
ApplicantAND: ACT PLANNING AND
LAND AUTHORITY
Respondent
DECISION
Tribunal : Mr M H Peedom, President
Dr E McKenzie, Senior Member
Mr R Nichols, Member
Date : 22 October 2007
Decision : The decision under review is affirmed.
………………………………
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/30
LAND AND PLANNING DIVISION )
RE: CROWN HOLDINGS
NO. 2 PTY LTD
ApplicantAND: ACT PLANNING AND
LAND AUTHORITY
Respondent
REASONS FOR DECISION
22 October 2007 Mr M H Peedom, President
Dr E McKenzie, 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 1 June 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 (set out below) imposed pursuant to section 245 of the Land Act.
The development application
2. The development application related to residential land at Block 18 Section 6 Division of Weetangera (“the subject block”). The subject block has an area of 2,509.1m2 and a frontage of 13.7m to Kinleyside Street. A public park and walkway abut the south-west and west boundaries. The park contains advanced pine trees, and links with an underpass at Belconnen Way.
3. The development application sought approval for:
(a)a variation to the Crown lease of the subject block to provide for five dwellings to be constructed on it;
(b) the demolition of the existing detached house and swimming pool;
(c) the erection of five detached houses; and
(d) associated landscaping, car parking, paving and other site works.
Conditions of approval
4. In his assessment of the development application, the delegate of the respondent identified a number of features of the proposed development that were not in accordance with performance measures of the Residential Design and Siting Code for Multi-Dwelling Developments in Appendix III.2 of the Territory Plan (“the Code”). He considered, however, that the departures from the Code could be justified because they did not involve inconsistency with the relevant performance criteria or the objectives of the Code or because they could be addressed by the imposition of conditions pursuant to section 245 of the Land Act. No issue was raised in relation to those conditions at the hearing of the appeal.
5. On 4 October 2006, the Conservator of Flora and Fauna (“the Conservator”) granted approval for tree-damaging activity in respect of a number of regulated trees under the Tree Protection Act 2005 (“the Tree Protection Act”) on the subject block. Removal of a tree designated as “tree No. 4”, a Pinus patula, was not approved. Tree No. 4 is located adjacent to the north-west corner of the block and within the footprint of proposed unit No. 5 of the proposed development. The proponent proposed, as part of the development application, to remove it.
6. After receiving the advice of the Conservator the delegate concluded that tree No. 4 should not be removed and made it a condition of the development application that the applicant lodge with the respondent a revised site plan which showed the deletion of one of the five detached houses, unit No. 5, and the retention of tree No. 4.
7. The applicant has challenged the imposition of the conditions which require the retention of tree No. 4 and the elimination of unit No. 5 from the proposed development.
The Conservator’s advice
8. Paragraph 229(4)(b) of the Land Act requires the respondent to provide to the Conservator a copy of each development application that relates to land that includes all or part of the protection zone for a protected tree.
9. For the purposes of paragraph 229(4)(b), the term “protection zone for a protected tree” takes its meaning from the Tree Protection Act (see section 222 Land Act).
10. Under the Tree Protection Act a tree which is a registered tree or a regulated tree is a protected tree. A regulated tree is:
……. a living tree (other than a registered tree or a palm tree) that is on leased land within a tree management precinct and—
(a) is 12m or more high; or
(b)has a trunk with a circumference of 1.5m or more, 1m above natural ground level; or
(c)has 2 or more trunks and the total circumference of all the trunks, 1m above natural ground level, is 1.5m or more; or
(d) has a canopy 12m or more wide.
(see section 10(1) Tree Protection Act).
It was accepted by the parties that tree No. 4 is a regulated tree and, hence, a protected tree within the meaning of the Tree Protection Act and that the subject block includes the protection zone for tree No. 4.
11. Subsection 231(1) of the Land Act provides that, in approving or refusing to approve a development application, the respondent “must consider” certain specified matters. They include:
(f)any advice given to the authority by the conservator under the Tree Protection Act 2005, section 82 (Advice about tree protection on land subject to development) within 30 working days after the day the conservator is given notice of the application by the authority.
12. Section 82 of the Tree Protection Act provides:
82 Advice about tree protection on land subject to development
(1)This section applies if the conservator is satisfied, on reasonable grounds, that a development involves, or is likely to involve, an activity that would or may—
(a)damage a protected tree;
………..
(2)The conservator may give the planning and land authority written advice in accordance with section 83 about the development.
(3)However, if the planning and land authority gives the conservator notice of a development application under the Land Act, section 229 the conservator must, as soon as practicable but within 30 working days after the day it is given the notice—
(a)consider the application, including any tree management plan, proposed tree management plan, or proposed amendment of a tree management plan, included with the application; and
(b)give the authority written advice in accordance with section 83.
13.Section 83, which is referred to in section 82, provides:
83Requirements for conservator’s advice about tree protection
(1)The conservator’s advice under section 82 in relation to a development must include advice about tree protection requirements for each protected tree with a protection zone on, or partly on, the land subject to the development.
(2)Without limiting subsection (1), the advice may—
(a)include information about the trees on the land; and
(b)set out the changes (if any) the conservator considers should be made to any tree management plan or proposed tree management plan that relates to the application, having regard to—
(i)the guidelines approved under section 31; and
(ii)the advice (if any) of the advisory panel; and
(iii)anything else the conservator considers relevant.
14. Subsection 231(5) of the Land Act provides that the respondent may decide a development application in a manner that is inconsistent with the advice of the Conservator under section 82 in certain circumstances. That subsection states as follows:
231 Matters to be considered by the relevant authority
…………
(5)The relevant authority may make a decision under section 230 that is inconsistent with the advice of the conservator under the Tree Protection Act 2005, section 82 in relation to a regulated tree only if the authority is satisfied, having regard to the broader strategic objectives of the territory plan, that all reasonable development options and design solutions have been considered to avoid or minimise the need to damage the tree or undertake prohibited groundwork.
15. The respondent notified the Conservator of the development application pursuant to section 229(4) on 7 March 2007. In response the Conservator gave advice by email message, 71 days later, to the respondent on 17 May 2007 in the following terms:
Tree No 4 (previously identified as No 29) is not supported for removal as there are no non-design criteria to approve it under.
The hearing
16. At the hearing of the appeal the applicant was represented by Mr C Erskine of counsel and the respondent was represented by Mr D Mossop, of counsel. On behalf of the applicant, written statements of Mr M Smith, Mr N Hobbs, Mr T Cavic and Mr W Dunstone were admitted in evidence. On behalf of the respondent, written statements of Mr R Brown and Ms J Sharwood were admitted in evidence. Mr Hobbs, Mr Cavic, Mr Dunstone and Ms Sharwood were also called to give oral evidence at the hearing. The Tribunal also had before it a number of plans and diagrams tendered in evidence on behalf of the parties and the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1989 (“the T documents”).
The applicant’s evidence
17. Mr Hobbs is a qualified and practising landscape architect. In his report Mr Hobbs stated that, in 17 years of work as a landscape architect in the ACT, tree No. 4, which he had estimated as 28m in height, was the largest Pinus patula that he had encountered in a suburban residential block. He said that the size and scale of the tree was out of all proportion to best practice landscape design due to potential overshadowing of living spaces, overcrowding of other vegetation and excessive water uptake. In his opinion, retention of the tree within a four unit development would result in landscape under and adjacent to it to be of very poor quality because it would not be possible to effectively grow screen planting, small deciduous trees or even a decorative landscape within the canopy area and for some distance beyond without the application of significant water and compost material. He considered that the shedding of some of the lower branches resulted in the tree being of “lollipop” form and that it would continue to grow a further 3 to 5 metres in height. In his view, it was of limited use as a habitat for native fauna.
18. In cross-examination, Mr Hobbs agreed that the shedding of some of the lower branches of tree No. 4 permitted more penetration of light than would otherwise be the case and that a number of landscape options were available if it was retained, including surface paving and some plantings under the tree canopy if mulching was applied. He considered that, notwithstanding the difficulties, some landscaping under the tree was not an insurmountable problem.
19. Mr Cavic is a director of the applicant which is the lessee of the subject block. He gave evidence that if the applicant was required to delete one of the five units from the proposed development, in order to make a reasonable profit of approximately $200,000, the applicant would have to achieve a very high sale price of approximately $620,000 per unit, which he anticipated would be very difficult in the current market. If the proposed five unit development was permitted, in order to make the same profit, the applicant would only need to achieve sales prices of approximately $550,000 per unit.
20. Mr Cavic agreed in cross-examination that in calculating the financial return that he might obtain from undertaking the proposed development he had included costs that had been involved in the preparation of an earlier development application in respect of the subject block and other costs associated with the hearing of an appeal in the Tribunal in respect of that development application. He was aware that the ordinary financial risks associated with a development application included the risk of obtaining an approval to the development application, the number and size of the houses that might be approved, whether trees on the subject block might be approved for removal, the ultimate sale prices that might be achieved, the amount of land released by the government for development and building costs.
21. Mr Dunstone is a qualified architectural draftsman. He designed the development proposed by the applicant and lodged the development application on its behalf. He gave evidence that he had designed the proposed development with a view to preserving the character of the Weetangera area of detached homes blending with the landscape while providing for a modest increase in density; providing the most efficient use of the land while aiming to ensure that damage to protected trees was minimal and ensuring the design complemented the landscape form of the subject block, in particular, to make a feature of an established Chinese elm tree around which the units and the driveway would wrap. He considered that the removal of tree No. 4 was essential for the development to efficiently use the subject block without saturating it with built form because of the sheer size of the tree and its potential to overshadow.
22. A report prepared by Mr Dunstone set out a series of design options for the proposed development of the subject block. A diagrammatic representation of the options included plans which showed the area of realistic development in the event that tree No. 4 was removed and if it was retained. It also showed a proposed block layout of both four and five dwellings in either event and described the appropriate and inappropriate urban outcomes in each case. The difference identified in the plans and the report between a four unit development with the tree retained (the option approved by the respondent) and a five unit development with the tree removed (the option proposed by the development application) was that the former would result in insufficient urban infill at 627m2 per unit as compared to 501m2 per unit for the latter option. He considered that unit 5 would add to the character of the area by improving the site and surveillance of the park adjoining the subject block; that the five unit proposal would provide for smaller sites and alternative living styles for people who wished to remain in the area on smaller blocks and would create a more sustainable pattern of urban settlement.
23. In cross-examination, Mr Dunstone agreed that tree No. 4 would provide some blocking of westerly sun in summer and that, apart from a window to bedroom 2 of unit 1, the area affected by the shadow cast by tree No. 4 at 3.00pm on 21 June would already be overshadowed by the proposed buildings and that units 1 and 2 were the only units affected by overshadowing at that time. He agreed that if the four unit development proposal was approved, compared to the existing situation of one house on the subject block there would be an increase in the number of bedrooms to 12; that there would be a significant increase in the gross floor area of development; that the style of development would be different to the existing development and that the area of garden necessary to be maintained by each unit-holder would be significantly less than that necessary to be maintained by the present owner.
24. Mr Smith holds a Bachelor of Town Planning degree and a Diploma of Public Administration. He is an urban and regional planner with extensive experience and specialist skills in strategic and statutory planning, physical planning, environmental assessment and planning, land use policy and project management of large scale multi-disciplinary projects.
25. Mr Smith considered that the proposed development design respected the character of surrounding development. It would also provide opportunities for new residents to enjoy the site’s close proximity to the Hawker group centre and the Weetangera local centre. It had good access to a range of commercial, cultural and community facilities in Belconnen generally and was within close walking distance of public transport routes.
26. Mr Smith said that residential suburbs experienced population decline as they aged and their demographic structure changed. A declining population failed to benefit fully from previous investment in physical and social infrastructure. In some cases it could lead to closure of local centres that ceased to be viable, as was the case in Aranda, Latham and Giralang, and primary and pre-schools with declining enrolments could also be placed under threat. He identified four primary schools and six pre-schools that had been identified for closure in the Belconnen area alone.
27. Mr Smith referred to a statement made by the Minister for Planning prior to releasing Draft Territory Plan Variation 200 which introduced the area A10: Residential Core Policies of the Territory Plan (“the A10 policies”) which apply to the subject block. The Minister identified one of the aims of the A10 policies in the following terms:
Better infrastructure and energy sustainability, through a more strategic approach to residential planning that continues to permit multi-unit developments and separate unit titling around local, group and town shopping centres and along major transport corridors and prohibits it elsewhere.
28. He noted that population projections produced by the Chief Minister’s Department for the period 2004-2014 indicated a decline in Weetangera of 25% over a period of 30 years. He said that ACT schools census data published by the Department of Education and Training in February 2007 indicated that Weetangera Primary School enrolments were 316 which he assumed was significantly below the spatial capacity of the school. He said that the A10 policies specifically directed residential redevelopment and intensification to those areas which had the best accessibility to commercial centres and transport corridors and in a manner which promoted walking and public transport usage. This sustainability principle, in his opinion, was enhanced by maximising the yield on any project in an A10 area, provided important environmental and amenity considerations were not compromised.
29. Mr Smith said that the aim of the A10 policies was to retain opportunities for developing more housing close to the facilities and services contained in the commercial centres. They also aimed to assist over time in creating a more sustainable pattern of urban development. In his opinion, these strategic aims and statutory planning policies were better satisfied by allowing five dwellings on the site rather than four. In forming that opinion, he noted that the proposed five dwelling development satisfied the controls of the A10 area, that is, the block size was greater than 1,400 square metres, the height did not exceed two storeys and the density of development was significantly below the maximum permitted plot ratio, that is, a plot ratio of 0.39:1 against a permitted 0.5:1.
30. Mr Smith said that, although it was almost impossible to recapture the population loss that had been suffered by Weetangera, planning policies could assist in slowing the decline and encouraging neighbourhood regeneration. The provision of a greater range of housing choices through initiatives such as the A10 policies allowed long-standing residents of an area, who may no longer want the responsibility of maintaining a large house and garden, to move into more suitable housing in the same area thereby ensuring they could remain part of their well-established social networks.
The respondent’s evidence
31. In relation to the issue under consideration, the statement of Mr R Brown, the delegate of the respondent who made the decision under review, was admitted in evidence at the hearing of the appeal. Mr Brown has an associate diploma in civil engineering. He is a corporate member of the Planning Institute of Australia and a principal officer in the Development Services Branch of the respondent and manages a team of project officers involved in the assessment and determination of development applications.
32. Prior to making the decision under review, Mr Brown examined the design options submitted to the respondent by the applicant which included both the retention and removal of tree No. 4.
33. He said in this statement that the applicant’s analysis of the urban outcomes for the proposed five unit development that relied on removal of tree No. 4 and a four unit development that allowed the retention of the tree, identified a difference in the average density for the block as the only difference in urban outcome of the two proposals. He noted, however, that the higher average density of the five unit proposal included the common areas (including driveways and landscaped areas that include the retention of regulated trees) and that the housing design and open spaces that were immediately related to each dwelling would remain the same for each option. That is, the contribution to housing diversity would not change, except for the loss of one dwelling in five. It was therefore not essential, in his view, that five units be developed on the site to achieve a contribution to the broader strategic objectives of the Territory Plan.
34. Ms J Sharwood, BSc (Forestry Hons), is the manager of the Tree Protection Unit, an agency within the ACT Department of Municipal Services. She gave evidence that an application had been received from the applicant on 7 June 2007 for the approval of the Conservator to the removal of tree No. 4 from the subject block. The reason given for the application was that the tree was too large for a residential block. The application had been supported by a report from Mr Hobbs. An assessment had been made of the tree by an officer of the Tree Protection Unit. He reported, inter alia, that the tree appeared sound and healthy with a “minor solar problem, tree is west of residence”. He rated its height as 17m with a 10m canopy spread and a trunk circumference of 2m. He recommended that the application be refused because, in his opinion, none of the criteria for approval had been met. Ms Sharwood, as delegate of the Conservator, had accepted the recommendation.
35. In response to the receipt of a development application in respect of the subject block provided to the Conservator by the respondent on 12 December 2006, the Conservator had given advice to the respondent on 11 January 2007 regarding the development application. It had not taken account of tree No. 4 as it had not been shown on any demolition plan. Following a review of additional information provided by the respondent on 17 May 2007 the Conservator had given the advice to the respondent that there was no ground for approval of the removal of tree No. 4.
36. Ms Sharwood gave evidence that she had measured the height of tree No. 4 using a clinometer as 18.2m. She did not accept that any margin for error in the measurement that had been made could result in an actual height of the tree as 23m.
Planning policies
37. The planning objectives applicable to residential areas are set out in Part B1. They provide:
1. OBJECTIVES
The objectives of the Residential Land Use Policies are:
a)foster high quality living environments in both new and redeveloping areas which contribute to Canberra’s landscape character;
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;
d)safeguard the amenity, safety and special qualities and in particular the landscape character of established residential areas whilst carefully managing change in suitable locations;
e)provide increased opportunities for medium and higher density residential development, particularly in areas close to commercial and employment centres, and along major transport corridors;
f)facilitate efficient use of existing social and physical infrastructure and services, as well as cost-effective provision of new infrastructure;
g)promote energy efficiency and conservation, including increased use of public transport, cycling and walking;
h)promote sustainable urban water management;
i)provide opportunities for home-based employment consistent with residential amenity;
j)make adequate provision for needed community facilities within residential areas, and for appropriate commercial activities in selected location.
38. Clause 3.5 of the Residential Land Use Policies imposes specific requirements for redevelopment including that which involves total demolition of an existing residential building and its replacement with one or more dwellings, as is the proposal in this case.
39. Sub-clause (a) requires that approval can only be given to a proposal for redevelopment where the proposed development complies with any relevant area specific policy.
40. Sub-clause (c) states:
the applicant has submitted an evaluation of existing trees together with a comprehensive landscape design indicating the size and type of species proposed for the site and the adjacent verge. Significant existing trees on the site and adjacent verge are to be retained unless prior agreement has been obtained from the Territory.
41. The objectives and controls of the A10 policies are:
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.
Controls
In addition to the general controls in clause 3.5 of the Residential Land Use Policies, the following controls shall apply to residential redevelopment in Residential Core Areas:
a)Multi-unit housing including dual and triple occupancy housing may be approved in circumstances specific below.
b)Dual occupancy housing may only be approved where the block has an area greater than 800m2.
c)Triple occupancy and other multi-unit housing redevelopment on standard blocks shall not be approved on blocks with an area less than 1400m2.
d)Subdivision or consolidation of leases (including Unit Title subdivision) may be approved.
e)Proposals involving subdivision or consolidation of standard blocks for multi-unit housing must be accompanied by information that demonstrates how the proposed development fits in with the existing streetscape character or statement of desired future suburban character as defined by an approved master plan.
f)Attics and basements may be permitted in addition to 2 storeys. However, on a standard block, ramps to basement car parking forward of the building line shall generally not be approved unless the block has a public road frontage greater than 30 metres.
g)The maximum site density for residential redevelopment on a standard block or block resulting from consolidation of standard blocks shall depend on provisions in the relevant residential code at Appendix III (eg, setbacks from boundaries, building envelope controls, private open space requirements, etc) and shall not exceed a plot ratio of 0.5:1 (50%), except that for a proposal for dual or triple occupancy housing where at least one dwelling does not directly front a public road from which vehicular access is permitted, the plot ratio shall not exceed 0.35:1 (35%).
h)Residential redevelopment on blocks originally used for multi-unit housing, including rebuilding up to the height of the existing development where it exceeds 2 storeys may be approved subject to consideration of adverse impacts resulting from any increase in building bulk.
Submissions and conclusions
42. In arriving at a decision in relation to the development application, the Tribunal is required to consider, inter alia, the objections that were received by the respondent that have not been withdrawn (section 231(1)(b) Land Act). A number of objections were received by the respondent following public notification of the appeal pursuant to section 229 of the Land Act. None of the objectors applied to be joined as parties to the appeal and no evidence was provided to the Tribunal in support of their objections.
43. In an assessment of the development application undertaken for the purpose of making the decision under review, the delegate of the respondent concluded that, save as to issues related to tree No. 4, the development proposal would not be inconsistent with any of the planning policies under the Territory Plan that were applicable to the development application or that the conditions imposed by the decision under review would achieve compliance with them. Having considered the objections, we see no reason to disagree with that assessment.
44. Having regard to the manner in which the appeal was conducted, the issue to be resolved is whether the five unit development proposed by the development application, which would require removal of tree No. 4, should be approved or whether tree No. 4 should be retained resulting in a requirement that approval of the development application be upon condition that unit 5 be excluded from the approval. We note that, in his submissions, Mr Erskine adverted to a third option for a five unit development that located a fifth unit between a Chinese elm tree on the subject block and tree No. 4. No plans of such a proposal were provided to the Tribunal. We accept Mr Erskine’s submission that problems of the blocking of solar access, the intrusion of the fifth unit into the drip zone of the Chinese elm tree and other factors do not enable such an option to be regarded as a reasonable development option and should be disregarded.
45. In his submission to the Tribunal Mr Erskine accepted that the advice given by the Conservator in the email message dated 17 May 2007 was advice given under section 82 of the Tree Protection Act. We note that section 152 of the Legislation Act 2001 has the effect that the Conservator’s obligation to provide advice under section 82 continued even though the time for doing so had lapsed. We accept that the email message should be regarded as advice given under section 82.
46. Whilst it does not, in specific terms say so, the effect of the email message is that there were, in the Conservator’s opinion, no grounds under the Tree Protection Act that would justify the removal of tree No. 4 and it should be retained. Although the Conservator’s decision made in response to the applicant’s application for approval to remove the tree was subject to review by the Tribunal (see sections 105 and 107 Tree Protection Act), no application for review was made. Accordingly, the Tribunal is only authorised to make a decision that would permit development inconsistently with the Conservator’s advice if the conditions specified in section 231(5) of the Land Act are satisfied.
47. Mr Erskine submitted that, in circumstances where a development proposal would result in damage to a regulated tree, the task of the decision-maker involved a consideration of what other development options there were, if any, that could avoid the damage, arriving at a conclusion in relation to those options as to whether they were reasonable options and, if so, which of them best met the broader strategic objectives of the Territory Plan. In relation to the option for the deletion of unit 5, identified by the respondent as a reasonable development option that would result in the making of a decision not inconsistent with the Conservator’s advice, he submitted that such an option would result in an average area for each unit that would be no less than the area of many blocks in some of the newer suburbs of Canberra. He submitted that it was doubtful that the A10 policies intended to merely replicate what already existed in those suburbs and that the four unit proposal would fail to meet the objectives of the A10 policies 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 and to assist in creating a more sustainable pattern of urban settlement by providing for more housing to be developed close to identified commercial centres. He submitted that an approval which did not allow the construction of unit 5 would ignore the economic considerations associated with more intensive development. He relied also on the features of tree No. 4 which Mr Hobbs in his evidence had identified as undesirable in the context of development of the subject block.
48. Mr Mossop submitted on behalf of the respondent that section 231(5) of the Land Act was not merely a procedural requirement but involved some substantive consideration of whether other development options or design solutions were possible. It did not merely involve consideration of what was the more appropriate development option and design solution, it required the decision-maker to consider whether there were no reasonable development options and design solutions that were available that would allow preservation of the tree. In the circumstances of this case, he submitted that the respondent’s conditional approval of the development application to permit only the construction of units 1 to 4 was such an option.
49. The submission on behalf of the applicant that the five unit development option should be approved was largely based upon a greater level of achievement of the second and third objectives of the A10 policies than a four unit development.
50. In relation to the second of those objectives we note that both the four unit and the five unit proposals would result in additional housing close to facilities and services. The variety of housing type under either option would be the same. The only difference between the two proposals would be as to the number of units and in the area of common property available for the use by the occupants of all of the units.
51. There is nothing in the third objective of the A10 policies to require an individual development application, by itself, to achieve all of the objectives of the Territory Plan. The third objective requires that particular development assist in creating a more sustainable pattern of urban settlement. This would clearly not be achieved by an approval that restricted development to the same number of residences that existed on the subject block prior to the introduction of the A10 policies. It is unnecessary for us to attempt to specify a minimum increase in the number of dwellings to satisfy this requirement. However, we note that a development of the subject block in accordance with the decision under review would increase the existing number of dwellings from one to four. It would increase the number of bedrooms from 4 to 12. It would therefore assist in meeting the objective of the A10 policies to provide a more sustainable pattern of urban development.
52. Whilst we do not disregard economic considerations affecting proposed developments, the fact that a developer might stand to gain less economic benefit from building a lesser number of residences on the subject block is not, in our view, a sufficient basis upon which to conclude that such a development is unable to be regarded as a reasonable development option. The constraint imposed by section 231(5) of the Land Act is, in our opinion, no less an incident of the risks associated with the development of land than other planning constraints that apply under the Territory Plan or physical or legal constraints which apply to the land.
53. Section 8 of the Land Act prevents the making of a decision by the Tribunal that would be inconsistent with the Territory Plan. It is an expressed objective of the Territory Plan that economic, social and environmental objectives be pursued in a balanced and integrated way (see clause 1.2 Part A2 Strategic Principles). The Part A2 Strategic Principles also require that particular attention is to be given in relation to the pattern of development to need to conserve, inter alia, water and vegetation (see clause 1.5).
54. The importance attached by the legislature to the protection of trees that are registered trees and regulated trees under the Tree Protection Act is made apparent by the requirement of section 231(5) of the Land Act that permits the Conservator’s advice to be acted inconsistently with only if the conditions specified in that subsection are satisfied and by the further requirement that such a decision can only be made by the Chief Planning Executive and not by a delegate of the respondent (see section 231(7) Land Act) as is ordinarily permitted. Section 231(5) therefore superimposes a further specific legislative constraint upon development unless the conditions which it specifies are satisfied. Those conditions are not satisfied merely by a determination of which of the development options and design solutions better meets the area specific policies under the Territory Plan. Section 231(5) requires that all of the broader strategic objectives of the Territory Plan are to be considered.
Conclusion
55. In our view, having regard to the broader strategic objectives of the Territory Plan, the four unit development approved by the decision under review, would involve a reasonable development option for the subject block that would avoid or minimise the need to damage tree No. 4. In that event, the correct and preferable decision for the Tribunal to make is to affirm the decision under review.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT07/30
APPLICANT: CROWN HOLDINGS NO. 2 PTY LTD
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT: MR C ERSKINE
RESPONDENT: MR D MOSSOP
PARTY JOINED:
SOLICITORS: APPLICANT: MEYER VANDENBERG
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTY JOINED:
OTHER:APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DR E MCKENZIE, SENIOR MEMBER
MR R NICHOLS, MEMBER
DATE/S OF HEARING: 18 & 19 SEPTEMBER 2007 PLACE: CANBERRA
DATE OF DECISION: 22 OCTOBER 2007 PLACE: CANBERRA
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PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
0
0