Cteck Hop Pty Ltd and Act Planning And Land Authority; And Hunt (Administrative Review)
[2013] ACAT 60
•11 September 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CTECK HOP PTY LTD & ACT PLANNING AND LAND AUTHORITY
AND HUNT (Administrative Review) [2013] ACAT 60
AT 13/25
Catchwords: ADMINISTRATIVE REVIEW – planning and development – development application – Residential Code Zone Objectives – plot ratio – setbacks – entity advice: stormwater infrastructure – whether development application may be amended
List of Legislation: ACT Civil and Administrative Tribunal Act 2008, s 68
Planning and Development Act 2007, ss 50, 119, 120, 120A, 144,
and 205
List of Regulations: Planning and Development Regulation 2008, ss 1.10,1.11, 1.40
and 1.45Territory Plan 2008
Residential Zones – Single Dwelling Housing Development Code (effective 18 December 2012), Element 2: Intent, Rules 4, 31, 32 and 50; Criteria 4, 31, 32 and 50
Tribunal: Ms W. Corby Senior Member
Date of Orders: 11 September 2013
Date of Reasons for Decision: 11 September 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 13/25
BETWEEN:
CTECK HOP PTY LTD
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
MICHAEL HUNT AND KYLA HUNT
Party Joined
TRIBUNAL: Ms W. Corby – Senior Member
DATE: 11 September 2013
ORDER
Pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008 the decision under review is confirmed.
………………………………..
Ms W. Corby – Senior Member
REASONS FOR DECISION
This is an application to the ACT Civil and Administrative Tribunal (the ‘Tribunal’) for review of the Respondent’s decision dated 8 February 2013 to refuse approval of Development Application (‘DA’) 201222272 (the ‘reviewable decision’).
The DA sought approval for an unapproved structure on Block 21 Section 33 in Monash in the ACT (the ‘subject property’).
Order to add lessee as Party Joined
The lessees of the subject property, Michael and Kyla Hunt, had appointed Ken Hopkins to act on their behalf in lodging DA 201222272 with the Respondent. [1] An ASIC search dated 5 July 2013 shows that Mr Hopkins is the sole director, secretary and shareholder of Cteck Hop Pty Ltd (ACN 135 713 763). Cteck Hop Pty Ltd is the applicant for DA 201222272 (T250) and this application for review filed in the Tribunal.
[1] T260
Cteck Hop Pty Ltd appointed Ken Roche to appear on its behalf at the hearing before the Tribunal.
Following enquiries made by the Tribunal at the Tribunal hearing on 19 August 2013 it became apparent that Michael and Kyla Hunt were people whose interests would be affected by the Tribunal’s decision in this matter. Mr Hunt agreed, and neither Mr Roche, on behalf of the Applicant, nor the Respondent raised any objection to Michael and Kyla Hunt being joined as parties to the application for review.
The Tribunal ordered that Michael and Kyla Hunt, the lessees of the subject property, be joined as parties to the application. Michael Hunt, on behalf of himself and Kyla Hunt, attended at the view of the subject property and appeared at the hearing.
Relevant legislative provisions and code
At the hearing on 19 August 2013 the parties agreed the following:
a.The proposed development, due to its size, is not exempt from planning approval.
b.The subject property is within a residential zone, and the Residential Zones – Single Dwelling Housing Development Code (the ‘Residential Code’) applies. There are no relevant precinct codes.
c.The DA is to be assessed in the merit track.
d.The DA Applicant seeks approval for the development identified as storerooms 1, 2, 3 and 5 on plans lodged with the DA application.[2]
[2] T265 – 269
The following provisions of the Planning and Development Act 2007 (the ‘Act’) (sections 50, 119, 120 and 205) and the Planning and Development Regulation 2008 (the ‘Regulation’) (sections 1.10 and 1.11) are relevant:
50Effect of territory plan
The Territory, the Executive, a Minister or a territory authority must not do any act, or approve the doing of an act, that is inconsistent with the territory plan.
Note 1The Territory, or a territory authority, is prevented from doing anything inconsistent with the national capital plan.
Note 2The Territory, the Executive, a Minister or a territory authority are also prevented from doing anything inconsistent with some draft variations of the territory plan (see s 65 and s 72).
119Merit track—when development approval must not be given
(1)Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with—
(a)the relevant code; and
(b)if the proposed development relates to land comprised in a rural lease—any land management agreement for the land; and
(c)if the proposed development will affect a registered tree or declared site—the advice of the conservator of flora and fauna in relation to the proposal.
Note 1An application cannot be approved if it is inconsistent with the territory plan (see s 50) or the National Capital Plan (see Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), s 11).
Note 2Relevant code—see the dictionary.
(2)Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under division 7.3.3 unless the person deciding the application is satisfied that—
(a)the following have been considered:
(i)any applicable guidelines;
(ii)any realistic alternative to the proposed development, or relevant aspects of it; and
(b)the decision is consistent with the objects of the territory plan.
(3)To remove any doubt, if a proposed development will affect a registered tree or declared site—
(a)the person deciding the development application for the proposed development must not approve the application unless the approval is consistent with the advice of the conservator of flora and fauna in relation to the proposal; and
(b)subsection (2) does not apply in relation to the conservator’s advice.
120Merit track—considerations when deciding development approval
In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:
(a)the objectives for the zone in which the development is proposed to take place;
(b)the suitability of the land where the development is proposed to take place for a development of the kind proposed;
(c)each representation received by the authority in relation to the application that has not been withdrawn;
(d)if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications)—the entity’s advice;
NoteAdvice on an application is given in accordance with section 149 if the advice is given by an entity not later than 15 working days (or shorter prescribed period) after the day the application is given to the entity. If the entity gives no response, the entity is taken to have given advice that supported the application (see s 150).
(e)if the proposed development relates to land that is public land—the plan of management for the land;
(f)the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
205Development applications for developments undertaken without approval
(1)This section applies if—
(a)a development has been undertaken; and
(b)development approval was required for the development; and
(c)there was no development approval for the development.
(2)If the development becomes an exempt development—
(a)the development is taken to have been an exempt development since the development was started; but
(b)the exemption of the development does not affect any proceeding under this part, whether or not the proceeding starts before the development became exempt.
(3)The lessee of the land where the development was undertaken may apply for approval for the development under part 7.3 (Development applications).
(4)The planning and land authority must treat an application for development approval for the development as if the development had not been undertaken, subject to section 139 (2) (i) (Form of development applications).
NoteDevelopment applications (including an application to which this section applies) are decided under s 162.
(5)To remove any doubt, the making of an application for approval of a development to which this section applies, or the approval of the application, does not affect any proceeding under this part, whether or not the proceeding starts before the making or approval of the application.
Part 1.2General exemption criteria
1.10Exempt developments—general criteria
The following are the general exemption criteria for a development:
(a)section 1.11 (Criterion 1—easement and other access clearances);
(b)section 1.12 (Criterion 2—plumbing and drainage clearances);
(c)section 1.14 (Criterion 4—heritage, tree and environment protection);
(d)section 1.15 (Criterion 5—compliance with lease and agreement collateral to lease);
(e)section 1.17 (Criterion 7—no multiple occupancy dwellings);
(f)section 1.18 (Criterion 8—compliance with other applicable exemption criteria).
1.11Criterion 1—easement and other access clearances
(1)A development must not cause any part of a building or structure to be located in—
(a)an easement or proposed easement; or
(b)a utility infrastructure access or protection space.
(2)Subsection (1) (a) does not apply if the location of a part of a building or structure in an easement or proposed easement is agreed to, in writing, by—
(a)for an easement—
(i)the owner of the land benefited by the easement; or
(ii)the person in whose favour the easement is registered.
(b)for a proposed easement—
(i)the person who, on registration of the easement, would be the owner of the land benefited by the easement; or
(ii)the person in whose favour the easement is proposed to be registered.
(3)Subsection (1) (b) does not apply if the location of a part of a building or structure in a utility infrastructure access or protection space is agreed to, in writing, by the utility benefited by the utility infrastructure access or protection space.
(4)In this section:
easement means an easement registered, or shown on a certificate of title, under the Land Titles Act 1925.
proposed easement means a proposed easement shown on a deposited plan under the Districts Act 2002 or units plan under the Unit Titles Act 2001.
utility infrastructure access or protection space means the space required under a utility rule—
(a)for a utility to have access to its infrastructure; or
(b)to protect or maintain clearances from utility infrastructure, for example, water supply pipes, sewerage systems, gas pipes and electricity conductors.
Examples
1 The electricity service and installation rules made under the Utilities Act 2000 require buildings or other structures to be kept clear of power lines by a stated dimension, to protect the powerlines from damage or to protect the electricity supply from interruption.
2 The water and sewerage service and installation rules made under the Utilities Act 2000 require access to stated utility infrastructure at the rear of a block to not be impeded by structures and an unhindered access route to the infrastructure of a stated width to be provided down at least one side of the block.
Note 1A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).
Note 2An example is part of the regulation, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
utility rule means a rule, as in force from time to time, made under a technical code, as in force from time to time, made under the Utilities Act 2000.
NoteTechnical codes made under the Utilities Act 2000 are accessible at Rules for the service and installation of electricity and water and sewerage are accessible at hearing
The matter was heard on 19 August 2013. Prior to the commencement of the hearing, the parties, including the representatives for the Applicant, the Parties Joined and the Respondent, and the Tribunal member attended at the subject property for a view.
As noted above, the proposed development was constructed without approval. The application before the Tribunal proceeded on the basis that the Applicant sought approval for the construction of 4 storerooms identified as storerooms 1, 2, 3 and 5 on plans submitted with the DA. However the Tribunal notes that the ‘unapproved’ structure that currently stands at the subject property consists of 5 storerooms. This will be discussed further below.
At the view Mr Hunt advised that 2 of the 4 ‘storerooms’ (storerooms 2 and 3) for which approval is sought were locked and not accessible. He said that his wife, Kyla Hunt - who is the other lessee and Party Joined - had the key and she was not in Canberra. As a result, the interior of only those storerooms identified on the plans as storerooms 1 and 5 were viewed. The Tribunal, the parties and their representatives also viewed, to the extent it was possible to do so, the subject property and the proposed development from the curb/driveway at the street front of the properties at the rear and to the north of the subject property (Blocks 7 and 8 Section 33 Monash).
At the hearing, Mr Roche appeared as the authorised representative of the Applicant. Although Mr Hopkins, the Director of the Applicant company, was present at the view, he did not attend the Tribunal hearing.
Mr Hunt appeared and gave evidence for the Parties Joined. Kyla Hunt did not attend the hearing.
Mr McCarthy of Counsel, instructed by Mr Leszek Stawski of the ACT Government Solicitor, represented the Respondent. Written and oral evidence was given on behalf of the Respondent by:
a.Ms Rumana Jamaly – Technical Co-ordinator, Merit Assessment South within the Respondent’s office;
b.Mr Ronald Jarman – Deputy Surveyor General with the Office of the Surveyor General and Land Information, Regulations and Services Division of the Environmental and Sustainable Development Directorate; and
c.Mr Lingam Jatheendran – Chief Engineer, Asset Acceptance in the Operational Support Branch of the Directorate Services Division of the Territory and Municipal Services Directorate (‘TAMSD’).
In considering this matter, the Tribunal has had regard to the Tribunal Documents (‘T Docs’) filed by the Respondent in relation to the reviewable decision, the documents filed by the parties in the Tribunal, the written and oral evidence and submissions made by or on behalf of the parties at the hearing, the relevant legislative provisions and the Territory Plan.
At the end of the hearing on 19 August 2013, the Tribunal reserved its decision. The Tribunal hereby publishes its decision and the written reasons for that decision.
Reasons for decision
The Tribunal’s task is to undertake a merits review. In doing so it stands in the shoes of the original decision maker. As the DA is to be determined in the merit track, section 120 of the Act directs the decision maker, in this case the Tribunal, as to what matters are to be considered. Section119 of the Act directs that, in some circumstances, approval may not be given for the proposed development.
Matters to be considered when making decision - section 120 of the Act
Pursuant to section 120 (a) of the Act, the Tribunal must consider the objectives for the zone in which the development is proposed to take place. The Residential Suburban Zone objectives are[3]:
RZ1 – Suburban Zone
Zone Objectives
a)Create a wide range of affordable and sustainable housing choices within a low density residential environment to accommodate population growth and meet changing household and community needs
b)Ensure development respects and contributes to the neighbourhood and landscape character of residential areas
c)Provide opportunities for home based employment consistent with residential amenity
d)Provide for a limited range of small-scale facilities to meet local needs consistent with residential amenity
e)Promote energy efficiency and conservation and sustainable water use
[3] See Territory Plan
If the DA meets the rules and/or criteria of the relevant Code/s in the Territory Plan, then generally it will meet the zone objectives. In its written reasons for the reviewable decision the Respondent identified several aspects of the DA that the Respondent concluded did not meet a relevant rule or criterion and therefore the Respondent concluded the DA was not consistent with the Residential Code.
Where a DA does not comply with a mandatory rule of the relevant Code then pursuant to section 119(1)(a) of the Act, the DA is inconsistent with the Code and must not be approved. Where a rule is not mandatory or there is no rule, then the DA proponent has the option of satisfying the relevant criterion. However, the onus is on the proponent, by providing plans and documentation in support, to demonstrate that the proposal meets the criterion and therefore the relevant ‘element’ within the code.
The Tribunal will restrict its consideration of the Residential Code to those issues identified by the Respondent. The Tribunal accepts that the DA is otherwise consistent with the Residential Code.
Rule 4, which is set out below, of the Residential Code is a mandatory rule.
2.3 Plot Ratio R4
The site density for single dwelling housing on a standard block does not exceed a plot ratio of 50%.
The site density for single dwelling housing on a block created as a result of the subdivision of a dual occupancy housing development does not exceed the plot ratio as defined by Rules R8 and R9 of the Multi Unit Housing Development Code as if the original standard block were not being subdivided.
This is a mandatory requirement. There is no applicable criterion.
The parties agree that the subject property has a site area of 780m². Ms Jamaly gave evidence on behalf of the Respondent that she calculated the gross floor area (‘GFA’) of the structures on the site, including the proposed development, to be 409.16m².This translates to a plot ratio of 52.46%. Ms Jamaly’s calculations and her reasoning are set out in her written statement and the annexures to it dated 2 August 2013 (Exhibit R1, paragraphs 12 – 28, and Annexure ‘A’). The Tribunal accepts that Ms Jamaly did not include in her calculation of GFA the covered courtyard in the centre of the subject property which is an area included in the calculation of the area of private open space (‘POS’).
At the hearing, and following the view undertaken on the morning prior to the hearing, Ms Jamaly accepted that an additional area of 3m x 3m (9m2) in the north west corner of the subject property is now ‘open’ area. The roof that had previously covered this space had been removed. Mr Roche advised the Tribunal that this had been done to respond to concerns raised by ACTEW about access to an electricity pole on the subject property.
Ms Jamaly revised the GFA figure to reflect this amendment so that the total GFA was then calculated by the Respondent at 400.16m2, being a plot ratio of 51.3025%. As this still exceeds the 50% maximum mandated by Rule 4 the Respondent submitted that the DA cannot be approved.
Ms Jamaly gave evidence (Exhibit R1, at paragraph 21, and Annexure ‘A’) that although the scale used in the site plans provided by the Applicant is said to be 1:200, in her opinion, the actual scale used is 1:279. Based on her calculations and taking into account the 9m2 open area in the north west corner, the Respondent concluded that the area of the unapproved structure and proposed development is 92.29m2 .
The Applicant submitted that as the DA is restricted to the storerooms identified as 1,2,3 and 5 on the plans and does not include the area identified as ‘storeroom 4’, the GFA of the proposed development is only 67.85m2. Whilst Ms Jamaly did not agree with this figure, she did accept that the GFA of that part of the unapproved structure identified as storeroom 4 is 19.08056m2. If this area were not included in the DA then the total GFA of the storerooms identified as 1, 2, 3 and 5 would be 72.4844m 2 (being 92.29m2 - 19.08056m2 ). The total GFA of the structures on the subject property, including the DA but excluding storeroom 4, would then be 380.3544m2. This equates to a site ratio of 48.76%. Based on the Respondent’s figures, the DA would comply with Rule 4.
The Applicant submitted that, in order to ensure compliance with Rule 4, the Tribunal could make it a condition of approval of the DA that the current structure identified as ‘storeroom 4’ be removed. Mr Roche advised that the lessees had in any event decided to restrict the DA to the storerooms identified as 1, 2, 3 and 5 and that they intended to remove the structure identified as ‘storeroom 4’ but were waiting for the outcome of the Tribunal application before doing so.
The Tribunal accepts that if the DA does not include the area identified as ‘storeroom 4’ and is restricted to the GFA of the area identified as ‘storerooms 1, 2, 3 and 5’, Rule 4 would be met. The remainder of these reasons will be drafted on the basis that the DA is restricted to the area identified as ‘storerooms 1, 2, 3, and 5’.
The Tribunal notes that the Applicant also submitted that it was arguable that the calculation of GFA should not include the area of 10.03m2 identified as ‘oil storage area’, which is between the ‘existing garage/workshop’ and ‘existing residence’, and nor should it include the area of 28.82m2 identified as ‘existing covered courtyard’ at the front of the ‘existing residence’ (Exhibit R1, Annexure ‘A’). The Applicant submitted that if these areas were not included in the calculation of GFA on the site, it would further reduce the site density calculation. This aspect of the Applicant’s assertions was not explored in any detail at the hearing. As the Tribunal has concluded that Rule 4 is met, the Tribunal does not make any finding in relation to these submissions.
Setbacks
The “Intent” of Building and Site Controls and Rules 31 and 32, and Criteria 31 and 32 of the Residential Code are as follows:
Element 2: Building and Site Controls
Intent:
a)To ensure buildings are compatible with, and complement, the built form, siting and scale of surrounding properties and are of an appropriate residential character
b)To ensure buildings are designed and sited to:
• provide privacy between neighbours and between occupants and the public
• provide adequate light and natural ventilation between dwellings
• provide opportunities for additional landscaping and to deliver quality open space
• maintain or enhance the streetscape character in existing areas
• establish appropriate and attractive streetscapes in new residential areas
c)To ensure the amenity of surrounding properties is maintained, particularly in relation to privacy, overshadowing and solar access
| Rules | Criteria | |
| 2.2 Side Setback | ||
| R31 Minimum side setbacks are as specified in Tables 3 to 4. Refer Figures C1-3 and Definitions for a dictionary of terms used in the Tables. | C31 a) Buildings and other structures are sited and reflect residential (suburban) scale, height and length to ensure: I. sufficient spatial separation between adjoining developments II. the protection of a reasonable amount of privacy and solar access to the dwelling (or adjacent dwellings) and outdoor spaces (or adjacent outdoor spaces). b) Setbacks are progressively increased as wall heights increase to reduce bulk and scale of the building. | |
| Rules | Criteria |
| 2.3 Rear Setback | |
| R32 Rear setbacks are a minimum of: a) 3 m to the lower floor level b) 6m* or 9m** to the upper floor level. c) Refer Figures C1-3 * Where design incorporates blank walls, windows with sill heights ≥ 1.7m from the floor, windows with permanently fixed panes of obscure glass or screened decks ** Where design incorporates other walls, outer faces or unscreened decks, balconies and external stairs.. | C32 Buildings and other structures are sited and reflect residential (suburban) scale, height and length to ensure: a) sufficient spatial separation between adjoining developments b) the protection of a reasonable amount of privacy and solar access to the dwelling (or adjacent dwellings) and outdoor spaces (or adjacent outdoor spaces). |
There was no dispute that the proposed development of storerooms 1, 2, 3 and 5 has no setback from the side boundary on the east (Rule 31 and Criterion 31 apply). The Respondent concluded, based on the plans, that there is no setback from the rear boundary on the north (Rule 32 and Criterion 32 apply). The Applicant asserted that there is a setback of 100mm. It was not possible to access the rear of the structure, however the Tribunal is prepared to accept that there is a setback of 100mm from the rear boundary.
The Tribunal accepts that as there is already a structure on the subject property which is adjacent to the western side boundary, the east boundary would be considered to be ‘side boundary 2’ (See Table 3 of Rule 31 and Criterion 31). As the subject property has a block size of greater than 500m2, the proposed development would need to have a side set back of at least 3m from the east side boundary (see Table 3) to comply Rule 31.
The Tribunal further accepts that Rule 32 requires there to be a setback of at least 3m from the rear boundary on the north if the proposed development is to comply with Rule 32.
The Tribunal finds that the proposed development does not comply with Rule 31 or Rule 32.
The Applicant must therefore satisfy the Tribunal that the proposed development meets Criteria 31 and 32. The Tribunal accepts that the proposed development, excluding the 9m2 open area in the northwest corner and the northern wall of storeroom 4, extends for approximately 14.61m (T269) from the northeast corner of the subject property along the north rear boundary. The rear boundary is 23.34m long (T265).
The Tribunal accepts that the eastern wall of the proposed development adjacent to the east side boundary extends along the side boundary for approximately 7.6m from the northeast corner of the subject site.
Mr Roche, on behalf of the Applicant, and Mr Hunt, on behalf of the Parties Joined, say that the proposed development meets Criteria 31 and 32 for the following reasons:
a.The proposed development is of a similar colour and style to structures on surrounding properties.
b.It does not present as an ‘eye sore’ for neighbours.
c.It provides additional privacy for the adjoining property at the rear, which is to the north, of the subject property.
d.No neighbour has complained about the development, which was constructed almost two (2) years ago.
e.The proposed development caters for landscaping in the area in front of and to the south of the proposed structure. Also there is a landscaped garden, including a seat available for use by passers by, in front of the existing residence and adjacent to the front boundary that faces Clive Steele Avenue.
f.The lessees do not enjoy gardening and so the landscaping of the POS, which does not include trees or extensive garden beds, reflects this. The design of the POS reflects the lessees’ lifestyle, which includes family barbeques etc and which mostly take place within the undercover courtyard at the centre of the subject property between the existing residence and the existing garage/workshop.
g.The neighbour to the east (Block 20 Section 33) has a 7m x 5m garage in the north west corner of their property which is positioned with little or no setback from the east side boundary of the subject property. The rear neighbour has a 10m x 3m structure, which is approximately 2m high, along the rear north boundary of the subject property.
h.The proposed structure on the subject property is set back approximately 100mm from the rear boundary.
In addition, Mr Hunt submitted that as a professional builder has constructed the unapproved structure, it is therefore well built and is neat and tidy.
The Respondent submits that the Tribunal should not be satisfied that either Criterion 31 or Criterion 32 is met. The scale, height and length of the proposed development combined with the lack of spatial separation between it and the neighbouring properties to the east and north means that the matters identified in Criteria 31(1)(a) and 32(a) are not satisfied.
The proposed structure, as noted above, extends approximately:
a.14.61m from the east side boundary along the north rear boundary, which is 23.34m long; and
b.7.6m from the north rear boundary along the east side boundary, which is 35.82m long.
The Respondent further submits that the existing garage/workshop which extends along much of the west side boundary with zero setback, means that there is little spatial separation from any of the adjoining neighbours.
The parties agree that the proposed structure has a flat roof and is approximately 2.5m in height. The Respondent agrees that there are structures on neighbouring properties, however, these are mostly ‘confined to one corner of the block’ and do not extend along the entire length of the boundary (Exhibit R1, at paragraph 34).
The Respondent asserts, and the Tribunal accepts, that at least one neighbour has ‘complained’ about the unapproved structure (Exhibit R3). This will be discussed further in relation to representations.
The Tribunal accepts that the proposed development does not extend along the full length of the north rear or east side boundary. The Tribunal also accepts that the neighbours to the north and east of the subject property have structures with little or no set back from the north rear and east side boundaries of the subject property. Neither of these structures, on the neighbouring properties, extends the full length of the common boundary with the subject property and both of these structures are of smaller overall dimension than the proposed development.
Whilst the Tribunal is required, by section 205(4) of the Act, to decide this matter as if the development had not yet been undertaken, the Tribunal accepts that the ‘proposed development’ will be professionally constructed, neat and tidy.
Given the location of the proposed development at the rear of the subject property and the existing structures on the site, little of the proposed development would be visible from the street. Whilst the height and length of the structure along the north rear boundary is not insignificant, the Tribunal accepts that the structure extends for a relatively short distance along the east side boundary. The proposed structure does not have any windows or openings facing the neighbouring properties and thus does not compromise the privacy of neighbours. Nor does the proposed structure present issues of overshadowing and it does not impede solar access to surrounding properties.
Taking into account the matters set out in Criteria 31 and 32 within the context of the Intent of Element 2: Building and Site Controls, of the Residential Code, the Tribunal concludes that notwithstanding the lack of spatial separation, the proposed development meets criteria 31 and 32.
Private Open Space (‘POS’)
Ms Jamaly gave evidence, both in oral evidence and in her statement (Exhibit R1, paragraphs 35-40), on behalf of the Respondent that the proposed development does not meet Rule 50 or Criterion 50.
| Rules | Criteria |
| R50 A minimum of 50% of the private open space is to be retained as planting area. | C50 Unpaved or unsealed areas are provided to facilitate on-site infiltration of stormwater run-off and provision of landscaping. |
The Respondent accepts that the total area of POS on the subject block is 424.13m2. The minimum area of POS required is 418m2. Ms Jamaly gave evidence, based on measurements that she took on the morning of the hearing while at the view of the subject property, that she calculated the maximum area of POS retained for planting is 153.495m2. These areas are on the east of the existing residence (2m x 20m = 40m 2); an area in front of the proposed development (6.35m x 3.7m = 23.495m2), and the area at the front of the subject property (9m x 10m = 90m2). This equates to 36.72% of the minimum POS requirement, or 36.19% of the actual POS on the subject property.
The Respondent submits, and the Tribunal accepts, that Rule 50 is not met. Given the location and limited availability of unsealed POS and the large areas of building and paved or driveway areas on the subject property, the Respondent submits that criterion 50 is not met.
Mr Roche submits on behalf of the Applicant that there are adequate areas of unsealed POS, and that these are sufficient to provide adequate landscaping. In addition, the construction on the block provides for infiltration, including weepholes that have been included in the raised unsealed area in front of the proposed development. Mr Roche submits that the POS has been designed to respond to the lifestyle of the lessees and their family. The combination of unsealed areas and the design and construction of structures on the subject of a property facilitate adequate infiltration or run-off from the subject block into the stormwater system.
The Tribunal is not satisfied, based on the information provided by the Applicant or the Parties Joined, that either the area of unsealed POS or the design of the POS is adequate to facilitate on-site infiltration of stormwater run-off. The Tribunal is not satisfied that Criterion 50 is met.
The Tribunal considers that, if this were the only issue in relation to the DA, it may be possible to impose conditions to address the failure to comply with Criterion 50. However, for the reasons set out below, the Tribunal has concluded that the DA cannot be approved and compliance with criterion 50 would not impact on that decision.
Suitability of the land for a development of the kind proposed (Section 120 (b) of the Act)
There is no dispute between the parties, and the Tribunal accepts, that the land is suitable for the construction of storerooms as proposed by the development application.
Representations received by the authority in relation to the application that have not been withdrawn (Section 120 (c) of the Act)
Three written representations were received in relation to the DA. Two of these raised no objection to the construction of storage facilities for domestic use, which is consistent with the proposed development.
The third, anonymous, representation (Exhibit R3) raised objections to the proposed development and expressed concern about:
a. the lack of spatial separation between the proposed development and neighbouring properties;
b. the impact of this lack of spatial separation and the overall size of the proposed development on the amenity for neighbours and in particular the impact on their view;
c. the failure to include in the DA the structure identified as ‘storeroom’ (being ‘storeroom 4’); and
d. the lack of unsealed POS to facilitate on-site infiltration of stormwater run-off and the possible negative impact of this on neighbouring properties.
Two of the representations expressed concern about the fact that a business is operated at the subject property. The Tribunal does not consider that the issue raised by the representors in this regard is relevant to the application before the Tribunal.
The matters relevant to the application before the Tribunal which were raised by the representor whose concerns are summarized in paragraph 57 above have been, in part, addressed above in the Tribunal’s consideration of the proposed development’s compliance with the Residential Code, and will be further discussed in the Tribunal’s consideration below of section 120(d).
Entity advice in accordance with section 149 of the Act (Section 120 (d) of the Act)
The DA was referred to TAMSD pursuant to section 148 of the Act because the proposed development is built over a ‘proposed service easement’.
Mr Jarman, on behalf of the Respondent, gave oral evidence at the hearing and provided a written statement with Annexure ‘A’, which was tendered (Exhibit R7). Mr Jarman confirmed that there is a 2.5m wide ‘Proposed Drainage Service Easement’ which runs along the full length of, and immediately adjacent to, the rear boundary of the subject property (Exhibit 7, paragraph 8).
Mr Jarman gave evidence that the use of the term ‘proposed’ signifies that the easement had not been formally created (Exhibit R6, paragraph 10). He gave further evidence that the use of the word ‘service’ –
‘indicates the infrastructure (pipes and manholes) were installed at the date of survey and fell within the envelope of the easement’ (Exhibit R8, paragraph 11).
The deposited plan in relation to the subject property was registered at the Land Titles Office on 21 December 1990 (Exhibit R8, pragraph 7 and Annexure ‘A’). The service easement is recorded on this deposited plan.
Mr Jatheendran, on behalf of the Respondent, gave oral evidence at the hearing and provided a written statement with Annexure ‘A’, which was tendered (Exhibit R4). He confirmed that there is a stormwater pipe running along the rear of the subject property, and for a short distance into Block 20 Section 33 Monash, which provides the stormwater connection for Blocks 7 and 8 Section 33 Monash (Exhibit R4, paragraphs 10 and 13). Blocks 7 and 8 Section 33 Monash are the blocks to the north and northeast of the subject property.
Mr Jatheendran gave evidence that the construction of a structure, such as the proposed development, over stormwater assets could cause damage to the assets and inhibit or obstruct access to these assets (Exhibit R4, paragraph 17). Mr Jatheendran gave evidence that for this reason TAMSD provided entity advice to the Respondent that TAMSD did not support approval of the DA.
Mr Roche, on behalf of the Applicant, and Mr Hunt, on behalf of the Parties Joined, submitted that:
a.the Parties Joined had been advised by a builder that there was no easement at the rear of the subject property;
b.the Applicant and the Parties Joined had operated under the mistaken assumption that no planning approval was required for the proposed development;
c.the lessees and the Applicant had sought advice from ACTEW in relation to the proposed development in respect of electricity, water and sewerage assets and that ACTEW had raised no concerns in relation to the proposed easement; and
d.neither the Applicant nor the Parties Joined were aware that they needed to seek advice from TAMSD in relation to the proposed development and the possible impact on stormwater utilities. Mr Roche said that, in any event, the Applicant understood that ACTEW should have, but did not, request from TAMSD advice about the proposed development.
Mr Roche also submits that whilst there may be a ‘proposed easement’ at the rear of the subject property, he does not accept that stormwater infrastructure is actually located within the area of the proposed easement. In his opinion, the storm water infrastructure servicing the subject block is at the front of the property and sewerage infrastructure servicing the blocks to the rear of the subject property, including Blocks 7 and 8 Section 33 Monash, is not located within the subject block.
The Tribunal accepts the evidence of Mr Jarman and Mr Jatheendran that there is stormwater infrastructure including pipes and ties within the ‘proposed easement’ that runs along the full length of the rear boundary and within the subject property. The location of the easement is shown in the various plans and diagrams submitted with the DA (such as T265 and T268), in Annexure ‘A’ to the statements of Mr Jarman and Mr Jatheendran (Exhibits R7 and R4) and in the ‘allhomes’ diagram tendered by the Applicant (Exhibit A2).
The Tribunal is satisfied that the proposed development would result in part of the proposed structure being located in a ‘proposed easement’ and ‘a utility access … space’ in contravention of the Planning and Development Regulation 2008, section 1.11(1).
TAMSD does not support approval of the DA. Pursuant to subsection 119(2) of the Act the Tribunal must not approve the DA unless satisified as to the matters set out in paragraphs 119(a) and (b).
Mr Roche submitted that the Tribunal could approve the DA subject to the condition that the Parties Joined agree to remove part of the built structure, if requested to do so, from the area of the easement to allow access by TAMSD.
Given the substantial nature of the proposed development and the myriad of situations, possibly urgent or emergency, in which access to the stormwater assets may be required, and the fact that these assets service other residential blocks, the Tribunal is not persuaded that such a condition would be appropriate.
The Applicant and the Parties Joined invited the Tribunal, if the Tribunal is not prepared to approve the DA as submitted, to amend the DA and restrict it to an application for approval of the areas identified as storerooms 2, 3 and 5.
Amending development applications
The Tribunal considered section 144 of the Act, and sections 1.40 and 1.44 of the Regulation.
144Amending development applications
(1)The planning and land authority may, if asked by the applicant, amend a development application.
(2)However, the planning and land authority must not amend the development application unless satisfied that—
(a)the development applied for after the amendment will be substantially the same as the development applied for originally; and
(b)the assessment track for the application will not change if the application is amended.
(3)The planning and land authority must, not later than 5 working days after the day the applicant asks for the amendment—
(a)amend the development application; or
(b)refuse to amend the development application.
(4)If the planning and land authority does not tell the applicant that the authority refuses to amend the application within the time given under subsection (3), the authority is taken to have amended the application.
1.40Meaning of class 10a building—div 1.3.2
In this division:
class 10a building includes the following:
(a)a garage, carport or shed;
(b)a conservatory, greenhouse, gazebo, pergola, shelter, shade structure or hail protection structure, studio, workshop or cubbyhouse;
(c)a stable, storeroom or other outbuilding;
(d)a deck, verandah, porch, landing, stairs or ramp.
Note 1Class, for a building or structure, means the class of building or structure under the building code (see dict).
Note 2A swimming pool is not a class 10a building (see building code).
1.45Roofed class 10a buildings—enclosed or open on 1 side
(1)A designated development for a class 10a building on a block if—
(a)the building is not an external deck or external verandah; and
NoteFor external decks, see s 1.48 and for external verandahs, see s 1.49.
(b)the building is enclosed by a roof and has walls on—
(i)each of its sides; or
(ii)each of its sides except for 1 side; and
(c)the height of the building is not more than—
(i)if subsection (2) applies—4m above natural ground level; or
(ii)in any other case—3m above natural ground level; and
NoteNatural ground level—see the territory plan (13 Definitions).
(d)the building does not exceed the size limitation for the block; and
(e)the building complies with the setback requirement for the block; and
(f)if any part of the building is within 1.5m of a side boundary or rear boundary of the block—
(i)the building is the only class 10 building or structure (other than a boundary fence) that has any part of it that is within 1.5m of the boundary; or
(ii)section 1.41 (Class 10 buildings and structures—2nd exempt building or structure within boundary clearance area) applies to the building; and
(g)the designated development complies with the general exemption criteria that are applicable to the development.
Note 1Designated development, in relation to land—see s 1.2.
Note 2General exemption criteria, for a development—see s 1.10.
(2)This subsection applies to a building that—
(a)is more than 3m above natural ground level; but
(b)has no part higher than a plane projecting at 30o above the horizontal from a height 3m above the natural ground level at a boundary.
(3)In this section:
setback requirement, for a building in relation to a block, means—
(a)if the building has a plan area of not more than 10m2—the building is behind the building line for the block; or
(b)if the building has a plan area of more than 10m2—the building is behind the building line for the block and at least 15m from the block’s front boundary
Note 1Building line and front boundary—see the territory plan (13 Definitions).
Note 2Plan area—see the dictionary.
size limitation, for a building in relation to a block, means—
(a)if the size of the block is less than 500m2—the building has a plan area of not more than 10m2; or
(b)if the size of the block is 500m2 or more but less than 600 m2—the building has a plan area of not more than 25m2; or
(c)if the size of the block is 600m2 or more—the building has a plan area of not more than 50m2.
The Tribunal accepts that, provided it is satisfied as to the matters set out in subsection 144(2) of the Act it may proceed to make the amendment and consider the DA as requested by the Applicant and the Party Joined.
The Respondent submits that the Tribunal should not amend the DA as requested by the Applicant as the Tribunal can not be satisfied that the amended DA is ‘substantially the same’ as the original DA. In any event, says the Respondent, even if reduced in size so that it might be considered a structure which falls within the definition of a ‘class 10 structure’ and would not require planning approval, the proposed structure consisting of the areas described as storerooms 2, 3 and 5 would not comply with sections 1.40 and 1.45 of the Regulation.
The Tribunal has concluded that, even if amended as proposed by the Applicant and the Parties Joined, the proposed development would still be built within the area of the proposed easement at the rear of the subject property. The proposed development would restrict access to much of the storm-water infrastructure which is situated within the area of the easement. The Tribunal is not satisfied that it would be appropriate to amend the DA as requested, nor to approve the DA if it were so amended.
Finally, Mr Roche urged the Tribunal, even if the Tribunal is not prepared to approve the DA or the proposed amended DA, to approve the area identified as storeroom 5. The Tribunal has insufficient information before it to properly consider this request and the Tribunal is not prepared to make the order proposed. The Tribunal notes, by way of comment only, that it may be that the area identified as storeroom 5, which does not appear to be within the area of the stormwater easement, may be approved if it were the subject of a DA, or may satisfy the requirements of a class 10A structure which does not require approval. The Tribunal does not however make any finding in this regard.
The Tribunal does not consider that subsections 120(e) or 120 (f) of the Act are relevant to the consideration of the proposed development.
Conclusion
The Tribunal concludes that it is not satisfied that the DA should be amended as proposed by the Applicant and the Parties Joined. The Tribunal further concludes that DA 201222272 should not be approved.
………………………………..
Ms W. Corby
Senior Member
PUBLICATION DETAILS
FILE NUMBER: | AT 13/25 |
PARTIES, APPLICANT: | CTECK HOP PTY LTD |
PARTIES, RESPONDENT: | ACT PLANNING AND LAND AUTHRORITY |
PARTIES, PARTY JOINED | MICHAEL HUNT AND KYLA HUNT |
COUNSEL APPEARING, APPLICANT | |
COUNSEL APPEARING, RESPONDENT | Mr Geoffrey McCarthy |
Representative FOR APPLICANT | Ken Roche |
SOLICITORS FOR RESPONDENT | Mr Stawski, ACT Government Solicitor |
TRIBUNAL MEMBERS: | Ms W. Corby, Senior Member |
DATES OF HEARING: | 19 August 2013 |
PLACE OF HEARING: | Canberra ACAT |
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