DARNBROUGH & ANOR v ACT PLANNING AND LAND AUTHORITY (Administrative Review)
[2019] ACAT 55
•25 June 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
DARNBROUGH & ANOR v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2019] ACAT 55
AT 108/2018
Catchwords: ADMINISTRATIVE REVIEW – planning and development – alleged traffic issues – whether development complies with applicable codes
Legislation cited: Planning and Development Act 2007 s 121
Territory Plan 2008
Cases cited: Sladic & Anor v ACTPLA; Charter Hall Retail Reit & Ors v ACTPLA [2018] ACTAT 38
Tribunal: Senior Member G Lunney SC (Presiding)
Senior Member A Davey
Date of Orders: 25 June 2019
Date of Reasons for Decision: 25 June 2019AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 108/2018
BETWEEN:
CHRIS DARNBROUGH
First Applicant
MEGAN DARNBROUGH
Second Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
GOLDIP (NO 1) PTY LTD ACN 618 032 689
Party Joined
TRIBUNAL: Senior Member G Lunney SC (Presiding)
Senior Member A Davey
DATE: 25 June 2019
ORDER
The Tribunal orders that:
1. The decision under review is confirmed.
………………………………..
Senior Member G Lunney SC
For and on behalf of the Tribunal
REASONS FOR DECISION
1. This is an application dated 4 December 2018 for review of a decision by the respondent made on 7 November 2018. The decision was to approve development of two blocks of land in Curtin in the ACT. The decision was a reconsideration of a previous decision to refuse approval to an earlier development proposal. Amendments were made, conditions imposed, and approval granted. The applicants live in the near vicinity to the proposed development.
2. Goldip (No 1) is the party joined and lessee of the blocks. Goldip also lodged the Development Application (DA).
3. The proposal was publicly notified, and 21 written representations were received together with one late one.
4. The applicable Territory Plan zone is RZ2 Suburban Core Zone. The relevant development codes are the Residential Zones Development Code and the Multi Unit Housing Development Code (MUDHC). The Curtin Precinct Map and Code is also applicable.
5. The approval subject to conditions was for:
(a) retrospective approval for the removal of the existing carport and driveways;
(b) retrospective approval for removal of two regulated trees 3 & 8;
(c) the erection of four two storey dwellings with attached garages; and
(d) associated landscaping, a new driveway verge crossing, and other site works.
6. The conditions imposed were mainly minor adjustments to the plans that had been submitted in order to achieve compliance with the applicable codes.
7. The reasons for applying for review the applicants gave in the application form were as follows:
(a) The development will introduce significant safety issues and traffic hazards to the street, by housing extra people without adequately catering for their vehicles and corresponding increase in visitors.
(b) Reconsideration of the decision involves a decrease of one dwelling but increases the bulk and scale – the conditions imposed only makes this basically equal to the original application which was refused.
(c) The design is cheap and lacking in residential amenity, ie on blocks of 384sqms on average with unappealing principal private open space.
8. The section of the form headed ‘Orders sought’ gives some further information to the motivations of the applicants. The information contained in this area reads as follows:
The application should be refused. The application fails zone objective (e). The development will have a detrimental impact on the neighbourhood.
Transport Canberra and City Services and Directorate of Justice and Road Safety should be encouraged to visit the site and meet with neighbours to better understand the parking, traffic and safety issues of concern to residents so that any future applications may be appropriately assessed, We would like to “ensure that the neighbourhood’s safety and amenity will not be adversely affected contrary to the provisions of the Territory Plan”.
The hearing
9. The hearing commenced with a view of the locality and was attended by the parties, the respective advisers, Mr Davies of ACTPLA who later gave evidence, a number of neighbours, and the tribunal members. The group which formed inspected the subject properties, entering block 12 to observe a sewerage manhole at the western rear corner, to observe the remaining trees, and to note the urban landscape generally.
10. The Tribunal was particularly asked to note the layout of Allan Street, development of blocks in the area, and the character of the neighbourhood.
11. At the hearing, the applicants were self-represented.
12. Mr Darnbrough gave evidence in which he referred to previous submissions regarding the proposed development.
13. The applicant also called Mr Aichison who was a local resident and had submitted a detailed submission opposing the development proposed. He had particularly focussed on the perceived traffic implications of the proposal.
14. Mr Richard Davies was called as an expert witness by the respondent and his statement was tendered. He said that he was a senior assessment office in the Planning Delivery Division of the Environment, Planning and Sustainable Development Directorate and a delegate on behalf of the respondent under the Planning and Development Act 2007 (the Act). He had not been involved in assessment of the current application.
15. The respondent also called Mr Aster-Stater an officer of Transport Canberra and City Services (TCCS) and was a qualified traffic engineer.
Issues — section 121
16. Since the application relates to an approved application, the tribunal must consider the effects of section 121 of the Act. Counsel for the respondent made brief submissions relating to this in an outline of submissions which were filed in the proceedings:
6. The jurisdiction of ACAT in merits review under the P&D Act is constrained by s121 to review only to the extent that a proposal is not rule compliant.
7. Zone objectives are achieved across a zone, not individual developments. Compliance with the relevant development code will generally produce an outcome that meets zone objectives.
8. The RZ2 zone expressly permits medium density and for redevelopment to change the previous density of dwellings. For the zone objectives, impacts on amenity that arise ordinarily from permitted increased levels of development are not a ground of refusal of a development application.
17. Counsel referred to Sladic & Anor v ACTPLA; Charter Hall Retail Reit & Ors v ACTPLA [2018] ACAT 38 in which the tribunal made a detailed examination of the meaning and effect of section 121(2) of the Act. The tribunal’s conclusion was that in undertaking a merit track review, the ambit of ACAT’s enquiry was to consider only whether the proposed development meets the requirements of applicable codes.
18. This Tribunal will limit its enquiry accordingly.
The applicant’s submissions
19. The applicant’s submissions were long and wide ranging. They principally include the following concerns:
(a) Increased traffic movements will exacerbate traffic safety in the area.
(b) A single vehicle exit from the property will create danger for exiting vehicles and passing traffic.
(c) Overflow parking from the property will impact traffic safety in the street.
(d) The bulk and scale of the development is too large and there is overshadowing of adjacent blocks.
(e) The development is non-compliant with paragraph (e) of the RZ2 Suburban Core Zone objectives.
20. The applicants contended that a number of traffic incidents in the area indicated that there was a “traffic problem”. This problem would be aggravated by significant amounts of traffic generated by the proposed development.
Public notification and entity advice
21. A large number of submissions were received from members of the public opposing the development. However, given the limited ambit of the Tribunal’s enquiry, the Tribunal simply notes the public submissions, particularly those relating to traffic safety.
22. Entity advice supports the development with conditions.
Rule compliance
23. Approval of the DA has included a number of conditions, some of which were responsive to the public notification process.
24. During the course of the hearing the respondent proposed that there be an amendment to condition A3 (a)(ii), and a new condition which would become condition A3(a)(xix). These proposed changes resulted from identification of issues during the hearing or since the approval.
25. With the proposed amendment condition A3 (a)(ii) would read:
To minimise impacts of the dwellings in the rear zone, the required reduction in GFA must be achieved by reducing the GFA of Residences 3 & 4 while still complying with the required building setbacks of 3m and 6m to the lower and upper floor levels respectively and increase the separation of dwelling 3 and the garage of dwelling 4, and comply with the building envelope requirements of the MUHDC;
26. The proposed condition A3(a)(xix) relates to reconciling the increased width of the verge crossing with the width of the internal driveway. It is as follows:
A3(a)(xix) – The driveway and driveway verge crossing be aligned to satisfy the requirements of TCCS;
27. There is an analysis of Territory Plan Code Requirements at T-Documents page 444. Imposed conditions result in code compliance and entity compliance. The Tribunal accepts this analysis.
28. Mr Aster-Stater, a TCCS officer said that the four unit dwelling proposal did not trigger a requirement for a Transport Impact Assessment Report. He also said that the proposed single driveway was compliant, and that the crash record was that of a typical residential street with a low reported crash history. He further said that safety issues were independent of the small amount of traffic that could be associated with the development and there were other processes by which a perceived local safety issue should be dealt with. The Tribunal concludes that any local traffic problem is independent of the proposed development.
29. Mr Davies gave evidence that assuming compliance with conditions, forward direction exit is available for all vehicles and that all applicable rules and criteria of the MUHDC have been satisfied. The Tribunal accepts that evidence.
30. The applicants are concerned that overflow parking would create some form of traffic hazard in the adjacent street. This was expressed as a concern without support of evidence and did not establish code non-compliance. The respondent demonstrated that the proposal was rule/criterion compliant as to parking requirement. The Tribunal cannot accept the applicants’ contention.
31. Bulk, scale and overshadowing rule compliance is established by imposition of conditions.
32. As to the applicants’ contention that there is non-compliance with the RZ2 Suburban Core Zone objectives, this is not within the ambit of the Tribunal’s review capacity.
Conclusion
33. The Tribunal therefore regards the proposal as approved with conditions as being code compliant.
34. The decision under review is therefore confirmed with the conditions referred to.
………………………………..
Senior Member G Lunney SC
For and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER:
AT 108/2018
PARTIES, APPLICANT:
Chris and Megan Darnbrough
PARTIES, RESPONDENT:
ACT Planning and Land Authority
PARTY JOINED
Goldip (No 1) Pty Ltd ACN 618 032 689
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Dr D Jarvis
COUNSEL APPEARING, PARTY JOINED
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
SOLICITORS FOR PARTY JOINED
N/A
TRIBUNAL MEMBERS:
Senior Member G Lunney SC
Senior Member A Davey
DATES OF HEARING:
18-20 March 2019
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