Diethelm & Ors v Actpla & Anor (Administrative Review) - [2024] ACAT 96

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

DIETHELM & ORS v ACTPLA & ANOR (Administrative Review) [2024] ACAT 96

AT 89/2023
Catchwords: ADMINISTRATIVE REVIEW – review of decision to approve development application – proposal to demolish existing structures and construct five new townhouses – “multipurpose room” and its multiple effects across various provisions of the Territory Plan – whether the internal driveway meets the regulatory standard – whether visitor parking is consistent with definition of “short stay parking” – whether residents’ car parking is compliant – whether building envelope is consistent with ‘desired character’ – decision under review varied with conditions
Legislation cited: ACT Civil and Administrative Act 2008 s 63
Planning and Development Act 2007 ss 115, 170, 197

Subordinate
Legislation cited: Multi Unit Housing Development Code
Parking and Vehicular Access Code
Inner North Precinct Code
AS/NZS 2890.1:2004 – Parking facilities, Part 1: Off-street car parking

Cases cited:Diethelm & Ors v ACT Planning and Land Authority [2024] ACAT 25
Gingell v ACT Planning and Land Authority [2018] ACAT 62
Glass v ACT Planning and Land Authority [2016] ACAT 96
Noah's Ark Resource Centre Incorporated v ACT Planning and Land Authority & Ors [2018] ACAT 95
Paxevanos v ACT Planning and Land Authority [2008] ACTAAT 20
Silvey; Griffith Narrabundah Community Association v ACT Planning and Land Authority [2024] ACAT 74

Tribunal:Senior Member P Spender
Senior Member L Hawkins

Date of Orders:  17 July 2024
Date of Reasons for Decision:      17 December 2024
Date of Publication:  24 December 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 89/2023
BETWEEN:
MARY-JULIA DIETHELM
First Applicant
FRANCES POWRIE
Second Applicant
BEN CHEUNG
Third Applicant
SANIE YMER
Fourth Applicant
WILLIAM TUCKER
Fifth Applicant

AND:

ACT PLANNING AND LAND AUTHORITY
Respondent
SABINE CLOSE
Party Joined

TRIBUNAL:Senior Member P Spender
Senior Member L Hawkins

DATE:17 July 2024

FURTHER CORRECTED ORDERS

The Tribunal orders:
1.The party joined is required by 22 July 2024 to file (electronically and in hard copy) and serve on all parties further updated revisions of plans FSP102, FSP104, FSP105 and FSP202 (the updated plans).
2.The party joined is required by 24 July 2024 to file (electronically and in hard copy) and serve on all parties complete copies of the updated plans, together with the drawings and other documentation filed in the tribunal on 9 July 2024 (the final amended plans).
3.The decision under review is varied as follows:
(a)     Paragraph 1 - delete "in accordance with the plans, drawings and other documentation approved and endorsed as forming part of this approval" and substitute "in accordance with the final amended plans."
(b)    Condition 3 - delete clause 3(a)(ii) and its accompanying note.
(c)     Condition 6 - delete "approved plans" and substitute "final amended plans".
(d)    Condition 4 - add
(I)    REVISED DRIVEWAY DESIGN AND VEHICLE TURNING PLANS
The development is subject to the support of the relevant entity or Authority of the revised driveway design and the vehicle turning plans in the final amended plans.
(e)     New condition 13 - add…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] ACAT 96
Decision Date: 17 July 2024

CaseChat Overview and Summary

The case before the Australian Capital Territory Civil and Administrative Tribunal (ACAT) involves a challenge to the decision of the ACT Planning and Land Authority to approve a development application (DA) for the demolition of existing structures and construction of five new townhouses on a site in Turner, Canberra. The applicants contested the decision on multiple grounds, including the characterisation of certain rooms as multipurpose rather than bedrooms, compliance with setback and solar access requirements, and adequacy of car parking facilities.

The ACAT considered several key issues, beginning with the characterisation of multipurpose rooms as bedrooms, which would have implications for parking and solar access calculations. The applicants argued that these rooms should be considered bedrooms to ensure compliance with the Multi Unit Housing Development Code (MUHDC) and the Parking and Vehicular Access Code (PVAGC). However, the Tribunal concluded that these rooms were appropriately classified as multipurpose, and not bedrooms, based on their design and intended use. This conclusion was reinforced by the respondent’s imposition of a condition to prevent the rooms from being converted to bedrooms, which was deemed a precautionary measure.

The Tribunal further examined compliance with the Inner North Precinct Code (INPC), including setbacks and building siting. After reviewing the plans and expert testimony, the Tribunal found that the setbacks were met and the building siting aligned with the objectives of the INPC. Regarding the MUHDC, the Tribunal accepted the respondent’s and party joined’s arguments that the development met the criteria despite minor departures from the rules, particularly concerning the building and solar building envelopes.

The Tribunal also assessed the design of the internal driveway and car parking facilities. The applicants argued that the internal driveway did not meet the setback requirements and that the car parking spaces were too close to doorways, violating privacy and amenity standards. However, the Tribunal found that the amended plans, which included a shared zone for low-speed traffic and pedestrian access, complied with relevant standards and codes. The Tribunal similarly found that the car parking arrangements met the requirements of the MUHDC, PVAGC, and Australian Standard AS 2890.1.

Finally, the Tribunal considered the visitor parking requirements, concluding that the DA provided sufficient parking spaces, including on-site and within 100 metres of the site, consistent with the PVAGC. The Tribunal varied the decision under review, imposing conditions to ensure ongoing compliance, such as the requirement for the relevant entity or authority to assess the revised driveway design and vehicle turning plans.

The Tribunal’s final orders varied the decision under review by substituting references to the final amended plans and imposing new conditions regarding the revised driveway design and vehicle turning plans. The corrected orders mandated the filing and serving of updated plans by specific dates and required the lessee to lodge the final amended plans with the Territory Planning Authority before commencing building work.

Orders