Diethelm & Ors v Actpla & Anor (Administrative Review)
[2024] ACAT 96
•17 July 2024
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 "13. LODGEMENT
Prior to building work commencing on the site, the lessee must lodge the final amended plans with the Territory Planning Authority."
The Tribunal notes:
The Tribunal will deliver its reasons for decision at a later time.
…………………signed……………..
Senior Member P Spender
For and on behalf of the Tribunal
REASONS FOR DECISION
1.In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the presently constituted tribunal.
Background and legislative framework
2.The development application (DA) which formed the subject matter of these proceedings was lodged on 23 May 2023, on behalf of the Crown lessee Sabine Close Pty Ltd. The DA is regulated by the Planning and Development Act 2007 (PDA) and the Territory Plan 2023. The relevant provisions of the Territory Plan are set out in the reasons below.
3.The DA concerns a development proposal to demolish existing structures and construct five new townhouses, one being detached, as well as constructing associated carports and a garage on Block 12, Section 47 in Turner. ACT (the subject block) known as 37 Macleay Street Turner, within the RZ3 Urban Residential Zone (RZ3). The site area of the block is 882 m2.
4.On 22 September 2023, a delegate of the respondent approved the DA, subject to conditions, including a variation of the Crown lease to specify a maximum of five dwellings.
5.The decision under review was challenged by the applicants in proceedings commenced in ACAT on 16 October 2023. Sabine Close Pty Ltd was joined as a party to the proceedings on 27 November 2023 (the party joined). Following interlocutory proceedings,[1] a hearing was held over three days, on 1–3 July 2024. The hearing commenced with a site view. The Tribunal made a final decision on 17 July 2024 requiring the party joined to file and serve first updated plans and then final amended plans, with reasons to follow. The reasons for the decision made on 17 July 2024 are set out below.
[1] Diethelm & Ors v ACT Planning and Land Authority [2024] ACAT 25
6.The party joined filed and served final amended plans (the Final Amended Plans) pertaining to the DA on or about 24 July 2024. Although the Final Amended Plans did not update the plans to the standard anticipated by the orders made on 17 July 2024, the Tribunal checked the Final Amended Plans to clarify that they conformed with the amendments that had been made to the plans during the hearing, and we are satisfied that they did so.
7.At the request of the respondent and the party joined, the orders made on 17 July 2024 were corrected on 24 September 2024, under section 63 of the ACT Civil and Administrative Act 2008 (the ACAT Act). The corrected orders substituted “the relevant Territory entity” for “TCCS” to provide support of vehicle turning plans, in so far as they relate to the onsite assessment of amended plans.
The issues in contention
8.The reasons below will set out the issues in contention in the proceedings. The Tribunal’s analysis of the issues in contention will proceed by nominating individual issues, then outlining the parties’ submissions. This will be followed by the Tribunal’s consideration of each issue.
9.There was a preliminary issue, characterised or described by the applicants as the “multipurpose room” issue, the resolution of which has multiple effects across various provisions of the Territory Plan. The development proposal includes four multipurpose rooms, one in each of the four, one-bedroom townhouses facing Macleay Street. In the case of Units 1–3, the multipurpose room in each is 3.3 metres x 3.9 metres, and is 50% enclosed to the eastern wall of the room, which connects to a passageway space, as well as internal stairs. In Unit 4, a smaller multi-purpose room is provided, as well as a separate open office space.[2] The question was whether multipurpose rooms should be considered to be bedrooms for the purposes of the application of the Territory Plan. The applicants contended that the multipurpose room should be characterised as a bedroom, which has consequences for proper application of the Territory Plan, particularly the arrangements that must be made for solar access and car parking for residents and visitors.
[2] Site Plan FSP001, Final Amended Plans filed on 8 July 2024 and further updated on 24 July 2024, Plan 9
10.As will be explained below, the Tribunal has concluded that the DA is to be assessed as constituting a one-bedroom unit and a multipurpose room for Units 1–4. This conclusion will be adopted when applying the provisions of the Territory Plan that apply to visitors and residents carparking below. After dealing with the general issue about the multipurpose rooms, these reasons will proceed by reference to particular provisions of the Territory Plan which were not conceded by the applicants.[3] Developments must comply with all relevant codes, including any applicable general codes subject to the code hierarchy under the PDA. The order of precedence in the case of inconsistency is the precinct code, development code, and general code.[4]
[3] The Tribunal notes that earlier arguments made by applicants about the following provisions of the Territory Plan were conceded by them in their submissions dated 7 June 2024 or during the hearing, INPC: rule 13, MUDHC: rules 8 and 39A.
[4] Section 115 PDA
The multipurpose room issue
Applicants’ submissions
11.The applicants contended that the party joined was misrepresenting the second bedroom in Units 1–4 as multipurpose rooms in order to evade the solar access requirements of rule 57 of the Multi Unit Housing Development Code (MUHDC) and the Parking and Vehicular Access Code (PVAGC). The applicant described how the PVAGC would, in their assessment, require 10–12 carparking spaces if the multipurpose rooms were recognised as bedrooms, which was well in excess of the seven onsite carparking spaces proposed.[5] They argued that consideration of these rooms as bedrooms would have made the DA non-compliant with the MUHDC, in particular mandatory rule 57 of the MUHDC, leading to refusal of the DA. For the development to continue to be code-compliant, these rooms must be considered to be bedrooms.[6] The applicants also argued that in Gingell v ACT Planning and Land Authority[7] (Gingell), the Tribunal was content to assume that a multipurpose room be considered a bedroom by default.[8] The relevant paragraph of Gingell states as follows:
Mr Davies’ said that the plans for the dwelling on Block 13 show three bedrooms and a multipurpose room. Without making a determination, the Tribunal will assume that it was a four bedroom dwelling.[9]
[5] Transcript of proceedings dated 1 July 2024, page 11
[6] Applicants’ submissions dated 28 June 2024 at [34]
[7] [2018] ACAT 62
[8] Applicants’ submissions dated 28 June 2024 at [33]
[9] Gingell at [9]
12.As discussed below, in the decision under review, the respondent imposed Condition A6 which (it argued) dealt with alterations to the internal layout which might convert multipurpose rooms, enabling them to be used for the purpose of bedrooms. The applicants argued that this condition was ineffective[10] because there was no practical prospect of achieving compliance with such a condition;[11] and provided examples of apparent noncompliance in comparable multi-unit developments, where advertised multipurpose rooms appeared to be presented as bedrooms.[12]
Party joined’s submissions
[10] Applicants’ submissions dated 8 April 2024, pages 6–8
[11] Applicants’ submission dated 28 June 2024 at [36]
[12] Applicants’ submissions dated 8 April 2024, pages 6–8
13.The party joined contended that Units 1–4 of the DA should be assessed as consisting of one bedroom and a multipurpose room and should not be deemed to be two bedrooms. It argued that the development provides accommodation for inner city living which caters flexibly for a range of potential uses such as a home office, which was noted to be a zone objective,[13] as well as a gymnasium, library, studio and other living spaces.[14] The architect, Steven Cetrtek, engaged by the party joined made the following comments during the hearing:
It goes back to housing affordability and housing options, particularly in this site, and [one of] the zone objectives of this area is to provide housing options to this demographic. … [I]t’s all about flexible accommodation and providing sufficient amenity for a one-bedroom unit for the occupiers to be working from home, to have a separate living area, to operate a business. We all know the popularity of working from home post-COVID, so that has become a very important design consideration.[15]
[13] Transcript of proceedings dated 3 July 2024, page 313, referring to Zone Objective (e) in the RZ3 Urban Residential Zone: “Provide opportunities for home based employment consistent with residential amenity”
[14] Witness statement of Steven Cetrtek dated 2 May 2024 at [49]
[15] Transcript of proceedings dated 1 July 2024, page 90 (Mr Cetrtek)
14.The party joined also pointed to the design of the multipurpose rooms which made them impractical for use as bedrooms:
[W]e aren't implying that these upper levels are bedrooms in any way. In fact, it would be completely impractical and impossible to have those as bedrooms given that … the multi-purpose room is the sole access to the upper level private open space.[16]
[16] Transcript of proceedings dated 1 July 2024, page 90 (Mr Cetrtek)
15.In his witness statement on behalf of the party joined, Mr Van der Walt stated as follows:
Mr Cetrtek helpfully provided some suggested floor plans for how these multipurpose spaces may be used. I agree with [these suggestions]. …
The proposal was for these spaces to be assessed and approved as multi-purpose spaces - this was approved. … Mr Cetrtek amended the initial proposal … and removed the storage cupboard, door and wall enclosing the room thus rendering the space from the top of the stair landing to the balcony an open plan area that is not suitable for use as a bedroomIt is not the role of the Territory Plan and development assessment to dictate how persons use their dwelling on a day-to-day basis. … [Applying the applicants’ argument], a lounge or dining room could be screened of[f] and used as a sleeping space. Such an argument would render all proposals invalid.[17]
[17] Witness statement of Petrus van der Walt dated 24 June 2024 at [109]–[112]
16.Regarding the issue of compliance with Condition A6, counsel for the party joined, Mr Walker, stated:
the applicants say it will be used as a bedroom. The only capacity that the planning authority has, and which it uses regularly, is that it can place a condition on a development to ensure that something is not used in a particular way. The planning authority and a planning system attempts to deal with that by way of conditions and by way of the controlled activity … if anybody fails to comply with those conditions. [18]
[18] Transcript of proceedings dated 1 July 2024, page 13
17.Mr Walker referred to Glass v ACT Planning and Land Authority (Glass),[19] arguing that if the development is not used as approved, the non-compliance can be dealt with as a matter of enforcement. Mr Walker noted the process that applies in this situation, under section 170 of the PDA:
an approval notice … has to be notified to the Land Title Register, …. wherein the development conditions are recorded. The upshot of that is that when anybody searches the Land Titles Register, there is … a record of administrative instruments where you can go and see these conditions. So that will at least give some notice of the matter, but in all events, [it] ultimately becomes a compliance issue.[20]
[19] [2016] ACAT 96 at [198]
[20] Transcript of proceedings dated 1 July 2024, pages 13–14
18.Mr Walker considered this public exposure on a public register would provide community awareness of the conditions and some form of assurance as to the future use consistent with approval.[21]
Respondent’s submissions
[21] Transcript of proceedings dated 1 July 2024, page 13
19.As discussed above, the respondent considered the multipurpose room issue through its assessment process and imposed Condition A6, which provided in part that:
Approval needs to be sought under section 197 of the Planning and Development Act 2007 in relation to any proposed changes or alterations to the internal layout which seek to convert multi-purpose rooms to be used for the purpose of bedrooms.[22]
…
Note:…The ACT Government maintains an active compliance and auditing program and may conduct random audits to ensure compliance with relevant approvals.[23]
[22] Respondent’s index of documents dated 24 November 2023 (Tribunal documents), Development Approval condition A6, page 29
[23] Tribunal documents, page 11
20.The respondent submitted that the Condition A6 was a precautionary measure:
I don’t believe a condition was required. However, it was a precautionary condition to ensure that they’re … not used as bedrooms. We’ve made a decision based on … the design layout as it is, and not what it might become. [24]
[24] Transcript of proceedings dated 3 July 2024, page 277 (Mr Pham)
21.The evidence led by the respondent was consistent to some extent with the proposition put by the party joined that the design was compatible with multipurpose rooms rather than bedrooms:
My assessment was based on what was propose[d], and how I saw this design layout appeared to be for a multi-purpose room and not for a bedroom.[25]
Consideration
[25] Transcript of proceedings dated 3 July 2024, page 268 (Mr Pham)
22.The Tribunal acknowledges that the applicants have raised an important issue. Multipurpose rooms such as those proposed in this development may invite a range of potential uses. This issue is complex, particularly when considering the practice of assessing parking demand through the proxy of the number of bedrooms in a multi-unit dwelling.
23.However, the Tribunal is not persuaded that the answer is to somehow deem Units 1–4 to be two-bedroom units, with the consequential flow on effects in the MUHDC and the PVAGC. We do not consider that the assumption made by Tribunal in Gingell was intended to operate prospectively to bind subsequent decision-makers when they are assessing DAs such as the one before us.
24.The Tribunal is aware of the inherent difficulty in managing and enforcing compliance especially where the design of dwellings and multipurpose rooms may be readily seen as opportunities for a range of potential uses, including bedroom space. However, the Tribunal agrees with the comments made in Glass. If the development is not used as approved, the non-compliance can be dealt with as a matter of enforcement.
25.The Tribunal is persuaded by the arguments made by the party joined and the respondent that the design of the multipurpose room for Units 1–4 aligns more closely to a multipurpose room than a bedroom. Further, the Tribunal recognises that the use of domestic space may have evolved so that the concept of a multipurpose room more accurately describes a range of the permissible uses of the space rather than “bedroom”.
26.The Tribunal concludes that the rooms described in the plans for Units 1–4 as multipurpose rooms are multipurpose rooms and not bedrooms for the purpose of the application of the Territory Plan.
The relevant codes
27.The development must comply with all relevant codes including any applicable general codes subject to the code hierarchy under the PDA. As stated above, the order of precedence in the case of inconsistency is the precinct code, development code, and general code.[26] In this case, the relevant precinct code is in the Inner North Precinct Code (INPC).
[26] Section 115 PDA
Consistency with Inner North Precinct Code (INPC)
(a) Rear Boundary Setback: R8/C8 INPC
28.Rule 8 of the Inner North Precinct Code states as follows:
R8 Rear setbacks are 7 m on blocks specified in the Control Plans (Part B). Where blacks specified are corner blocks, this is to be a 7 x 7 m minimum area in the rear corner.
C8 Rear setbacks allow for a deep- root planting zone and ensure privacy on blocks.
29.To repeat the point, rule 8 of the INPC requires the rear setbacks to be 7 metres on blocks specified in the “Control Plans (Part B)”.
30.In the plans that were originally filed with the DA, the Site Plan showed that unit 5 had a rear setback of 6.9 metres.[27] When assessing the DA, the respondent originally considered that rule 8 had not been met but criterion 8 was satisfied due to the presence of a deep tree planting zone.[28] The respondent applied this criterion to the westernmost boundary of the block.[29] This application of criterion 8 was supported by the architect[30] and town planner[31] retained by the party joined. Amended plans filed during the hearing and the Final Amended Plans showed a rear setback of 7 metres from this westernmost boundary.[32] Prima facie, therefore, rule 8 was satisfied. However, the applicants argued that the rear setback nominated in rule 8 applied to two other boundaries of the relevant block which had been treated as side boundaries by experts retained by the party joined and the respondent.
[27] Tribunal documents, page 95
[28] Witness statement of Minh Pham dated 24 May 2024 at [22]–[28]
[29]See, for example, witness statement of Minh Pham dated 24 May 2024 at [22]–[28]
[30] Transcript of proceedings dated 1 July 2024, pages 31–32
[31] See, for example, witness statement of Petrus van der Walt dated 24 June 2024 at [26]–[30]
[32] Site Plan FSP001, Final Amended Plans filed on 8 July 2024 and further updated on 24 July 2024, Plan 9
31.The applicants stated as follows:
Mr Pham raises R8 and C8 … considering that R8 is not met due to a minor incursion into the rear setback, but that C8 is met. We note that in assessment of this DA, this setback has been considered to apply only to the small section of the boundary at the narrowest point of the block, at its north-western end.[33]
The definition of rear boundary is ‘a block boundary other than a front boundary or a side boundary’. Side boundary is defined as ‘a block boundary extending from a street frontage along a single bearing. A boundary is not a side boundary if it meets the definition of front boundary’ (emphasis added). These definitions suggest that two sections of the boundary on the southern side of the block are also part of the rear boundary.[34]
Setback is defined as ‘the horizontal distance between a block boundary and the outside face of any building or structure on the block including:
a) a building wall,
b) a post that supports a roof,
c) a balcony, deck or verandah.’
According to these definitions, unit 5 extends well within the rear setback, so R8 is breached by a very large margin.[35]
[33] Referring to Tribunal documents, page 95
[34] This describes the south-western boundary (13.47 m in length) and the adjoining southern boundary (7.62 m in length)(original emphasis)
[35] Applicants’ submissions dated 7 June 2024 at [4]–[6]
32.In response to this argument, Mr Cetrtek stated the following:
The Applicants' Response raises an argument that, under the definitions of "side boundary" and "rear boundary" contained in the Territory Plan, the two western-most segments of the southern boundary of the Site are property to be regarded as "rear boundaries" rather than side boundaries.
If correct, this would mean that the Site has three rear boundaries, notwithstanding that the two western-most segments of the southern boundary are more simitar in their bearing (142'37' and 97"37' respectively) to the eastern segment of the southern boundary (1 19"25') than they are to the small western boundary (203"33'40") (see e.g. the Ground Floor Plan at T86).[36]
[36] Witness statement of Steven Cetrtek dated 24 June 2024 at [5]–[7]
33.There was considerable discussion during the hearing about the interpretation of grey shading that applied to the subject block in the diagram in Control Plan — Turner South.[37] Ultimately, however, the respondent and party joined agreed with the applicants’ proposition that the Control Plan nominated the blocks to which the 7 metre setback applied.[38] The question was, what is the rear boundary for the purpose of application of rule/criterion 8?
[37] Control Plan — Turner South, Inner North Precinct Code, page 13
[38] Transcript of proceedings dated 3 July 2024, page 305, lines 43–44
34.Mr Cetretek made the following comments about the Control Plan during the hearing:
there's a grey tone that overlaps directly over the rear boundary, and that tone refers to the legend on the bottom right hand of that diagram which stipulates the rear setback, and so I'll read it out, 'Rear setback (deep root zone), 7 metres from rear 30 boundary'. So upon observing this control plan on page 18, we interpret it that the area shaded in grey was the rear – the rear setback for this site.[39]
[39] Transcript of proceedings dated 3 July 2024, page 31
35.The following exchange occurred between Mr Tucker (on behalf of the applicants) and Minh Pham:
THE WITNESS PHAM: … So starting from the westmost boundary, that is 4.93 metres in length. That is a rear boundary. And then going down further south, that’s also a rear boundary that is 13.41 metres in length. Moving on southeast is a rear boundary as well that is a length of 7.62 metres. And then going further southeast is a side boundary, as it connects to the street frontage. Does that answer your question, or did you want me to go through the other boundary?
MR TUCKER: Yes, yes. No, that’s fine. So there are three segments which meet the definition of rear boundary.
THE WITNESS PHAM: Correct.[40]
[40] Transcript of proceedings dated 3 July 2024, page 256, lines 26–36
36.Later in the hearing, Mr Tucker on behalf of the applicants put to Mr Pham the proposition made by the applicants in their submission: that the two sections of the boundary on the southern side of the block[41] are also part of the rear boundary. Mr Pham disagreed with this proposition.[42]
[41] Described during the hearing as “the extra areas”, transcript of proceedings dated 3 July 2024, page 259
[42] Transcript of proceedings dated 3 July 2024, page 259
37.Doing the best that it can with the evidence and interpretations presented by the parties, the Tribunal concludes that rule/criterion 8 concerning the 7-metre rear setback applies only to the most westerly boundary of the block (being 4.93 metres in length). As stated above, the Final Amended Plans show a 7-metre setback from this boundary. Rule 8 of the INPC is therefore satisfied.
(b) Building siting: C9 INPC
38.Criterion 9 of the INPC states as follows:
Design promotes perimeter block development by building primarily across the frontage of the site (and not down the length of the site), so as to:
a) provide space to the rear of the block to retain or introduce large-canopy trees and create a treed backdrop to development
b) maximise street address as well as physical and visual access to the rear garden
c) minimise privacy impacts between adjacent sites
d) optimise possibilities for private and communal open spaces to the rear of the block that can accommodate landscaping and large tree planting.
39.The proposal for development of a larger 3-bedroom detached dwelling in the relatively small rear zone of the block faced a number of challenges in relation to the planning controls for building siting. The narrowing portion of the site is less than 14 metres in width at unit 5.[43]
[43] Site Plan FSP001, Final Amended Plans filed on 8 July 2024 and further updated on 24 July 2024, Plan 9
40.The applicants contended that the proposal fails to meet two aspects of criterion 9 of the INPC. The applicants argued that the absence of a large tree in the most westerly area of the block suggested that part (a) of the criterion was not met because the proposal had failed to provide space to the rear of the block to retain or introduce large-canopy trees and create a treed backdrop to development.[44] Phoebe Gordon, a landscape architect, gave evidence about the proposed planting of a large tree, a Jeffersred maple, in the rear zone, just north of unit 5.[45] Ms Gordon confirmed that it would be possible for this large tree to be successfully established in the rear zone to the west of unit 5.[46]
[44] Applicants’ submissions dated 8 April 2024 at [9]
[45] Transcript of proceedings dated 2 July 2024, page 195
[46] Transcript of proceedings dated 2 July 2024, page 196
41.The applicants raised questions as to whether the design optimises possibilities for private and communal open space to the rear of the block that can accommodate landscaping and large tree planting.[47] The question about whether the proposed development impinged on the privacy of adjoining blocks was primarily addressed in the hearing by the party joined. The Tribunal notes that the perimeter block development contemplated by this criterion has been achieved through the four units fronting Macleay Street. Provision has been made for private open space and limited communal open space, which is sufficient for the required “optimisation” under criterion 9.[48] The party joined identified that overlooking from unit 5 is addressed through appropriate obscure glass,[49] and suitable landscape treatment to the northern boundary of the site.[50]
[47] Applicants’ submissions dated 7 June 2024 at [12]
[48] Transcript of proceedings dated 3 July 2024, page 307
[49] Transcript of proceedings dated 3 July 2024, page 297 (Exhibit PJ14)
[50] Transcript of proceedings dated 3 July 2024, page 307
42.The Tribunal finds that criterion 9 is satisfied.
Consistency with Multi Unit Housing Development Code (MUHDC)
(a) Building Envelope: R25/C25 and Solar Building Envelope: R 26/C26
43.Element 3.20 of the MUHDC deals with the building envelope. It is regulated by two sets of rules and criteria in R25/C25 and R26/C26. These provisions state as follows:
R25
This does not apply to either of the following:
a) building with more than 3 storeys in RZ5
b) building with more than 3 storeys in commercial zones.
Building are stied wholly within the building envelope formed by planes projected over the subject block
C25
Buildings achieve all of the following:
a) consistency with the desired character
b) reasonable levels of privacy for dwellings on adjoining residential blocks and their associated private open space.
R26
This does not apply to either of the following:
a) buildings with more than 3 storeys in RZ5
b) buildings with more than 3 storeys in commercial zones.
Buildings are sited wholly within the solar building envelope formed by planes projected over the subject block at Xo to the horizontal from the height of the ‘solar fence’ on any northern boundary of an adjoining residential block. X° is the apparent sun angle at noon on the winter solstice. Values for X are given in Table A4.
The height of the ‘solar fence’ is:
For a block approved under an estate development plan on or after 5 July 2013:
i)in the primary building zone – 3m
ii)all other parts of the boundary – 2.3m
For all other blocks:
i)in the primary building zone – 2.4m
ii)all other parts of the boundary – 1.8m
This rule does not apply to those parts of a boundary where the adjacent part of the adjoining residential block comprises only an access driveway (i.e. a “battleaxe handle”).
The previous rule applies to this part of the boundary.
An example of a typical building envelope is shown at Figure A1
Note 1: To remove any doubt, the reference to a building with more than 3 storeys is a reference to the whole building, not just that part of the building over 3 storeys.
Note 1: To remove any doubt, the reference to a building with more than 3 storeys is a reference to the whole building, not just that part of the building over 3 storeys.
C26
Buildings achieve all of the following:
a) consistency with the desired character
b) reasonable solar access to dwellings on adjoining residential blocks and their associated private open space
c) reasonable levels of privacy for dwellings on adjoining residential blocks and their associated private open space
d) where an adjoining block is not yet developed, the potential for reasonable solar access and privacy on the adjoining residential block(s) is maintained
44.There is some overlap of the requirements for both sets of provisions, i.e. consistency with desired character and reasonable levels of privacy for adjoining blocks. All parties agreed that the proposal did not achieve compliance with rules 25 and 26, but the respondent and the party joined argued that criteria 25 and 26 were satisfied. The question about the privacy of the adjoining blocks is addressed above and the Tribunal considers that the proposal provides reasonable levels of privacy for dwellings on adjoining residential blocks.[51]
[51] See for example, the witness statement of Minh Pham dated 24 May 2024 at [39]–[45]
45.The applicants argued that the encroachments (as discussed below) led to the development also failing criteria 25 and 26. They argued as follows:
The encroachments of the building envelope … are due to over-development of the site, which is contrary to the desired character of the area. This DA proposes a higher density (number of units per area of land) than any existing multi-unit development in the surrounding RZ3 area in Section 47. This is not consistent with the developing desired character of the area. The lack of space for canopy trees is not consistent with the garden city character of the area. The large area of hard paving, taking up most of the centre of the block, is not consistent with desired character.[52]
[52] Applicants’ submissions dated 8 April 2024 at [13]
46.Regarding the building envelope, the respondent and the party joined argued that rule 25 was not met but criterion 25 was met. They noted it is a relatively minor departure from rule 25, being of the order of 0.5%.[53] Similarly, in relation to the solar building envelope regulated by criterion 26, there is a minor encroachment that will have no impact on the southern neighbouring dwelling.[54] Mr Cetrtek rejected the applicants’ submission that the encroachments are due to overdevelopment, providing a sample summary of units relative to block size within the neighbourhood.[55]
[53] Witness statement of Steven Cetrtek dated 2 May 2024 at [17], Witness statement of Minh Pham dated 24 May 2024 at [42]
[54] This encroachment is described in witness statement of Steven Cetrtek dated 2 May 2024 at [20]–[25]
[55] Witness statement of Steven Cetrtek dated 2 May 2024 at [27]–[33]
47.In subsequent submissions, the applicants focused upon the desired character aspect of the relevant criteria. Although the party joined had focused upon zone objectives, the applicants contended it is not only streetscape that is relevant but the form of the development, and particularly the volume within the building envelope. This development had particular characteristics, for example the scale and siting of the development restrict canopy trees to the front of the setback, and it failed to provide a high standard of residential amenity in relation to the driveway and parking arrangements.[56]
[56] Applicants’ submissions dated 7 June 2024 at [17]–[21]
48.The respondent made the following comment about compliance with desired character and privacy in criteria 25 and 26:
The buildings are consistent with the desired character insofar as the sighting building and scale of the development, and the nature of the resulting streetscape are consistent with the relevant zone objectives. The building is medium density in character and is consistent with similar multi-unit medium density buildings on Macleay and Greenway Streets Turner. Furthermore despite noncompliance with rule 25 and rule 26 the part of the front building in the development that is outside the building envelope is limited to the northern part of the building. This will not affect the solar access of the neighbouring block to the north of the site. … The dwellings on adjoining residential blocks and their associated private open space will have reasonable solar access. Dwellings on the adjoining residential blocks and their associated private open space will have reasonable levels of privacy for the reasons articulated by M Pham [in his witness statement].[57]
[57] Respondent’s submissions dated 24 May 2024 at [20], referring to the witness statement of Minh Pham dated 24 May 2024 at [41]–[45]
49.With respect the desired character, Mr Van der Walt on behalf of the party joined commented that the proposal provides usable, complementary, and private open spaces in a garden city context.[58] The party joined submitted that the development achieves a high standard of amenity and makes a positive contribution to the neighbourhood and landscape of the area.[59] The party joined noted that development of this kind will continue in this area and that the character of the area is to be ascertained from the physical form of the area, noting that the eastern side of Macleay Street is RZ4, which enables the Tribunal to consider the character of the buildings on that side of the street.[60] In the present case, argued the party joined, the objectives in the RZ3 zone are that housing is to be low rise and of medium density in character. The objective also permits the change of density to dwellings and provides a range of affordable and sustainable housing choices. It is close to public transport.
[58] Witness statement of Petrus van der Walt, dated 24 June 2024 at [56]
[59] Party joined submissions dated 3 July 2024 at [14]
[60] Party joined submissions dated 3 July 2024 at [16] citing Paxevanos v ACT Planning and Land Authority [2008] ACTAAT 20
50.‘Desired character’ is defined in the Territory Plan to mean:
the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code.
51.The Tribunal acknowledges the point made by the applicants that we need to consider the siting, building bulk and scale when applying criteria 25 and 26 to the development, but the zone objectives are clearly also relevant when weighing up the components of “desired character”. There is no statement of desired character in the precinct code.
52.We adopt the analysis of this term that is set out in Silvey; Griffith Narrabundah Community Association v ACT Planning and Land Authority.[61] Considering the very minor departure from the rules, the zone objectives and the factors relied upon by the applicants to allege non-compliance with the criteria, the Tribunal concludes that the development proposal satisfies criteria 25 and 26.
Landscaping and site planting: R/C 39B, R/C 39C, C40, C40B
[61] [2024] ACAT 74 at [142]–[149]
53.The party joined adjusted the plans during the hearing to accommodate concerns that had been raised about the landscaping and planting areas. A landscape architect, Ms Gordon, gave evidence on the final day of the hearing and a revised landscape plan was put into evidence.[62] There was no subsequent challenge by the applicants to the landscape plan. The Tribunal is satisfied that the Final Amended Plans which include the landscape plan,[63] comply with rule 39B, rule 39C, criterion 40A, and criterion 40B.
Fences and courtyard walls: R/C41, R/C42A
[62] Exhibit PJ13 dated 3 July 2024
[63] Final Amended Plans filed on 8 July 2024 and further updated on 24 July 2024, Plan 7
54.The Tribunal agrees with the submission made by the party joined, supported by the witness statement of Mr Van Der Walt, that rule 41 does not apply to this development because there are no fences and the structures at the front of the development are courtyard walls.[64] The Tribunal also accepts the opinion of Mr Pham and Mr Van der Walt that compliance with rule 42A has been established.[65]
Solar Access: R57
[64] Witness statement of Petrus van der Walt, dated 24 June 2024 at [100]
[65] Witness statement of Minh Pham dated 24 May 2024 at [63], Witness statement of Petrus van der Walt dated 24 June 2024 at [101]–[103]
55.As discussed above, the applicants argued that the compliance with solar access provisions in rule 57 of the MUHDC were compromised by the contention that multipurpose rooms should be considered as bedrooms. The Tribunal has assessed the rooms as multipurpose rooms and consequently we consider that this rule is satisfied.
Internal driveway: R/C 73
56.The applicants contended that the internal driveway did not meet the standard under rule 73 of the MUHDC, which requires a setback of 1 metre to each side of the driveway.[66] Further, argued the applicants, clause 4.1.1 of the Australian Standard - AS 2890.1- states that:
Parking areas shall be designed so that through-traffic is excluded and pedestrian entrances and exits are separate from vehicular entrances and exits.[67]
[66] Applicants’ submissions dated 28 June 2024 at [13]
[67] Applicants’ submissions dated 28 June 2024 at [14]
57.However, the applicants argued that there is no room on the site left for a separate pedestrian path that allows access to the rear unit. [68]
[68] Applicants’ submissions dated 28 June 2024 at [14]
58.During the hearing, a modified plan for the driveway was presented. The amended plans featured a 3-metre vehicle carriageway, 700 mm side landscape zone and 300 mm northern landscape zone.
59.Throughout the course of the hearing amended plans were tendered which provided a shared zone for low-speed traffic movements and pedestrian access. The party joined argued that the driveway is designed to be shared access, and features have been included to reduce the traffic speed such as using grass in the centre of the driveway. A civil engineer, Luka Kovacevic, provided witness statements and gave evidence about the driveway on behalf of the party joined. Mr Kovacevic expressed the view that the new driveway design complies with AS2890.1.[69] He also addressed concerns about the safety of a shared access driveway. [70] For example:
So if a car sees a pedestrian walking down, pulls over to the edge of the driveway, it leaves nearly … a full metre next to the vehicle for a pedestrian to walk down there in a low speed environment.[71]
[69] Witness statement of Luka Kovacevic dated 26 June 2024 at [5], referring to AS/NZS 2890.1:2004 — Parking facilities, Part 1: Off-street car parking (AS2890.1)
[70] Transcript of proceedings dated 2 July 2024, pages 177–178
[71] Transcript of proceedings dated 2 July 2024, page 178
60.In her evidence to the Tribunal, Ms Gordon identified plantings for the shared zone driveway, including a suitable ground cover such as Mondo grass,[72] and an appropriate climbing plant to the southern boundary.[73] The Tribunal considers that there should in these circumstances be recognition of the provision for pedestrian access, in concert with the vehicle movements. The Tribunal finds the final design, as set out in the Final Amended Plans,[74] is adequate and functional. Although it is narrower than that described in MUHDC, it nevertheless satisfies AS 2890.1.[75]
[72] Transcript of proceedings dated 2 July 2024, page 193
[73] Landscape Plan LS501.1, Final Amended Plans filed on 8 July 2024 and further updated on 24 July 2024, Plan 7
[74] Landscape Plan LS501.1 Final Amended Plans filed on 8 July 2024 and further updated on 24 July 2024, Plan 7
[75] The driveway in the current proceedings is 3m wide. AS2890.1 provides that the minimum width is 3m: [2.6.1]
61.The Tribunal concludes that the amended driveway design in the Final Amended Plans satisfies criterion 73.
Residents’ Car Parking: R/C 77 and PVAGC
62.R/C 77 of the MUHDC state as follows:
R77
Car-parking spaces on the site for residents comply with all of the following:
a) located behind the front zone (except for apartment car parking)
b) can be in tandem where they belong to the same dwelling
c) do not encroach any property boundaries
d) one car space per dwelling is roofed and located behind the front zone
e) are separated by not less than 1.5m from windows or doors to habitable rooms of dwellings that are not associated with the parking space
C77
Car parking for residents achieves all of the following:
a)reasonable residential amenity
b)consistency with the desired character
c)public safety
d)reasonable opportunities for surveillance
e)the reasonable requirements of residents for car parking
f)reasonable privacy.
63.The applicants contended that insufficient parking had been provided in the development and that the parking access was noncompliant with the provisions of AS 2890.1. The applicants argued that:
Residents’ car parking fails R77 as the parking spaces for units 1 and 3 are within 1.5m of the door to unit 2, and the parking space for unit 4 is within 1.5m of the door to unit 3. Resident parking fails C77 a) as it does not provide reasonable privacy for the same reason. Resident parking also fails C77 as it does not provide reasonable amenity for units 2 and 3. Having their parking spaces, which are of the minimum required size, directly in front of doorways will restrict access to those doorways.[76]
[76] Applicants’ submissions dated 8 April 2024 at [34]
64.The party joined[77] and the respondent[78] accepted that rule 77 was not satisfied. However, they contended that criterion 77 was satisfied for the reasons that were addressed in statements filed by their expert witnesses. In summary, they argued the physical characteristics of the car parking spaces for the development comply with the PVAGC[79] and AS2890.1 which is also applicable to considerations of desired character and public safety. The respondent submitted:
The reasonable requirements of residents are met by the six (6) car parking spaces for residents on-site, one (1) visitor parking space on-site, and one (1) visitor parking space in the adjacent street meets the requirements of resident car parking as prescribed in the PVAGC at [3.1.5] as:
(a) Units 1-4 requires one (1) car parking space per single bedroom dwelling;
(b) Unit 5 requires two (2) car parking spaces;
(c) one (1) visitor space per four (4) dwellings for the attached houses; plus
(d) one (1) visitor space for Unit 5, as a detached houseOne of the visitor parking spaces may be located on-site or within 100m of the subject site per PVAGC at [3.1.4].[80]
[77] Party joined’ s submissions dated 3 May 2024 at [72]; witness statement of Steven Cetrtek dated 2 May 2024 at [62]–[69]
[78] Respondent’s submissions dated 24 May 2024, page 14; witness statement of Minh Pham dated 24 May 2024 at [84]–[85]
[79] PVAGC, [2.3.1], which states as follows:
The physical characteristics of a car park must meet the following requirements:
a) Parking layout i) The layout of the car park should meet the requirements of AS 2890.1:2004, the Australian Standard for Parking Facilities, Part 1: Off-street Car Parking
[80] Respondent’s submissions dated 24 May 2024, pages 14–15
65.As regards the applicants’ contention that the parking arrangements did not comply with AS2890.1, the party joined stated that the DA had included parking and vehicle turning diagrams prepared by a qualified civil/traffic engineer. During the hearing, the party joined introduced revised and updated plans for onsite traffic movements and swept path turning movement diagrams which addressed the concerns raised by the applicants. These documents were tendered into evidence in the proceedings[81] and their author, Mr Kovacevic, was questioned about compliance with AS2890.1.
[81] Exhibit PJ4
66.The party joined and the respondent noted that clause 1.4 of the AS2890.1 classifies off-street car parking according to the user classes listed in the first column of Table 1.1.[82] User class 1A is restricted to residential, domestic and employee parking and is the relevant classification for the development proposal.[83] Table 1.1 of the standard nominates a three point turn entry and exit into 90° parking spaces.[84]
[82] AS/NZS 2890.1: 2004- Australian Standard, Parking facilities, Part 1: Off-street car parking, page 9
[83] Transcript of proceedings dated 2 July 2024, page 172
[84] AS/NZS 2890.1: 2004- Australian Standard, Parking facilities, Part 1: Off-street car parking, page 9
67.However, in its closing submissions, the party joined quoted from AS2890.1 as follows:
B4.8 Parking in residential and domestic car parks
A reduction in aisle width from 6.2 m to 5.8 m has been allowed in Figure 2.2 at User class 1A developments (see clause 1.4 ) for 90 degree turns into parking spaces. This concession which is designed to be of assistance where space is limited, recognises that such developments will have low turnover and users generally prepared to accept some inconvenience when entering or leaving the parking space. Tests have shown that most vehicles larger than the B85 vehicle will need to make a 3-point turn if the manoeuvring space is the minimum allowable. Some very large vehicles may need to make a 5-point turn.[85]
[85] AS/NZS 2890.1: 2004- Australian Standard, Parking facilities, Part 1: Off-street car parking, page 67
68.The revised designs provided by the party joined were based on B99 vehicles. “B99” refers to 99 per cent of all vehicles surveyed at the time that the standard was developed and are modelled on a larger vehicle such as a Landcruiser. The standard allows for the use of smaller vehicles — B85 — for car parking spaces and parking aisles. Examples of B85 vehicles include Ford Falcons. [86] Mr Kovacevic explained as follows:
MR WALKER: Under the standard, just applying the standard, was it obligatory under the standard to use a B99 vehicle, in your view?
WITNESS KOVACEVIC: Strictly not, for the car parking, no. The standard allows the use of B85s for car parking spaces and parking aisles. That's documented in section B2.2 and 2.3 of the standard. B99s are basically designed to test the circulation aisles, I guess, or the access driveway into the site. The standard basically goes on to say that the B85 shall be limited to parking spaces and parking aisles, and so we've used the 99 because it gives us the worst case representation and .. it results in a more efficient car park than just the use of a B85 will allow.[87]
[86] See AS/NZS 2890.1: 2004- Australian Standard, Parking facilities, Part 1: Off-street car parking, Appendix A, page 53
[87] Transcript of proceedings dated 2 July 2024, page 167
69.The Tribunal has examined the revised designs for the car parking spaces and the swept path diagrams tendered by the party joined during the hearing. We have also considered the evidence given by Mr Kovacevic.
70.In the view of the Tribunal, the designs demonstrated satisfactory compliance with the provisions of AS 2890.1, criterion 77 MUHDC, and the corresponding provisions of the PVAGC. Nevertheless, a cautionary approach suggests that the relevant entity or authority should assess the revised driveway design and vehicle turning plans in the Final Amended Plans; therefore, condition 4 of Order 3(d) was imposed by the Tribunal in the final orders.
Visitor Parking — PVAGC 3.1.4 and 3.1.5
71.The parking provision rate for development in residential zones is specified in schedule 1 of section 3.1.5 of the PVAGC. It prescribes the following:
Attached house: one parking space per single bedroom dwelling.
Two parking spaces for each dwelling with three or more bedrooms
One visitor space per four dwellings or part thereof where a complex comprises four or more dwellings.Detached house: as per above, plus one visitor space per four dwellings or part thereof where a complex comprises four or more dwellings
72.Therefore, the parking requirements for the DA were described by Mr Pham as follows:
The proposed Units 1 to 4 are attached houses and contain 1 bedroom which requires 4 parking spaces for the residents and 1 visitor parking space. The proposed Unit 5 contains 3 bedrooms and requires 2 parking spaces for the resident and one additional visitor parking space. In total the development requires 6 parking spaces for the residents and 2 parking spaces for the visitors.[88]
[88] Witness statement of Minh Pham dated 24 May 2024 at [87]
73.Section 3.1.4 of the PVAGC sets out the parking locational requirements and states that short stay or visitor parking for residential developments must be located on site or within 100 metres. The term “short stay parking” is defined in the PVAGC at section 1.5 to mean parking provision for generally up to four hours duration. Mr Pham noted that the parking plan for the DA shows that one visitor parking space is located on Macleay Street and within 100 m of the subject site.[89]
[89] Witness statement of Minh Pham dated 24 May 2024 at [87], referring to Tribunal documents, page 96
74.Mr Cetrtek on behalf of the party joined considered that the proposal complied with the PVAGC, because one visitor car park has been allocated on-site and:
[t]he remaining required visitor space is designated on-street which is a reasonable consideration of a development of this scale. The Macleay Street parking is time-limited to 2-hour parking which is considered reasonable for visitor access.[90]
[90] Witness statement of Steven Cetrtek dated 2 May 2024 at [63]
75.During the hearing, further evidence was adduced about unrestricted two hour parking that is available on Greenway Street, which is approximately 50–70 metres from the subject site.[91] The party joined noted that restrictions on parking are imposed in Macleay Street and in part of Greenway Street during the period 9:00am–11:00am and 2:00pm–3:00pm, Monday to Friday, however submitted that the requirements of the PVAGC are “performance-based”, so the Tribunal may infer that most visits occur in the evening and on the weekends where no restrictions apply.[92]
[91] See transcript of proceedings dated 2 July 2024, page 129 (Cetrtek); Transcript of proceedings dated 3 July 2024, pages 290–292 (Pham) and Exhibit PJ5
[92] Transcript of proceedings dated 3 July 2024, page 316
76.We follow the reasoning adopted in Noah's Ark Resource Centre Incorporated v ACT Planning and Land Authority & Ors where the Tribunal stated that the PVAGC:
adopts a performance-based approach in setting out the provisions for vehicle access and parking which the development proposal is required to meet.
…
The PVAGC takes account of factors such as availability of public parking … . It permits that, where demonstrated by the proponent, the objectives can be met by utilising spare capacity in publicly available on-street or off-street parking. The use of spare capacity is at the discretion of the Authority with regard to the potential for nearby lessees to seek to expand and lay claim to some of the available capacity in these public parking areas.[93]
[93] [2018] ACAT 95 at [57]–[58]
77.As regards the parking spaces in Greenway Street, the Tribunal notes that this location is not in the direct line of site of the subject block, so it is less than ideal. However, when the available public car spaces in Macleay and Greenway Streets are taken into account cumulatively, the Tribunal considers that the parking arrangements in the DA are acceptable.
Conclusion
78.For the reasons articulated above, the Tribunal has varied the decision under review. The corrected orders made on 24 September 2024 are set out above.
………………………………..
Senior Member P Spender
For and on behalf of the Tribunal
Date(s) of hearing: 1, 2, 3 July 2024 Applicants: In person Counsel for the Respondent: Mr J A Larkings Solicitor for the Respondent: Mr S Tahir, ACT Government Solicitor Counsel for the Party Joined: Mr P Walker SC Solicitor for the Party Joined: Ms P Hall, MV Law
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