Dimov and Act Planning and Land Authority and Anor
[2006] ACTAAT 31
•9 November 2006
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:DIMOV AND ACT PLANNING & LAND AUTHORITY & ANOR [2006] ACTAAT 31 (9 NOVEMBER 2006)
AT06/43
Catchwords: Land and planning – application to review decision approving multi-unit residential development – overshadowing – overlooking – visual impact of development – requirement for access to adjoining land to undertake maintenance.
Land (Planning and Environment) Act 1991, ss 230, 245
Tribunal:Mr M H Peedom, President
Dr E McKenzie, Senior Member
Dr D McMichael, Senior Member
Date:9 November 2006
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/43
LAND AND PLANNING DIVISION )
RE: PHILIP DIMOV
ApplicantAND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: JI & HC WLOSSAK
& WLOSSAK PTY LTD
Party Joined
DECISION
Tribunal : Mr M H Peedom, President
Dr E McKenzie, Senior Member
Dr D McMichael, Senior Member
Date : 9 November 2006
Decision :
The decision under review is varied by imposing a condition that, within 28 days from the date of this decision or within such further time as may be approved in writing by the Planning and Land Authority, the party joined shall lodge with the Planning and Land Authority for approval revised plans showing a setback of 3m of the north-western wall of building 3 from the side boundary.
…………………………
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/43
LAND AND PLANNING DIVISION )
RE: PHILIP DIMOV
ApplicantAND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: JI & HC WLOSSAK
& WLOSSAK PTY LTD
Party Joined
REASONS FOR DECISION
9 November 2006 Mr M H Peedom, President
Dr E McKenzie, Senior Member
Dr D McMichael, Senior Member
Background
This is an application for the review of a decision made by the respondent on 10 May 2006 pursuant to section 230 of the Land (Planning and Environment) Act 1991 (“the Land Act”) to approve a development application (No. 200505367), subject to conditions imposed pursuant to section 245 of the Land Act.
2. The development application sought approval to:
(a)the consolidation of the Crown leases for Blocks 5, 10 and 11 Section 34 Division of Forrest (“the subject land”);
(b)a variation of the consolidated Crown leases to permit the construction of 43 dwellings on the subject block;
(c)the demolition of existing buildings on the subject block;
(d)the construction of one 2 storey apartment building and two 3 storey apartment buildings containing 43 dwellings and basement car parking; and
(e)associated landscaping, paving and other site works.
3. The subject land has an area of 3,920m2 and a road frontage of approximately 74m to New South Wales Crescent, Barton on its north-eastern side. Telopea Park School has frontage to New South Wales Crescent opposite the subject land.
4. Blocks 7, 8, 9 and 12 Section 34 Forrest, which are located on the south-western and western side of the subject land, are used for apartment dwellings, professional office suites and a wine and food club.
5. The subject land is adjoined on the south-eastern side by a public walkway beyond which is located an area of B5 Restricted Access Land on which are some tennis courts.
6. On the north-western side of the subject land Block 3 Section 34 Forrest is used for apartment dwellings and there is a partially demolished residence on Block 2 Section 34 Forrest.
7. The applicant, who is the lessee of Block 2 and an objector to the development application, has been given approval to demolish the residence and to construct an apartment building of 3 storeys. The building is proposed to be constructed so as to adjoin the apartment buildings on the common boundaries on either side (the Astor on Block 12 and the Grosvenor on Block 3) so as to form an integrated development with continuous frontage of 3 storey apartments to Dominion Circuit which they face. It is also proposed to construct courtyards at the front of the building facing Dominion Circuit and at the rear of the building.
8. Part of the rear boundary of Block 2 is also part of the side boundary of the subject land. The length of the common boundary is 8.7m. The development application for the subject land proposes that the end wall of one of the apartment buildings (building 3) will be located on the north-western side boundary of the subject land. The length of the end wall is shown on the plans of the development application as 10.6m with 2.7m of that length being constructed on the common boundary with Block 2. The remaining 7.9m is to be located on the common boundary with the Grosvenor apartments.
9. The applicant has objected to the respondent’s approval of the development application on the basis that the absence of any setback of the proposed development from the common boundary would be inconsistent with some of the planning guidelines under the Territory Plan. In particular, he contends that it would cause overshadowing of the apartments and rear terraced courtyards approved to be built on Block 2; permit overlooking of the private open space of the rear courtyards of the apartments proposed for Block 2; give rise to a requirement for the lessee of the subject land to have access to Block 2 during construction and after construction has been completed to enable maintenance work to be undertaken on that part of the building to be constructed on the common boundary; and have a significant adverse visual impact on the amenity of Block 2.
10. The Tribunal’s consideration of the issues raised by the applicant’s objections follow.
Overshadowing
11. Evidence was given on behalf of the applicant at the hearing of the appeal by Mr M P Smith, a qualified town planner. Mr Smith said that the development approved for Block 2 was designed to ensure that the terraces and courtyards at the rear of the apartments captured the morning sun in summer and to provide an attractive outdoor location for the residents.
12. Shadow analysis diagrams for 22 December presented in evidence by Mr Smith purport to make a comparative analysis of the overshadowing effect of the proposed development for the subject land and of a building of the same height but set back to a distance of 6m from the common boundary. The diagrams show the length to which shade would be cast at ground level but do not show the height of shadowing on the south-eastern façade of the proposed development of Block 2.
13. At 6.00am there would be significant overshadowing of the private courtyards of the two ground floor units (units 1 and 2) by both forms of development.
14. At 7.00am the proposed development would overshadow about a third of the courtyard area of unit 1 and most of the courtyard area of unit 2. At the same time a building with a 6m setback would cast a shadow over a small area of the lower level of the courtyard of unit 1 and most of the lower level of the courtyard of unit 2.
15. At 8.00am the proposed development would overshadow most of the lower level of the courtyard area of unit 2. A building set back 6m would not cast any shadow over either unit.
16. At 9.00am the proposed development would cast a small area of shadow over the lower level of the courtyard of unit 2. No shadow would be cast over either unit by a building set back 6m.
17. Evidence was given on behalf of the party joined by Mr A MacCallum, a qualified and registered architect. Mr MacCallum was responsible for the design of the development proposal under review. He gave evidence that during the winter solstice (22 June) the rear courtyards of the proposed development on Block 2 would be overshadowed all day by the buildings proposed to be constructed on it and by the existing Astor and Grosvenor developments. The proposed development on the subject land would not contribute to any of that overshadowing.
18. In considering the applicant’s objection regarding the impact of overshadowing of the applicant’s land caused by the proposed development, we note that the Territory Plan prevents approval from being given to a development proposal that would be inconsistent with the Residential Design and Siting Code for Multi-Dwelling Developments (“the Code”) (see clause 9.1(d) Part A3: Plan Administration Policies).
19. Objective O3.2 and Performance Criteria P3.3, P3.4 and P3.5 of the Code provide:
O3.2To site and design buildings to promote energy efficiency and access to sunshine.
P3.3Dwellings to be sited to ensure good sunlight access to their main private open space.
P3.4Buildings to be sited to minimise overshadowing of northern facades of adjacent dwellings and private outdoor spaces.
P3.5Building walls to be sited and to be of length and height to ensure no significant loss of amenity to adjacent dwellings and private open spaces.
20. The relevant Performance Measure (D3.1) requires that the minimum setback for side and rear boundaries to achieve the Part 3 Objectives and Performance Criteria of the Code be 3m at lower floor level and, in the case of blank walls over 12m behind the UFL line, 6m. The Introduction to Appendix III 2 states that a proposal which is inconsistent with the Objectives and Performance Criteria may not be approved, but proposals which do not meet the Performance Measures may still be considered in terms of whether they meet the relevant Objectives and Performance Criteria.
21. The failure of the setback of building 3 to meet Performance Measure D3.1 requires consideration to be given as to whether it would satisfy Objective O3.2 and Performance Criteria P3.3, P3.4 and P3.5.
22. Although the size of the front courtyard of unit 2 of the development proposed for Block 2 is limited by the presence of a driveway to underground car parking, the front terraces and courtyards of both unit 1 and unit 2 adjoin their main internal living spaces and are directly accessible from them. They are generally north-facing and are to be regarded, in our view, as the main private open space of both units. Their access to winter sunlight is uninterrupted by the proposed development on the subject land or other building development.
23. Contrary submissions were made on behalf of the parties as to whether Performance Criterion P3.4 applied to all private outdoor spaces or whether it was confined to the northern private outdoor spaces of adjacent dwellings. The drafting of clause P3.4 and the context in which it is set does not admit a clear answer to that issue. Irrespective as to the correct interpretation of that provision, the unit most affected by overshadowing, unit 2, would receive increasing sunlight access from approximately 7.00am and the upper terrace level of the courtyard would enjoy complete sunlight access from approximately 8.00am.
24. We consider that the overshadowing effect of the proposed development on Block 2 will be so limited in its effect as to not be an issue of any significance. The proposed development on Block 2 will continue to enjoy good access to sunshine, particularly to its northern facades and the main private open spaces.
Overlooking
25. Mr Smith produced in evidence a diagram which he said showed that there would be overlooking of the rear courtyards of the proposed development on Block 2 from the south-western facing windows of the upper levels of buildings 2 and 3 nearest the common boundary.
26. The windows in building 2, in respect of which the objection is made, are to a study on the upper floor and are located approximately 20m from the nearest point of Block 2. In our opinion, that distance, the screening provided by the masonry walls to surround the courtyard of unit 2 and the plantings proposed within it as well as the vegetation in the private open space of the Grosvenor apartments and a fin wall on the rear of the Grosvenor apartment building will result in insignificant overlooking of the courtyards of Block 2 from the upper levels of building 2.
27. The windows of concern to Mr Smith in building 3 are to bedrooms and are not large (1.3m x 0.8m). Any view to the courtyards of the proposed development on unit 2 would be at an oblique angle and restricted by the plantings shown as proposed by the landscape plan of the proposed development on Block 2. The overlooking potential that exists would be much less than that which already exists from the windows of the Astor and Grosvenor apartments and from the bedrooms of the upper level units of the proposed development.
28. We do not consider that any potential for overlooking of Block 2 would fail to meet Performance Criterion P3.1.
Visual impact
29. In his evidence Mr Smith said that the residents of Block 2 would see a large expanse of a 3 storey blank wall of building 3 which, being immediately on the boundary, would provide no space for landscaping on the subject premises to soften its appearance. He considered that it would be claustrophobic and harsh and have a significant adverse impact on the visual amenity of the proposed units on Block 2.
30. In evidence given on behalf of the party joined, Mr A T Adams, a town planning consultant, drew attention to the fact that the land use policy applicable under the Territory Plan to the subject land specifically provided for a limit on development to 3 storeys in height, the same height limit to which other development in Section 34 had been constructed. In his opinion, the height proposed for building 3 was appropriate for the area in which it was proposed to be located. He also considered that the visual impact of the height of the proposed development on Block 2 would be reduced by the fact that there was a slope of the land downwards from Block 2 to the subject land and that, at the common boundary, building 3 would be partially set below natural ground level.
31. Evidence given on behalf of the party joined by Mr MacCallum and on behalf of the respondent by Ms M Ramesh, a qualified architect and senior development assessment officer employed by the respondent, drew attention to what was said by them to be aspects of the design of the wall of building 3 on the common boundary that would ameliorate its impact on the amenity of Block 2.
32. Their evidence emphasised the limited (2.7m) length of wall on the common boundary; the requirement of the condition of approval imposed by the respondent (Condition 10(c)(i)) that the wall be articulated through colour and materials to reduce its visual impact and requirement for maintenance; the screening effect of the masonry walls proposed to be constructed around the courtyards and the plantings within them; the screening of the end wall of building 3 beyond the common boundary by vegetation at the rear of the Grosvenor apartments; the limited impact of moving the end wall of building 3 to a distance of 3m from the north-western boundary of the subject land as requested by the applicant; the reducing impact of the end wall progressively from bedroom 2 of unit 2 to the family room as the angle of direct vision of the wall from Block 2 decreases; the lower ground level of the subject land as compared to Block 2 and the excavation proposed on the subject land so as to lower the finished building height of building 3 as compared to the height of the building proposed on Block 2; and the fact that screen walls around and within the courtyards on Block 2 would result in them not being used for the enjoyment of distant views.
33. Reliance was also placed by the party joined upon the existence within Section 34 of two developments with buildings on common boundaries.
34. It was also submitted on behalf of the respondent and the party joined that the Tribunal should place most reliance upon the evidence given by Ms Ramesh, in respect of whom there could not be any suggestion that she was in any way a partisan witness.
35. The Tribunal acknowledges the detailed analysis made by Ms Ramesh of the issues under consideration and to the assistance which her evidence and the composite plans prepared by her have provided. In the result, however, we have been unable to agree with her conclusion that Performance Criterion P3.5 would be satisfied by the proposed development.
36. Our consideration of the evidence before the Tribunal has satisfied us that, despite the features of the end wall of building 3 which were claimed by the respondent and the party joined to ameliorate the visual impact of it on Block 2, there would be a significant detrimental impact on the amenity of the residents of the apartments on Block 2. The visual impact of the wall will be exacerbated by the failure of building 3 not only to meet the Performance Measures in relation to side setbacks but the additional failure of the upper floor levels of building 3 to meet the relevant Performance Measure which specifies a setback of 9m in relation to the rear boundary. This would result in the upper floors of building 3 being 3m closer to the rear boundary of the subject land, which is adjacent to the rear boundary of Block 2, and an overall proximity of building 3 closer to Block 2 than is ordinarily regarded as acceptable.
37. A wall of 7.55m in height and 2.7m wide located on the rear boundary of Block 2 would, in our opinion, create an oppressive impact on the residents of the apartments on Block 2, especially the residents of unit 2, and that impact would be exacerbated by the fact that it is part of a 10.6m long wall (albeit not all on the common boundary) much of which will be visible from the rear courtyards of Block 2.
38. Our conclusion on the issue has been assisted by an inspection of the affected area of Block 2 and the area of the subject land on which building 3 is proposed to be constructed. The existence of the fin walls located on the side boundaries of the Grosvenor and Astor apartments that are common to the side boundaries of Block 2 enable the impact of a structure of the kind proposed to be located on the rear boundary of Block 2 to be better assessed. The articulation of such a structure by colouring and/or use of materials would, in our view, provide little relief to the impact of such a dominating feature.
39. We do not accept that the construction of buildings on the rear boundaries of Blocks 7 and 8 Section 34 affords any justification for the proposed location of building 3 on the common boundary. The building on Block 7 presently interfaces with the wall of a motel without windows but the plans for the proposed development on the subject land show that side walls of building 1 will be set back at least 3m from that boundary. The impact of a plain blank wall which interfaces with the courtyards of a residential apartment building would be, in our view, substantially greater on the residents of them. The building on the rear boundary of Block 8 is an open carport with a roof of usual carport height and involves little impact on the adjoining land. We have also had regard to the evidence of Ms Ramesh and Mr Smith that neither of them were aware of any approved multi-storey development constructed on the rear boundary of adjoining residential land.
40. We conclude that the end wall of building 3, as proposed to be sited, would be of a length and height that would fail to ensure that there is no loss of amenity to adjacent dwellings and private open spaces and fail, therefore, to satisfy Performance Criterion P3.5 of the Code.
41. The applicant informed the Tribunal that he would be prepared to accept a setback of 3m of building 3 from the common boundary as a compromise to compliance with Performance Measure D3.1.
42. In the circumstances, we conclude that building 3 should be set back 3m from the common boundary and that the party joined should provide further plans to the respondent which reflect such a requirement for further consideration.
Requirement for access
43. In his evidence Mr Smith said that the type of wall required to meet Condition 10(c)(i) of the respondent’s approval would require maintenance which could not be undertaken otherwise than by the erection of scaffolding on Block 2 and that the lessee of Block 2 may not be prepared to provide access to Block 2 for that purpose.
44. Mr MacCallum proposed that any ongoing maintenance could be addressed by negotiation with the body corporate of Block 2 or by the use of a hoist from the roof of building 3.
45. Little information was provided to the Tribunal to enable it to assess the nature or frequency of access that might be required to undertake either structural or routine maintenance to the wall of building 3 on the common boundary.
46. We consider that the giving of an approval to a development application that would result in a requirement that the lessee of adjoining land provide access to his/her land to undertake any necessary servicing of the approved development is problematical, particularly where the approval involved a departure from usual planning requirements and the views of the eventual lessee of the affected unit were unknown. In view of the conclusion which we have reached in relation to the issue of visual impact of the proposed development and the decision which we have arrived at, it is unnecessary to address this issue.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT06/43
APPLICANT: PHILIP DIMOV
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: JI & HC WLOSSAK & WLOSSAK PTY LTD
COUNSEL APPEARING: APPLICANT: MR M FLINT
RESPONDENT: MR G MCCARTHY
PARTY JOINED: MR D MOSSOP
SOLICITORS: APPLICANT: BRADLEY ALLEN LAWYERS
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED: CLAYTON UTZ
OTHER:APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DR E MCKENZIE, SENIOR MEMBER
DR D MCMICHAEL, SENIOR MEMBER
DATE/S OF HEARING: 26 & 27 OCTOBER PLACE: CANBERRA
& 6 NOVEMBER 2006
DATE OF DECISION: 9 NOVEMBER 2006 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENTS:
0
0
0