Downer Community Association and ACT Planning & Land Authority & Anor

[2007] ACTAAT 20

AUSTRALIAN CAPITAL TERRITORY

ADMINISTRATIVE APPEALS TRIBUNAL

CITATION:DOWNER COMMUNITY ASSOCIATION AND ACT PLANNING & LAND AUTHORITY & ANOR [2007] ACTAAT 20 (5 SEPTEMBER 2007)

AT07/24

Catchwords:  Land and planning – review of decision approving multi-unit development in A10 area – traffic, parking, streetscape, sewerage, waste management and tree damage issues – definition of “streetscape” – status of Downer Neighbourhood Plan.

Land (Planning and Environment) Act 1991, s 231

Tribunal:Mr M H Peedom, President

Ms P O’Neil, Senior Member

Date:5 September 2007

AUSTRALIAN CAPITAL TERRITORY                   )
ADMINISTRATIVE APPEALS TRIBUNAL )          NO:     AT07/24
LAND AND PLANNING DIVISION  )

RE:      DOWNER

COMMUNITY

ASSOCIATION

Applicant

AND:   ACT PLANNING &

LAND AUTHORITY

Respondent

AND:   MASTER PROPERTY

DEVELOPMENTS

PTY LTD

Party Joined

DECISION

Tribunal  :          Mr M H Peedom, President
  Ms P O’Neil, Senior Member

Date  :          5 September 2007

Decision  :

The decision under review is varied by adding a condition 8(b)(v) requiring the provision of a screened external drying area for units 2 and 3.

Otherwise, the decision is affirmed.

…………………………….
  President

AUSTRALIAN CAPITAL TERRITORY                   )
ADMINISTRATIVE APPEALS TRIBUNAL )          NO:     AT07/24
LAND AND PLANNING DIVISION  )

RE:      DOWNER

COMMUNITY

ASSOCIATION

Applicant

AND:   ACT PLANNING &

LAND AUTHORITY

Respondent

AND:   MASTER PROPERTY

DEVELOPMENTS

PTY LTD

Party Joined

EX TEMPORE REASONS FOR DECISION

5 September 2007  Mr M H Peedom, President
  Ms P O’Neil, Senior Member

The decision under review relates to the conditional approval of a development application made in respect of Blocks 14 and 15 Section 62 Downer.  The proposal of the development application was for the consolidation of the leases of both blocks and the demolition of the single residential building on each block.  Initially, the development application proposed their replacement with 11 residential units and then 8 units.  The final revised development application proposed the construction of 7 units comprising 1, 2 and 3 bedrooms.

2. Objections to the development application were made by a number of residents who lived in adjoining or nearby properties. Their objections are matters which section 231(1)(b) of the Land (Planning and Environment) Act 1991 requires us to take into consideration.

3.  The following were the major grounds of the applicant’s objection to the development application and our views in relation to them.

Inadequate consideration of the development application by the respondent

4.  The applicant’s representative drew attention to a number of matters which he contended showed that the respondent had been pressured by the party joined to arrive at a decision favourable to it and had given inadequate consideration to the matter.

5.  We do not need to dwell on this contention.  On the hearing of an application for review of decision the Tribunal stands in the shoes of the original decision-maker.  It is not necessarily the Tribunal’s concern to determine whether the respondent was right or wrong or whether it followed correct procedures or whether those procedures were flawed or deficient.  Its principal function is to determine what, on the evidence before it, is the correct or preferable decision for it to make.

6.  The Tribunal is obliged to give the applicant a fair opportunity to present its case.  By the directions it has given and by holding a hearing at which there has been opportunity for the applicant to present all of the evidence on which it wished to rely, to test the evidence relied upon by the other parties and to make a submission to the Tribunal, this requirement has, we believe, been satisfied.

Traffic

7.  The applicant expressed concern about the impact of traffic flow in the neighbourhood as the result of a greater number of residents living in the area in consequence of any approval of the development application.

8.  In particular, attention was directed to the volume of traffic passing through the intersection of Melba Street and Antill Street at periods, at least, of peak traffic flow.  Photographs of traffic entering Antill Street to the right from Melba Street were tendered in evidence.  They show what appears to be some degree of congestion, at the time when they were taken, which made it not straight-forward for that manoeuvre to be undertaken.

9.  Evidence was given in relation to the issue on behalf of the developer by Mr L Palmer, a qualified and practising traffic engineer.  He identified the making of the turn as a qualification on his opinion that the intersection was providing a high level of service on all movements.

10.  Based upon surveys which he had undertaken, the degree of saturation of making the right hand turn from Melba Street to Antill Street would increase from 70.5% to 71.6%, both of which he regarded as acceptable, if the development application was approved.  From another perspective, the queue formed to undertake the movement would, for a 10-20 minutes period during peak traffic flows, extend from 46 metres or 8 car lengths delayed for an average of 43.1 seconds to 48 metres for an average of 44.1 seconds at worst, to no delays at some stages during the peak period.  Mr Isaks who also gave evidence on this issue broadly supported the evidence of Mr Palmer.

11.  Based upon Mr Palmer’s and Mr Isak’s analyses we accept their opinion that the operation of the intersection would be affected to a negligible effect by the approval of the development application.

12.  We note also that the area in which the proposed development is to be undertaken is designated A10 under the Territory Plan.  The objectives of the planning policies are designed to permit more intensive development in areas near to transport corridors so as to encourage greater use of public transport, cycle and pedestrian options as an alternative to reliance upon private motor vehicles and the traffic congestion which they cause.  With that consideration in mind, we do not regard the potential increase of traffic through the intersection and elsewhere in the area as unacceptable.

Parking

13.  It is sufficient to say in respect of that issue that the proposed development makes provision for the parking of the motor vehicles of residents and of their visitors in accordance with the parking guidelines and Appendix III.2 of the Territory Plan.  The development application should not, therefore, be refused approval because of any failure to provide adequate on-site parking.

Streetscape

14.  One of the objectives of the A10 policies of the Territory Plan is that the development respects existing streetscapes and adjoining development or that it contributes to the desired future suburban character of the area as defined by an approved master plan.

15.  There is no approved master plan for the area in question and so the issue to be resolved is whether the existing streetscape and adjoining development would be respected.

16.  The plans of the development application and photographic montages explained by the architectural designer of the project, Mr Hobill, and sketches produced in evidence by the party joined show a development comprising 2x2 storey dwellings facing the street and separated by a driveway.  The style of the two buildings is of larger scale and, apart from one adjoining two storey dwelling, different in height to that which prevails in Allport Street, in which street the development is proposed.

17.  But, it is the style of dwelling that is similar in appearance to a single dwelling that could have been constructed on each block before their consolidation, under planning guidelines that apply to single dwellings.  It does not follow from the fact that a development proposes an observable difference to the existing style of development that it fails to respect it.  No evidence was presented to us that it would.  Unchallenged evidence was given by a qualified town planner, Mr Adams, that it would not.

18.  Each of the two buildings is to comprise two separate dwellings.  It is a central ingredient of the A10 policies that they make provision for more intensive development.  The style of development appears to us to be in conformity with the objectives of the A10 policies.

19.  From the street there will also be an obscured view of three single units towards the rear of the land.

20.  The applicant contended that these units would prevent deep-rooted planting of the kind contemplated by the master plan which applies in a part of the suburb of Lyneham.

21.  The difficulty for that submission is that, firstly, the relevant part of the suburb of Lyneham is subject to different planning policies and guidelines.  It is in a B11 area under the Territory Plan and not subject to A10 policies.  Secondly, it is subject to a master plan which specifically requires such space for plantings whereas the subject land is not.

22.  The applicant placed reliance upon the Downer Neighbourhood Plan prepared by the respondent and which has been placed in the Register of Planning Guidelines.  It is, therefore, a matter to which clause 9.2(b) of the Territory Plan requires that there be given careful consideration.

23.  Reliance was placed, in particular, upon the following statement at page 20 of the Downer Neighbourhood Plan:

Future character of the Residential Core Area

The Residential Core Area is identified in the Territory Plan as Area Specific Policy A10.  This policy allows opportunities for medium density housing in areas immediately around Town, Group and Local Centres.  The Residential Core Area is located on blocks adjacent the Downer Local Centre and over time will offer a diverse range of dwelling types, including one and two-storey dual-occupancies and town houses of no more than two storeys (8.5 metres).  Despite the modest increase in density the established street trees and mature garden setting will remain.

24.  It was contended on behalf of the applicant that the development proposed was not a “modest” increase because it increased the number of residential units from two to seven.

25.  This is to give the statement relied upon a meaning which, in our opinion, it does not have.  The statement does not, in terms, specify a policy that imposes a restriction on the increase in density of development in the Downer A10 precinct.  Rather, it is a descriptor or the expression of the anticipated outcome of the application of the A10 policies over a period of time.  Whether the outcome anticipated is an accurate or an inaccurate assessment is not the important point.  The important point is that the A10 policies are to be applied.  The reference in the statement to what the (A10) policy allows, that is, medium density housing, makes this clear.

26.  We would make the additional observation in relation to the applicant’s contention that what is proposed in this case is to be contrasted not only to the predominantly single storey residences of the type which are to be found in Section 62 Downer but also the multi-unit high rise residential developments that are occurring with increasing frequency in Canberra.  We do not consider that, in the hierarchy of the scales of density of development, the development application falls outside the description of medium density housing as that expression is used in the A10 policies.

27.  The issue raised by Dr Dall on behalf of the applicant as to whether the impediment to the planting of deep-rooted vegetation in the rear of the block as the result of the construction of units 5, 6 and 7 fails to meet the first of the A10 objectives is also affected by the definition of streetscape in Schedule 1 of Part D of the Territory Plan.  It provides:

Streetscape includes the visible components within a street (or part of a street) including the private land between facing buildings, including the form of buildings, treatment of setbacks, fencing, existing trees, landscaping, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.

28.  The land which is between facing buildings, apart from the public parts of that land, does not, as a matter of interpretation of the definition, include the land behind the facing buildings.

29.  It is not possible, in that event, to conclude that the first of the A10 objectives is not met by the construction of units 5, 6 and 7.

30.  The other matter to note is that there are two other objectives of the A10 policies:  They are:

·    To retain a moderate level of flexibility to accommodate a wider variety of additional housing close to facilities and services to meet changing community needs and preferences.

·    To assist in creating a more sustainable pattern of urban settlement by providing for more housing to be developed close to identified commercial centres.

31.  No suggestion was made that the proposed development failed to satisfy those objectives.

32.  Reliance was also placed by the applicant on a discussion paper prepared by the respondent in March 2007 and entitled ‘Evaluation of the Garden City Provisions’.  The purpose of that report is, however, explained in clause 1.1.  It is to be an evaluation to assess the effect of the Garden City Variation of the Territory Plan on urban development and to identify the need for any refinement in the application of those provisions.  It does not, by itself, effect a refinement of any existing policies.  Part A3 clause 9 of the Territory Plan specifies the matters that are required to be taken into account in assessing a development application.  The evaluation document is not one of them.  That document does not operate as an impediment to approval of the development application.

Sewerage

33.  The applicant also asserted that there were existing problems with sewerage in Allport Street and that an increase in the number of residences would place additional stress on the system.  No evidence was presented by the applicant to enable the Tribunal to make any meaningful finding that there was a problem and, if so, the nature and extent of it.

34.  An email message from an officer of the water and sewerage authority dated 11 July 2001 states, inter alia:

Although there have been several blocked main in this area, I have been advised that the sewer mains in this area do not require any investigation via a camera inspection and or rehabilitation.

Flows in the sewer mains much further downstream may reach or slightly exceed maximum capacity during Peak Wet Weather events.

With the demolition of 2 standards houses (3.6 equivalent population per house, total EP 7.2) and the addition of 7 units (2 equivalent population per unit, total EP 14).  Extra EP 6.8 persons.

The extra flow generated by an extra equivalent population of 6.8 is approximately 0.1 litres per second.

This minimal extra flow would have a negligible impact on the existing sewer mains at this location.

35.  The email message does not support a finding that the proposed development would create a problem that would warrant refusal of approval of the development application.

Waste management and trees

36.  As we indicated during the course of the hearing, there was no evidence that would suggest that the construction of a driveway between the front two buildings would damage the Linden trees on the verge.  We observed, at a site inspection, that there is a concrete driveway in existence in the place where it is proposed to install the driveway.  Nothing that we could observe suggests that damage is likely to be caused to the tree roots by the installation of a new driveway surface but we note that, in the event that there may be some interference with the roots of the trees in question, there are conditions of a kind that are usually imposed for the protection of the trees from excavation works.

37.  We also note the uncontested evidence of Mr Bombardier that should garbage disposal activities give rise to a problem with damage to branches of the trees, pruning can be arranged by request to the relevant authority.

Other matters

38.  By way of final comment, we would say that we do not wish our decision to be accepted as indicating a lack of regard for the care with which the applicant’s case has been prepared and the clear manner in which its representative has presented it.  We accept that the members of the Downer community who have assisted in the preparation of the case have done so out of concern to ensure that proper planning outcomes are achieved and we note the active participation that has been involved by the Downer community in the development of planning policies which affect it as part of the consultation processes that have been undertaken.

39.  We also note that their opposition to the development proposal has been influenced by their understanding of the planning arrangements that would flow from the Downer Neighbourhood Plan including the preparation of a master plan for an area that would include Section 62 Downer and the preparation of a companion guideline document that would ensure that any development would be sympathetic and complementary to existing development.  We also note their expectation that these matters would be addressed before the approval of future development.  It seems to us that such an understanding may well have been created by the Downer Neighbourhood Plan.  The evidence is that, despite the implication of the document that these steps will be undertaken, there is no current proposal for that to happen.  We are not in a position to say what might have been the outcome of this case if there were a master plan or a companion guideline.

40.  It seems to us, however, that when properly interpreted and applied in the circumstances of this case there is no requirement for those steps to be undertaken.  Our conclusion is that the development application complies with the requirements of the applicable Territory Plan policies.

41.  In all of the circumstances we consider that, subject to the addition of the condition proposed by paragraph 17 of the respondent’s statement of facts and contentions, which was not opposed, the correct or preferable decision is to affirm the decision under review.

FORM 33

PUBLICATION DETAILS

TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________

PART A  FILE NO:      AT07/24

APPLICANT:  DOWNER COMMUNITY ASSOCIATION

RESPONDENT:                   ACT PLANNING & LAND AUTHORITY

PARTY JOINED:                 MASTER PROPERTY DEVELOPMENTS PTY LTD

COUNSEL APPEARING:    APPLICANT:

RESPONDENT:       MR G MCCARTHY

PARTY JOINED:     MR C ERSKINE

SOLICITORS:  APPLICANT:

RESPONDENT:       ACT GOVERNMENT

SOLICITOR

PARTY JOINED:     BRADLEY ALLEN LAWYERS

OTHER:APPLICANT: DR D DALL

RESPONDENT:       

PARTY JOINED:     

TRIBUNAL MEMBER/S:   MR M H PEEDOM, PRESIDENT
  MS P O’NEIL, SENIOR MEMBER

DATE/S OF HEARING:      4 & 5 SEPTEMBER 2007      PLACE: CANBERRA

DATE OF DECISION:        5 SEPTEMBER 2007             PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( )               CASE NOTE ( )        UNREPORTED DECISION (X)
COMMENT:

ORAL DECISION GIVEN