EDGAR AND ACT PLANNING & LAND AUTHORITY
[2007] ACTAAT 25
•13 December 2007
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:EDGAR AND ACT PLANNING & LAND AUTHORITY [2007] ACTAAT 25 (13 DECEMBER 2007)
AT07/38
Catchwords: Land and planning – review of decision approving extension to existing deck and erection of pergola – issues relating to privacy and overlooking – overshadowing of neighbouring block – setbacks from street boundary.
Tribunal:Mr B Hatch, Senior Member
Mr R Nichols, Member
Date:13 December 2007
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/38
LAND AND PLANNING DIVISION )
RE: ROY CECIL EDGAR
Applicant
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
DECISION
Tribunal : Mr B Hatch, Senior Member
Mr R Nichols, Member
Date : 13 December 2007
Decision : The decision under review is affirmed.
………………………….
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/38
LAND AND PLANNING DIVISION )
RE: ROY CECIL EDGAR
Applicant
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
REASONS FOR DECISION
13 December 2007 Mr B Hatch, Senior Member
Mr R Nichols, Member
This decision is with respect to an application for a review by the applicant of 8 August 2007. The decision being appealed from is dated 20 July 2007. The decision of 20 July 2007 is with respect to Block 1 Section 72 Division of Phillip. This is the southern area of Phillip which is known as Swinger Hill. An approval was granted for the Crown lessee of Block 1 Section 72 in Phillip to build:
(a) the extension of an existing deck by one metre; and
(b) the erection of a pergola over an existing patio.
2. The background to the Crown lessee seeking approval is that the works had already been commenced without apparently any application for approval having been made and certainly no approval having been granted. This state of affairs was brought to the attention of the respondent which then attended at the land in question and advised the builder and the owner that development approval was required. The work then stopped other than for some minor final works to waterproof the works including painting the wooden pergola.
3. The Tribunal and the parties went on a site inspection to view both Block 1 Section 72 Phillip where the building works were being undertaken and also the nearby land of the applicant. Both of those parcels of land can be seen from the other.
4. The issues raised by the applicant were in broad terms that the proposed extension to the balcony and the pergola were not in accordance with the Territory Plan. In particular, the applicant had difficulties with privacy issues. The applicant contended in evidence that lengthening of the balcony by one metre would create privacy issues with overlooking of his home. Secondly, the pergola would create overshadowing to the Crown lease next to building works. Thirdly, the increased length of the balcony would create overlooking issues for the adjoining Crown lease.
5. The applicant’s case largely turned on the Territory Plan. Appendix III.2 of the Territory Plan is entitled ‘Residential Design and Siting Code for Multi-Dwelling in the ACT’.
6. The various areas which are considered in Appendix III.2 are divided into a hierarchy of criteria. The starting point is what is known as the “objectives”. The next criteria are the ones called “performance criteria”. At this point it is worth quoting from the Introduction to Appendix III.2 where it is said:
An approval may not be granted to a proposal, which is inconsistent with the objectives and performance criteria stated in the relevant performance control.
7. The next criteria are the ones called “performance measures”. These performance measures tend to be quite detailed. Once again, it is worthwhile quoting from the Introduction. The sentence following the one quoted above states:
However, the performance measures are considered to satisfy the objectives and relative performance criteria in most cases so that normally no further evidence of performance is required. Proposals, which do not meet the performance measures, may still be considered in terms of whether they meet the relevant objectives and performance criteria.
8. The Territory Plan is quite a detailed document. It can in some aspects be slightly deceptive in its wording and it is essential that the relevant portion of the Territory Plan be read in its entirety to avoid falling into common traps.
9. One of the major issues for the applicant was with respect to the setbacks of the buildings from the street boundary. Much of the Tribunal’s time was taken up with this issue. The parcel of land the subject of the development approval is on two sides built to the boundary with courtyards at either end of the main building. The performance measures for setbacks in Appendix III.2 refer to various distances from a street frontage. These street frontages vary as to whether it is a corner block or the street boundary at the front of the block or as to whether the block is under or over 650 square metres in size. There are also performance measures with respect to setbacks from public reserves or pedestrian ways and from major roads. What amounts for instance a street front boundary as opposed to a street frontage on a corner block or to a major road would, from the reading of performance measures, tend to turn on individual cases. For the piece of land in question most of these performance measures are simply inapplicable. The piece of land in question has several frontages which front onto a street. Parts of the street are paved and parts of the street are landscaped with trees. Existing buildings such as the carport are already built to one front boundary. Mr Andrew Senger, who gave evidence for the respondent, provided a diagram attempting to show the relative setbacks in accordance with the performance measures. Mr Senger also gave evidence that the Swinger Hill development was built many years before the Territory Plan came into existence and was in fact built to a set of criteria which were specific to that development. The Tribunal finds that the performance measures for buildings in relation to front boundaries in Appendix III.2 are, at best, of little relevance to the subject piece of land and probably of limited relevance to much of the Swinger Hill development.
10. It is not a requirement for approval that a performance measure in Appendix III.2 be complied with. As the Introduction to Appendix III.2 points out meeting performance measures will normally be all that is required in order to satisfy the performance criteria and objectives in the Appendix. As the proposal does not meet the performance measures, it is necessary for the decision-maker to look at the performance criteria and the objectives.
11. The objective in relation to front boundaries is as follows:
O2.1To provide attractive streetscapes which reinforce the functions of the street and enhance the amenity of dwellings.
The performance criteria which is relevant is as follows:
P2.1The setback from the street frontage to be appropriate to the streetscape character, the efficient use of the site and the amenity of residents.
12. The Tribunal finds that in relation to the pergola it does provide an attractive streetscape which reinforces the functions of the street and enhances the amenity of the dwelling. In forming this opinion, the Tribunal has taken into account the next-door neighbour to the subject site. That owner was of the firm view that the pergola would provide shade in summer which would enable not only the subject site to be more useable during summer-time but also the neighbour’s own courtyard to be more useable as it would reduce radiant heat.
13. In relation to privacy, the Tribunal makes the following comments. The fin wall between the subject site and the next-door neighbour extends 600mm beyond the proposed balcony and the normal requirement would be only 450mm. Having attended the site inspection, the Tribunal concludes there is no privacy issue in relation to the property adjoining the subject site.
14. A further privacy issue was raised by the applicant in relation to overviewing of his property from the extended balcony. The Tribunal attended on a view in both the subject site and the applicant’s property. Clearly extending a balcony must alter the view from that balcony to any other point. In this case, the alteration of the view was of such a minor nature that it cannot be said that, in reality, the view between the two properties has been altered. The applicant agreed that his unit was some 40 metres from the proposed development. As such, the Tribunal finds that there is no issue in relation to overlooking or privacy.
15. The next issue is in relation to overshadowing of the adjoining property. Any structure will cast a shadow. The evidence of Mr Senger was that the overshadowing would not amount to three hours of overshadowing between 9.00am and 3.00pm at the winter solstice. Mr Senger gave evidence that he had not done a shadow projection as he did not see that it could be an issue. The Tribunal accepts his assessment of the overshadowing.
16. The Tribunal also notes performance control 3 in Appendix III.2. Performance control 3 is in relation to side and rear boundaries. As for front boundaries, the Tribunal finds that the performance measures are of no relevance to the subject site, as the existing buildings are already built to the boundary. The Tribunal therefore must turn its mind to the objectives and the performance criteria. The objectives are as follows:
O3.1To site buildings to meet projected user requirements for privacy and daylighting.
O3.2To site and design buildings to promote energy efficiency and access to sunshine.
O3.3 To ensure scale, height and length of a building and walls relative to side and rear boundaries are of appropriate residential character.
17. The performance criteria are as follows:
P3.1 The privacy of dwellings and private outdoor spaces to be protected.
P3.2Dwellings to be sited to enable their northern facades to receive adequate sunshine in winter.
P3.3.Dwellings 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.
P3.5 Building 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.
18. The Tribunal concludes that the design of the pergola by controlling heat into the courtyard during summer promotes energy efficiency and access to sunshine. Access to sunshine cannot simply mean a complete access to sunshine all day long without any regard to energy efficiency. Making a building too hot may create the need for a cooling system for the property which will use energy. The balcony and pergola also meet user requirements for privacy and daylighting for both the subject site and the adjoining property. The pergola now that it is painted in a brown colour similar to much of the Swinger Hill development is also of a scale, height and length which is appropriate for the residential character of Swinger Hill. The Tribunal also finds that the development meets the performance criteria in that privacy is protected, properties receive adequate sunshine in winter together with good sunlight access to the main private open space. As said earlier, overshadowing is minimised.
19. In the circumstances, the Tribunal affirms the decision under review.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
______________________________________________________________________
PART A FILE NO: AT07/38
APPLICANT: ROY CECIL EDGAR
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTIES JOINED: N/A
COUNSEL APPEARING: APPLICANT:
RESPONDENT: MR C ERSKINE
PARTIES JOINED:
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTIES JOINED:
OTHER:APPLICANT: SELF
RESPONDENT:
PARTIES JOINED:
TRIBUNAL MEMBER/S: MR B HATCH, SENIOR MEMBER
MR R NICHOLS, MEMBER
DATE/S OF HEARING: 7 & 8 NOVEMBER 2007 PLACE: CANBERRA
DATE OF DECISION: 13 DECEMBER 2007 PLACE: CANBERRA
______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
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