Elliott v ACT Planning and Land Authority
[2023] ACAT 7
•27 January 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ELLIOTT & ANOR v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2023] ACAT 7
AT 63/2021
Catchwords: ADMINISTRATIVE REVIEW – proposed development application – RZ3 Urban Residential Zone – considerations in section 144 of the Planning and Development Act 2007
Legislation cited: Planning and Development Act 2007 ss 120, 144
Subordinate
Legislation cited: Braddon Precinct Map and Code
Inner North Precinct Code
Residential Zones Development Code
Multi Unit Housing Development Code
Parking and Vehicular Access General Code
Access and Mobility General Code
Crime Prevention through Environmental Design General Code
Residential Boundary Fences General Code
Territory Plan 2008
Cases cited:4THD Planning & Design Pty Ltd ACN 154 870 078 v ACT Planning and Land Authority & Ors [2021] ACAT 59
Tribunal:Senior Member G Lunney SC
Senior Member G Trickett
Date of Orders: 27 January 2023
Date of Reasons for Decision: 27 January 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 63/2021
BETWEEN:
CLEAVER ELLIOTT
First Applicant
HONG-NHUNG ELLIOTT
Second Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
COMMISSIONER FOR SOCIAL HOUSING
Party Joined
TRIBUNAL:Senior Member G Lunney SC
Senior Member G Trickett
DATE:27 January 2023
ORDER
The Tribunal orders that:
The decision of the respondent on 6 July 2021 in relation to DA No. 202138290 to approve the development subject to conditions is varied as follows.
Part A “Conditions relating to leasing” A1 and A2 are deleted.
Part A “Conditions relating to design and siting” A4 Evoenergy (Electricity) is to include eight additional conditions (c) to (j):
(c)A minimum of 1m clearance is required within the block boundary for the proposed or existing meter box.
(d)Development is to comply with a minimum 1.5m machinery access clear of obstacles and vegetation to assets within the block.
(e)Development is to comply with minimum clearances to overhead conductors and poles.
(f)Development is to comply with minimum separation requirements to underground assets.
(g)Installation of electrical conduits (on or off block) will be the responsibility of the proponent.
(h)Proponent is required to submit an “Application for Electricity Network Connection or Alteration form” to [email protected] prior to commencement of any development activity to negotiate the connection of new and/or relocation of existing electricity assets.
(i)The location of the proposed or existing Point of Entry/Meter Box is to comply with Evoenergy’s Service and Installation Rules.
(j)There is a Point of Entry (POE) 2142740 on this block. If the proponent requires any additional alteration or disconnection, they must contact Evoenergy. Any change to the POE will need to meet current standards.
Part A “Conditions relating to design and siting” A5 Transport Canberra and City Services (TCCS) Stormwater, replace condition (i) with new condition and include three additional conditions (l), (m) and (n):
(i)An unobstructed access corridor minimum 2.5m wide and 2.5m high must be provided from the front of the block (street frontage) to and along the stormwater easement at the rear of the block, to the satisfaction of TCCS. The access corridor must provide enough space for vehicles or machinery to manoeuvre and turn around as required. Any new gate/fence that gives access to the easement must have opening/removable panels with a clear width of 2.5m. Landscaping and new vegetation must not obstruct access to or along the southwest easement.
(l)For all proposed structures close to the southwest easement (such as the proposed retaining walls), the loading zone of influence of the footings must be beneath or outside the southwest pipe and associated trench backfill. A structural engineer must certify that the structures close to the southwest easement will not impose adverse loads on the pipe, and that possible future trench excavations required to expose the pipe will not undermine, destabilise or damage the structures.
(m)The depth of cover over the existing stormwater pipe within the easement must not be reduced without prior approval from TCCS and must not be less than 600mm in any case.
(n)The existing manhole in the southwest corner of the block must be shown on the engineering site plan. The manhole must either be located well clear of the new paved area (minimum 1.2m from the edge of manhole to edge of paved area) or the manhole must have a trafficable lid and if located within the paved area then the top of the manhole must be flush with the paved area.
Amend waste condition to (o).
Amend retaining wall condition to (p).
Part A “Conditions relating to design and siting” include new conditions “A6.
Evoenergy (Gas) – Building work not to commence”:
(a)The location and area allocated for gas regulating and metering equipment is to comply with Evoenergy Gas Service and Installation Rules.
(b)Development is to comply with minimum separation requirements to underground assets:
· 300mm minimum clearance from major plastic and steel gas mains and steel gas services
· 150mm minimum clearance from other plastic gas mains and services
(c)A metering equipment upgrade may be required. A licensed gas fitter should verify loads and metering equipment capacities.
(d)A meter relocation or service pipe relocation must only be carried out by a person accredited by Evoenergy.
Part A “Conditions relating to design and siting” include new condition “A7 Icon Water – Building work not to commence”:
(a)A sewer maintenance structure is located on this block. Unobstructed 24/7 access a minimum of 1.5m wide is to be maintained across the land to the asset.
(b)All Icon Water valves, hydrants, meters and maintenance holes/pits must have 24/7 access by Icon Water and Emergency Services. The developer must provide Icon Water 24/7 access to the construction site. The developer is to obtain Icon Water padlocks which must be installed in a daisy chain fashion at each entry and exit point of the construction site. No stockpiles, temporary structures or equipment is to be located within the pipe protection envelope.
(c)As per Criterion 1 – Easement and other access clearances of the Planning and Development Regulation 2008, no structures are to be built over Icon Water easements, pipe protection envelopes or access passages without Icon Water’s written approval. In accordance with this provision, access is to be maintained across land in these areas.
(d)Icon Water assets shall be protected for the duration of the construction works from short term load shedding from construction machinery or vibration and groundwater ingress or infiltration. Any damage to Icon Water assets resulting from the construction works shall be repaired by Icon Water at the contractor’s expense. Access to Icon Water’s assets including sewer structures, manholes, hydrants and valves is to be maintained for the duration of the construction works.
(e)Proponent must install a private sewer riser at the sewer tie to ground level.
(f)Location of the water meter is to be clear of driveways and footpaths with a 1m radius unhindered access maintained. If required, relocation of the water service is to be undertaken by Icon Water at the lessee’s cost. Relocations further than 1.5m laterally require a hydraulic plan to be approved by Icon Water prior to applying for the relocation. Evidence of this being performed and constructed is to be forwarded to Icon Water before the certificate of occupation is issued.
(g)Protection of water and sewer networks to be in accordance with the Icon Water requirements.
(h)Servicing of water and sewerage must be in accordance with Icon Water requirements. Design of External Services plans and Off Site Works must be approved by Icon Water Hydraulic Assets Acceptance section.
Amend A6 Compliance with entity requirements to A8 and so on down to Encroachment changes from A10 to A12.
The development be in accordance with the revised drawings in Schedule 1, being the revised 44 drawings with:
a)Dense advanced hedging to the street setback. Drawing L02 Landscape Planting Plan, Planting Schedule, Hedge Shrubs, PGP, is to be amended to specify advanced planting rather than 200mm pots.
b)The 5.1 metre high privacy screen/trellis located between the Units G.4 and G.5 at ground level and Units 1.4 and 1.5 on the first floor level. The plans are to be amended to show the privacy screen/trellis with a horizontal dimension of 2.
c)The car park basement retaining wall to the west of GD.01 (garage entry door) to be truncated to permit a maximum 3-point turn to parking bays 9 and 10.
d)The B85 turning circle diagrams to not be included as part of the Development Application.
e)The B99 vehicle turning templates updated to demonstrate (c) above.
f)The storage cages allocated to bays and units.
g)The retaining wall removed from the front zone beside the driveway entry.
h)The PWD shared bay, signage and bollard designated.
i)The additional evergreen trees and planting to the rear zone planted parallel to the rear boundary as well as parallel to the rear façade as shown on L02 – Issue F.
j)The provision for sightlines to both sides of the driveway, at the front boundary, 2 metres by 2.5 metres triangulated and planted with lawn only.
………………………………..
Senior Member G Lunney SC
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
This is an application for review of a decision by the ACT Planning and Land Authority (respondent) concerning a proposed development application (DA) by the party joined, the Commissioner for Social Housing (Commissioner) at Block 20 Section 2 Braddon, in the Territory. The decision was made on 6 July 2021 to approve the Commissioner’s development application subject to conditions for a supportive housing development comprising the demolition of an existing building, the construction of ten supportive housing dwellings in a two-storey building, basement car parking, landscaping, and associated works, and a variation to the Crown lease to add the use of supportive housing. The Commissioner is the registered proprietor of the property.
The subject property is 1,402m2, located at 11 Lowanna St, Braddon. The applicants reside in Burra St, Braddon. The two properties have a common rear boundary. The basis of the applicants’ opposition to the development was that it had windows, doors and balconies which directly overlooked the back yard of their property. This was going to be materially detrimental to and adversely affect “the enjoyment of their back yard”. They referred to a precedent in 2010 when the existing building was being designed and in response to representations by the applicants, the developer had changed its development proposal so that there was no adverse overlooking of the applicants’ property.
Hearing
The hearing commenced on 21 October 2021 at which the applicants were self‑represented. The hearing did not conclude until 14 September 2022 because the Commissioner sought a number of amendments to the DA. At one stage, an issue arose as to the status of the DA under section 144 of the Planning and Development Act 2007 (PLA). The Tribunal made orders on the 5 November 2021 for the Commissioner to file any amendments to the development application, including any further plans, by 19 November 2021. The Commissioner requested that the Tribunal consider these amended plans as part of the review process pursuant to section 144 of the PLA as set below:
144 Amending development applications
(1) The planning and land authority may, if asked by the applicant, amend a development application.
(2) However, the planning and land authority must not amend the development application unless—
(a)the authority is satisfied that—
(i)the development applied for after the amendment will be substantially the same as the development applied for originally; and
(ii)the assessment track for the application will not change if the application is amended; and
(b)for land under a land sublease—
(i)if the applicant is not the sublessee—the sublessee consents, in writing, to the amendment; and
(ii)if the applicant is not the Crown lessee—the Crown lessee consents, in writing, to the amendment.
(3) The planning and land authority must, not later than 5 working days after the day the applicant asks for the amendment—
(a)amend the development application; or
(b)refuse to amend the development application.
(4) If the planning and land authority does not tell the applicant that the authority refuses to amend the application within the time given under subsection (3), the authority is taken to have amended the application.
The Tribunal made orders on 22 April 2022 for the respondent to refer the amended development application to relevant entities and publicly notify the amended development application. This was done on 27 April and 28 April 2022 respectively. The amended development was for ten apartments with two of those apartments used for the purpose of supportive housing. The respondent received advice from four entities, Evoenergy Gas, Icon Water, Evoenergy Electricity, and Transport Canberra and City Services (TCCS). The respondent received a representation from Joe and Lisa Graham and a representation from Cleaver Elliott. The matter proceeded on the DA as it had been amended to that time.
The hearing resumed on 13 September 2022.
The original and amended application had involved a lease variation for a change in the purposes clause of the Crown Lease to permit the use of the land for supportive housing. During the hearing, the Commissioner informed the Tribunal that the development had not and was not proposing to provide for operational parking on site to meet clause 3.1.4 Location requirements of the Parking and Vehicular Access General Code (PVAGC).
Supportive housing is defined in the Territory Plan (TP):
…the use of land for residential accommodation for persons in need of support, which is managed by a Territory approved organisation that provides a range of support services such as counselling, domestic assistance and personal care for residents as required. Although such services must be able to be delivered on site, management and preparation may be carried out on site or elsewhere. Housing may be provided in the form of self-contained dwellings. The term does not include a retirement village or student accommodation.[1]
[1] Territory Plan 2008, NI2008-27, Definitions, page 26
Relevantly, a development for supportive housing is to provide a range of support services such as counselling, domestic assistance, and personal care for residents as required which must be able to be delivered on site. Clause 3.1.4 Location Requirements of the PVAGC specifically requires operational parking for residential use to be located on site.
The Tribunal was informed that the Commissioner no longer wished to use the premises for supportive housing, and the variation would not be pursued.[2] At the same transcript reference, the Commissioner therefore sought leave to amend the DA to remove reference to supportive housing. Leave was granted without objection. The DA, as amended, sought approval for ten units, two of them as adaptable housing units, one in addition to the mandatory requirements of R54 of the Multi Unit Housing Development Code (MUHDC).
[2] Transcript of proceedings, 14 September 2022, page 9
Final submissions were heard on 14 September 2022. However, when the matter was adjourned for decision on that date, the Commissioner was still to file final plans forming the basis of the application. This was done on 4 October 2022. They have not formally been marked by the Tribunal; however, they are identified by their date of filing for the purposes of this decision.[3]
[3] Refer to Schedule 1
The applicants relied upon their written submissions to the decision to approve the development application dated 14 September 2021,[4] their submissions in reply dated 12 October 2021,[5] and their submissions to the amended plans dated 30 August 2022 with the attachment A to those submissions. The applicants seek orders setting aside the decision.
RZ3 Zone objectives
[4] Exhibit 1
[5] Exhibit 2
The applicants submit that the DA does not comply with the RZ3 Urban Residential Zone (h) in that it does not promote energy efficiency and conservation.[6]
Inner North Precinct Code
[6] The applicant incorrectly identified (g). Refer to [61] and [62] of these Reasons
The applicants submit that the DA does not comply with the Inner North Precinct Development Code (INPC) Part A General Development Controls,[7] because the six west facing windows to the second storey and the two balconies do not provide a healthy residential environment due to their western orientation. That it does not comply with the INPC Part A General Development Controls,[8] because their block and their neighbour’s block to their north are overlooked by the development resulting in a loss of privacy, and possibly safety and security.
[7] (c) to retain and enhance a healthy and attractive residential environment for existing and new residents to the area
[8] (d) to create a safer, more secure environment
The applicants identified that the development breached R/C8, C9, R/C13 and R/C15 of the INPC.
They submit that in relation to R/C8 and C9, the 7-metre rear setback to permit deep-root planting and privacy is violated by the concrete driveway and car park, and that there is no provision for tree planting across the rear boundary.
They submit that the driveway, carparks, and footpaths in the rear zone, in relation to R/C13, exceed the site coverage of 30% of the rear zone.
They submit that the development does not provide the articulation of the front façade to meet R/C15.
The respondent relied on the statement of Mr Davis. Mr Davis initially said that neither the Braddon Precinct Code (BPC) nor the INPC applied to this development. The respondent’s position changed during the hearing, and they now say both the BPC and the INPC apply to the development.
Rear Setback
R8
Rear setbacks are 7 m on blocks specified in the Control Plans (Part B). Where blocks 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.
Part 2.4 Rear Setbacks R8 relevantly requires a 7-metre rear setback on blocks specified in the Control Plans (Part B). The Braddon Control Plan does not show Block 20 Section 2 Braddon as it is presently; rather it shows the pre‑amalgamated Blocks 8 and 9. ACTmapi does show Block 20.
The southern boundary to Block 20 has a single bearing of 250 degree 12’ 40” as shown on the Contour and Detail Survey drawing 997901 at T405. The boundary is a side boundary as defined in the TP as it extends from a street frontage along a single bearing, and therefore, is not a rear boundary. In our view, the inclusion of a rear boundary 7-metre setback requirement, as shown on the Braddon Control Plan for the previous Block 9 (now part of the amalgamated Block 20), along this side boundary, is not consistent with R8 being relevant only to rear setbacks.
This inconsistency in the INPC was not raised in the hearing. In our view, the 7‑metre setback to the side boundary forward of the 7-metre setback from the rear boundary is not a requirement for Block 20.
Setback is a defined term in the TP:
Setback means 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 roofc) a balcony, deck or verandah.
The design elements in the 7-metre rear zone include the rear and side fences, the permeable parking paving for two parking spaces, a path that leads from the parking to the north side common entry and fencing associated with the POS of Unit G5. The word structure is not italicised in the definition of setback. In our view, it is not consistent with the intent of the definition of setback in the TP that fences, footpaths, driveways, and car parking are required to be located beyond the setback to boundaries, other than where specifically identified by rules or criterion such as R77 in the MUHDC. If this were the intent, then an entry driveway from the street could not cross the front setback and a driveway could not be located up to one metre from a side or rear boundary,[9] and a side and rear fence could not be located adjacent to a boundary.
[9] R73, MUHDC
The 7-metre rear setback is not encroached by a building wall, a post that supports a roof, a balcony, deck, or veranda. In our view, R8 is met.
Building Siting
C9
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.
There is no R9 only a criterion. In our view, C9 is also met by the above considerations. Relevantly, the building design is primarily across the frontage with space to the rear to introduce large canopy trees and create a treed backdrop to much of the development:
(a)The side setback permits both physical and visual access to the rear garden.
(b)The nine trees within the 7-metre rear setback will lessen privacy impacts between adjacent sites.
(c)There is an area greater than 50% within the setback allocated to private and communal open space with landscaping and tree planting.
Site Coverage
R13
Site coverage in the rear zone does not exceed 30%. This rule does not apply to:
a) Braddon Sections 15, 16, 58 and 59
b) O’Connor Section 40
c) Lyneham Section 46 Block 1 and 2.
Note: A basement structure that projects into the Rear Zone is included in calculations of site coverage.
C13
This criterion applies only to a site where at least one protected tree is proposed to be retained within the primary building zone. In all other cases the rule is mandatory. Sufficient space on the block is provided to retain or introduce large-canopy trees and create a treed backdrop to development. Compliance with this criterion is demonstrated by a report from a suitably qualified person. A protected tree is defined under the Tree Protection Act 2005.
For this development, R13 is a mandatory rule as there are no protected trees to be retained and this section of Braddon is not excluded. Site coverage is a defined term in the TP; however, it is not italicised in R13. Defined terms are italicised in the TP codes and are listed in part 13 of the TP. We are of the view that the definition is an appropriate guide as to the intent of the rule. Site coverage means the proportion of the actual site covered by dwellings and other buildings. Buildings is italicised in the definition and includes an addition to a building, a structure attached to a building, and a part of a building.
In our view the driveway, surface car parks, and footpath should not be included in the calculation of site coverage for the purpose of R13. The site coverage in the rear zone does not exceed 30%.
Articulation of the front facade
R15
The articulation of the front façade of a building must exceed 40% of the width of the building, at every storey level.
C15
The front façade of a building is articulated to:
a) prevent continuous walls of development
b) provide visual interest to building alignment.
The applicants submit that the extent of the front façade articulation does not exceed 40%.
We have attempted to review the site plan DA-30-INPC, the ground floor plan DA-06-INPC and the first-floor plan DA-07-INPC with respect to the front façade dimensions. There do not appear to be adequate overall dimensions of the building. Unlike the north side and south side dimensions shown on the plan at DA-03-INPC, the plan dimensions for the building layout of the east façade (street façade) do not appear to provide the overall width of the parts of the building at the front setback and the four recesses to the façade made up of the three balconies and the entry satisfactorily. It appears that the dimensions need to be calculated from a number of dimensions set out from grid lines which in turn are not all set out from the external faces of the walls.
There are at least 3 rules or criteria that relate to front façade articulation in the INPC and at least two rules in the MUHDC. This dimension information should have been clearly shown for the plans of the street front to meet the requirements of section 139(2)(f) of the PLA.
We have scaled from the drawings and find the front façade articulation exceeds 40%.
Multi Unit Housing Development Code
Part 3.20 Building envelope
The applicants submit that both R25 and R26 are not met. They did not address the criteria.
The respondent relied on the evidence of Mr Davis. He says that the encroachments are minor and occur at the roof level with the result that C25 (b) and C26 (c) privacy for neighbouring blocks is maintained and is achieved. The overshadowing of the development to the south only occurs after 3pm on 21 June and the shadowing mostly occurs on the development’s driveway with the result that C26 (b) reasonable solar access is achieved.[10]
The party joined relied on the respondent’s assessment that the DA complied.
R25
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 building envelope formed by planes projected over the subject block at 45o to the horizontal from a height of 3.5m above each side and rear boundary, except as required by the next rule.
Refer 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 2: For the purposes of this rule all height measurements are taken from datum ground level.
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 2: For the purposes of this rule all height measurements are taken from datum ground level.
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.
We are of the view that C25 and C26 are met. The desired character C25 (a) and C26 (a) and privacy of the dwellings and their POS C25 (b) and C26 (c) are not affected by the encroachments. The encroachments to the north and south are shown on drawing DA-24-INPC.[11] The encroachment to the north extends along the roof line of unit 1.1. The encroachment is minor. The encroachment to the south extends the length of the roof. The extent of encroachment is minor. The adjacent property has a driveway along the northern boundary. The shadow diagrams on drawings DA-20, 21, 22 and 23-INPC show that on 22 June the shadows formed by the development are adjacent to the existing building at ground level at 2pm. The building and any associated POS receive in excess of 3 hours of sunlight on 22 June, C26 (b). C26 (d) does not apply.
[11] Exhibit 3.2
Part 6.3 Privacy
R60
This rule applies to principal private open space on the same block and on adjacent blocks. A person with an eye height of 1.5m standing at any point on the extremity of an unscreened element of one dwelling shall not have a direct line of sight to more than 50% of the minimum principal private open space of any other dwelling. The direct line of sight is a minimum distance of 12m.
C60
Evidence is provided demonstrating that reasonable privacy of principal private open space of each dwelling is achieved through design solution. Note: this does not include installing high sill windows, obscured glass, and/or angled louvres.
The applicants submit that the DA does not comply with R/C60 of the MUHDC, relevantly the overlooking of their Principal Private Open Space (PPOS) and the overlooking of their neighbour’s dwelling to their north. Mr Elliott said that the amended DA to replace tree planting with car parking and driveways would exacerbate the privacy issue for both of them as well as the prospective residents of the development.
The respondent relied on their submissions and the witness statements of Mr Davis. Mr Davis said that R60 of the MUHDC was complied with and that the addition of screens to the balconies will alleviate any privacy concerns. Mr Davis said that the direct line of site does not overlook 50% of the minimum Private Open Space (POS) on both blocks 5 and 6. He referred to the approved plans for the dwellings on these blocks and measured the distances from the unscreened elements to the approved PPOS on the two blocks as indicated on the approved plans.[12] It is not clear to us what PPOS on Block 5 he made reference to. Mr Davis altered his position during the hearing to say the Block 5 did not have an area of PPOS.
[12] Exhibit 3.7 at [24], Annexure A
The Commissioner relied on their submissions and the witness statements of Mr Pfaff. Mr Pfaff is employed by CK Architects, the architects engaged by the Commissioner for this development. He has 40 years of experience. Mr Pfaff says that the added privacy screens and reduced size of windows will provide privacy and reduce overviewing of the properties to the west.
Mr Pfaff set out his analysis of R60 by way of four drawings in Annexure DP2 to his witness statement of 18 August 2022.[13] Mr Pfaff said that he had reviewed the representations made by the applicants and also the representation from Mr Joe and Ms Lisa Graham to the respondent after the further public consultation process. Mr and Ms Graham are the owners of Block 6 Section 2. While they made a representation, Mr and Ms Graham were not a party to the hearing.
[13] Exhibit 3.1
Mr Pfaff said that there was no PPOS on Block 5 as the area in question was only accessible from the residence through the garage and therefore did not meet the definition of PPOS as the area was not directly accessible from a habitable room.
He said that he had identified two areas on Block 6 that may comprise PPOS, having sole regard to its definition. He did not have the advantage of having the floor plans for this house however he determined that neither of the two spaces, and indeed no area in the yard to the south and east of the dwelling, were capable of comprising the applicable minimum PPOS requirements. He explained why with reference to Annexure DP2 drawings[14] and amended shadow diagrams.[15]
[14] DA Attachments A, AA, B, and BB
[15] Exhibit 3.3; DA 32, 22, 34 & 35
We agree with the respondent and the party joined as we explain below, with one limitation. We do not agree that Block 6 has no rule compliant PPOS.
R60 applies to PPOSs on the subject block and adjacent blocks and relevantly requires that a person with an eye height of 1.5 metres standing at any point on the extremity of an unscreened element of one dwelling, in this case any unscreened balconies and unscreened windows, shall not have a direct line of sight of a minimum distance of 12 metres to more than 50% of the minimum PPOSs of any other dwelling.
The applicants live at Block 5. The definition of PPOS in the TP means POS that is directly accessible from a habitable room other than a bedroom. The definition in the TP of a habitable room means a room within a dwelling capable of being lawfully used for the normal domestic activities of living, sleeping, cooking or eating, and includes a bedroom, study, living room, family room, home theatre, rumpus room, but does not include a bathroom, laundry, utility room, hallway, garage, or other spaces of a specialised nature occupied neither frequently nor for extended periods.
The applicants’ residence on Block 5 is a single dwelling. R41 of the Single Dwelling Housing Development Code (SDHDC) requires that the PPOS also be adjacent to a habitable room. R41 a) of the SDHDC requires the minimum area and dimensions specified in Table 8. The residence is in an RZ3, it is a large block and Table 8 stipulates a minimum area of 24sqm and a minimum dimension of 4 metres.
Two of the drawings annexed to Mr Davis’ witness statement are for Block 5. The original drawing of the dwelling is dated 18 June 1960 and titled “Proposed Brick Residence” and was approved on 22 June 1960. It shows that the only external doors open off the entry hall and the laundry. The other drawing is titled “Proposed Alterations to Existing Residence” and was approved on 10 March 1981. Both developments on Block 5 were approved by the NCDC under an earlier planning system to the PLA. The drawing titled Proposed Alterations to Existing Residence is for the approval of the addition of a new attached garage and some internal changes. The garage is shown as being accessed from the existing laundry. There are garage doors to both ends of the garage and a single swing door opening on to the rear yard to the east from the garage. Other than the front door and the garage door there is no other access to the outside from the house. The front door access to a notional PPOS does not meet the definition in the TP as it would be off a hallway and is only directly accessible to an area with a minimum dimension of approximately 3.5 metres. The applicants did not produce evidence that there was access from a habitable room other than a bedroom as defined.
In our view, Block 5 does not have a PPOS as defined. Given that the area the applicants are concerned with is to the east and south of the garage then this area meets the definition of POS.
During the hearing the applicants acknowledged that there was a shed and tree in the northeast corner of their block. Our analysis of DA Attachment A is that an area of Block 5 is overlooked, however, the extent of the area overlooked which includes the shed and tree is within a relatively small arc of area with a maximum depth of 3.5 metres from the northeast corner of the block and extending approximately 5 metres and 6 metres along the two boundaries which are set at an obtuse angle. There is an extensive area of POS beyond the 12 metres. In our view, R60 is met for Block 5.
Block 6 is to the north of Block 5. It has a dual occupancy development on the block. Mr Pfaff said that he had analysed two locations, X and Y[16] which he said could be considered to be PPOS on the block. He did not have the advantage of the approved floor plan and site plan at Annexure A to Mr Davis’s witness statement for his analysis. The relevant dwelling is identified as Unit 1 on the plans. Those plans were approved on 26 June 2000 under an earlier planning system to the PLA. The area designated X is to the south of the dwelling and is directly accessed off the laundry. Mr Pfaff located the 6 x 6 metre minimum area for X, as set out in R61 Table A9 of the MUHDC, partly inclusive of the external walls of the dwelling. He said that the area X did not meet R61 as it was to the south or southeast and would not have sufficient sunlight on the winter solstice, and that it would not achieve reasonable solar access to meet C61 (f). As such was not the PPOS relevant to R61.
[16] Exhibit 3.1 DP2
We will address area X first. We are of the view that area X being directly accessed off the laundry and not directly accessed from nor adjacent to a habitable room other than a bedroom is not a PPOS for the purposes of R61. It may be considered as an extension of the PPOS off the designated area Y; which we discuss below.
In our view the area Y does satisfy R61. The area adopted by Mr Pfaff appears to extend into the building proper. His plan appears to be based on the roof plan. The approved drawings for Block 6/2[17] show that area Y is directly accessed from the open plan living area onto a narrow verandah. The area Y has an area up to the east side boundary that is equal to or greater than the 6 x 6 metres, the minimum area set out at Table 9 for what we were informed is a 3-bedroom dwelling. The area has a minimum dimension of at least 6 metres, (a) and (b). The area is set 14 metres from the front boundary of the block and as such would be considered to have privacy from the public open space and no evidence was before us that showed that it wasn’t adequately screened from public view, (c). Our view of the overshadowing of area Y from the adjacent two storey apartment building, referred to by Mr Pfaff at paragraph 25 (b) of his statement, is that it does not need to be addressed. Firstly, because the area is to the east and therefore part (e) does not apply, and secondly there was no evidence before us that the apartment development was given planning approval or was constructed before the dual occupancy approval of June 2000, and we think it unlikely that it was. Even if the area is to the southeast, the shadow diagrams prepared by Mr Pfaff show that at 10am (if one ignores the shadow from the neighbouring apartments), and at 11am, 12pm and 1pm, area Y receives direct sunlight onto at least 50% of the minimum required area. When half an hour of shadowing either side of 10am and 1pm is included, there are four hours of direct sunlight on more than 50% of the area.
[17] Exhibit 3.7
In our view only one minimum area is required to be analysed for R61. Area Y satisfies R61 as it meets the relevant parts (a), (b), (c), and (d). Area Y is located 15 metres from any unscreened element on the subject site.
In our view R60 is met for the 12-metre direct line of sight from the unscreened elements on the subject block to the PPOS of Block 6. The proposed additional planting of trees within the rear zone as shown on DA-Attachment F issue 1 the amended plan[18] will provide further screening for Block 5.
[18] Exhibit 3.5
The other part of R60, PPOS on the same block, has been met by the proposed 5.1 metres high by 2 metres long, attached, privacy screen trellis between the four, rear, west facing units as shown on DA-Attachment G issue 1 the amended plan,[19] refer above.
Crime Prevention through Environmental Design General Code
[19] Exhibit 3.6
The applicants submit that the DA does not comply with two key principles of the Crime Prevention through Environmental Design General Code (CPTEDGC), relevantly natural surveillance and target hardening associated with the six west facing windows to the second storey and the two balconies which he says do not provide for surveillance of the street and offers no crime deterrence or prevention to them.
The introduction to the CPTEDGC describes natural surveillance as intended to limit the opportunity for crime by designing spaces and buildings that foster human activity and interaction as well as overlooking of the environment. Relevantly, to the western side of the development adjacent to Blocks 5 and 6 are:
a) clear, direct paths that encourage pedestrian movement through spaces;
…
d) … windows that look out on to … open spaces and parking areas.
The introduction to the CPTEDGC describes target hardening as the property owner or occupier seeks to deter criminal activity by making it as difficult as practicable to steal or vandalise property, or buildings. This includes by making the physical security of a site stronger and increasing the perceived risk to an offender. The basis of target hardening is to strengthen the defences of a site to deter the attack and/or delay the success of an attack.
We are of the view that the proposed development achieves each of these. The preference of the applicants to reduce views from the development to the rear of the subject site would reduce the effectiveness of the design to achieve these outcomes.
Relevant zone objectives
RZ3
Zone objectives
a) Provide for the establishment and maintenance of residential areas where the housing is low rise and predominantly medium density in character and particularly in areas that have good access to facilities and services and/ or frequent public transport services
b) Provide opportunities for redevelopment by enabling changes to the original pattern of subdivision and the density of dwellings
c) Provide for a wide range of affordable and sustainable housing choices that meet changing household and community needs
d) Ensure development and redevelopment is carefully managed so that it achieves a high standard of residential amenity, makes a positive contribution to the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties
e) Provide opportunities for home-based employment consistent with residential amenity
f) Provide for a limited range of small-scale facilities to meet local needs consistent with residential amenity
g) Promote good solar access
h) Promote energy efficiency and conservation
i) Promote sustainable water use
j) Promote active living and active travel
k) Encourage an attractive, safe, well-lit and connected pedestrian environment with convenient access to public transport
Much has been said in previous decisions as to how the tribunal is to regard relevant zone objectives. As the tribunal observed in 4THD Planning and Design Pty Ltd v ACT Planning and Land Authority & Ors:[20]
It bears repeating the finding in Argos Pty Ltd v Corbell, that one purpose of the zone objectives is to “provide guidance in interpreting the rules and criteria found in the codes”. As the tribunal said in Javelin Projects v ACTPLA, the objectives provide an important yardstick on the degree of ‘stretching’ the interpretation of the rules and criteria in the code can bear when discretionary decisions are to be made. It seems to us that if the development had been assessed as code compliant, there will be a strong presumption that the zone objectives have themselves been met. [footnotes omitted][21]
[20] [2021] ACAT 59 at [156]
[21] The Tribunal notes the decision under review in 4THD Planning and Design Pty Ltd v ACT Planning and Land Authority & Ors was a refusal to approve the proposed development.
Section 120(a) confers a requirement to consider the relevant zone objectives if the proposal is consistent with part 1 and would not be inconsistent with part 2 and meets part 4 of section 119, and if found to be inconsistent with the zone objectives confers an additional discretion on the Tribunal in relation to refusing to approve the development.
The applicant has confined his contentions regarding zone objectives to paragraph (g) of the RZ3 zone objectives. In general, his complaint relates to the west facing windows and the resultant effect of the hot sun during summer and the few hours of pale sun in winter, and that the design does not promote energy efficiency and conservation.
This type of multi-unit development is permissible in RZ3. The MUHDC permits 30% of units in a multi-unit development to receive less than three hours of direct sunlight between 9am and 3pm. The MUHDC does not require direct sunlight onto a PPOS unless it is located to the south, southeast or southwest of the dwelling. The PPOSs to the west side of the development are located west southwest of the dwelling. Both these matters are rule compliant. In addition, there are vertical elements along the western side of the two upper‑level balconies that will reduce summer sun onto the PPOS of two units. The development is not inconsistent with (g).
In our view objective (f) is not applicable to this development, and all other objectives have been met.
Section 120(b) confers a requirement to consider the suitability of the land where the development is proposed to take place for a development of the kind proposed.
We are of the view that the block of land is suitable for this kind of development.
Section 120(c) does not apply to this development.
Section 120(d) confers a requirement to consider the representations received by the authority in relation to the application that has not been withdrawn.
We have considered all representations that have been received.
Section 120(e) does not apply to this development.
Section 120(f) confers a requirement to consider the entities’ advice.
We have considered the entities’ advice.
Section 120(g) does not apply to this development.
Section 120(h) confers a requirement to consider the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
We have considered that there would be no probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts. The site is not in a heritage precinct and has been previously developed for a similar type of residential development. The development in most respects is similar to the previous development in that it is a multi-unit development with basement car parking.
Conclusion
The development complies with all the relevant codes and therefore may be approved. The development meets section 120. The decision under review to approve Development Application 202138290 subject to further conditions is confirmed.
………………………………..
Senior Member G Lunney SC
For and on behalf of the Tribunal
| Date(s) of hearing: | 21 October 2021, 13 & 14 September 2022 |
| Applicant: | In person |
| Solicitors for the Respondent: | ACT Government Solicitor |
| Counsel for the Respondent: | Mr P Walker (21 October 2021) and Ms A Costin (13 & 14 September 2022) |
| Solicitors for the Party Joined: | ACT Government Solicitor |
| Counsel for the Party Joined: | Ms S Masters (21 October 2021) and Mr J Bird & Mr A Chand (13 & 14 September 2022) |
SCHEDULE 1
DA-01-INPC Location / Context. Issue P3
DA-02-INPC Site & Demolition Plan. Issue P3
DA-03-INPC Proposed Site Plan. Issue P5
DA-04-INPC Proposed Site Plan on Aerial View. Issue P5
DA-05-INPC Basement Floor Plan. Issue P5
DA-06-INPC Ground Floor Plan. Issue P5
DA-07-INPC First Floor Plan. Issue P5
DA-08-INPC Roof Plan. Issue P4
DA-09-INPC Basement – Area & Notification Plan. Issue P5
DA-10-INPC Ground Floor – Area & Notification Plan. Issue P5
DA-11-INPC First Floor – Area & Notification Plan. Issue P4
DA-12-INPC Basement – Access Plan. Issue P4
DA-13-INPC Ground Floor – Access Plan. Issue P5
DA-14-INPC First Floor – Access Plan. Issue P5
DA-15-INPC Elevations – Sheet 01. Issue P4
DA-16-INPC Elevations – Sheet 02. Issue P4
DA-17-INPC Elevations – Sheet 03. Issue P4
DA-18-INPC – Building Sections Sheet 01. Issue P4
DA-19-INPC – Building Sections Sheet 02. Issue P4
DA-19A-INPC – Building Sections Sheet 03. Issue P4
DA-22-INPC – Solar and Shadow Diagrams – Sheet 03. Issue P4
DA-23-INPC – Solar and Shadow Diagrams – Sheet 04. Issue P4
DA-24-INPC – Building Envelope Images – Sheet 01. Issue P4
DA-25-INPC – Street Elevation. Issue P4
DA-32-INPC – Solar and Shadow Diagrams-enlarged – Sheet 01. Issue P1
DA-33-INPC – Solar and Shadow Diagrams-enlarged – Sheet 02. Issue P1
DA-34-INPC – Solar and Shadow Diagrams-enlarged – Sheet 03. Issue P1
DA-35-INPC – Solar and Shadow Diagrams-enlarged – Sheet 04. Issue P1
C001 – Cover Sheet. Issue D
C010 - Erosion and Sediment Control Plan. Issue D
C020 – Demolition Management Plan. Issue B
C040 – Siteworks Plan Ground Floor Issue F
C050 – Siteworks Plan Basement. Issue F
C060 – Driveway Details Plan Sheet 1. Issue C
C061 – Driveway Details Plan Sheet 2. Issue C
C082 – Vehicle Turning Demonstrations – Sheet 3. Issue B. (requires updating to show basement wall amendment.)
C085 – Vehicle Turning Demonstrations – Sheet 1. Issue B
C086 – Vehicle Turning Demonstrations – Sheet 5. Issue A
C085 – Access Plan. Issue E
ESP01 – External Services Plan. Issue F
L00 – Cover Page. Issue F
L01 – Landscape Finishes. Issue F
L02 – Landscape Planting Plan. Issue F
LD01 – Landscape Details. Issue B
Submitted Drawings Not Approved
DA-20-INPC– Solar and Shadow Diagrams – Sheet 01. Issue P4. (DA‑32‑INPC and DA-33-INPC take its place)
DA-21-INPC– Solar and Shadow Diagrams – Sheet 02. Issue P4. (DA‑34‑INPC and DA-35-INPC take its place)
C080 – Vehicle Turning Demonstration S1 – B85. (Determined by Tribunal to not be code compliant)
C081 – Vehicle Turning Demonstration S2 – B85. (Determined by Tribunal to not be code compliant)
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