Finlayson & Ors v ACT Planning & Land Authority & Ors (Administrative Review) - [2009] ACAT 35

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FINLAYSON & ORS v ACT PLANNING & LAND AUTHORITY & ORS (Administrative Review) [2009] ACAT 35

AT 2, 3, 5, 7, 8, 9, 11 of 2009
Catchwords: ADMINISTRATIVE LAW– Review brought under Administrative Appeals Tribunal Act 1989 (ACT) – jurisdiction of tribunal – ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT) s 6

LAND AND PLANNING - Review of decision on reconsideration of deemed refusal of multi-dwelling development application in an A10 area - whether revised plans should have been treated as a new application requiring fresh public notification – whether development meets requirements of 2002 Territory Plan Appendix III.2 the Residential Design and Siting Code for Multi-Dwelling Development – whether development’s gross floor area exceeds allowable plot ratio – whether development meets Performance Measures for interface between dwellings, set backs of upper floors from side boundaries, solar access to private open space – overshadowing of neighboring property – design of waste enclosure - design and siting of basement access ramp – whether development respects streetscape – impact on amenity or neighborhood – traffic and safety – waste collection arrangements – adaptable housing requirements.
Administrative Appeals Tribunal Act 1989 s 37
ACT Civil and Administrative Tribunal Act 2008 ss 9, 68
Land (Environment and Planning) Act 1991 Subdivision 6.2.4; ss 222, 226, 229, 230, 246, 246A, 284
Planning and Development Act 2007 s 442
ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 s 6
AMC Projects Pty Ltd and ACT Planning and Land Authority [2006] ACTAAT 113
Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd (1974) 2 NSWLR 590
Carter and ACT Planning and Land Authority [2007] ACTAAT 23
Collector of Customs and Brian Lawlor (1979) 41 FLR 338
Griffith/Narrabundah Community Association and ACT Planning and Land Authority [2006] ACTAAT 17
Khoo and ACT Planning and Land Authority [2000] ACTAAT 7
Kimball and ACT Planning and Land Authority [2007] ACTAAT 28
McKenzie v ACT Planning and Land Authority [2004] ACT SC 80
Marabouti v Secretary, Department of Employment, Education and Youth Affairs (1998) 53 ALD 585
Pashilidis and ACT Planning and Land Authority [2004] ACTAAT 21
Queensland Newsagents Federation Limited v Trade Practices Commission (1993) 46 FCR 38
R v Marks: Ex parte Australian Building Construction Employees and Builders’ Labourers Federation (1981) 147 CLR 471
Re Calardu Pty Ltd (No 2) (1991) 109 FLR 361
Richards v Watson & Ors [1986] FCA 160
Savaas v Commissioner for Land and Planning [2002] ACTSC 121
Shi v Migration Agents Registration Authority [2008] HCA 31 (30 July 2008)

Tribunal:           Dr D McMichael  Senior Member
Mr R Nichols  Senior Member
Mr S Herrick   Senior Member

Date of Orders: 25 September 2009
Date of Reasons for Decision: 25 September 2009

AUSTRALIAN CAPITAL TERRITORY )

CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 2, 3, 5, 7, 8, 9, 11, of
2009

BETWEEN:

KERRIE FINLAYSON
Applicant in AT09/2

BOB AND MARGARET HARRIGAN
Applicants in AT09/3

RG and GM BELLAMY
Applicants in AT09/5
MARGARET CUMING
Applicant in AT09/7

PETER KWOK KEUNG LEE
Applicant in AT09/8

KURT AND BARBARA HAGGSTROM
Applicants in AT09/9
TREVOR AND LYN WILLSON
Applicants in AT09/11

AND:

ACT PLANNING AND
LAND AUTHORITY
Respondent

AND:

MATTHEW DOHERTY
Party Joined

AND:

KATHRYN KELLY
Party Joined (File AT09/11)

AND:

HANNE REISS
Party Joined

Tribunal:           Dr D McMichael  Senior Member
Mr R Nichols  Senior Member
Mr S Herrick   Senior Member

Date: 25 September 2009

ORDER

The Tribunal orders that the decision under review, made on 15 December 2008, to approve the revised plans submitted in support of the Application for Reconsideration under s 246 of the Land (Environment and Planning) Act 1992 is set aside and in accordance with s 246A(1)(b)(i) of that Act, the following decision is substituted for it:

The development application is refused.

The Application made on behalf of the objectors for an order for costs is dismissed.

Pursuant to section 284 of the Land (Planning and Environment) Act 1991, the requirement under s 246A(3)(b) of that Act for the Authority to give written notice to anyone who had objected to the grant of approval of the original application, be dispensed with to the extent necessary.

……………………………….
Dr D McMichael
Senior Member

REASONS FOR DECISION

Background

The applicants in this matter have sought review of a decision of the ACT Planning and Land Authority (“the Authority”) to approve Development Application 200704170 (“the DA”).

The DA was first lodged on 11 March 2008 by Hugh Gordon Architects Pty Ltd on behalf of Matthew Doherty and Matthew Homes Pty Ltd. On 5 September 2008, the DA was deemed refused pursuant to sub-section 230 (2) of the Land (Planning and Environment) Act 1991 (“the repealed Act”). In declining to approve the application the Authority considered that the DA was inconsistent with the 2002 Territory Plan (“the 2002 Plan”) in a number of respects.

An application for reconsideration of the decision to refuse the DA was lodged on 2 October 2008 by Hugh Gordon Architects Pty Ltd under section 246 of the repealed Act. Revised plans were submitted and in accordance with s 246A (1) (b) (i) of the repealed Act, the DA was approved with conditions by Mr Neil Savery as delegate of the Authority on 15 December 2008. It is this last decision that is the subject of the appeal.

Legal Basis for this Review

The review was originally applied for under Part 4 of the Administrative Appeals Tribunal Act 1989 (“the AAT Act” now repealed) but by virtue of s 6 of the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 and because a hearing of the matter had not commenced prior to 14 February 2009, it is deemed to be an application for review by the ACT Civil and Administrative Tribunal (“ACAT”). (Although Directions Hearings in this matter were held by the AAT in January and February 2009, they are not considered to be “a hearing” referred to in s 6 of the Regulations, although that term is not defined.) In effect it is an application for review under s 9 of the ACT Civil and Administrative Tribunal Act 2008 (“the ACAT Act”).

On 31 March 2008 the Land (Planning and Environment) Act 1991 was repealed and the Planning and Development Act 2007 (“the Planning Act”) took effect. However, s 442 of the Planning Act provides that where a development application was lodged before the commencement day (31 March 2008) and the Authority had not made a decision about it before that date, the repealed Act and the Territory Plan made under that Act should continue to apply to it. Subsequently, s 442(4) was inserted by means of Schedule 20 to the Planning and Development Regulation 2008 which extended this savings provision to a DA for which reconsideration under s 246 of the repealed Act had been sought, but which had not been finally decided at the commencement day. Consequently, the DA continues to be dealt with under the repealed Act and under the 2002 Plan and in particular, Appendix III.2 to that Plan, the Residential Design and Siting Code for Multi-dwelling Developments (“the Code”).

The Proposed Development

The proposed development involves the consolidation of three adjoining blocks - Blocks 23 (3 Pell Place) 27 (4 D’Arcy Place) and 28 (6 D’Arcy Place) of Section 17, Chifley (“the subject land”).The blocks are located at the western ends of Pell Place and D’Arcy Place, both cul-de-sacs. Block 23 has a narrow north-eastern frontage to Pell Place while its southern boundary adjoins both blocks 27 and 28 fronting D’Arcy Place. The consolidated block would have an area of 3457 m² with frontages to both Pell Place and D’Arcy Place and a long western boundary to a public reserve. Blocks 24, 25 and 26 of Section 17 lie to the east of the subject land.

The subject land is located within a Residential Land Use Policy Area and development is subject to the A10 Area Specific policies of the 2002 Plan. The plans first submitted with the DA (“the original plans”) proposed the erection of four 2 storey buildings containing a total of 16 three-bedroom units on the site, with two separate car parking basements, exiting via ramps to Pell Place and D’Arcy Place respectively.

In revised plans submitted as part of the application for reconsideration (“the reconsideration plans”) one of the units had been relocated, the orientation of two of the blocks of units had been varied, the location of the waste enclosures had been changed and the car parking spaces had been combined into a single basement.

Further revised plans (“the final plans”) were prepared during the course of these proceedings and tendered as part of Exhibit 9. They were intended to address a number of matters that has been raised during the first three days of the hearing, including redesigning the roofs; moving Units 5-8 west by 800mm so that they did not infringe the required setback on the eastern boundary; reducing the Gross Floor Area (“GFA”) principally by reducing the size of Units 5-8 and 9-12 by approximately 5m² each and making them 2 bedroom rather than 3 bedroom units; and relocating the basement driveway ramp exiting to Pell Place so that it was behind the building line.

The Tribunal’s decision, set out below, relates to the final plans.

The Hearing

The hearing took place on 25, 26, and 27 May and on 9 and 10 July. The Tribunal visited the subject site on the first morning of the hearing in the presence of the parties and their representatives and witnesses, and viewed the surrounding streetscape and other multi-dwelling developments in the area.

The first applicant, Ms Kerrie Finlayson, represented herself at the hearing. The other applicants and the two objector parties joined, Ms H Riess and Ms K Kelly (”the grouped objectors”) were represented by Mr M Flint of Meyer Vandenberg, Solicitors. The Authority was represented by Mr P Walker of Counsel. The developer party joined, Mr Matthew Doherty, was represented by Mr C Erskine SC of Counsel.

Evidence on behalf of the applicants was given by Ms K Finlayson, Ms G Pinkas (on behalf of her parents the late Mr R L Bellamy and Mrs G M Bellamy), Mr T Willson, Mrs N Burney, Mr B Harrigan and Ms K Kelly, all of whom lived in the vicinity of the subject land. Expert evidence was given by Mr Jack Kershaw, a registered architect with extensive experience in private practice in Canberra and Mr E (Ted) Streatfeild, a town planner and licensed builder, with 30 years experience in the building and planning industry, including 16 years as a development assessment officer with the Authority, on behalf of the grouped objectors. Evidence on behalf of the developer party joined was given by Mr Bernie den Hertog, a qualified practicing architect who prepared the final plans, and expert evidence was given by Mr Paul Cohen, a qualified town planner with many years experience in urban planning and design in the ACT. A witness statement prepared by Mr Pierre Dragh, a qualified civil and structural engineer dealing with the turning circles of waste collection vehicles exiting the subject land was tendered in evidence, though Mr Dragh did not give evidence in person. The Tribunal also had before it the documents lodged by the respondent pursuant to s 37 of the AAT Act (“the T Documents).

During the cross examination of Mr Streatfeild on 27 May, Counsel for Mr Doherty, Mr Erskine, asked that the matter be adjourned so that his clients could draw up revised plans to take into account various matters raised in evidence, in particular by Mr Streatfeild. The other parties agreed that this course should be followed, provided that Mr Streatfeild was consulted during the process.

The Tribunal reconvened on 9 and 10 July. On 9 July, the Tribunal first heard evidence from Mr den Hertog about the final plans, after which the cross examination of Mr Streatfeild resumed and continued on 10 July. Expert evidence on behalf of the developer party joined was then given by Mr Cohen which occupied the rest of that day.

At the conclusion of the evidence and in view of the time that had elapsed since the commencement of the case and the inability of the Tribunal, the parties and Counsel to be available for a number of weeks, the Tribunal sought written submissions and reserved its decision.

The Applicable Legislative Provisions and the Tribunal’s Jurisdiction

As a preliminary issue, Ms Finlayson questioned whether the application by the developer party joined for reconsideration under s 246 of the repealed Act should have been dealt with by the Authority, on the grounds that the reconsideration plans were significantly different from the original plans and should have been dealt with as alterations to plans at the request of the applicants under s 226(7)(b). She submitted that, on a proper reading of the repealed Act, the scope of reconsideration is intended to be confined in the ordinary course of things to the original decision.

She asserted that the provisions of Subdivision 6.2.4 (Reconsideration of Applications for Approval) are expressed in terms of a document (the original application) that is in existence at the time of making the original decision. She drew attention to s 246A(4) which provides that the Authority, in reconsidering the original decision, must consider “any information available to it when it made the original decision and information in the [reconsideration] application” and that the application must set out the grounds on which reconsideration is sought. Observing that no further guidance is provided in the Act as to what other information may be provided in the reconsideration application, she submitted that this might conceivably include minor corrections and alterations to the application, but not a revised application with material changes.

Ms Finlayson contended that the revised plans lodged by the developer on reconsideration included significant changes to the location, orientation and design of dwellings, recreational areas, driveways and ramps, the underground basement car park and garbage disposal areas on the site, which in her opinion were all major elements of the development.

She drew attention to the fact that the Project Review Group Decision Panel, comprising senior officers of the Authority, when refusing the original DA were of the view that “reconsideration would not be suitable due to the extent of modification that would be required to satisfy the Territory Plan” as the proposal was considered to have “significant issues with vehicle circulation, visitor parking, waste management, overlooking, GFA calculation and POS [Private Open Space] all of which cannot easily be resolved” (T 205). She submitted that it was apparent that those senior planning officers had in mind some limit as to the extent of changes that would be appropriate to take into account on a reconsideration of the original application, notwithstanding the power of the decision maker under s 245 of the repealed Act to approve an application subject to conditions.

While acknowledging that the Tribunal was required to determine “the correct or preferable decision” and was not restricted to the material that was before the original decision maker, she contended that there was a “temporal element” in the repealed Act, requiring the Tribunal to go back to the terms of the application in existence at the time of making the original decision. Nevertheless, she addressed the question as to whether the development, as originally propounded, might be amended or varied by the Tribunal in its exercise of the power to grant conditional development approval under s 245 of the repealed Act, and whether by order made under s 284 of the repealed Act, any non-compliance with the requirements of that Act might be dispensed with.

Ms Finlayson submitted that the Tribunal cannot entertain an amendment to the plans of a development application if the amended plans involve such a substantial departure from those originally submitted as to be properly regarded as a different application, rather than a revision of some aspects of the original application, citing as authority the remarks of Crispin J in McKenzie v ACT Planning and Land Authority [2004] ACT SC 80 at [18] and [19]. It was, she said, a question of degree, with consideration needing to be given to whether the essential ingredients of the new and the old plans are sufficiently similar as to not justify a conclusion that the new plans involve the making of a fresh application (citing Pashilidis and ACT Planning and Land Authority [2004] ACTAAT 21 at [35] and Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd (1974) 2 NSWLR 590).

Ms Finlayson submitted that in this case, the new plans put forward on reconsideration were materially different from the proposal depicted in the original plans and observed that since then, more changes had been made, further distancing it from the original proposal. She detailed the changes that she considered could conceivably have greater off-site impacts and contended that “it was not enough to say that the basic plan, that is to build 16 units plus underground car parking (of some description somewhere on the block) remains unchanged”. On the contrary, she contended that material changes are proposed to the development in all its “essential ingredients” or elements, including in particular those external elements which are likely to have some effect or impact outside the site and that collectively they were so substantially different from the original proposal as to amount to a fresh application. It followed, she submitted, that the Tribunal did not have jurisdiction to entertain the amended plans now sought to be relied upon.

She also noted that in determining whether to adopt an amendment to the plans as a condition of approval of the original application, consideration should be given to the need for further notification pursuant to s 229 of the repealed Act, mindful of the interests of the persons who might be affected by the changes. She submitted that to permit a variation to the development proposal, the Tribunal must be satisfied that to allow the amendment would not prejudice the rights of the planning body or any potential objector. The question, she said, was whether there is such a material difference between the original plans and the new plans that a potential objector could be prejudiced by being deprived of a fair opportunity to object which might have been exercised had the development application been advertised in the form as proposed by the new plans, citing Re Calardu Pty Ltd (No 2) (1991) 109 FLR 361 at 366-7 per Higgins J (“Calardu”).

Ms Finlayson stated that, contrary to the provisions of s 246A(3) of the repealed Act, few of the residents of Pell Place who had made objections to the original application were notified of the reconsideration application and the revised plans, and that while most of those residents later obtained copies of the relevant documents, she understood that Mr and Mrs Burney, the owners of 3 Pell Place (Block 22 Section 17) immediately adjoining the subject land were not so notified and accordingly were denied an opportunity to put forward to the Authority their views on the proposed amendments.

She observed that while the Burneys had, in fact, given evidence before the Tribunal and made submissions in respect of the reconsideration application, they had not been notified of the final plans put forward by the developer. She contended that these plans included some further significant changes and that given their close proximity to the Burney’s residence, some of them could have particular impact on the Burneys.

Further, it was easy to conceive of interested potential objectors who might, for example, have come only recently to the area and therefore be unaware of the history of the proposal or who might have no knowledge of the details. In addition, because this would be the first multi-dwelling development proposed to be built among small cul-de-sacs designed for a low level of housing and traffic and adjacent to the nature reserve which is widely used by the public, the development could be of concern to the wider community and it would be reasonable to expect that special care would be taken to ensure that the wider community was kept informed of developments in the matter and given a fair opportunity to object.

She submitted that under the circumstances it would not be fair to dispense with the requirement to notify the revised development application by order made under s 284 of the repealed Act.

In responding on behalf of the grouped objectors to the issues raised by Ms Finlayson, Mr Flint broadly supported her position. He drew particularly attention to the failure to notify the reconsideration application to all the objectors to the original application as required by s 246A(3)(b) of the repealed Act. He observed that according to the list of those notified at T-144, it did not include the Burneys, nor Mr and Mrs Willson, nor Mr and Mrs Haggstrom. While the Willsons and the Haggstroms had found out, and had become parties to the appeal, the Burneys had not. However, Mrs Burney had given evidence on their behalf and set out their concerns in Exhibit 5 tendered in evidence.

He submitted that the Burneys position was in some respects unique among the neighbours, because of:

· The extent to which the encroachment of the upper floor of Units 13 to 15 of the proposed development into the setback from their boundary placed them in a different position. There was, he said, no evidence that they knew anything of the 2.1m high fence now proposed to be built along that boundary nor whether they considered that appropriate;

· The noise associated with the garbage enclosures would affect them most directly;

· Excavation and the effect that this might have upon their land;

· Traffic and how it will affect their use of the land, in particular their concern about car headlights affecting their amenity;

· Sewage and the effect on infrastructure;

· Security and safety, especially as it affects their children and their use of the land.

Mr Flint submitted that the prejudice to the Burneys was that they were deprived of the opportunity to comment on the changes that affected them directly and to adduce evidence that might have assisted in the Authority’s deliberations. As a result of s 276(2) (a) of the repealed Act, they lost the right to become applicants in these proceedings as they had not objected to the relevant application, ie the application for reconsideration. He submitted that it was not the point to argue that the Burneys could have joined these proceedings; they should not have had to. The prejudice was the lost opportunity to make submissions in respect of the new development application. In any event, he said, they were not represented at these hearings and their interests had not been advanced.

In his submission, the correct or preferable decision is not to approve the development application as originally submitted, nor as revised, but to reject it and have the developer re-submit plans.

Mr Walker, on behalf of the respondent, made a detailed submission to the Tribunal on the issues raised by Ms Finlayson and Mr Flint. In summary, he submitted that:

· Development approval may be given to a development which is different to the precise development for which the applicant sought approval;

· The extent of changes which can occur to the original development application is a question of degree. An approval could not be given to a development which is “materially different” or requiring “completely revised” plans or in reality constituted the making of a “fresh application”;

· There is no requirement to re-advertise and objectors have no entitlement to see and to object to every permissible change made to a plan;

· Subject to the questions of degree… an applicant for approval can suggest changes to meet concerns expressed with the development and such suggestions could be in the form of a new set of plans;

· The existence of a power to make formal amendments to a development application does not mean that the Authority or the Tribunal cannot make any changes to a plan unless a formal amendment has been made;

· If a formal amendment is made, the degree of permissible changes which the authority and the Tribunal may make may also be altered;

· Absent a formal amendment, the reconsideration process under Subdivision 6.2.4 is of the original application for development approval. Just as it would be open for an applicant to supply additional information to satisfy perceived problems with an original application under s 226, the applicant may also do so in support of an application for reconsideration. Section 246A(4) provides for this expressly;

· It is the original application (as there has been no formal amendment) that is the point of reference for determining the question of degree and not the form of the plans which were subsequently approved by the respondent, This is because ACAT stands in the shoes of the Authority and makes the decision de novo. If a change to a plan as submitted is beyond the power of the authority to approve, it is beyond ACAT’s power to approve.

· The difference between the plans as lodged and the plans for which approval is now sought in Exhibit 9 are not so great that ACAT lacks the power to approve those plans, if it concludes that there is no inconsistency with the Territory Plan.

Mr Walker summarised the changes to the original plans that were now proposed (as shown in Exhibit 9) in the following table

Original Application	Revised Plans as Presented at the Tribunal
1. Waste enclosures attached to U1 and U16 (T446). In the revised Site, Tree Management and Landscape Plan (T218) waste enclosures deleted.	1. Two detached waste enclosures.
2. Five units facing D’Arcy Place and all 16 units oriented in the same way.	2. One unit relocated to a position next to U10 and U9-U16 reoriented.
3. Ramp to basement facing Pell Place behind building line (T218). Ramp gradient 18%.	3. Ramp to basement facing Pell Place is behind the building line if the waste enclosure forms the building line and in front of it if the main building forms the building line however the ramp can still be pulled back. Ramp gradient now 14%.
4. Upper floor balconies of both U13 and U15 encroached the 6m setback from north western boundary (adjoining the Burneys) (T218).	4. Upper floor balcony of U13 only encroaches the 6m setback to the north.
5. Two separate basements with access from D’Arcy Place and Pell Place. 2 visitor parking spaces within each basement (T448).	5. One basement can be accessed from both D’Arcy and Pell Place. Five visitor parking spaces provided.
6. No communal staircase provided from basement (T218).	6. Communal staircase from basement to ground level.
7. Communal BBQ area (T218).	7. Re-organised pathways and gates to adjoining nature reserve and deleted communal BBQ area.
8. Proposed GFA (excluding storage) 1718.16m². Adding 24m² storage would bring the total GFA to 1742.16m² (50.38%) (T218).	8. Revised GFA (including storage but excluding waste enclosure) 1720.6m² (49.77%).
9. All three bedroom units.	9. Units 5-12 have been changed to 2-bedroom units.

and concluded as follows:

There is a change to the waste enclosures at the side of the development but it does not make the application “materially different” in the sense discussed by the authorities although there is clearly a difference;

The reduction to the units in D’Arcy Place is a reduction in effect;

There is a change in the orientation of the development to the Burney house but the development is not materially different as a result;

The conversion of the middle units to two bedrooms is a reduction in effect. The suggestion in submissions filed on behalf of the objectors that this may result in a change of social mix is so vague that it could not form the basis of a factual finding that there was a material difference in the plans with the middle units having three bedrooms and them now being proposed with only two;

Other changes are not “material” changes in the sense spoken about in the cases. They also have minuscule effect, no effect at all on other people or a reduction in effect.

In relation to the suggestion that certain people may not have had an adequate opportunity to comment or object to the plans in the form for which the developer now seeks approval, Mr Walker submitted that while neither the Authority nor the Tribunal could proceed to make a decision in breach of the rules of natural justice at common law or contrary to a statutory procedure for consultation, there may be opportunities and means of subsequently rectifying a breach which overcomes the problem. There is, he submitted, authority for the proposition that a full de novo hearing of a matter by the merits review tribunal (such as ACAT) can “cure” a breach of the rules of natural justice (citing R v Marks: Ex parte Australian Building Construction Employees and Builders’ Labourers Federation (1981) 147 CLR 471 at 484-5; Queensland Newsagents Federation Limited v Trade Practices Commission (1993) 46 FCR 38 at 51-53 and Marabouti v Secretary, Department of Employment, Education and Youth Affairs (1998) 53 ALD 585 at 592, the last dealing specifically with an appeal to the AAT).

In the particular case of the Burneys, Mr Walker agreed that, under s 246A(3)(b) of the repealed Act, they should have been given notice of the application for reconsideration but were not. Nevertheless, the Burneys became informed about the reconsideration decision and Mrs Burney gave evidence at the hearing, but at no time did she indicate that she or her husband wished to play any greater role, nor had they complained about not receiving notice. He contended that as original objectors, the Burneys could still gave appealed the decision under s 276, but did not do so.

He submitted that it was not open to other parties to complain about any failure to notify the Burneys of the application for reconsideration and that the Tribunal should find that the Burneys had an adequate opportunity to appeal or be joined as a party in the appeal if they wished to do so. He further submitted that, in the circumstances, the availability of a de novo hearing before the Tribunal had cured any lack of notice to the Burneys under s 246A, but in any event and for an abundance of caution, he suggested that the Tribunal should make an order under s 284 dispensing with any requirement which may have existed to give the Burneys notice in accordance with s 246A.

Mr Erskine, on behalf of the developer party joined, stressed that the role of the Tribunal was not to investigate the legal validity of the decision under review, nor did its jurisdiction depend on that decision having legal validity (citing Collector of Customs and Brian Lawlor (1979) 41 FLR 338). Rather its task is to review what purports to be a lawful decision on its merits. He cited Richards v Watson & Ors [1986] FCA 160 at [28] where Neaves J had concluded that it was not for administrative tribunals to go behind the face of purported decisions to try to decide whether or not they are valid. Their role was to satisfy themselves that there is a purported decision of the kind that the tribunal is authorised to review, and if there is, to review it on its merits.

He contended that there is what purports to be a reviewable decision in relation to the development application made by the party joined and the ultimate question for the Tribunal is, what is the correct or preferable decision and in order to decide that, what set of drawings should it consider?

Mr Erskine stated that we knew from the case law that in planning cases, the Authority (and on appeal the Tribunal) has the power to consider modifications to the original drawings without requiring re-notification under s 226 of the repealed Act, the basic principle being that the modifications can be made when they do not substantially alter the original approach. This, he suggested, gave rise to two questions:

· Viewed as a whole, is it still in substance the same proposal, albeit that some detail has changed? and

· As part of that consideration, would the modifications worsen the amenity of neighbours who had not been notified of the modifications and who might wish to put submissions?

In relation to the first of these questions, Mr Erskine submitted that the proposal has not changed. He contended that as between the original plans and the final plans, two of the four blocks have been slightly reoriented from the original proposal and there are consequential changes. As between the reconsideration plans and the final plans, the changes are even less significant. In any proposal of this size, he submitted, there can be a lot of small changes simply because of the size of the proposal itself. But the mere number of changes is not a reliable measure – a lot of minor changes do not in substance change the overall proposal.

Further, he questioned the accuracy of some of the changes between the original plans and the reconsideration plans set out in the submissions made by Mr Flint on behalf of the grouped objectors and suggested that to read the list is to realise how minor the changes are. He instanced the change in location of a waste disposal area which, while acknowledging that it created issues of amenity, he described as hardly a major change, but in itself a small-scale issue routinely dealt with by imposing conditions. He referred the Tribunal to the AAT’s decision in AMC Projects Pty Ltd and ACT Planning and Land Authority [2006] ACTAAT 113 (“AMC”) in which the proposal was changed on the opening day of the hearing from a block of 11 units to a block of 8 units, yet this was thought by that Tribunal not to require re-notification.

As to the second question, Mr Erskine generally agreed with Mr Walker’s submissions. While acknowledging that the Burneys were not notified of the reconsideration application, he said that it was clear from Mrs Burney’s evidence that she was aware of the modified proposal and she had full opportunity to tell the Tribunal of all the objections she might have to it. He contended that the further modifications in the latter hearing days have only improved the situation for the Burneys by addressing the issue of overlooking.

Mr Erskine submitted that there was no need for the Tribunal to consider invoking s 284 to dispense with any failure to comply with the notification requirements, but if the Tribunal believed use of that power would have to be considered, it should be informed by the reasons he had presented.

Consideration of the Issues

The Tribunal has carefully considered the submissions of all parties and had regard to the relevant case law, as well as previous AAT decisions which, while not binding on the Tribunal, are nevertheless helpful in developing the consistent approach that is desirable.

The legal position is that this Tribunal may, by virtue of s 68(2) of the ACAT Act, exercise any function given by an Act to an entity for decision making. Thus it is empowered to review the decision made by delegate of the Authority of 15 December 2008 to approve, with conditions, the DA on reconsideration under s 246A, as if it were the Authority. It is, moreover, not limited to considering only the material that was before the Authority when it made that decision. It is now well established that a merits review tribunal is entitled to look at the matter de novo and may have regard to new information that was not available to the original decision maker (Shi v Migration Agents Registration Authority [2008] HCA 31 (30 July 2008).

In this case, the Tribunal has been asked to review the decision of the Authority in the light of the final plans tendered at the hearing. The fundamental issue is whether the changes to the proposed development made in the final plans represent a “substantial departure” from the original plans, so as to constitute a fresh application requiring re-notification, or whether the “essential ingredients of the new and the old plans are sufficiently similar” to lead to a conclusion that re-notification is not required.

There are two elements to dealing with this issue. First, is to identify the degree of difference between the new and the old plans. Second, is to consider whether the degree of difference found is likely to have materially disadvantaged those who were not given an opportunity to comment on the changed proposal.

As to the degree of difference between the original plans and the final plans, comparison of the two sets of plans reveals that, in the opinion of the Tribunal, they are essentially similar. Each provides for 16 units in four blocks of 2 storey units over basement car parking. The original plans provided for a block of 5 units closest to D’Arcy Place, a block of 4 units to the north of it, a block of 3 units to the north of that block and a block of 4 units closest to Pell Place. The final plans provide instead for four blocks of 4 units, one unit having been re-located in the reconsideration and final plans.

Each block remains oriented essentially in an east-west direction and separated from adjacent blocks by private open space (“POS”), including a portion of POS adjoining a main living room of each dwelling and directly accessible from it and not located to the south, south-east or south-west of the dwelling.

Although in both the reconsideration and final plans the basement is a single structure compared with the original plans which provided for two separate basements, there are still two exits via ramps, to both D’Arcy Place and Pell Place, so that the traffic impact is likely to be little changed.

It is true that the orientation of the two blocks housing Units 9-12 and Units 13-16 has been changed, so that they are now proposed to be at a slightly different angle to the blocks housing Units 1-4 and Units 5-8, but neither the relocation of one unit to a different block nor the re-orientation of the two most northerly blocks seems to us to represent a substantial departure from the original plans.

The applicants contended that the re-location of the waste enclosures, in particular that closest to Pell Place, represented a substantial change. Ms Finlayson asserted that they “now present as substantially enclosed structures close to and visible from the street fronts – raising for Pell Place residents the prospect of health and safety issues, odour from rotting garbage, significant disruption to adjoining residences at collection times and loss of wider street appeal”.

The original plans showed the northern-most waste enclosures located in a row alongside the wall of Unit 16, directly facing the Pell Place verge crossing, while the reconsideration and final plans show them located in a free-standing structure at the top of the basement ramp and somewhat closer to Pell Place. They will still need to be accessed by waste collection vehicles entering the site and exiting by reversing on to Pell Place. Although in this location they will be more prominent in the streetscape, the Tribunal is not persuaded that their relocation represents a “substantial change” from what was originally proposed.

Nevertheless, there have been a number of changes to the proposal since it was originally publicly notified. It is appropriate to consider whether any persons have been materially disadvantaged by not being given an opportunity to comment on the revised plans. The starting point for our consideration of the notification requirements is Subdivision 6.2.4 of the repealed Act – entitled “Reconsideration of applications for approval”. For a reconsideration application, the Authority is required, by s 246A(3)(b), to give fresh notice only to those who had objected to the grant of approval of the original application.

This is in contrast to an alteration to a DA made at the request of the proponent, which pursuant to s 226(8)(b), must be re-notified in accordance with s 229 if the DA had been previously so notified – that is, to the wider community by newspaper notice, the erection of a sign on the subject land, and by written notice to adjoining leaseholders.

Mr Flint, for the grouped objectors, contended that public notification is important because of the prejudice suffered by potential objectors deprived of the opportunity to object. He submitted that the test is not whether the revised proposal is substantially the same, but whether the changes materially alter the plans as originally advertised. He submitted that the materiality of the changes cannot be considered without understanding who the objectors might be and what material might be adduced to support those objections.

Mr Flint opined that merely referring to the extent of changes permitted in other cases (eg AMC) is no answer, since those changes may have had an entirely ameliorating effect, nor was it known whether all the relevant parties were present in that case. In support of this view, he referred to the remarks of Higgins J in Calardu at 366, who wrote:

If the applicant seeks, or is found to be entitled to, a variation different from that advertised by the publication of the notice of motion, the court must be satisfied that to allow the amendment or to grant a different order would not prejudice the rights of…any potential objector. It is a situation which necessarily requires careful consideration to avoid that result because, ex-hypothesi, potential objectors are unrepresented. A more robust approach to allowing amendments is appropriate when all possible interested parties are represented and can state grounds for opposing or supporting the proposed amendments.

In Calardu, Higgins J went on to consider whether in that case the proposed amendments to the purpose clause were “material” relative to possible, but unheard, objectors and concluded (at 368) that he

did not believe that any member of the public …would have considered [the] proposal …objectionable… Most people would, I think, consider that [the] proposed clause…was intended to permit the range of non-retail commercial uses with which Fyshwick has been traditionally associated

and allowed the appeal without requiring re-notification.

In the present case, it is to be noted that the original proposal was notified in accordance with s 229 and attracted 16 objections representing about 30 persons living in the vicinity of the subject land. While most were from residents of D’Arcy Place and Pell Place, others were from residents of Coghlan Street (into which D’Arcy and Pell Places open) while three were from residents of nearby streets. It is clear from the submissions lodged that the objections were to a multi-dwelling development of the type, scale and general design that was very similar to that now proposed.

There seems to us no reason to suppose that anyone who did not object to the original proposal would now have reason to object to the current proposal. The same number of units are proposed in approximately the same disposition, there will still be much the same number of vehicle movements in d’Arcy and Pell Places generated by the development, and the impact on the general streetscape will be little different.

Consequently, the Tribunal is not persuaded that the development, as now proposed, would materially prejudice the interests of any person who had not objected to the proposal as originally advertised. It therefore sees no need to require re-notification of the present proposal on that ground.

However, those who had objected were entitled pursuant to s 246A(3)(b) to be notified of the reconsideration application and there is no doubt that the Authority failed to notify several such persons, specifically Mrs and Mrs Burney, Mr and Mrs Willson and Mr and Mrs Haggstrom, lessees of the three blocks immediately to the north and north-east of the subject land. It is clear that the Willsons and the Haggstroms became aware of the changes proposed to the DA under the reconsideration application and became applicants for the present review. It is also evident that the Burneys became aware of the proposal and, while not choosing to become applicants or parties joined, nevertheless took the opportunity afforded them to give evidence at the hearing.

It is difficult to conclude that any of these parties were in fact significantly disadvantaged by the failure of the Authority to meet its obligations under s 246A(3)(b). The Tribunal considers that it would not be unjust or inequitable for it to exercise the power available to it under s 284, to order that the requirement under s 246A(3)(b) to give written notice to anyone who had objected to the grant of approval of the original application, be dispensed with to the extent necessary, and to avoid doubt it will do so.

Consideration of the Proposed Development

We now turn to consideration of the merits of the current proposal. Ms Finlayson and the grouped objectors collectively raised a number of matters of concern to them about the development as now proposed in the final plans. They included the following:

· Gross Floor Area and Plot Ratio

· Departures from Performance Measures, in particular interface distances, minimum dimension of POS, and some boundary setbacks;

· Solar access to POS

· Overshadowing of Block 24

· The Pell Place waste enclosure

· The Pell Place basement access ramp

· Whether the proposed development respected existing streetscape and adjoining development

· The impact on the amenity of surrounding land uses

· Adaptable housing requirements

We deal with them seriatim below.

Gross Floor Area and Plot Ratio

The Plan includes the following definitions:

Plot Ratio means the gross floor area in a building divided by the area of the site.
Gross Floor Area means the sum of the area of all floors of the building measured from the external faces of the exterior walls, or from the centre lines of walls separating the building from any other building, excluding any area used solely for rooftop fixed mechanical plant and/or basement car parking

Plot Ratio is a critical design element in multi-dwelling developments in A10 areas. In the 2002 Plan, the A10 Area Specific Policy at paragraph (g) provides that the maximum site density shall not exceed a plot ratio of 0.5:1 (50%) for a block resulting from consolidation of standard blocks. It is a mandatory provision and applies to this development. Proposals for development cannot be approved if this plot ratio is exceeded.

It is common ground that the area of the block is 3,457 m² and as a consequence the maximum allowable GFA is 1728.5m². However, there was contention about the measurement of GFA, in particular how staircases should be counted, how to account for the storeroom space under the stairs to the basement, and whether the waste enclosures are regarded as part of the building.

In his tendered witness statement, Mr Kershaw was of the opinion that the plot ratio was 53.7%. However his calculations were based on the original plans in which the balconies had not been deleted and after studying the reconsideration plans, he reduced his estimate to 52.12%. Mr Kershaw was strongly of the opinion that the area occupied by the staircase should be counted for each floor. He contended that both flights of stairs (between the upper floor and the ground floor, and between the ground floor and the basement car park) should be regarded as simply “floor space tilted downwards”.

The final plans were prepared by Mr den Hertog, who gave evidence about a number of alterations that had been made. Based on these plans, Mr den Hertog calculated the GFA of the development as 1,696.6 m²(giving a plot ratio of 49%) but he agreed that he had not included the waste enclosures or the basement storage areas. He had also counted the floor space occupied by the staircase only once.

In relation to staircases it has long been the practice of the Authority and its predecessors to include the area occupied by a staircase in the calculations only once (i.e. at one floor level only). Indeed in a previous planning guideline (PPN12) this was prescribed. However, these guidelines no longer have effect and have not been replaced by any other guidance. Consequently, there were competing submissions about how this issue should be dealt with in this case.

Mr Flint submitted that while there had been a guideline in the past it is not in force now and there is no reason to not consider stair flights as part of the floor area, but he conceded that the flight to the basement could be excluded as they were reasonably incidental to the use of the car park, citing AMC at [35]. Mr Erskine drew attention to the cases of Griffith/Narrabundah Community Association v ACT Planning and Land Authority [2006] ACTAAT 17 at [59] (“Griffith/Narrabundah”) and Carter v ACT Planning and Land Authority [2007] ACTAAT 23 at [30] which were decided by the AAT in the absence of the guideline referred to above and in each case the staircases were only counted once.

While acknowledging that there are valid arguments in support of both approaches, the Tribunal is of the view that, in the absence of a significant reason to the contrary, the practice of counting the area occupied by staircases only once should continue in the interests of consistency.

It was submitted by Mr Flint that any storage areas in the basement ought to be included in the calculations for GFA and that at least 24m² should be included, representing the floor area above which there is 1.5m of clear space, citing Savaas v Commissioner for Land and Planning [2002] ACTSC 121 at [31[-[37] as precedent. Both Mr den Hertog and Mr Streatfeild agreed that this was standard practice and that including them would not take the plot ratio above 50%. Neither Mr Erskine nor Mr Walker made a submission on this issue. The Tribunal is of the view that the storage areas should be counted as part of GFA and that an area of 24m² should be included in the calculation.

There was agreement between Mr Streatfeild and Mr Cohen that the two waste enclosures, given that they had four walls and a roof, were "buildings" and should be included in the calculation of GFA, adding 8m² to the total. Thus if the increases discussed above (24 and 8 square metres) are added to Mr den Hertog's calculations, the amount of GFA in the final plans is 1728.6m² which would be in excess of the 50% plot ratio, albeit by a tiny amount. Both Mr Erskine and Mr Walker contended that this excess was of such a small amount that the Tribunal could, as a condition of approval, require the GFA to be reduced to not more than 50%.

Departures from Performance Measures, in particular interface distances, minimum dimension of POS, and some boundary setbacks

(a) Interface Distances

The applicants contended that the proposal fails to meet the Code requirements of Performance Control 7 – Interface between Dwellings. The Objectives of this control relate to solar access, overlooking of open space, outlook between adjoining dwellings and noise control. The relevant Performance Criteria are:

P7.1 the dwellings to be designed and located to receive adequate daylight and sunlight.
P7.2 the private open spaces and living rooms of adjacent dwellings to be protected from direct overlooking by dwelling layout, screening devices, distance or landscaping

while the relevant Performance Measures are:

D7.1 Minimum distance of balconies, unscreened decks or windows (other than fixed obscure glazing) or glazed doors to a habitable room in a dwelling from the external wall of any other dwelling:
· if both dwellings are at a lower floor level: 6 metres
· otherwise: 12 metres.
D7.2 Outlook from windows, balconies, stairs, landings and decks or other private, communal or public areas within the development to be screened or obscured if there is a direct view into private open space of another dwelling. Screening devices are to be designed to prevent overlooking of more than 50 per cent of the private open space of another dwelling on the same block. No screening is required if windows have obscured glazing or sill heights of at least 1.7 metres or are at a lower floor level and facing a side or rear boundary where there is already a screen wall.

Mr Streatfeild was of the opinion that the majority of the interface distances fell short of 12m. He provided an annotated plan of the first floor level which showed three situations where the interface distance was less than 10m, a further four less than 11m and an additional four less than 12m. There was a difference of opinion between him and Mr Cohen as to how the measurements should be made. Mr Cohen provided a schedule which, although different, still showed a number of circumstances where the interfacing distances were 10m or less and the majority less than 12m. It was therefore common ground that Performance Measure D7.1 was not met. As a consequence it is necessary to consider whether the proposal meets the relevant Performance Criteria, P7.1 and P7.2..

Both Mr Walker and Mr Erskine argued that the shortfall in the distance was not significant. They pointed out that while the performance measure was designed to apply to "habitable rooms" which are defined as
any room within a dwelling used or adapted to be used for the purpose of living, sleeping, or the eating or cooking of food and includes lounge rooms, family rooms, dining rooms, rumpus rooms, bedrooms, kitchens, but does not include bathrooms laundries, garages or garden sheds

and because the upper floor rooms were bedrooms, they would be were less affected than say lounge rooms and that the impact would therefore be less. Mr Erskine contended that “bedrooms are used principally for sleeping, at night, generally with curtains closed. Issues of interface and overlooking are largely irrelevant to these rooms.” The Tribunal does not agree with that contention.

While acknowledging that the adverse impacts from overlooking across such small distances, either to or from bedrooms, may be less than those on more actively used living spaces, it is not uncommon that bedrooms also have a daytime use for occupants of all ages including as play spaces or “retreats”. Additionally, rooms designated conveniently as bedrooms on development plans may in fact be used for other purposes such as studies, home offices, music rooms etc. Consequently they should have their amenity protected to the same degree as other habitable rooms in terms of solar access, overlooking and noise, and must be considered in relation to the application of Performance Measure D7.1.

In the reconsidered and final plans for the building, the architects have sought to ameliorate overlooking by incorporating various screens and walls. At the lower level pergolas have been placed over the northern living room windows of all units and over the southern living room windows other than Units 1-4 (which have their front address to D’Arcy Place). Additionally, courtyards referred to as “Japanese gardens”, incorporating a 1.8m high wall have been proposed for the southern sides of units 5-16. The Tribunal is satisfied that at this lower level, such devices would effectively protect the habitable rooms from direct overlooking and in that respect the performance criteria have been met.

In the final plans, at the upper levels all of the units have balconies on both the southern and northern sides except Units 9-12 which have no balconies on their southern sides. In the original plans, all units had balconies on both sides while in the reconsideration plans, balconies were no longer proposed on the northern side of Units 1-4, and 9-12 nor on the southern sides of Units 5-8 and 13-16. The current plans now propose screening devices of the upper balconies on the southern sides of Units 5-8 and 13-16. Screens are also proposed on the south facing windows of Units 9-12. In each case the screens are to be fixed slatted louvres to a height of 1.7m above floor level.

Mr Streatfeild was of the opinion that while the screens would assist in obscuring outlook, they would not prevent looking directly across at opposite rooms and they would result in an “imprisonment like outcome” and poor amenity for the residents. He agreed that the Performance Measures were designed more to prevent general overlooking than deliberate staring at neighbours, but contended that the 12m minimum interface measure was intended to set a standard and should not be lightly set aside. He also considered that the screens would require a high level of maintenance, were likely to be less than desired by unit occupants, who would likely be inclined towards removing the screens. Mr Kershaw described them as “amenity-destroying vision screening”.

Mr Cohen did not agree with the term “imprisonment” and contended that the screens would provide a view out at eye level but would limit overlooking of the areas below. He did not believe that Performance Measures should be slavishly adhered to as that could result in bad architecture and poor design. It was, he opined, the objectives that were important. In this case, the objective was to improve the amenity of the occupants of the building and in his view, the interfacing system adopted in the final plans was consistent with Performance Criterion P7.2,

the private open spaces and living areas of adjacent dwellings to be protected from direct overlooking by dwelling layout, screening devices, distance or landscaping.

Mr Walker observed that the developer had included a number of screens on the south elevation of Units 5-12 in an attempt to reduce overlooking and because the interface performance measure was not complied with, but stated that the Authority did not consider this to be an ideal outcome. He advised that, weighing the transgression of the performance measure against the adverse impact of the screens on balconies and windows, the Authority was content to accept some small encroachment into the performance measure, and therefore preferred that the screens be removed.

The Tribunal is satisfied that such screens would create some degree of enclosure to the detriment of the amenity of residents. It is also questionable whether, if the screens remain, the feature remains a balcony, which is defined in the 2002 Plan as being “open except for a balustrade on one side”. No evidence was given about the use of these areas or the importance of their provision as an annex to bedrooms. Mr Walker submitted that “the balconies which lead off these bedrooms were more likely to be confined in their uses… than if the balcony came off a room used as a general entertainment area” and that consequently this permitted greater tolerance for departure from the Performance Measure. However, as we have observed above, there is no guarantee that some of these upper floor rooms will not be used for purposes other than as bedrooms.

It is clear from the evidence that the proposed screens are a device to ameliorate the perceived inadequacy of the interfacing distances. The Tribunal accepts the views of Mr Streatfeild and the Authority that the screens are undesirable, but their removal would exacerbate the problems arising from the interfacing distance being less than required by the Performance Measure.

Mr Erskine and Mr Walker criticized Mr Streatfeild’s conclusion that the requirements of the Plan had not been met, on the grounds that he had unduly relied on the proposal meeting the Performance Measures rather than satisfying the Objectives and Criteria. The introduction to the Code states that

Proposals which do not meet the performance measures, may still be considered in terms of whether they meet the relevant objectives and performance criteria.

The Performance Measures set an acceptable standard which, if met, normally leads to an approval. The Tribunal is aware that in other cases it has been possible to demonstrate that a minor departure from the standard has no perceived adverse consequences, indeed that occasionally a significant departure is justified because the standard has little relevance to the particular circumstances. In those circumstances compliance with the relevant criteria and objectives has been demonstrated.

In this case the interfacing relationships are clearly relevant. In the majority of unit relationships there are departures from the standard of 12m, in some cases by of the order of 20% and in others between 10% and 20%. The Tribunal does not consider that this degree of departure, considered in its totality over a significant number of units can be regarded as minor. There was no evidence to suggest that the 12m standard was inappropriate in the circumstances or that the increasing departures from the standard would not lead to increasingly adverse impacts on the amenity of residents. If the screens were to be removed as suggested above then, in the Tribunal’s view, the interfacing distances are inconsistent with Objective 07.2 and Performance Criteria P7.2 in relation to direct overlooking.

In relation to overlooking the areas of POS located to the north of the units, the evidence of Mr Streatfeild is that there is overlooking of more than 50% in relation to Units 5 (69.6%), 7 (50.9%), 8 (52.2%), 9(56.2%), 10 (53.9%), 11 (51%), and 12 (53.9%). Given that the areas of POS provided are, with the exception of Unit 5, greater than the minimum that would be provided by a 6m diameter circle or a 6m square, the amount of the excess is relatively minor. Each area of POS will have a substantial area that will not be overlooked and the Tribunal finds that this aspect of the Performance Measure D7.2 is met.

(b) Minimum dimensions of POS

Section 4 of the Code deals with the provision of POS (which includes both communal POS and POS for the exclusive use of residents of each residence). The Objective of this section is

O4.1 To provide each dwelling with private open space that meets the reasonable recreational, service and storage needs of residents
While the relevant Performance Criterion reads

P4.2 Part of the private open space to be capable of enabling an extension of the function of the dwelling for relaxation, dining, entertainment, recreation and children’s play, and be directly accessible from the dwelling
Performance Measure D 4.2 reads

Location and dimensions of private open space
For each attached or detached house, provision of at least one area of useable private open space that is screened from public view, directly accessible from an indoor daytime living area and meets the following minimum area and dimension requirements:
Minimum Area 10% of the average block area per dwelling
Minimum Dimension 6 metres

The final plans show that each unit is provided with an area of POS located to the north of the ground floor, while Units 1-8 and 13-16 have secondary areas of POS located to the south in the form of courtyards or Japanese gardens. The size of the northern POS areas is shown in a table on Drawing No A 11 of the final plans. They range from 33.9m² (Unit 2) to 128.6m²(Unit 9); all except Unit 2 exceed 36 m² in area. Mr Streatfeild contended that the northern POS areas were “unnecessarily undersized” which led to reduced solar access and year round usage. Mr Kershaw observed that the building was designed on a 5.5m module which did not permit a 6m width for the POS, whereas in his view the 6m should be regarded as a minimum and anything less should not be allowed.

Mr Flint observed that besides the minimum dimension Performance Measure (6m) not being met, especially for Units 1-3, 6-7 and 10, the final plans show that planter boxes impede the use that can be made of the areas. In his submission, the POS areas would not meet the reasonable recreational requirements of residents nor extend the functions of the dwelling as required. He submitted that it is no answer to say that if buyers do not like it then they can go elsewhere; the planning regime is there to ensure minimum standards are met.

Mr Flint acknowledged that in most cases at least 36 m² of POS is provided, but in a configuration different to that required by the Performance Measure. He pointed out that there is a formula for calculating the minimum area of private open space, but the requirement for a minimum dimension is additional and if it had not been considered necessary, it would not have been introduced.

By contrast, Mr Erskine contended that the POS in each case (except for Unit 2) exceeds 36m²and is a little longer than it is wide, giving an overall POS that meets the objectives, even if it falls short of the measures. He observed that the deficiency in the width of the POS was about the width of two bricks, which is submitted was hardly a deficiency that warrants serious concern.

It is uncontested that the POS of at least 7 of the units is 5.5 metres wide, thus failing to meet the Performance Measure, so it is necessary to consider this matter in the light of Performance Criterion P4.2. The question is, is it capable of enabling an extension of the function of the dwelling for relaxation, dining, entertainment, recreation and children’s play, and directly accessible from the dwelling. It is to be noted that, if the formula for minimum area of POS in Performance Measure P4.2 is used, the requirement is for at least 21.6m²per unit. It is clear that even the smallest of the areas exceeds this standard by some 50%.

The Tribunal is not persuaded that the failure to meet the 6m minimum dimension in many of the northerly POS areas is fatal to their capacity to satisfy the Performance Criterion P4.2. In general, we consider that the POS provided is more than adequate to meet the Objectives of the Code and is not inconsistent with the 2002 Plan.

(c) Boundary Setbacks

Sections 2 and 3 of the Code specify particular minimum setbacks from the various boundaries of a block to achieve the following Objectives:

In relation to Front Boundaries

02.1 To provide attractive streetscapes which reinforce the functions of the street and enhance the amenity of dwellings;
In relation to Side and rear Boundaries

03.1 To site buildings to meet projected user requirements for privacy and daylighting;

03.2 To site and design buildings to promote energy efficiency and access to sunshine;

03.3 To ensure scale, height and length of a building and walls relative to side and rear boundaries are of appropriate residential character.

Numerous Performance Criteria and Performance Measures accompany these Objectives.

The applicants contended that the proposal fails to meet the required Performance Measures in a number of ways, because of the way that the proponent had interpreted the provisions of the Plan in relation to “other front boundary”. The Plan includes the following definition:

Front boundary means any boundary of a block adjacent to a public road, public reserve or public pedestrian pathway

while the relevant Performance Measure distinguishes between “street front boundary” and “other front boundary”. In this case, there is a public reserve lying to the west of the subject land so that the western boundary of the subject land becomes an “other front boundary”. The significance of this is that, in relation to upper floors, there is a general requirement for a greater setback from the side boundary for that part of the upper floor which is more than 12m behind the upper floor level (“UFL”) building line. (The building line is defined as a line drawn parallel to any front boundary along the front face of the building or through the point on a building closest to the front boundary).

Mr Flint submitted that the boundary between the subject land and Block 22 (the Burney’s block) was a side boundary. Consequently, where more than 12m behind the UFL building line, the upper floor must be set back 9m in accordance with Performance Measure D3.1 B (b) because there are balconies on that side of the building. In fact it is set back less than 9 m from the Burney’s boundary throughout its length. Drawing No A 04 .A of the final plans shows the set backs to range from 5.69m (Unit 13) to 8.165m (Unit 16). However, he contended that the proponent had relied on the western boundary of the subject land as being another front boundary to which the 12m allowance applied, thus effectively permitting a 6m setback for the whole length of the wall facing the Burneys.

Mr Flint submitted that there was nothing in the 2002 Plan to suggest that because a proponent of development meets a side setback requirement from one frontage, that he or she is excused compliance with the other. Nor was there any compelling reason to construe the performance measures to give the proponent the option of picking the most favourable frontage to implement a side setback measurement at the expense of another. He pointed out that where there are overlapping performance measures giving inconsistent results, the Code in a note on page 5 states that

Where there is any conflict between setback requirements for a particular part of the building, the larger setback applies.

Mr Flint submitted that the Tribunal is required to give a purposive interpretation to legislation (in accordance with s 139 of the Legislation Act 2001) and that Mr Streatfeild had given evidence that the purpose of the increased setback to the rear of residential blocks was to better ensure protection of privacy of back yards, consistent with performance Measure P3.1. Consequently the Tribunal should find that the setback on this boundary is inconsistent with the Plan.

He further observed that even if an interpretation most favourable to the proponent were to be adopted, there would still be an infringement of the minimum 6m setback because of the upper floor balcony of Unit 13, which would permit considerable overlooking of the Burney residence, including a deck and the back yard. In order to ameliorate this, a 2.1m high colorbond fence was proposed which would involve substantial removal of existing screening vegetation. Despite this fence, Mr Streatfeild thought that there would still be capability to look into one of the Burney’s bedrooms.

Mr Walker, by contrast, drew attention to the fact that ordinarily the effect of the increased setback after 12m behind the UFL building line is to open up the back areas of houses and back yards. He observed that houses themselves and the activity which takes place within them can be closer together at the front towards the street, but the Burney house is unusual because of the triangular shape of the block upon which it is located – its is located virtually on its back fence, the reverse of the normal arrangement. He postulated that if there was a road running along the western boundary, with Pell Place forming the rear boundary, then the Burney house would be at the front of the block and there could be no real objection to the use of a 6m performance measure if that were the case – it would be virtually no different from what is found in many developments in Canberra where the buildings are forward on the block and a 6m setback is considered appropriate.

While acknowledging that this suggestion was artificial because there is no road to the rear, he nevertheless contended that it was useful to ask in a practical way whether the Burneys are being asked to tolerate any more than what occurs in many other places in Canberra. In fact, he contended, Unit 13 encroaches only marginally at one end of a balcony into the 6m setback, but agreed that it overlooked a bedroom and a secondary deck to the south of the main part of the Burney house. However, Mrs Burney had given evidence that the deck to the west of the house is most used. Mr Walker also observed that the impact of the proposed 2.1m high colorbond fence along the Burney’s boundary would be ameliorated by a cut in the subject land.

Mr Erskine did not debate the issue but said that should the Tribunal accept Mr Flint’s submissions and regard the proposed boundary fence as inadequate, his client would accept a condition of approval that the upper balconies be removed from the encroaching units and that the bedroom windows be “reduced to 1.7m above the floor” (ie with sill heights of 1.7m).

Solar access to POS

The applicants contended that the inadequate interface distances between the blocks of units combined with their 2-storey nature and their siting, results in inadequate solar access to the POS of most units. Mr Flint stated that both Mr Streatfeild and Mr Cohen had given evidence on this issue and both had relied on the Australian Model Code for Residential Design (“AMCORD”) in which the Performance Criterion P8 required buildings to be sited and designed to provide “winter sunlight to ground level POS of new and neighbouring dwellings” while Performance measure A8.4 provided that this could be achieved by ensuring that 50% of the principal area of ground level POS received 2 hours of sunlight.

Mr Flint said that Mr Cohen had argued that this did not require the 50% of POS area to be plotted against the ground, rather that “ground level” was meant in contrast to upper level. However, in Mr Flint’s view the calculation has to be conducted against something and the only feasible object against which to calculate fall of sunlight was the ground. He contended that the evidence shows that if this is done, Units 2-4, 6, 7, and 10-13 will not meet the AMCORD standard.

By contrast, Mr Walker submitted that there is nothing in the Code that requires 50% of POS to receive sun on the ground for a minimum period of time during the day. In reality, much area can be used perfectly comfortably with some shadow on the ground and that it would matter little to most people if, when reading a paper at an outdoor table in winter, they had shadow on their ankles. Mr Erskine generally agreed with Mr Walker, observing that it needs to be recalled that this particular objective (adequate sunlight) is balanced against other equally worthwhile objectives such as increased density of dwellings (resulting in more environmentally sustainable urban areas less reliant on public transport and making better use of expensive infrastructure such as utility distribution and road systems). The sunlight objective, he submitted, did not automatically trump any other worthwhile objective of medium density.

The Code has a number of provisions that impact on this issue, in particular:

Performance Criteria

P3.3 Dwellings to be sited to ensure good sunlight access to their main private open space;
P3.4 Buildings to be sited to minimize overshadowing of northern facades of adjacent dwellings and private outdoor spaces;
P4.3 Location of private open space to take account of outlook, natural features of the site and neighbouring buildings or open space and to provide for maximum year round use.

Performance Measures
D4.3 A portion of private open space of minimum dimension 6 metres to be:
·Adjoining a main living room of the dwelling and directly related to it; and
·Not to be located to the south, south east or south west of the dwelling.

There was much evidence and discussion concerning the application of AMCORD and its provisions for solar access to open space. AMCORD is a code developed to encourage appropriate standards for residential development. The introduction to the Code acknowledges that AMCORD has influenced the provisions of the Plan but not all of its provisions have been adopted, in particular the specific provisions of solar access to private open space.

The AAT commented on the use of AMCORD in its decision in Kimball and ACT Planning and Land Authority [2007] ACTAAT 28 (24 Dec 2007) as follows:
16. In the matter of overshadowing, reliance was placed by the respondent in documentary and oral evidence upon two relevant standards set out in the AMCORD. One requires north-facing living areas of neighbouring dwellings to receive not less than 3 hours of sunlight between 9.00am and 5.00pm on 21 June, and the other requires access to sunlight on adjacent private open space areas is not reduced to less than 2 hours between 9.00am and 3.00pm on 21 June.

17. These standards, the first of which will be referred to informally as the “three hour rule”, appear to have been adopted over the years as a “rule of thumb” by the respondent when issues of sunlight and overshadowing are considered. They are used in an attempt to quantify in some way the Code’s requirement to “minimise” overshadowing of adjacent developments. Nevertheless, during the hearing an architect appearing as an expert witness stated that he did not use the document and the location of a copy of AMCORD for the use of the Tribunal proved to be somewhat of a challenge. The “three hour rule” has been referred to in Tribunal decisions dating from 1997, although not without question, as for example, in Mihailidis and ACT Planning & Land Authority [2005] ACTAAT 21 (8 September 2005) in which the Tribunal states in paragraph 42:
While the experts in the field may be aware of such a criteria (sic), a lay person could simply not work that out from the Territory Plan. The Tribunal considers that the Planning Authority should publicly document its policy.
18. The Tribunal notes that AMCORD was published in 1995, some twelve years ago. The “three hour rule” in that document was subsequently included in ACT planning documents PPN4 and PPN6, both now superseded. While it is identified, for example in the Introduction to Appendix III.2, as having influenced the Code, the “three hour rule” has not been incorporated into Appendix III.2, the Code which applies in this matter, despite revisions of Appendix III.2 having occurred. However, a similar standard is found in Appendix III.3, the Urban Housing Code, which deals with certain specific areas of higher density development, and in the Apartment Guidelines. We think it could be argued that the decision of the Legislature to not include the quantitative measures from AMCORD in Appendix III.2, while including them in Appendix III.3 and also in the Apartment Guidelines, indicates that a somewhat different standard is to be applied in multi-dwelling developments from that applying to more dense residential development.

19. The Tribunal notes also that since 1995, environmental issues to do with sustainable development, conservation of energy and maximisation of solar access have assumed increasing importance in relation to design and planning. The adoption of the “three hour rule” from AMCORD could possibly be considered inadequate or out of date for medium density housing. However we accept it has been considered by the Legislature since then in Variation 200 and not rejected. Despite the absence of some quantitative standard of solar access appropriate to current environmental thinking having being incorporated into Appendix lll.2, the Tribunal questions the continued use of the AMCORD standards when assessing overshadowing in medium-density developments. AMCORD is not on the Register of Planning Guidelines, which clause 8.1 of Part A3 of the Plan requires be taken into account in considering development proposals. It is therefore of limited relevance to the consideration of overshadowing in this matter. We do note, however, the submission that regard may be had to it as background material of the kind referred to in sections 138-142 of the Legislation Act 2001.
This Tribunal follows that approach. While noting that the 2008 Plan includes a provision similar to that found in AMCORD, this application is to be decided on whether it meets the requirements of the 2002 Plan and the relevant extracts are quoted above. Each of the units has private open space that meets the standard of performance measure D4.3, in that, in relation to solar access, the primary open spaces are not to the south, south-east or south-west of the building. Consequently, while evidence was given about the extent to which the private open spaces would receive sunlight between 9.00 am and 3.00 pm, this was not a standard which the Tribunal felt it was obliged to consider.

113.It is not necessary that all portions of open space, for example the Japanese gardens, meet neither the minimum dimensions nor the locational criteria. The evidence is clear that each of the units has an open space area to its northern side and that each receives 3 hours or more of sunlight each day but not necessarily to 50% of its ground floor area. This however is not a standard referred to in the 2002 plan and therefore the Tribunal considers that in this regard, the provision of open space is not inconsistent with the Plan.

Overshadowing of Block 24

Ms Finlayson, the owner of Block 24, expressed her concern about the potential overshadowing of her block by the proposed development, which she considered had not been sufficiently considered by the Authority. She contended that the shadow diagrams provided to the Authority at the time of the reconsideration decision indicated a level of overshadowing of Block 24 in the depths of winter commencing from around 1.00 pm, and that it was not clear that the proposed 2.1m high fence or the slope of the land downward from the subject land to Block 24 had been taken into account. She accepted that the Authority had acknowledged, in its decision, that Block 24 would suffer overshadowing in the depths of winter but it had stated that this would be in an area currently overshadowed by a regulated tree. Ms Finlayson observed that the tree (a Box Elder) was now proposed to be removed and in any event, was deciduous and lost its leaves in winter.

She stated that she had observed, on 2 July 2009, that shadows from the current single level dwelling on the subject land came to approximately half (6m) of the back yard of Block 24 at 1.00 pm, but that this would be replaced by two blocks of 2-storey units, while the current 1.5m high fence would be replaced by a 2.1m high fence. Consequently, she contended that the shadow diagrams appeared to well understate the overshadowing of Block 24. Further, as she proposed to develop a second dwelling in the back yard of Block 24, the overshadowing was of particular concern to her.

Neither Mr Flint, Mr Walker nor Mr Erskine commented on this issue. The shadow diagrams at Drawing A 15.A of the final plans indicate that even with the 2.1m high fence, overshadowing of Block 24 by the proposed development will not commence until after 1.00 pm at the winter solstice and will extend only a metre or two into Block 24 at 3.00 pm. There are no controls in the 2002 Plan that prohibit any overshadowing of adjacent properties. The only control that relates to this aspect is Performance Criterion P3.4 which reads

P3.4 Buildings to be sited to minimise overshadowing of northern facades of adjacent dwellings and private outdoor spaces.

In this case, there would be no overshadowing of the northern façade of Ms Finlayson’s dwelling, nor would her private outdoor space be significantly affected.

The suggestion that Ms Finlayson may, at some future time, wish to build a second dwelling on her block is of no relevance. The Tribunal cannot take into account hypothetical future developments. In any case, the extent of overshadowing that is indicated would not preclude the construction of such a dwelling with ample space for unshaded POS to be located to its north.

The Tribunal does not accept that the potential overshadowing of Block 24 would have an unacceptable impact on the amenity of the residence or its grounds.

The Pell Place waste enclosure

The waste enclosure at the Pell Place frontage of the development is a separate structure adjoining the driveway and in front of the residential buildings. There was some discussion whether this structure should be regarded as a building for the purposes of establishing the building line and also for calculating the GFA of the building. In the plans approved by the Authority the enclosure had masonry walls on three sides and a roller shutter door on the remaining side and had a skillion roof.

Mr Cohen suggested in his witness statement that the design should be reconsidered to provide a more domestic style roof to enhance the street address. In the final plans the enclosure had slatted timber walls and a pitched roof. It was suggested by Mr Streatfeild that the lower parts of the walls may need to be masonry to meet waste enclosure requirements. We agree that, if the development is to be approved, further consideration needs to be given to the design of this enclosure.

The definition of building in the Plan and Section 222 of the Act are identical; they are not exhaustive. A “building includes (a) an addition to a building; and (b) a structure attached to a building; and(c) a part of a building. Both Mr Cohen and Mr Streatfeild accepted that the enclosure was a building, and no party submitted that it was not a building. The Tribunal accepts that the waste enclosure is a building for the purpose of establishing the building line and is to be included in determining the GFA.

The Pell Place basement access ramp

In the 2002 Plan, control (f) of the A10 Area Specific Plans provides that:

...ramps to basement car parking forward of the building line shall generally not be approved unless the block has a public road frontage greater than 30 metres.

The 2002 Plan defines Building Line to mean:

a line drawn parallel to any front boundary along the front face of the building or through the point on a building closest to the front boundary.

The block frontage to Pell Place is approximately 13m. The final plans provide for an access driveway and a ramp to basement car parking along the eastern side of the subject land. While there was some argument about whether the waste enclosure or the face of the main building established the building line, the Tribunal has accepted that the waste enclosure is a building and as a consequence the north-east corner of the waste enclosure establishes the building line, which is 6 metres from the front boundary.

In the reconsideration plans approved by the Authority, a small portion of the ramp was located in front of that building line (Drawing DA02.2, at T-153). The final plans show the ramp commencing behind the building line established by the waste enclosure. Mr den Hertog gave evidence that the grade of the ramp could be further revised to contain the ramp behind the building line if it was not to be determined by the waste enclosure. However, given that we accept the waste enclosure as establishing the building line, the ramp design in the final plans satisfies the A10 control (f) and the evidence showed that the driveway and ramp conformed with the requirements of the Australian New Zealand Standard, AS/NZS 2980.4, Parking facilities – Off-street parking.

Whether the proposed development respected existing streetscape and adjoining development

In Part D of the 2002 Plan "streetscape" is defined as including:

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, driveways and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.

In section 9 of Part A3 of the 2002 Plan entitled "Consideration of land use and development proposals" there are other matters to be taken into account including at 9.3:

e) impacts on the visual amenity and landscape or streetscape of the area

while the A10 Area Specific policies contain the following relevant Objectives and Controls:

Objectives

• To ensure development respects existing streetscapes and adjoining development, or contributes to the desired future suburban character of the area as defined by an approved master plan;
• 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 preference;.
• To assist in creating a more sustainable pattern of urban settlement by providing for more housing to be developed close to identified commercial centres.

Controls

In addition to the general controls in clause 3.5 of the Residential Land Use Policies, the following controls shall apply to residential redevelopment in Residential Core Areas:
a)        Multi-unit housing including dual and triple occupancy housing may be approved in circumstances specified below;
…
e)        Proposals involving subdivision or consolidation of standard blocks for multi-unit housing must be accompanied by information that demonstrates how the proposed development fits in with the existing streetscape character or statement of desired future suburban character as defined by an approved master plan;
f)         Attics and basements may be permitted in addition to 2 storeys. However, on a standard block, ramps to basement car parking forward of the building line shall generally not be approved unless the block has a public road frontage greater than 30 metres;
g)        The maximum site density for residential redevelopment on a standard block or block resulting from consolidation of standard blocks shall depend on provisions in the relevant residential code at Appendix III (eg, setbacks from boundaries, building envelope controls, private open space requirements, etc) and shall not exceed a plot ratio of 0.5:1 (50%).

The applicants asserted that there was a failure to meet the objectives set out above.

Mr Kershaw contended that the proposal did not respect existing streetscapes and adjoining development, because the scale, density, bulk, profiles, landscaping, open space inclusions, car parking arrangements, etc were totally different from the character of adjoining residences. In particular, he identified the ramp and driveway in Pell Place on a narrow frontage block, with the consequent lack of opportunity for effective landscape screening, as having a major visual impact. He asserted that the driveway and ramp “negates any opportunity for an identifiable or legible, welcoming address for the development...” and that “Such entry addresses... are present virtually everywhere in the existing local streetscapes”. He suggested that the design should be recast to “express a more vernacular, detached-dwelling architectural expression and character, especially in addressing the streets”.

Mr Cohen noted that there was no approved master plan for Chifley, hence there was a need to respect the existing streetscape and adjoining development in order to meet the objective. He described the surrounding development as predominantly single storey, detached dwellings with a variety of building styles, setbacks, orientation and soft landscaping in the streetscape. In his opinion, the design of the proposal with its low angle roofs, low ridge heights, articulated elevations, the separation of the units into four buildings, their massing and the degree of articulation in particular, effectively reduced the appearance of bulkiness and contributed to the achievement of a domestic character of the development. He suggested that the waste storage building should be provided with a more domestic roof style and the ramp retaining wall should be varied by an open steel balustrade to enhance the street address. He concluded that the development would be distinct in the streetscape but not out of character with the precinct. He also considered that the siting of the development at the head of the cul-de-sacs prevented it from encroaching on existing development as might be the case if the development was located mid section in the precinct.

No expert evidence was led in support of the Authority’s conclusion in its Findings on Material Matters of Fact that it “considers the scale and bulk of the proposal is in keeping with the general tenets of the A10 policies which are to create a more sustainable pattern of urban settlement by providing more housing to be developed close to identified commercial centres.” Mr Streatfeild did not give specific evidence on this issue, but in commenting on the building setbacks noted that the garbage enclosure “as the front element at Pell Place, is generally out of character and does not appear respectful of adjoining development.”

Mr Erskine drew a distinction between the words "fits in" in the control and "respects" in the objective and relied on the word "respects" as the appropriate test.
He suggested that the AAT cases Griffith/Narrabundah and AMC provided guidance as to what are the relevant considerations to be taken into account. These are, that there are going to be changes as a result of the policies in the Plan; that these changes allow for multi unit development of up to 2 storeys; and that while needing to respect existing development and streetscapes, that does not mean the existing style of development is to be replicated. Mr Erskine contended that the size of the proposal will not be visible from the street, as only an edge or facade would form a major element of the streetscape of Pell Place. He submitted that there was room for diversity as there was in the case of Khoo and ACT Planning and Land Authority [2000] ACTAAT 7 at [33] where the Tribunal had said “sameness is not a concept enshrined in the Territory Plan”.

Mr Flint’s submission focussed mainly on the size and bulk of the project, contending that this alone could render the project not respectful of the streetscape or adjoining development. He pointed out that the eastern façades would be largely high blank walls that would dominate the outlook from the adjoining development. Further, redesign of the proposal meant that the waste enclosure was now at the front of the entrance to Pell Place where it would be both obvious and an eyesore. He concluded that “it would be difficult to imagine anything less respectful of the streetscape that presently exists”.

Ms Finlayson focussed on the size and bulk of the project, seeing it as too great a departure from of what is in the cul-de-sac now, though she recognised that the A10 policy would result in substantial changes to the environment in which she currently lived.

The introduction of the A10 policies in 2003 is evidence of a clear intention by the legislature to intrinsically change the character of defined areas affected by the policy but within the limits prescribed by the Objectives and Controls set out above. Applications for development are required to be accompanied by information that demonstrates how the proposed development fits in with the existing streetscape character. There is no evidence that this occurred in this case.

There is often a tension between what the Plan permits and the desires of objectors, many of whom have lived in an area for some time and who are understandably sensitive to changes in what they have come to know and value. In the case of A10 areas the Tribunal is conscious that some people’s objections are to the very principles of what is sought to be achieved in terms of increased density of development.

The Tribunal does not see the Objectives as matters to be addressed in isolation from the controls which derive from them. It considers that Objectives are to be achieved in the first instance by compliance with the controls for the A10 area, which give parameters for development eg block size, access ramp/minimum street frontage, and plot ratio. These are in addition to the General Residential Redevelopment controls in Part B1 section 3.5 - pre application processes and the retention of trees - as well as the Code. If a development fits within the parameters set by the controls then to a large degree it can be considered to meet the objectives. For example (as in this case) notwithstanding the fact that a large proportion of the existing development is single storey, the controls allow for 2 storey development and under the Code, meeting that performance measure means “normally no further evidence of performance is required.”

Of particular concern to the Tribunal is the question of compliance with control (e) and the Authority’s response. It is clear from the objections received and the applicant’s submissions that the question of how the development “fits in” was a major concern to them. Yet there was no component of the original application that could be described as “information that demonstrates how the proposed development fits in with the existing streetscape character”. There was also nothing in the T-documents which suggested that the Authority sought more information of this kind. The Tribunal notes however that in originally declining to approve the original application the Authority considered that “the bulk and scale of the proposal is not in keeping with the residential scale of the surrounding area. The proposal is lacking in evidence of how the development fits in with the established streetscape character.” The Tribunal was not told specifically what information or attributes of the revised application led to the Authority’s changed conclusion.

The Tribunal does not see this control as a mere procedural requirement to provide information but in the context of the objective to “respect” streetscapes and adjoining development, it requires that this respect and fitting-in be demonstrated. The Tribunal is satisfied that it has not.

In general terms the design of the building complex is a series of rows of units aligned east-west with a northerly orientation. This orientation helps achieve the 2002 Plan requirements relating to solar access for both dwellings and adjoining open spaces and consequently enhances the amenity of the dwellings. This dominating design parameter however differs from the existing residences which include an orientation to the street or “street address”. Mr Kershaw’s evidence was that “entry addresses... are present virtually everywhere in the existing local streetscapes”. While the southern block of units does address D’Arcy Place, the proposal in relation to Pell Place does not have a street facade or entry address but is angled away to face north and the adjoining Block 22. What the final plans show is that from Pell Place there will be a dominant corner of the 2 storey building and an adjacent end wall and a series of units facing away towards the adjacent Block 22 bounded by a courtyard wall, all fronted by the waste enclosure and a substantial driveway and basement access ramp.

The Tribunal considers that the concept of street address is an important element in the context of streetscapes and one which should be respected. Narrow frontages, such as the 13 m frontage to Pell Place, of themselves produce design challenges to urban intensification and this is recognised in both the 2002 and 2008 plans. The proportion of the frontage given over to driveway and ramps, as pointed out by Mr Kershaw, inhibits the amount of landscaping and the provision of an “identifiable or legible, welcoming address for the development”. The Tribunal agrees that positioning a waste enclosure in front of the building also detracts from the streetscape in this setting and while it was advised that such a location was not uncommon for multiunit development it was not made clear whether this was true for Residential Core areas as distinct from higher density urban areas.

It is the Tribunal’s conclusion that the orientation and scale of the buildings closest to Pell Place and their lack of address to the street, the location and character of the stand alone waste enclosure, and the driveway scale, all on a narrow frontage block combine to result in a development that does not respect the existing streetscape and adjoining development.

The impact on the amenity of surrounding land uses

Ms Finlayson contended that the scale and density of the proposed development would affect the amenity of surrounding land uses, including impacts arising from the dominance of the development in the streetscape, increased traffic, pressure on parking, noise, overlooking, overshadowing, loss of views and the placement and design of the garbage enclosures.

In particular, Ms Finlayson expressed her concerns about the likely impact of the proposed development on traffic and on-street parking, especially in Pell Place, affecting safety and the amenity of existing residences. She contended that the predicted increase in vehicle movements arising from the development seemed conservative and that they were likely to be concentrated in the peak periods. She argued that these small streets were designed for a low level of traffic and that Pell Place in particular was a very small cul-de-sac with a tight turning circle. She suggested that there would be frequent bottle-necks in Pell Place arising from the steepness and angle of the car park ramp and its proximity to the street front, which would make it difficult for vehicles to enter and exit the site and the problem would be exacerbated if there were any cars parked in Pell Place or being driven by other Pell Place residents. She contended that large trucks, including removalist and service vehicles, and particularly waste collection vehicles, would not always be able to easily and safely access Pell Place.

She also contended that this influx of traffic would have safety implications for other road users including pedestrians and cyclists who, in the absence of footpaths, use the streets to get to the shops, bus stop and nearby public reserve. She submitted that in failing to address these issues in its decision, the Authority had not complied with the requirements of part A3, clause 9.3 (k) which required it to “carefully consider…the amount of traffic likely to be generated and its impact on the movement of traffic on the road system”.

There was limited evidence before the Tribunal on this aspect of the proposed development. In his first witness statement (which was based on the reconsideration plans) Mr Cohen had estimated the increase in traffic movements arising from the development to be 66 vehicle movements per day (“vpd”) which he assumed would distribute equally between D’Arcy Place and Pell Place, while peak hour movements would increase from 6 to 13 vehicles per hour in D’Arcy Place and from 4 to 10 vehicles per hour in Pell Place. He suggested that these numbers were insignificant given the low traffic volumes involved and the available carriageway dimensions. Nor would any increase in traffic in Coghlan Street (estimated to reach 516 vpd) be a problem because the total traffic movements would fall well below the minimum capacity specified in AMCORD for a minor collector street such as Coghlan Street (1000 – 3000 vpd).

While the reduction in size of eight of the units from 3 bedroom to 2 bedroom in the final plans could have the effect of reducing the number of vehicles owned or used by unit occupiers, the basement parking provisions remained unchanged at 32 spaces for residents and 5 for visitors. It seems to us unlikely that there would be any significant change to Mr Cohen’s estimates of vehicle movements arising from this reduction in unit size..

Mr Streatfeild did not address the impact of general vehicle movements on the amenity of the area, but he expressed his concerns about the safety of the movement of waste collection vehicles. He considered that they would not be able to turn around in Pell Place because of the inadequate turning circle and would need to reverse the length of the Place into Coghlan Street to turn, creating a safety hazard and an inconvenience to locals on a public road that was unwarranted. He observed that the Development Control Code for Best Practice Waste Management in the ACT stated that reversing trucks onto a public road could be considered only where such reversing was considered essential and in this instance he contended that it was only the design of the development that created the reversing requirement. An alternate design could have been adopted that did not require reversing onto the street. He submitted that this inequity of safety would cause a greater level of risk than is warranted to pedestrian and vehicle users of Pell Place and Coghlan Street and contributed to the development not sufficiently safeguarding the amenity, safety or character of the area.

Mr Streatfeild may have been unaware of the witness statement of Mr Pierre Dragh which was tendered in evidence (Exhibit 16) and which, inter alia, dealt with turning paths for a 6m by 4m garbage truck such as would be required to remove waste from the site. His statement included drawings made using Autoturn, a CAD-based software program which predicts the path of the chosen vehicle on a scaled plan of the development, one of which showed that a 6m by 4m garbage truck would be able to reverse out into the head of either D’Arcy Place or Pell Place and then turn to exit the streets in a forward direction.

However the drawings did not show the location of driveways of neighbouring properties, nor was there any indication of what might happen if cars were parked in the streets, especially at or near the head of the Places. Mr Flint contended that Mr Dragh’s drawing did not demonstrate that the manoeuvre could be completed if there were parked cars blocking the path, nor was there any evidence before the Tribunal that it was proposed to resolve the situation by the erection of No Parking signs. Mr Erskine responded that the Mr Dragh’s drawings showed, in relation to Pell Place, that the driver of a garbage truck could reverse into the area in front of the driveways of Blocks 21 and 22 where parking is not permitted at present and that the driver could then go forward avoiding parked cars in Pell Place as normal. He said that the erection of No Parking signs was neither proposed nor needed and that any such suggestion was mere speculation.

The Tribunal has carefully considered these contentions and submissions and it does not find that either D’Arcy or Pell Place, or Coghlan Street, would be unable to cope with such additional traffic movements as are likely to arise from the proposed development, or that the waste collection vehicles would be unable to reverse out into Pell Place. However, it does share the applicants concerns about the capacity of waste collection vehicles to enter and exit Pell Place safely when there are cars parked in the street. It notes that no proposal to install No Parking signs has been made, but it accepts that if access to the waste collection area in Pell Place proved difficult as a result of on-street parking, the erection of such signs would be likely to be considered. However, such restrictions could be limited to those times when garbage collection takes place (weekday mornings) when on-street parking was least likely to be in demand. We therefore do not consider that neighbourhood amenity would be significantly affected by either increased traffic or garbage collection vehicle requirements.

Adaptable housing requirements

In his witness statement addendum of 9 July 2009, Mr Streatfeild drew attention to the need to meet the requirements of the ACT Planning Guidelines for Access and Mobility 2004 which were on the Register of Planning Guidelines under the 2002 Plan. Part 4.2 dealt with Residential Development and Part 5 with Design Guidelines it was established at the hearing that Units 9 and 10 were the designated adaptable housing units. Mr de n Hertog agreed that in order to make them accessible, the stairs to the upper floors would need to be widened to enable a stair lift to be included and that this could be done.

Mr Streatfeild also drew attention to the need for a continuous accessible path of travel (as defined in the Guidelines at Parts 4.2.2 and 5.1.1) from the visitor accessible car parking spaces to the entry level of all the units, independent of the adaptable unit requirements. He observed that the stairs that lead to the ground floor from the basement are open to the weather and questioned whether a chair lift exposed to the weather would be sustainable. Absent a workable chair lift, a disabled visitor using the car parking spaces provided would be trapped in the basement. He agreed that disabled visitors could park in the street but considered this would be discriminatory. Mr Flint observed that it could also be subject to any restrictions on parking that might arise. Neither Mr Walker nor Mr Erskine made submissions about these issues.

The Tribunal accepts that the provisions of the ACT Planning Guidelines for Access and Mobility should be adhered to, and if it were to approve the proposed development, would make it a condition of approval that the problems identified by Mr Streatfeild be resolved.

Conclusions

It will be evident from our consideration of the issues set out above that the Tribunal considers that the development, as proposed on the final plans, is inconsistent with the 2002 Territory Plan in a number of ways. While we have found some of the matters raised by the applicants to be consistent with the 2002 Plan, others were not, including in particular:

Gross Floor Area and Plot Ratio
The Tribunal has concluded that the waste enclosures and the basement storage areas should be counted in estimating GFA and the effect of this is that the requirement in the A10 Area Specific Policy that the plot ratio must not exceed 50% is not complied with, albeit by a tiny amount. Consequently, the proposal as it stands is inconsistent with that requirement of the 2002 Plan.
Departures from Performance Measures for interface distances and boundary setbacks
Interface Distances
The interface distances between some of the units at the upper floor level, intended to limit overlooking of adjacent dwellings, was found to be less than that required by Performance Measure D7.1, in some cases by more than 20% and in others by between 10% and 20%.
The Tribunal agrees that the screens proposed to limit this overlooking would have an undesirable impact on the amenity of the balconies that were so screened, but notes that if the screens were to be removed, then the interface distances would not satisfy Performance Criterion P7.2 in relation to direct overlooking and would be inconsistent with the 2002 Plan as a consequence.
Front and Side Boundary Setbacks
Two of the blocks that are to be consolidated adjoin a reserve and as a consequence the western boundary of the consolidated block is defined as an “other front boundary” (as opposed to a "street front boundary"). The significance of this is that in relation to upper floors Performance Measure D3.1 B (b) requires a setback of 9m to a side boundary when more than 12m behind the upper floor level building line, whereas the setback from the boundary of Block 22 was only 6m. The Tribunal did not accept that this requirement for a greater setback was made unnecessary because of the presence of the “other front boundary” and concluded that the Performance Measure had not been met. The relevant Performance Criterion P3.1 requires that the privacy of dwelling and outdoor spaces is to be protected and we consider that the proposed development fails to satisfy this Criterion and hence is inconsistent with the 2002 Plan.
The requirement to respect existing streetscape and adjoining development
The Tribunal has concluded that the orientation and scale of the buildings closest to Pell Place, their lack of address to the street, the location and character of the stand alone waste enclosures, and the driveway scale, all on a narrow frontage block combine to result in a development that does not respect the existing streetscape and adjoining development. Consequently the proposed development does not comply with the A10 Area Specific Policies and hence is inconsistent with the 2002 Plan.
Adaptable housing requirements
The Tribunal noted that the development as proposed in the final plans did not satisfy the provisions of the ACT Planning Guidelines for Access and Mobility.

The Tribunal recognises that the purpose of the A10 Area Specific Policy is to increase residential density in Residential Core areas, but Objectives and Controls have been put in place to ensure that in doing so, existing amenity is taken into account, and in this case we do not consider that has been achieved.

We note that the Authority’s Project Review Group and Decision Panel, when considering the original plans, concluded that

The proposal, seeking maximum density for the site (including basement parking) resulted in a number of departures from the Territory Plan with an unacceptable cumulative effect. PRG considered that it would not be possible to condition an approval to achieve a satisfactory outcome.
Despite the efforts of the project architects to overcome the difficulties, the Tribunal finds itself in much the same position.

While it was suggested that several of the identified inconsistencies could be resolved by requiring further changes to the final plans as conditions of approval, we do not think that that would result in an acceptable development. The major source of difficulty continues to be the size and bulk of the project. We believe that all of these inconsistencies could have been avoided had the blocks of units been sited farther apart but that cannot be achieved because the buildings are already located close to, on, or over the prescribed setbacks. The only other solution appears to be a reduction in the number of units. Neither of these options is appropriate for a condition of approval

Consequently our decision is to set aside the decision under review and to substitute for it a decision that the development application is refused.

Costs

The representative of the grouped objector sought recovery of costs thrown away in this matter in dealing with the reconsideration plans, because the hearing was adjourned on the application of the proponent and that revised plans were subsequently proposed. This resulted in additional work to meet a different case than that at the commencement of the hearing.

The Tribunal has power to award costs pursuant to s 48 of the ACAT Act. The default position is contained in s 48(1) which provides that:

The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.

Section 48(2)(a) provides that

if the tribunal decides an application in favour of the applicant – the tribunal may order the other party to pay the filing fee for the application

but we do not consider that in this case a departure from the default position of s 48(1) is justified.

However, s 48(2) sets out other circumstances in which the Tribunal may make an order for costs, including 48(2)(b)which reads:

If the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application – the tribunal may order the reasonable costs of the other party arising form the delay or obstruction,

We do not consider that the developer party joined acted unreasonably in seeking the adjournment of the proceedings. Its intention was to seek to address issues of concern that had been raised by the applicants in evidence, by making changes to the plans then under consideration (the reconsideration plans). In the event, the final plans were not greatly different from the reconsideration plan and most of the work done in preparing the evidence of the applicants could not be said to have been thrown away. The Tribunal does not consider there are grounds for making an order for costs under s 48(2)(b) in this case.

………………………………..
Dr D McMichael
Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO: AT 09/2, 3, 5, 7, 8, 9, 11

APPLICANT: FINLAYSON & ORS
RESPONDENT: ACT PLANNING & LAND AUTHORITY & ORS

COUNSEL APPEARING: APPLICANT:

RESPONDENT: MR P WALKER
MR C ERSKINE SC

SOLICITORS: APPLICANT: MR M FLINT

RESPONDENT:

OTHER: APPLICANT: MS K FINLAYSON

RESPONDENT:
TRIBUNAL MEMBER/S:        DR D MCMICHAEL Senior Member
MR R NICHOLS       Senior Member
MR S HERRICK       Senior Member

DATE/S OF HEARING: 9 & 10 JULY 2009 PLACE: CANBERRA

DATE/S OF DECISION: 25 SEPTEMBER 2009 PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: