Frith and Act Planning & Land Authority
[2008] ACTAAT 11
•6 May 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:FRITH AND ACT PLANNING & LAND AUTHORITY & ANOR [2008] ACTAAT 11 (6 MAY 2008)
AT07/72
Catchwords: Land and planning - review of reconsidered decision refusing to approve development application to construct a second dwelling and associated works - redesign of plans to take account of concerns of Heritage Council and Conservator of Flora and Fauna regarding design of proposed dwelling and protection of regulated tree.
Request for adjournment of hearing - whether variations to revised plans constitute a substantial departure from original development application - procedural fairness - whether objector afforded sufficient opportunity to respond.
Grounds of objection - building scale and proximity to objector’s residence - impact on visual amenity, privacy and solar access - whether proposed development exceeds allowable plot ratio – how plot ratio is to be calculated - adequacy of front setbacks - whether “studio” could become third dwelling - adequacy of provision for resident and visitor parking.
Administrative Appeals Tribunal Act 1989, ss 3A, 32, 37, 39, 44
Heritage Act 2004, s 32
Land (Planning and Environment) Act 1991, ss 7, 8, 13, 229, 230, 231, 245
Legislation Act 2001, s 180
Tree Protection Act 2005, s 10, 32, Pt 4
Adamou v Director-General of Social Security (1985) 7 ALN N203
Kimball and ACT Planning and Land Authority [2007] ACTAAT 28
McKenzie v ACT Planning and Land Authority (2004) 135 LGERA 16
Nowicki v Martyn and Johnston (1996) 131 FLR 88
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Kiazim and Commonwealth (1986) 9 ALN N218
Tribunal:Ms S Tongue, Senior Member
Dr E McKenzie, Senior Member
Dr D McMichael, Senior Member
Date:6 May 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/72
LAND AND PLANNING DIVISION )
RE: STEPHEN HAMILTON
FRITH
ApplicantAND: ACT PLANNING & LAND
AUTHORITY
RespondentAND: PETER KAROUZOS
Party Joined
DECISION
Tribunal : Ms S Tongue, Senior Member
Dr E McKenzie, Senior Member
Dr D McMichael, Senior Member
Date : 6 May 2008
Decision :
The Tribunal sets aside the respondent’s decision on reconsideration dated 16 November 2007 and substitutes its decision that the development application is approved subject to the conditions set out below:
Conditions:
(1)Pursuant to section 245(3)(d) of the Land Act, this approval is not to take effect until the ACT Planning and Land Authority has revoked its approval of Development Application 200603549;
(2)That prior to the commencement of any development the applicant apply for and obtain the approval of the Conservator to a Tree Management Plan under Part 4 of the Tree Protection Act 2005, for the protection of Tree 15 during and after construction;
(3)That no development which would render the studio capable of being used as a dwelling shall be undertaken;
(4)That plans be submitted to the ACT Planning and Land Authority for approval for the following works to be undertaken as part of the development:
(i)re-incorporation of a curve to the front façade in accordance with the Heritage Council recommendations (as shown in drawing numbered 7 - Amendments to Ground Floor Plan - of Exhibit 3);
(ii) provision of a second car parking space for the original dwelling;
(iii)provision of an externally accessible storage compartment (as shown in drawings numbered 6 – Amendments to Lower Ground Floor and 8 - Amendments to Elevations Southern Elevation - of Exhibit 3);
(iv)removal of one tier of concrete slabs above the linking bridge and redesign of the bridge as a lighter box-girder structure;
(v)extension of the wall above the bathroom to screen the solar panel located above the kitchen/utility room (as shown in drawing number 4 of Exhibit 3 at section D-D) from the view of the objector;
(vi)reduction of the number of water tanks on the southern side of the proposed development to two (as shown in drawings numbered 6 and 7 of Exhibit 3) and their placement underground;
(vii)landscaping, including screen planting by the applicant along the fence line adjacent to the objector’s house, acceptable to the ACT Planning and Land Authority.
………………………..
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/72
LAND AND PLANNING DIVISION )
RE: STEPHEN HAMILTON
FRITH
ApplicantAND: ACT PLANNING & LAND
AUTHORITY
RespondentAND: PETER KAROUZOS
Party Joined
REASONS FOR DECISION
6 May 2008 Ms S Tongue, Senior Member
Dr E McKenzie, Senior Member
Dr D McMichael, Senior Member
Introduction
Mr Stephen Frith (“the applicant”) has sought review of a decision of the ACT Planning and Land Authority (“the respondent” or “the authority”) not to approve Development Application (“DA”) 200701146 (“the 2007 DA”) which sought approval to construct a new dwelling and carry out associated works on his property at Block 5 Section 40 in the Division of Campbell at 4 Cobby Street (“the subject land”).
2. The decision to refuse the application was made pursuant to section 230 of the Land (Planning and Environment) Act 1991 (“the Land Act”). The application was deemed refused on 27 September 2007 because the decision was not made before the expiration of the prescribed period and because the delegate of the respondent declined to exercise the discretion available to him under section 230(3) to approve the application. Following a request for reconsideration, the original decision to refuse the application was confirmed on 16 November 2007.
3. Mr Peter Karouzos, who is the current lessee of Block 32, Section 40 in the Division of Campbell at 2 Cobby Street, was joined as a party who opposed the proposed development (“the objector”).
4. The subject land has an area of 2941 square metres with a frontage of 42 metres. The block falls 5 metres from the eastern rear to the western front. At the rear of Blocks 5 and 32 there is reserve with native bushland. Previously the applicant’s block also had reserve on its southern boundary but when new blocks were created to the south of Block 5 in 2000, the objector purchased the lease on Block 32 and built his house, which has its northern façade some 3m from the southern boundary of the applicant’s block.
5. In the hearing before the Tribunal the applicant and objector were self-represented and Dr D Jarvis, of counsel, instructed by the ACT Government Solicitor, appeared for the respondent.
The history of the proposed development and documents before the Tribunal
6. The proposed development is the end product of a long period of development of concepts for the construction of a second dwelling on a large suburban block in a manner that is sympathetic to the heritage values of the original dwelling, designed by Sir Roy Grounds and constructed for Professor Otto Frankel and his wife in 1969.
7. The plans and drawings before the Tribunal show that the applicant proposes to build a dwelling and studio on the block in addition to the existing dwelling. The overall length of the new dwelling is 31.8m comprising two separated living areas joined by a linking bridge with a height of 4m to 5m above the natural ground level. This design is necessary to accommodate a regulated tree. There is a boundary fence of chain wire between the properties and at the rear of the properties.
8. The applicant lodged the 2007 DA with the respondent on 27 March 2007. The subject land has been provisionally registered on the ACT Heritage Places Register under section 32 of the Heritage Act 2004. It also contains regulated trees within the meaning of section 10 of the Tree Protection Act 2005, including a well-developed Eucalyptus meliodora tree, which is labelled tree 15 on the plans, and stands in the middle of the proposed development. Accordingly, pursuant to section 229 of the Land Act, the Conservator of Flora and Fauna (“the Conservator”) and the ACT Heritage Council (“the Heritage Council”) were notified of the application.
9. On 24 April 2007 the objector opposed the original application on several grounds, including what the Tribunal refers to as the “main grounds” listed below. There were no other objections.
10. On 22 May 2007 the Heritage Council recommended approval of the application but recommended a slight curve to the front of the new dwelling for consistency with the existing dwelling. However, on 6 August 2007, the Conservator advised the respondent that the proposal could not be supported because the works proposed would compromise the health and safety of a regulated tree (tree 15).
11. On 7 August 2007 amendments to the plans were submitted and again referred to the Heritage Council which, on 15 August 2007, advised the respondent that it recommended support for the development in its current [ie amended] form. However, no new advice was received from the Conservator.
12. On 27 September 2007 the respondent refused approval for the application because the proposed development exceeded the allowable plot ratio and because the Conservator did not support it. This led to an application for reconsideration being lodged on 19 October 2007. The objector responded to the application to reconsider on 30 October 2007 relying on several grounds including the main grounds.
13. On 8 November 2007 the Conservator advised that the application was not supported and on 16 November 2007 the respondent confirmed the original decision, as it was of the opinion that the retention of tree 15 would result in an unacceptable level of risk to life and property and because it did not wish to make a decision inconsistent with the advice of the Conservator.
14. On 11 December 2007 the applicant appealed to the Tribunal and on 7 January 2008 the objector was joined as a party. Mediation was undertaken and the applicant undertook to submit new plans for review by the respondent and the objector. This led to some further proposed changes but these did not resolve the issues and the matter was listed for hearing.
15. Prior to the hearing, on 20 February 2008 the applicant filed his statement of facts and contentions with the Tribunal. It included a response to issues raised by the respondent and the objector and contained drawings showing redesign to take account of objections. These revised plans had been submitted to the respondent and again referred to the Heritage Council and the Conservator. The Heritage Council noted that the curved front (which was requested in the Council’s earlier advice) no longer existed and reiterated its earlier request. The Conservator advised that the Tree Protection Unit was now prepared to support the revised plans subject to some conditions relating to protection of tree 15 and its roots during construction (Exhibits 7 & 8).
16. On 12 March 2008, a statement of facts and contentions was lodged by the respondent who referred to preliminary advice from the Conservator that the application could now be supported subject to conditions. The respondent stated that following reconsideration it could now approve the revised proposal. Its support was subject to the following conditions:
- Implementation of the Conservator’s requirements for the protection of tree 15 during construction;
- Re-incorporation of a curve to the front façade in accordance with the Heritage Council recommendations; and
- Provision of an externally accessible storage compartment.
17. The respondent noted that comments were yet to be received from the Department of Territory and Municipal Services. The respondent’s statement of facts and contentions filed on 12 March 2008 contained a statement from Mr Simon Hawke, a Senior Development Assessment Officer of the respondent, who had been responsible for assessing the 2007 DA and wrote the decision under review.
18. The objector’s statement of facts and contentions also dated 12 March 2008 responded to the plans submitted by the applicant and attached shadow studies. It referred to nine grounds (including the main grounds) for his continued opposition to the development being approved.
19. On 19 March 2008, that is, two working days before the Tribunal hearing was scheduled to commence, the applicant lodged documents in response to the 12 March statements from the respondent and the objector. These documents included a response to the objectors’ nine grounds, the objector’s shadow studies, a plan of the original dwelling and drawings including amended plans.
The Tribunal’s consideration of a request for adjournment
20. The Tribunal hearing was scheduled to begin immediately following the Easter break. On the day before the break the objector contacted the Tribunal seeking an adjournment of proceedings to allow him time to obtain further expert evidence. This was denied. At the start of the hearing the objector was given an opportunity to explain why he sought an adjournment. He submitted that the changes to the original development application had been so significant as to amount to a different application, rather than a revision of some aspects of the original application. He tendered advice dated 19 March 2008 from Ms Judith Phillips, an experienced local architect, that he had obtained at short notice following his receipt of the applicant’s revised drawings (“the Phillips advice”).
21. The Tribunal adjourned to consider whether to continue with the hearing but decided to proceed. In reaching this decision it had regard to five main issues. First, whether there had been such a substantial departure from the plans originally submitted as to properly be regarded as a different application. Secondly, whether procedural fairness would be provided and whether the self-represented objector had been, and would be, given adequate opportunity to respond to the variations proposed by the applicant. Thirdly, to the fact that the objector’s grounds had remained essentially unchanged during the three phases of review to date. Fourthly, to the decisions of McKenzie v ACT Planning and Land Authority (2004) 135 LGERA 16, Adamou v Director-General of Social Security (1985) 7 ALN N203 and Re Kiazim and Commonwealth (1986) 9 ALN N218. Finally, it had regard to the Administrative Appeals Tribunal Act 1989, sections 3A(d) and (e), 32 and 39 and the need for the Tribunal to proceed fairly, efficiently and expeditiously. It concluded that the revised proposal was not significantly different from earlier versions and that the hearing would provide the objector with sufficient opportunity to address any new issues. Throughout the hearing the Tribunal was conscious of the need for the objector to have an opportunity to consider, and respond to, variations to the original development application. The Phillips advice was circulated to parties at the commencement of the hearing so that it could be duly considered.
Applicable Law and Policy
22. As this application was lodged prior to 31 March 2008 the 2002 Territory Plan (“the Plan”) applies.
23. The Plan is established by section 13 of the Land Act. Its framework is usefully described in Nowicki v Martyn and Johnston (1996) 131 FLR 88. The object of the Plan is described in section 7(1) of the Act as providing the people of the Territory with an “ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation”. Pursuant to section 7(2)(a) the Plan sets out planning principles and policies for giving effect to its object. When it considers whether to approve an application pursuant to section 230, a Territory authority must not make a decision inconsistent with the Plan.
24. Part A of the Plan sets out general planning principles and policies and Part B contains specific objectives and policies for giving effect to the planning principles and policies set out in Part A. The Objectives are a formal statement of the planning aims sought by the land use policy and the Controls are specific policy provisions identifying the purposes for which land may be used and planning criteria that apply to development proposals in the relevant land use policy area.
25. As Miles CJ states in Nowicki, “the provisions of the Territory plan operate like a form of delegated legislation”. While a decision-maker cannot make a decision inconsistent with the Plan there is no statutory right of approval just because there is consistency with the Plan. A decision-maker is required to consider certain matters but may, after consideration, and having regard to compliance, decide to refuse the application. This is likely to occur only in exceptional cases, in part, because of the need for consistency.
26. Section 8 of the Land Act requires the Tribunal not to approve any DA inconsistent with the Plan. Clause 9.1(a) of Part A3 (“Part A3”) of the Plan provides that a DA cannot be approved if it is inconsistent with the applicable land use policy in Part B, that is, the B1 Residential Land Use policy (“Part B1”). Part A3 section 9.1 provides that “the relevant authority shall not approve a development or proposal for the use of land that would be inconsistent with” a list of matters. A “relevant authority” includes the Tribunal and the use of the mandatory word “shall” makes it incumbent on the Tribunal to pay particular attention to the matters listed which include, inter alia:
d)for proposals in a Residential Area, the relevant provisions of any Residential Code at Appendix III.
27. Appendix III.2 is the Residential Design and Siting Code for Multi-Dwelling Developments (“the Code”). The Objectives and Performance Criteria in the Code are set out below under each main issue, to make clear the relevance of the evidence and submissions which were structured in response to the legal requirements.
28. Part A3, section 9.2(b) provides that:
(t)he relevant authority shall, in relation to an application to undertake a development or a proposal to use land, carefully consider the following matters:
……….
b)any relevant planning guidelines or interim guidelines contained in the Register of Planning Guidelines;
………..
29. Part A3, section 9.3 requires careful consideration of:
d) impacts on the amenity of surrounding land uses, including …overshadowing, privacy…;
e) impacts on the visual amenity and landscape or streetscape of the area;
……….
The issues and evidence
30. The Tribunal had before it the documents prepared by the applicant, respondent and party joined in accordance with section 37 of the Administrative Tribunals Act 1989 (“the T-Documents”). The Tribunal visited and inspected the subject land and heard oral evidence from the applicant, the objector and Mr Simon Hawke.
31. The applicant is an architect with over thirty years’ experience in Australia, the United States and the United Kingdom. He gave evidence that he began the process of seeking approval for building on the block in 1999 and has been through several design stages, including changes made in response to changed legal requirements. He described the amendments he had made to his plans to respond to various concerns.
32. The objector, Mr Karouzos, contended that he had built his house in accordance with the applicable planning rules to take advantage of the views to the adjacent reserve, but that the applicant’s proposed development would have a significant impact on his amenity because of its scale and location so close to the property boundary.
33. The evidence and argument focussed on the following main grounds.
1. Building Scale and Proximity to Objector’s Residence
34. The proposed new dwelling is on the southern edge of the subject land, to the north of the objector’s house and closely adjacent to it. The Code contains the legal requirements to be applied and the objector has concerns regarding, in particular, building height (Objective 1), the building in relation to the side boundary (Objective 3) and the interface between the dwellings (Objective 7). The issues include overshadowing impacting on access to light, privacy and energy efficiency. The scale of the proposed wall nearest to the objector’s property was also a concern.
35. The Code specifies:
Objectives
O1.1 To provide an appropriate residential scale within a locality.
O3.1To site buildings to meet projected user requirements for privacy and daylighting.
O3.2To site and design buildings to promote energy efficiency and access to sunshine.
O3.3To ensure scale, height and length of a building and walls relative to side and rear boundaries are of appropriate residential character.
O7.1To ensure the occupants of dwellings can maximise the advantages of sunlight and daylight.
O7.2To limit overlooking of private open space and to enable residents to effectively control outlooks between rooms in adjacent dwellings.
Performance Criteria
P1.1Buildings to be limited in height to ensure compatibility with adjacent development.
P3.1 The privacy of dwellings and outdoor areas to be protected.
P3.2Dwellings to be sited to enable their northern facades to receive adequate sunshine in winter .
P3.3Dwellings to be sited to ensure good sunlight access to their main private open space.
P3.4Buildings to be sited to minimise overshadowing of northern facades of adjacent dwellings and private outdoor spaces.
P3.5Buildings to be sited to minimise overshadowing of northern facades of adjacent dwellings and private open spaces.
P6.2Structures, plant and equipment situated on or visible above roofs to be so located and treated as to be as inconspicuous as possible.
P7.1The dwellings to be designed and located to receive adequate daylight and sunlight.
P7.2The private open spaces and living rooms of adjacent dwellings to be protected from direct overlooking by dwelling layout, screening devices, distance or landscaping.
Performance measures
36. In relation to side boundaries that are the north-facing boundary of an adjoining block, as is the case for Block 32, the height of the building must be, for those parts of the building up to 12 metres behind the upper floor level building line, contained within the planes projected at 45 degrees above horizontal from a height of 2 metres above natural ground level at the boundary line, up to a maximum height level of 8.5 metres.
37. In relation to setbacks the performance measures require 3 metres for lower floor levels and 6 metres for upper floor levels with blank walls or walls with windows with sill heights over 1.7 m or with obscure glazing (if located more than 12 metres behind the Upper Floor Level (“UFL”) building line).
38. The applicant gave evidence that the proposed development now meets all setback and envelope requirements and is of appropriate scale and residential character. He submitted plans showing its height at 5.4m at the western street end of the building and 5.4 m at the eastern rear of the building. The applicant gave evidence that no window looked directly at a window in the applicant’s house, as shown in the drawing numbered 7 - Amendments to Ground Floor Plan of Exhibit 3, when read in conjunction with Exhibit 6, which showed details of the objector’s house.
39. In the applicant’s drawing numbered 9 of Exhibit 3, section D-D shows a solar hot water panel on the roof of the kitchen/utility room immediately opposite the objector’s private open space, which the objector considered to be inconsistent with performance criterion 6.2 and the applicant agreed that it could be screened by extending an adjacent wall to lessen the visual impact.
40. Drawing numbered 2 of Exhibit 2 (the applicant’s plans of 20 February 2008) showed three water tanks at the eastern end of the building. In drawing numbered 2 of Exhibit 3, (dated 19 March 2008) the applicant has removed one tank to reduce their impact, the third being replaced by a storage compartment. The applicant agreed that the remaining two tanks could be located underground to improve the visual amenity, although he contended that they complied with planning requirements.
41. The applicant observed that what he described as “a pine hedge” has been planted by the objector along his northern boundary. He submitted that this would contribute to blocking of sunlight on the objector’s property. Six pencil pines were visible in photographs before the Tribunal and were observed on the site visit. However, the applicant denied that they were intended to form a hedge, indicating that they would be pruned and would not cause significant overshadowing.
42. The objector gave evidence about the impact of the proposed building on his family’s enjoyment of privacy and access to daylight and sunlight. He provided photographs to the Tribunal showing where the sunlight currently falls in the relevant parts of the house at various times during the day. The photographs also show the open space where the family spends recreation time. This occurs in two main areas. The first is a covered area directly outside the family room, where a ping pong table is shown in one photograph. The second is in a paved area further from the house where a barbeque and table and chairs are located.
43. The Phillips advice states:
The height of the proposed building on the southern side boundary has the impact in height of a two storey dwelling along this boundary at a setback of a maximum of 3.5 metres for a length of 24 metres…
The height of the wall to the bathroom and bedroom/study area has the impact on the Karouzos private open space of a two storey wall and limits the use of the space for year round use by overshadowing the area in the winter months. The height of the wall could be decreased by reducing the floor to ceiling height and roof height and thereby reduce the overshadowing…
Whilst the development may meet the performance measurements, the impact on the adjacent house is of a two storey wall extending for up [sic] 24 metres at between 3 and 3.3 metres setback from the boundary.
The proposed development overshadows the adjacent residence’s north facing living areas and private open space. This overshadowing could be minimised by reducing the height of the walls to the bridge, ensuite bathroom and main bedroom/study areas…
The length and height of the walls contribute to the loss of amenity of the adjacent property, by overshadowing and reducing the amenity of the views to the reserve, and the 3 water tanks sited on the southern side boundary visually form part of the fabric of the buildings as sited and create a wall of the development within the setback of 3 metres. A suggestion would be to locate the water tanks to comply with the building setbacks for a dual occupancy development of 3 metres from the boundary…
The private open space and the living areas of the Karouzos residence are impacted by the proposed development and can now not be protected from (sic) proposal by the distance from the boundary or landscaping, as the water tanks encroach on the 3 metre side boundary setback…
44. The Phillips advice also noted that the objector’s outdoor entertaining space is at an excavated level approximately 900 mm below the natural ground level of the proposed development, which will increase the impact of the proposed development on this outdoor area, similar to a two storey wall extending at a setback of 3 m for a length of 9 m behind the 12 m upper floor building line along a side boundary.
45. The objector tendered a report prepared by LBW Architects Pty Ltd showing the impact on energy use in his house arising from the shadowing caused by the proposed building. It showed that a net increase in energy use of approximately 1270 megajoules per annum would arise as a result.
46. Mr Hawke prepared drawings which illustrated the overshadowing that would occur on the northern side of the house on 21 June, the winter solstice, when overshadowing is most severe. (“the Hawke drawings”, Exhibit 6). He explained his drawings while giving evidence and both the applicant and objector accepted that they were correct, although the applicant observed that they did not illustrate any shadowing from screening vegetation.
47. The Hawke drawings show that no shadows from the proposed development would touch the objector’s house until about 1 pm, after which time some shadowing would penetrate into the house. The drawings also represented the two main outdoor recreation areas as circles and showed that again, shadowing would begin to impinge on the areas about 1 pm and gradually extend over them so that they would be fully shadowed by 3 pm. On the basis of Mr Hawke’s evidence regarding shadowing on the northern side of the objector’s dwelling, Dr Jarvis submitted that there would be minimal impact inside the house and only a small impact in the outdoor open space areas which would have at least four hours’ sunlight in mid-winter up to 1pm.
2. Plot Ratio
48. A second main issue is whether the proposed development exceeds the allowable plot ratio. The applicant contended that it would comply and the respondent agreed, but the objector argued that it would not. There are two areas of disagreement: firstly, the exact gross floor area of the two dwellings and the studio; and secondly, whether both covered car spaces should be included in the calculation.
49. Part B1 of the Plan in Control 3.6 Clause (d) contains the maximum permitted gross floor area for dual occupancy developments in a suburban area. This is calculated by reference to the plot ratio, that is, the gross floor area in a building divided by the area of the site (definition in Part D). This is expressed as:
P = (140/B+0.15)100 where P is the maximum permissible plot ratio expressed as a percentage and B is the block area in square metres.
50. Control 3.8 provides that the gross floor area of a development:
shall be taken to be the gross floor area of the buildings plus 18m2 for each roofed open car space or carport provided to meet Territory requirements for resident car parking ……….
51. To determine the plot ratio for the 2007 DA, the floor areas of the existing house, the proposed studio and the proposed house must be calculated. The applicant and Mr Hawke gave evidence to the Tribunal that there are challenges in doing so. While it is possible to calculate exactly the combined floor area of the proposed studio and house, it is more difficult to calculate the floor area of the existing dwelling, in part because of the curves in its design.
52. The applicant said that he calculated the area of the existing and proposed dwellings using dimensions from the plans and manual calculation. Mr Hawke calculated the plot ratio by using the plan dimensions and a computer program.
53. T document 61 states that the existing dwelling is 271 square metres. The applicant argues this is a maximum, because of the curved wall and because it includes some external areas around the porch and the garage door. He estimated that the calculation was too great by some 6.165 square metres, an over-estimation which would be sufficient to bring the area within the required plot ratio.
54. Exhibit 3 drawings numbered 8 and 9 section E-E, show two car spaces in the new development under cover but not fully enclosed, whereas the drawing numbered 6 shows only a single under cover car space, with a second visitor car space uncovered to the side of the building. The applicant gave evidence that this design was adopted to allow light and shadow and allow the building to appear less monolithic.
55. The objector referred to the original calculation of the gross floor area by the authority which included the two car spaces, whereas a later calculation included only one car space. Mr Hawke gave evidence that he had revised the calculation to be consistent with authority practice. They interpreted the provisions of Performance Measure D5.2 of the Code as requiring only one covered car space per dwelling, hence Control 3.8 of Part B1 was taken as requiring only one to be counted in the calculation of gross floor area. He said that hundreds of applications have been decided on the basis that one covered car space is counted per application. Dr Jarvis submitted that this policy should be followed by the Tribunal.
56. A complicating factor in relation to plot ratio is the existence of an approval to an earlier DA No 200603549 (“the 2006DA”) which proposed extensions to the existing dwelling and the construction of two adjoined studios at the same location as is now proposed for the single studio. The applicant explained that he had abandoned his proposals to extend the existing dwelling and reduced the number of studios to one, in order to stay within the allowable plot ratio. However, the approval of the 2006DA (Exhibit 9) remains extant and it would be necessary to revoke it in order to comply with the plot ratio requirement should the Tribunal decide to approve the present application. This is discussed further below.
3. Front boundaries
57. Two issues emerged in relation to the front of the proposed development. The first was the adequacy of the setback from the front boundary and the second the amount of space taken by the garage of the new dwelling.
Objective
O2.1 To provide attractive streetscapes which reinforce the functions of the street and enhance the amenity of dwellings.
Performance criteria
P 2.1 The setback from the street frontage to be appropriate to the streetscape character, the efficient use of the site and the amenity of residents.
P2.2 The location and design of garages and carports to minimise detriment to the streetscape and to not dominate the view of the dwelling from and too the street.
Performance Measure D2.1 provides for a minimum setback from the street front boundary of 6 metres for a lower floor level and 7.5m for an upper floor level.
Performance Measure D2.4 provides, inter alia that:
Total width of garages and carports not to exceed 50% of the width of the block, measured at the building line, except for garages or carports behind or underneath a dwelling.
58. The applicant gave evidence of other houses in the street with a garage underneath the house, including a house across the street seen by the Tribunal in a photograph and on the site inspection. The Tribunal also observed the grove of trees between the proposed garage and the street shown on the plans before it and during the site inspection. The applicant drew attention to the overall aesthetics of the front streetscape.
59. The objector submitted that the front setback of the proposed development was non-compliant with setback requirements for the area. He based this assertion on the fact that at the time of the development of his property, he was required to meet a 10 metre front setback, in order, he was advised, to maintain a visual arc of dwellings along Cobby Street. Exhibit 5 was a copy of the Planning Control Plan for Blocks 32 and 32 Section 40 which accompanied the sale documents for Mr Karouzos’ block. It clearly shows a minimum 10m setback requirement for those two blocks. However, Mr Hawke said that he considered this applied only to the land released for sale at that time. Other blocks were covered by the setback requirements of the Code and the proposed development met those requirements.
60. The applicant explained that the house is now proposed to be setback 9 m from the Cobby Street frontage, whereas it had earlier been 11m. This reduction was to provide more space around tree 15 to ensure it was not impacted by the building work. However, he contended that it exceeded the required setback of 7.5m for the upper floor.
61. The objector contended that the double width carport did not complement the dwelling and dominated the view of the dwelling from the street and was therefore inconsistent with Performance Criterion 2.2. Mr Hawke disagreed, saying that it was essentially a void and could not be said to dominate. The objector also claimed that the width of the carport, at 8.6m, took up more than 50% of the street frontage (which he claimed was about 15m) and was therefore inconsistent with Performance Measure D2.2. However, Mr Hawke observed that this performance measure did not apply to garages and carports underneath a dwelling.
62. The Tribunal observes that the width of the block at the building line is significantly greater than 15m as it has not been subdivided and notes that Control (b) (ii) in Part B1, section 3.6 (Residential Development and Redevelopment – Suburban Areas) specifically precludes subdivision of standard blocks in residential areas (except where certain circumstances pertain which is not the case here).
4. Number of dwellings
63. Part B1 of the Plan in Control 3.6 provides that no more than two dwellings are permitted on a standard block (other than supportive housing). The objector submitted that the studio would, in effect, be a third dwelling, thereby breaching the control. A studio can be a “dwelling” if it has separate food preparation, bathing and toilet facilities (see definition of Dwelling in Part D of the Plan).
64. Documents before the Tribunal show that the 2006 DA sought approval for two studios (A and B) but the 2007 DA shows the application has now been amended to include only one studio (A). The applicant referred to various plans showing that the studio would have toilet and shower facilities but no cooking facilities. For example, this appears on T-Document 115 and drawing numbered 7 of Exhibit 3. The applicant stated in evidence that that the studio will be used by his wife who is a ceramic artist. Power for the kiln in the studio may need to be from a separate source from the main house depending on the requirements of the kiln. However, he asserted that there would be no separate metering of the electricity and observed that in the earlier approval that he had obtained for the construction of the two studios, there was a specific condition that they were not to be used as separate dwellings.
5. Landscaping
Objective
O9.1 To create a pleasant, safe and attractive living environment.
O9.2 To blend new development into the streetscape and neighbourhood.
Performance Criteria
P9.2The landscape design specifies the location and species of trees, shrubs and ground cover in a way that:
•uses vegetation types and landscaping styles that blend the development in with the streetscape;
• should not affect the structure of the proposed buildings;
………
•contributes to energy efficiency and amenity by providing substantial shade in summer... and admitting winter sunlight to outdoor and indoor living areas;
• improves privacy and minimises overlooking between dwellings;
……….
65. The Phillips advice submitted on behalf of the objector referred to the possibility of improving the objector’s amenity through landscaping by both parties on either side of the boundary fence. The applicant did not provide a detailed landscape plan although he indicated his willingness to undertake appropriate screen planting.
6. Other issues
66. There were several other issues that were in contention but which did not receive much attention at the hearing.
67. First, the objector submitted that the proposed dwelling could be relocated to another position on the block. However the applicant gave evidence of the existence of a flood pathway which, he contended, prevented other locations being used. Mr Hawke supported the applicant’s contention. The objector did suggest that the rear of the new dwelling could be angled further away from his recreational areas but the applicant contended that this was not possible, referring to drawing numbered 5 – Site Analysis - of Exhibit 3 in which several alternative layouts had been considered but found to be unacceptable.
68. The objector had been concerned about the adequacy of visitor parking on site. The applicant gave evidence that visitor parking is proposed to be provided as shown in the drawing numbered 6 - Amendments to Lower Ground Floor - of Exhibit 3.
69. Another issue related to the regulated tree (tree 15) on the block. In response to the Conservator’s concerns the applicant had made adjustments to the plans to accommodate the tree, which are now acceptable to the Conservator provided certain requirements are met (Exhibit 7). The objector did not press any issues regarding the tree before the Tribunal.
70. It would be necessary to impose conditions on any approval that might be given to ensure that the tree was protected during construction and afterwards. It was submitted by Dr Jarvis that it would be open to the Tribunal to approve the proposals of Mr Alan Mann regarding measures necessary to protect tree 15 (see T-Documents 69-73) as a Tree Management Plan, pursuant to section 231(6)(b) of the Land Act, because the Conservator had indicated support for Mr Mann’s proposals. However, we think it preferable for the applicant to apply for approval of a comprehensive Tree Management Plan by the Conservator under section 32(3) of the Tree Protection Act 2005.
Consideration of the issues
71. The Tribunal has concluded that several of the issues raised by the objector are without substance.
72. In relation to the number of dwellings, the Tribunal accepts the applicant’s evidence that only one dwelling and a studio are proposed. While the studio has toilet and shower facilities there are no cooking facilities and it accepts that a condition prohibiting development of the studio for use as a dwelling should again be imposed following revocation of the original approval for the studios (see paragraph 82 below).
73. The Tribunal had regard to the objector’s evidence in relation to the impact on energy efficiency in his home due to the construction of the adjacent dwelling. While it accepts that there would be some impact it finds that the effect is minimal. It has taken this impact into account in balancing the factors to be considered in reaching its decision.
74. The objector also raised the issue of the adequacy of provision for visitor parking. Performance Measure D5.2 of the Code provides that visitor parking is required only for developments of more than two dwellings. The Tribunal is satisfied that the Vehicle Parking and Access requirements of the Code will be met. However, Performance Measure D5.2 of the Code does require that for each two or more bedroom dwelling, two resident parking spaces are required. While the proposed development has parking space at lower ground floor level for two cars, the floor plan of the existing dwelling attached to Exhibit 3 appears to show a garage capable of housing only one car. The additional space marked “Visitor parking space” on drawing numbered 6 of Exhibit 3 could suffice to provide the second space required for the existing dwelling. However, there could be a more convenient location. We will make it a condition of approval that a second resident car space to serve the needs of the existing dwelling is provided.
75. The objector suggested alternative locations for the proposed dwelling on the applicant’s block. The Tribunal had regard to the evidence of the applicant, the respondent’s expert witness and its own site inspection. It also had regard to the requirements of the Code in relation to multi-dwelling developments. If an applicant’s proposed development meets the requirements of the Code then, while they might be encouraged or exhorted to relocate it within the block, this would be difficult to compel. This is especially true in this case when recent rains have demonstrated that water flows through the block, militating against other locations.
76. However, a number of the main issues set out above did raise significant concerns about the proposed development.
77. The Tribunal gave careful consideration to the side boundary issues raised by the proposed development. There was agreement among the respondent, the applicant and Ms Phillips, the objector’s architect adviser, that the development complied with the Code in relation to the formal requirements for side boundary setbacks.
78. The Tribunal recognises the concern of the objector and his family that shadows from the new dwelling will progressively extend across their northern wall and into the living areas of their dwelling in the afternoons during the winter. It also accepts that there will be some shadowing of the open space areas adjacent to the house at these times. However, as the Tribunal has observed in previous cases (eg Kimball and ACT Planning and Land Authority [2007] ACTAAT 28), there is no absolute prohibition on overshadowing of neighbouring properties – Performance Criterion 3.4 is to “minimise overshadowing of northern facades of adjacent dwellings and private open spaces” and this contemplates that some detriment could be allowed within an area in which multi-dwelling development is permissible. We consider the extent of overshadowing that will arise in this case to be acceptable, given that the objector has available to him substantial additional open space that will not be shadowed at any time.
79. The Tribunal considers that there are some valid grounds for the objector’s concern about the impact of the proposed development on his visual amenity. It will be a long and somewhat monolithic building and this impression will be increased by the proposed height of the linking bridge, which is proposed to be of concrete beam construction. During the hearing, the applicant stated that he would be prepared to redesign this to remove the top tier of concrete slabs and to make it a lighter, box-girder structure. We consider that this would go some way towards reducing the monolithic appearance of the proposed development and we propose to make this a condition of approval.
80. In relation to the calculation of the plot ratio, the Tribunal considers that while the meaning of Control 3.8 of Part B1 of the Plan is not clear, it can be interpreted as submitted by the respondent, and that this interpretation is the accepted policy of the respondent. The decision in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 made it clear to tribunals that as a rule they should follow established policy for consistency.
81. In any case, the Tribunal considers that the calculation of the plot ratio in this case is necessarily inexact because of the curved facade of the original dwelling and the uncertainty as to which elements of the existing building should be counted. It concludes that the established policy of the respondent in counting only one car space should be followed and the calculations made by the applicant and the respondent adopted. Consequently, the plot ratio falls within the allowable limit.
82. However, that will only be the case if only one studio is constructed and, as noted above, an approval already exists for the construction of two studios. In order to avoid uncertainty, the Tribunal considers it is necessary to revoke the earlier approval of DA 200603549. The Tribunal is empowered by section 245(3)(d) of the Land Act to impose a condition on an approval that it does not take effect unless a specified approval is revoked, amended or given. By virtue of section 180 of the Legislation Act 2001 (ACT) which provides that the power given by law to make a decision includes a power to reverse or change that decision, the authority would be capable of reversing that approval. We will make it a condition of our approval to the 2007DA, that the ACT Planning and Land Authority takes step to reverse the approval of DA 200603549 before the approval of the 2007DA takes effect. We will also make it a condition that the studio not be developed for use as a residence.
83. The Tribunal has some sympathy for the objector in the loss of amenity for him and his family from having the new development, with its lengthy wall, adjacent to their property. It considers that several of the recommendations in the Phillips advice would go some way towards ameliorating the impact of the building. It also has regard to the concessions made during the hearing by the applicant. In particular, it considers that the removal of the top tier of concrete slabs from the linking bridge and its redesign as a lighter structure would reduce the monolithic appearance of the proposed development from the Karouzos’ property. It also agrees with the suggestion that the view of the solar panel on the roof of the dwelling could be eliminated by extending the wall above the bathroom to screen it. Both proposals will be made conditions of approval.
84. The Phillips advice also recommended that the placement of the water tanks could be improved. Their placement underground would reduce the impact on the objector’s amenity, albeit at some, but relatively little, additional cost. We note that the applicant has prepared revised plans (drawings numbered 6 and 7 of Exhibit 3) reducing the number of tanks to two. We will impose a condition that this be done and that both these tanks be put underground.
85. The respondent indicated in its statement of facts and contentions that it would support the revised proposal subject to several conditions including that the front façade of the proposed dwelling be curved to complement the existing dwelling on the subject block, and that an externally accessible storage compartment be provided in accordance with Performance Measure D8.3 of the Code. We will make these conditions of approval (noting that the applicant has already prepared revised drawings attached to Exhibit 3 including these changes).
Decision
86. The Tribunal decides that the DA should be approved with conditions. Pursuant to section 44(1)(c)(i) of the Administrative Appeals Tribunal Act 1989 (ACT) the Tribunal sets aside the respondent’s decision on reconsideration dated 16 November 2007 and substitutes its decision that the development application is approved subject to the conditions set out below:
Conditions:
(1)Pursuant to section 245(3)(d) of the Land Act, this approval is not to take effect until the ACT Planning and Land Authority has revoked its approval of Development Application 200603549;
(2)That prior to the commencement of any development the applicant apply for and obtain the approval of the Conservator to a Tree Management Plan under Part 4 of the Tree Protection Act 2005, for the protection of Tree 15 during and after construction;
(3)That no development which would render the studio capable of being used as a dwelling shall be undertaken;
(4)That plans be submitted to the ACT Planning and Land Authority for approval for the following works to be undertaken as part of the development:
(i)re-incorporation of a curve to the front façade in accordance with the Heritage Council recommendations (as shown in drawing numbered 7 - Amendments to Ground Floor Plan - of Exhibit 3);
(ii) provision of a second car parking space for the original dwelling;
(iii)provision of an externally accessible storage compartment (as shown in drawings numbered 6 – Amendments to Lower Ground Floor and 8 - Amendments to Elevations Southern Elevation - of Exhibit 3);
(iv)removal of one tier of concrete slabs above the linking bridge and redesign of the bridge as a lighter box-girder structure;
(v)extension of the wall above the bathroom to screen the solar panel located above the kitchen/utility room (as shown in drawing number 4 of Exhibit 3 at section D-D) from the view of the objector;
(vi)reduction of the number of water tanks on the southern side of the proposed development to two (as shown in drawings numbered 6 and 7 of Exhibit 3) and their placement underground;
(vii)landscaping, including screen planting by the applicant along the fence line adjacent to the objector’s house, acceptable to the ACT Planning and Land Authority.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT07/72
APPLICANT: STEPHEN HAMILTON FRITH
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: PETER KAROUZOS
COUNSEL APPEARING: APPLICANT:
RESPONDENT: DR D JARVIS
PARTY JOINED:
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED:
OTHER:APPLICANT: SELF
RESPONDENT:
PARTY JOINED: SELF
TRIBUNAL MEMBER/S: MS S TONGUE, SENIOR MEMBER
DR E MCKENZIE, SENIOR MEMBER
DR D MCMICHAEL, SENIOR MEMBER
DATE/S OF HEARING: 25-26 MARCH 2008 PLACE: CANBERRA
DATE OF DECISION: 6 MAY 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
2
0