Gingell and Act Planning & Land Authority
[2007] ACTAAT 2
•29 January 2007
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:GINGELL AND ACT PLANNING & LAND AUTHORITY & ANOR
[2007] ACTAAT 2 (29 JANUARY 2007)
AT06/68
Catchwords: Land and planning – review of decision to approve dual occupancy development in A 10 area – streetscape – front setbacks – impact of garage on view of dwelling – noise and overlooking impacts – potential for flooding.
Land (Planning and Environment) Act 1991, s230, 245, 237
AMC Projects Pty Ltd and ACT Planning & Land Authority & Ors
[2006] ACTAAT 13 (2 May 2006)
Moulis and ACT Planning & Land Authority & Ors [2006] ACTAAT 24
(4 July 2006).
Kimball and ACT Planning & Land Authority & Anor [2006] ACTAAT
33 (16 November 2006)
Tribunal:Mr M H Peedom, President,
Dr E McKenzie, Senior Member,
Mr J Ashe, Member
Date:29 January 2007
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/68
LAND & PLANNING DIVISION )
RE:NORM & CHRIS GINGELL
Applicant
AND:ACT PLANNING & LAND AUTHORITY
Respondent
AND:ALEXANDER JOHNSTON
Party Joined
DECISION
Tribunal : Mr M H Peedom, President
Date : 29 January 2007
Decision :
The decision under review is set aside and substituted by a decision that the
Development application is refused approval.
…………………………..
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/68
LAND & PLANNING DIVISION )
RE:NORM & CHRIS GINGELL
Applicant
AND:ACT PLANNING &
LAND AUTHORITY
Respondent
AND:ALEXANDER JOHNSTON
Party Joined
REASONS FOR DECISION
29 January 2007 Mr M Peedom, President
Dr E McKenzie, Senior Member
Mr J Ashe, Member
This is an application to review a decision made by a delegate of the respondent on 14 September 2006 pursuant to section 230 of the Land (Planning and Environment) Act 1991 (“the Land Act”) to approve a development application subject to conditions imposed pursuant to section 245 of the Land Act.
2. The development application related to residential land at Block 6 Section 4 Division of Weetangera (“the subject land”). The subject land is a corner block with frontage to Morton Street of about 22m and about 23.5m to Smith Street. It has an area of 937.8m2 and falls approximately 1.5 m from south to north.
3. The development application sought approval to the demolition of an existing house, the erection of two detached houses and associated landscaping, car parking, paving and other site works. The proposed new houses comprise a single storey dwelling and a dwelling with a second storey component.
4. In a statement of reasons for decision the delegate of the respondent described Morton Street and Smith Street as consisting of mainly single storey detached dwellings, well set back from front boundaries, with substantial and open landscaping and vegetation forward of the front building line. There is a mix of building types and materials evidenced within the street, however the majority of buildings are of brick, with pitched tiled roofs. The traffic volumes along both streets are low and no footpaths exist in the street verges. The streets present as open, leafy, well treed and landscaped, with a high level of visual and residential amenity. This description accords with our inspection of the subject land and the surrounding area.
5. The subject land is adjoined on its northern side boundary by Block 7 Section 4 Division of Weetangera, the lessees of which land are the applicants. They lodged an objection to the development application pursuant to section 237 of the Land Act. The party joined, who is the lessee of Block 21 Section 3 Division of Weetangera, was also an objector to the development application.
6. At the hearing of the appeal the applicants represented themselves. The party joined was represented by Ms M Brand and the respondent by Ms G Wong, a legal practitioner. The significant issues raised for consideration by the parties at the hearing related to the impact of the proposed dwellings on the streetscape, the potential for noise disturbance and overlooking of the rear yard of the applicants’ land and their family room and bedrooms and the potential that existed for flooding of the subject land by storm water overflow in the nearby area.
Streetscape
7. The principal objections of the applicants to the proposed development in relation to its impact on the streetscape of the surrounding area related to the proposed unit 1 which faces Morton Street. It contains a double garage of approximately 6m in width which is set back 7.5m from the front boundary. A bedroom and ensuite bathroom of the same width and setback distance are located at the upper level above the garage. A brick column is located 1.5m forward of each front corner of the garage with a return to the front garage wall on the western side. The columns are constructed from ground level to the roof of the upper level and are 230mm and 250mm wide at the western and eastern sides, respectively. The columns support a balcony of 1.5m depth and 6m width outside and forward of the upper level bedroom. The balcony has a balustrade at the front and eastern side with stainless steel cables below. The pitched and tiled roof of the upper level extends 1.5m forward of the bedroom to cover the balcony.
8. An entrance doorway of 1.44m in width facing the street on the eastern side is located 6.28m behind the 6m front setback of unit 1. A dining room wall facing the street and located 12.9m behind the front setback extends 2.010m beyond the width of the entrance.
9. The greater width of the garage than the other components of unit 1 which face Morton Street and its closer proximity to the front boundary than those components would result in the garage, at ground level, being the most prominent feature of unit 1 in the streetscape.
10. The applicants contended that the height of unit 1 would result in a scale of development that was not appropriate to the area and that the setback of unit 1 did not meet the distance specified in performance measure D2.1 of the Residential Design and Siting Code for Multi-Dwelling Developments in Appendix III of the Territory Plan (“the Code). They also contended that the garage would dominate the view of unit 1 from and to Morton Street and thereby fail to satisfy performance criterion P2.2 of the Code.
11. The issue of building height is addressed by the Code. Should the Tribunal find that the proposed development would be inconsistent with the Code, it would be obliged to refuse approval of the development application (see section 8 Land Act and clause 9.1(d) Part A3: Plan Administration Policies).
12. The relevant objective of the Code in relation to building height is to provide an appropriate residential scale within a locality (see objective O1.1). One of the performance criteria requires buildings to be limited in height to ensure compatibility with adjacent development (see performance criterion P1.1). The Code also states that buildings not exceeding two storeys in height will normally be considered as meeting the objectives and performance criteria (see performance measure D1.1). By itself, therefore, the fact that the proposed development contains a second storey element on one of the dwellings cannot justify refusal of approval of the development application. There was no evidence to satisfy us that the normally acceptable building height would fail to meet the relevant objective and performance criterion in this case.
13. In relation to the front setback of unit 1 the relevant objective of the Code is to provide attractive streetscapes which reinforce the functions of the street and enhance the amenity of dwellings (see objective O2.1). The relevant performance criteria require the setback from the street frontage to be appropriate to the streetscape character, the efficient use of the site and the amenity of residents (see performance criterion P2.1) and that the location and design of garages minimise detriment to the streetscape and not dominate the view of the dwelling from and to the street (see performance criterion P2.2). Performance measure D2.1 of the Code specifies a minimum setback of buildings from the street front boundary of 6m at lower floor level and 7.5m at upper floor level. Performance measure D2.4 states:
D2.4 Garages and Carports
Garages and carports setback in accordance with D2.1 and, where within 15 metres of a front boundary, of the same or similar materials as the front of the nearest dwelling.
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.
The word “block” is defined in Part D of the Territory Plan as “a parcel of land, whether or not the subject of a lease”.
14. Under the Code proposals which do not meet performance measures may still be considered in terms of whether they meet the relevant objectives & performance criteria (see Introduction to the Code). Because the front setback of unit 1 of 6m at upper floor level does not meet the relevant performance measure it is necessary to consider whether the proposed development still meets the relevant objective O2.1 and performance criteria P2.1 and P2.2.
15. In evidence given at the hearing of the appeal on behalf of the respondent, Mr P Cohen, a qualified town planner, said that from Smith Street about 1m of the western wall of the upper floor of unit 1 would project above the ridge line of unit 2 with about 1.5m of the roof visible from the street. The return on the western end of the balcony would increase the amount of wall visible from the street thereby adding to the apparent bulk of the building. This, he considered, would reflect the bulk of the house on Block 6 Section 2 Division of Weetangera. He considered that the two storey component of unit 1 would be more obvious when travelling west along Morton Street but, because of the limited height of the two storey component, he did not consider that the view from Morton Street would be affected to an extent where the impact could be said to be detrimental. Mr Cohen said that it would be possible to re-design unit 1 so as to achieve a 7.5m setback but such re-design would likely give the appearance of a turret and be discordant with the surrounding area and less desirable than the design proposed by the development application. He also considered that there would be some overlooking from the balcony of the adjoining block (Block 5) but this impact would not be ameliorated by a 7.5m setback and the residents of Block 5 had not objected to the development application. He said that for these reasons, in his opinion, the proposal was consistent with performance criterion P2.1. At a site inspection undertaken by the Tribunal, Mr Cohen also drew attention to a two storey house that was visible from the subject land some distance to the west in Morton Street.
16. In submissions made on behalf of the respondent in relation to the streetscape issue, Ms Wong relied upon the Part B1, A10 policies of the Territory Plan (“the A10 policies”) and the interpretation of those policies by the Tribunal in AMC Projects Pty Ltd and ACT Planning & Land Authority & Ors [2006] ACTAAT 13 (2 May 2006) and Moulis and ACT Planning & Land Authority & Ors [2006] ACTAAT 24 (4 July 2006). She submitted that the Tribunal was entitled to have regard to the impending change resulting from the introduction of the A10 policies with which the proposed development, she contended would fit in.
17. The objectives of the A10 policies are expressed in the following terms:
· 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 preferences.
· To assist in creating a more sustainable pattern of urban settlement by providing for more housing to be developed close to identified commercial centres.
18. The Tribunal gave consideration to the A10 policies in the AMC Projects case (see in particular paragraphs 15-27). The parties made reference to that case in the material lodged by them with the Tribunal and it is unnecessary to repeat the detail of what was said there. It is sufficient to note that the analysis undertaken by the Tribunal of those policies was directed at identifying the nature and extent of the change which was introduced by them to the previously applicable policies. Relevantly to the issue of the front setback of the proposed development, it is significant that to the extent to which the first objective of the A10 policies enables the desired future suburban character of an A10 area to be taken into account in assessing a development application, the character to which reference is made is that which is defined by an approved master plan. There is no approved master plan in respect of the area in which the subject land is located. Any contribution which the proposed development might make to the future character of that area is not, therefore, a matter that the first objective of the A10 policies authorises consideration to be given to. In the circumstances of this case the first objective requires attention to be directed to the existing streetscape.
19. The Tribunal did, however, note that there were certain changes in emphasis of the first objective of the A10 policies to the formerly applicable policies. In particular it noted that, whereas the formerly applicable objective of ensuring that development respected characteristic features of existing streetscapes such as building scale, height and setbacks, landscape and architectural style and was compatible with adjoining development, there was no reference in the first objective to the particular features which any proposed development was required to respect and there was no requirement for a proposed development to be compatible with adjoining development.
20. The Tribunal considered that, in general, the A10 policies reflected an intention to balance the competing planning objectives of providing for continuing development without further urban expansion, on the one hand, and protection of the existing low density character of most residential areas, on the other hand, and that one strategy to achieve those objectives was to identify some parts of some residential areas with specific features which were to lose the kind of protection considered appropriate for most residential areas.
21. That is not to say, however, that the A10 policies result in the removal of all protection of the amenity of residents affected by the proposed development in the areas to which the policies apply. In particular, clause 9.1(d) of the Plan Administration Policies, as noted above, prevents approval being given to a proposed development that would be inconsistent with the relevant provisions of the Code.
22. In cross-examination Mr Cohen said that he did not consider that the garage of unit 1 would have a dominating effect across the Morton Street frontage of the subject land because of the greater width of unit 2 and the fact that the close proximity of the 2 units to each other would result in them being read as one development. He regarded the presence of unit 2 as significant in determining whether the garage of unit 1 was dominant for the purpose of P2.2. The dominance of the garage would be reduced by the framing of the vertical columns and the balcony overhead. He agreed that, in the absence of the built elements to be constructed forward of the garage there would be a dominating effect of it on unit 1. He considered, however, that those elements were to be treated as providing articulation so as to remove the blandness of the building façade and that they would have the affect of disguising the impact the garage would otherwise have.
23. The applicants submitted that, for the purpose of performance measure D2.4 of the Code, the reference to “block” was a reference to that part of the subject land that was shown on the site plan of the development application apparently intended to be exclusively occupied by the occupants of unit 1. This appears to be intended to be achieved by a short fence continuing along the line of the western wall of unit 1 to the common boundary with Block 7 and a retaining wall and plantings between the two units at the Morton Street frontage. The width of the garage is clearly more than 50% of the total width of the area apparently designated for occupation by the residents of unit 1 but less than 50% of the total width of the subject land in Morton Street.
24. There was no evidence before the Tribunal of any proposal to create any separate legal title of any part of the subject land. In the absence of additional evidence of a more formal separation of the subject land into distinct parts we consider that, for the purpose of performance measure D2.4, the subject land is to be regarded as the “block” in which case the proposed development does not fail to meet that performance criterion. Mr Cohen’s evidence, however, clearly raises a question as to whether the prominence of the garage would result in any approval of it being inconsistent with performance criterion P2.2.
25. Perhaps inconsistently with performance measure D2.4, performance criterion P2.2 makes the object of it protection of the streetscape, the “dwelling’. The word “dwelling” is defined in Part D of the Territory Plan as follows:
“Dwelling” means a building or part of a building used as a self contained residence which must include:
·Food or preparation facilities;
·a bath or shower; and
·a closet and wash basin
It includes outbuildings and works normal to a dwelling.
26. Unit 1 clearly satisfies the definition of a “dwelling”. In our opinion, the reference in P2.2 to “the dwelling” makes it clear that the protection from domination of view sought to be provided is to the dwelling in respect of which the garage is to be provided, in this case unit 1. The fact that it may not dominate the view across the subject land is not, therefore, to the point. While we accept that the impact of the garage of unit 1 at the street frontage will be reduced by the elements in front of and above it, we consider that the use of an architectural device that substantially fails to meet a performance measure so as to better achieve compliance with a performance criterion is problematical. We are not prepared to accept that there is no architectural solution that would be capable of meeting performance criterion P2.2 without failing to meet a relevant performance measure.
27. The house which Mr Cohen placed reliance upon (Block 6 Section 2) is located on the corner of Smith Street and Morton Street opposite the subject land. Its frontage, which is to Morton Street, presents as a single storey house built at ground level but it increases in height towards the rear in Smith Street because of the downward slope of the land from Morton Street. No suggestion was made that the setback to either street failed to meet a relevant performance measure. We cannot find anything about the house on Block 6 Section 2 which would enable the Tribunal to arrive at a finding that the setback specified in the Code as the ordinarily acceptable minimum setback and apparently uniformly observed in the area surrounding the subject land would make a failure to observe that standard appropriate to the streetscape character of the area.
28. While each case is to be considered on its merits we note that clause 9.3(c) of the Territory Plan Administrative Policies requires consideration to be given, inter alia, to the potential cumulative effects of a proposed development. The case of Kimball & ACT Planning & Land Authority & Anor [2006] ACT AAT 33 (16 November 2006) provides an illustration of the reliance that is placed on developments approved without there being compliance with performance measures as to front setbacks as a precedent for further non-compliance. As the Tribunal observed in that case, allowing increasing encroachments into front boundary setbacks with successive developments will, over time, risk rendering the performance controls meaningless in so far as they affect streetscapes.
29. Further, to the extent to which Mr Cohen sought to place reliance upon the two storey house to the west of the subject land in Morton Street, we note that, although detailed setback dimensions of that property were not provided to us, it was apparent on external inspection that the upper floor level was set back further from the street frontage than the ground floor in apparent compliance with performance measure D2.1. That dwelling provides no basis for support of any conclusion that the upper level setback of unit 1 would be appropriate to the streetscape. On the contrary, it supports a conclusion that such a setback would not be appropriate to the streetscape
30. In the result we consider that there is no evidence before us to satisfy us that there is a sufficient basis to find that, despite the failure of the proposed development to meet a relevant performance measure, the setback of the upper level of unit 1 is appropriate to the streetscape character of the area. The development application should, therefore, be refused approval.
31. In view of the conclusion which we have reached in relation to the issue of streetscape it becomes unnecessary for us to address the other issues raised by the parties. However, it may be of assistance to them if we do so.
Noise and Overlooking
32. The applicants contended that the proximity of the private open space of unit 1 and unit 2 to the common boundary of their land with the subject land would result in unacceptable noise disturbance and overlooking of their family room and bedrooms. They also expressed concern about the potential for noise emanating from the family room of unit 1 which has sliding glass doors opening to a paved area near the common boundary with Block 7.
33. The plans of the development application show that the principal private open space for each unit will be paved areas to their northern sides. The area of paving of unit 2 is shown to be about 5.5m x 5.5m located, at its nearest, 4m from the common boundary. The area of paving of unit 1 is about 6.3m x 4.3m located, at its nearest about 3.2m from the common boundary. Plantings are shown as proposed between the paved areas and the common boundary. The plans of the development application provide for an 1800mm fence with a 600mm lattice screen attached to the top. The plans of the development application and demonstration by a representative of the respondent at a site inspection by the Tribunal showed that the slope of the land towards the common boundary would likely result in an elevation of the paved areas so as to give rise to the potential for overlooking from them to the applicants’ family room and bedrooms.
34. In his evidence, Mr Cohen said that, in his view, the fencing proposed by the development application would be inadequate and inappropriate as lacking durability and structural sufficiency. He proposed instead the construction of a masonry wall on the common boundary in a manner that protected and retained two existing trees, identified on the plans as tree Nos. 6 and 7, and built to a height of RL624 with a 2m high metal fence constructed on top of the wall. The applicants expressed a preference for the construction of courtyard walls surrounding the paved areas because of the acceptance by Mr Cohen that the fencing as proposed by him would have limited effectiveness in containing the impact of any noise generated from the family room of unit 2 and the private open spaces of both units. They informed the Tribunal that they were not concerned about the visual impact that the construction of a fence of the dimensions proposed by Mr Cohen the respondent might have on them. They accepted that the visual impact of it on them could be softened by plantings on their land.
35. The Tribunal accepts that the fence proposed by Mr Cohen and adopted by the respondent would adequately and appropriately address any potential for overlooking of potentially affected parts of the applicants’ property.
36. In relation to the applicants’ concerns regarding the potential impact of noise, both paved areas are separated to some extent by an area that is shown to contain planting on the subject land between the paved areas and the fence on the common boundary thereby providing some degree of separation of the private open space from the applicants’ property. Both paved areas are of limited size and unlikely to permit gatherings of people in other than small numbers. Larger areas of private open space with the potential for the gathering of larger numbers of people could be expected to be found in single residential developments of many parts of Canberra. We note that the sliding doors of unit 2 which open from the dining room are approximately 10m from the common boundary. The sliding doors of the family room of unit 1 are approximately 8m from the common boundary. We do not consider that there is a sufficient basis upon which to refuse approval of the development application because of any potential for noise.
Flooding
37. The party joined provided to the Tribunal a report of the Commonwealth Department of Transport & Construction prepared in November 1982 which identified a problem of surface drainage from Gillespie Street, Weetangera to certain blocks of Section 3. It identified a potential of flooding to those blocks in certain rainfall conditions. It was proposed that water be diverted down a pathway towards Morton Street. The party joined contended that there would be a risk of flooding to the proposed development because it involved the excavation of the subject land to achieve a lower floor level than the existing house.
38. The Respondent was unable to provide any information to the Tribunal to assist in addressing the risk, if any, of flooding to the subject land that might affect the proposed development. The construction of a low level mound on the verge surrounding the subject land suggests that a view was taken by a government agency that some risk existed. On the other hand, no evidence was provided that any flooding has occurred to the subject land since it was first leased for residential purposes in 1971.
39. The Respondent proposed the imposition of a condition on any approval of the development application that a stormwater management plan prepared by a qualified engineer showing how rainwater surface flows would be intercepted and dispersed and addressing the possibility that the subject land may be within an overland flow path. In our view the imposition of such a condition would be an appropriate way in which to address the potential problem that has been identified by the party joined.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT06/68
APPLICANT: NORM & CHRIS GINGELL
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: ALEXANDER JOHNSTON
COUNSEL APPEARING: APPLICANT:
RESPONDENT: MS G WONG
PARTY JOINED:
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED:
OTHER:APPLICANT: SELF
RESPONDENT:
PARTY JOINED: MS M BRAND
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT,
DR E MCKENZIE, SENIOR MEMBER,
MR J ASHE, MEMBER
DATE/S OF HEARING: 17 & 18 JANUARY 2007 PLACE: CANBERRA
DATE OF DECISION: 29 JANUARY 2007 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENTS:
1
1
0