Gingell v ACT Planning and Land Authority - [2018] ACAT 62

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GINGELL & ANOR v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2018] ACAT 62

AT 2 of 2018
Catchwords: ADMININSTRATIVE REVIEW – land and planning – Multi Unit Housing Development Code – site open space – principal private open space – whether the tribunal has jurisdiction to examine discretionary matters beyond the code provisions

Legislation cited: Planningand Development Act 2007 ss 119, 121

Subordinate

Legislation cited: Residential Zones Development Code
Multi Unit Housing Development Code

Cases cited:Javelin Projects Pty Ltd v ACT Planning and Land Authority [2017] ACAT 87
Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority [2018] ACAT 38
Baptist Community Services v ACT Planning and Land Authority & Ors [2015] ACTCA 3
Noah’s Ark Resource Centre Incorporated v Act Planning and Land Authority & Anor [2017] ACAT 44

Tribunal: Senior Member G Lunney SC (Presiding)
Senior Member G Trickett

Date of Orders:  13 June 2018
Date of Reasons for Decision:         13 June 2018
AUSTRALIAN CAPITAL TERRITORY  )
CIVIL & ADMINISTRATIVE TRIBUNAL           )          AT 2/2018

BETWEEN:
NORM GINGELL
First Applicant
CHRISTINE GINGELL
Second Applicant

FRIENDS OF HAWKER VILLAGE INCORPORATED
Third Applicant
ADEN MCKAY
Fourth Applicant
ELIZABETH MCKAY
Fifth Applicant
AMC ARCHITECTURE
First Party Joined
ALFRED JOHNSON
Second Party Joined
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent

TRIBUNAL:Senior Member G Lunney SC (Presiding)
Senior Member G Trickett

DATE:13 June 2018
ORDER

The Tribunal orders that:

The decision under review is varied to include the following conditions, which are additional to the conditions attached to the decision under review.

Further Conditions of Approval to be Included at A1 of the Notice of Decision

The Development Application number 201731656 lodged with the respondent on 31 May 2017 and 31 October 2017 is approved subject the following further conditions:

A.ADMINISTRATIVE / PROCESS CONDITIONS
A1.FURTHER INFORMATION
Within 28 days from the date of this decision, or within such further time as may be approved in writing by the planning and land authority, the applicant shall lodge with the authority a complete set of drawings reflecting the latest amendments to the proposal including all conditions as set out at T-document 36 and the further conditions as set out below.
(a)…
(b)…
(c)…
(d)DRIVEWAY INTERNAL RADIUS
(i)The proposed driveway north of unit 5 is to be designed with a minimum 4 metre internal radius.

(e)VISITOR PARKING SIGNAGE
(i)Signage is to be located adjacent to Units 5 and 9 to indicate the location of the visitor parking space at the northwest corner of the site.

(f)NO STRUCTURES (as defined in the Territory Plan 2008 (Territory Plan)) IN FRONT OF THE BUILDING LINE
(i)No structures (as defined in the Territory Plan) are to be located above natural ground level (as defined in the Territory Plan) forward of the building line other than the one signage and mailbox structure, which is identified on drawing A200.

(g)REVISED DESIGN OF UNIT 1
(i)The design of Unit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] ACAT 62
Decision Date: 13 June 2018

CaseChat Overview and Summary

The applicant, Mr Gingell, sought judicial review of a decision made by the ACT Planning and Land Authority in relation to a development application. The Authority had approved the application, subject to certain conditions, and the applicant was dissatisfied with some of the conditions imposed. The matter was heard and determined in the ACT Civil and Administrative Tribunal. The central issue for the Tribunal was whether the conditions imposed by the Authority were appropriate and whether the Tribunal should impose additional conditions. The Tribunal considered the relevant legislation, the development application, and the arguments presented by both parties.

The Tribunal held that some of the conditions imposed by the Authority were not appropriate and should be varied. Specifically, the Tribunal found that the condition regarding the driveway internal radius was too restrictive and should be increased to a minimum of 6 metres. The Tribunal also found that the condition regarding the signage for visitor parking was unclear and should be amended to provide more specific guidance. The Tribunal further held that the condition regarding the placement of structures in front of the building line was appropriate, but should be clarified to include a definition of "structures" and "natural ground level". The Tribunal also considered the applicant's argument that the design of Unit 1 should be modified to provide access to the principle private open space from the living area, and an eastern window to the dining area. The Tribunal found that this modification was reasonable and should be included as a condition of approval.

The Tribunal varied the decision of the Authority by imposing additional conditions on the development application. These conditions included increasing the minimum internal radius of the driveway to 6 metres, amending the signage condition for visitor parking to provide more specific guidance, clarifying the condition regarding the placement of structures in front of the building line, and modifying the design of Unit 1 to provide access to the principle private open space from the living area, and an eastern window to the dining area. The Tribunal also confirmed that the other conditions imposed by the Authority were appropriate and should remain in place. The Tribunal's decision was based on a careful consideration of the relevant legislation, the development application, and the arguments presented by both parties. The Tribunal's orders are set out in the decision and provide detailed guidance for the applicant in relation to the approved development.

Orders

Orders of the court

The Tribunal orders that:

The decision under review is varied to include the following conditions, which are additional to the conditions attached to the decision under review.

Further Conditions of Approval to be Included at A1 of the Notice of Decision

The Development Application number 201731656 lodged with the respondent on 31 May 2017 and 31 October 2017 is approved subject the following further conditions:

A. ADMINISTRATIVE / PROCESS CONDITIONS

A1. FURTHER INFORMATION

Within 28 days from the date of this decision, or within such further time as may be approved in writing by the planning and land authority, the applicant shall lodge with the authority a complete set of drawings reflecting the latest amendments to the proposal including all conditions as set out at T-document 36 and the further conditions as set out below.

(a) …

(b) …

(d) DRIVEWAY INTERNAL RADIUS

(i) The proposed driveway north of unit 5 is to be designed with a minimum 4 metre internal radius.

(e) VISITOR PARKING SIGNAGE

(i) Signage is to be located adjacent to Units 5 and 9 to indicate the location of the visitor parking space at the northwest corner of the site.

(f) NO STRUCTURES (as defined in the Territory Plan 2008 (Territory Plan)) IN FRONT OF THE BUILDING LINE

(i) No structures (as defined in the Territory Plan) are to be located above natural ground level (as defined in the Territory Plan) forward of the building line other than the one signage and mailbox structure, which is identified on drawing A200.

(g) REVISED DESIGN OF UNIT 1

(i) The design of Unit 1 is to be modified so that it has access to the principle private open space from the living area; an eastern window to the dining area, and removal of the gate and fence to the rear of the unit aligned with the communal terrace.

(h) SCREENS TO BEDROOM 3 OF UNITS 10-15

(i) A suitable screening device (as defined in the Territory Plan) is to be applied to the windows of each Bedroom 3 in Units 10-15 to achieve privacy to the northern courtyards of Units 5-9.

(i) REVISED DESIGN OF UNITS 10-15

(i) The designs of Units 10-15 are to be modified so that they are in accordance with the revised drawing A605 amendment 2 (Exhibit 8).

(j) PERMIABLE PAVING

(i) Suitable porous paving is to be designed to achieve 40% of the site being pervious.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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