Gingell v ACT Planning And Land Authority And Anor (Administrative Review) - [2017] ACAT 28

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GINGELL v ACT PLANNING AND LAND AUTHORITY AND ANOR (Administrative Review) [2017] ACAT 28

AT 71/2016
Catchwords: ADMINISTRATIVE REVIEW – planning and land development – land in the suburban core zone – proposal to build three townhouses – whether internal driveway and proposed garages comply with AS 2890.1 (off-street car parking) – whether proposed fences beyond the building line comply with the Residential Boundary Fences General Code – whether the Tribunal has jurisdiction to review removal of a regulated tree
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Heritage Act 2004 s 41
Planning and Development Act 2007 ss 119, 121, 144, 145, 146, 148
Tree Protection Act 2005 ss 8, 10

Subordinate
Legislation Cited: Multi Unit Housing Development Code
Planning and Development Regulation 2008 s 26

Residential Boundary Fences General Code
Tree Protection Approval Criteria Determination 2006 (No 2)

Cases cited:Catherine Rudder v ACT Planning and Land Authority and Ors [2010] ACAT 24
Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96
Maurer v Ellis v ACT Planning and Land Authority [2016] ACAT 83
Old Narrabundah Community Council Inc v ACT Planning and Land Authority [2016] ACAT 32
Thomson v ACT Planning and Land Authority [2009] ACAT 7

Texts paper cited: Australian Standard 2890.1: 2004 Part 1 Off-street car parking

Tribunal: Presidential Member G McCarthy

Date of Orders:  18 April 2017
Date of Reasons for Decision:         18 April 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )                    AT 71/2016

BETWEEN:
NORM GINGELL AND CHRISTINE GINGELL
Applicants

AND:
ACT PLANNING AND LAND AUTHORITY
Respondent

AND:
MHK ENTERPRISES PTY LTD
Party Joined

TRIBUNAL: Presidential Member G McCarthy

DATE:18 April 2017
ORDER

The Tribunal Orders that:

The matter be listed for directions as to the terms of the orders to be made.

..………………………..
Presidential Member G McCarthy

REASONS FOR DECISION

On 24 October 2016, the respondent, the ACT Planning and Land Authority (the Planning Authority), approved subject to conditions a development application for demolition of an existing dwelling; removal of a regulated tree; construction of three 2-storey townhouses with double garages; associated landscaping, paving and other site works; and a variation to the Crown lease purpose clause to permit a maximum of three dwellings on Block 9 Section 1 Weetangera ACT (the subject block).
The subject block is in the RZ2 Suburban Core Zone, which permits higher density residential development including multi-unit dwellings.
By application to the Tribunal dated 20 November 2016, the applicants, Mr and Mrs Norm and Christine Gingell (the applicants) applied for review of the decision.
I heard the application on 9 March 2017.
Mr Gingell appeared for himself and Mrs Gingell. Dr Jarvis of counsel appeared for the Planning Authority, instructed by the ACT Government Solicitor. Mr Zurakis, appeared for the party joined, MHK Enterprises Pty Ltd (MHK), being the Crown lessee of the subject block.
The Tribunal took evidence from Mr Mice Kljsuric, the managing director of MHK, Mr Luka Kovacevic, the managing director of Kova Engineering and Design Pty Ltd, Mr Michael Hatch, an architect with Stewart Architecture Pty Ltd and Ms Rumana Jamaly, an assessment officer with the Planning Authority. The Tribunal has considered the statements provided by each witness and their oral evidence, where given, and has taken it into account in reaching its decision.
I first record my view that the applicants brought their application and argued it in a fair and balanced manner. They are persons who will be affected by this development and held proper concerns for the visual and residential amenity of their neighbourhood and for pedestrian safety arising from the proposed development.
It was plain that the applicants did not seek to block the development. Rather they sought to ensure that the neighbourhood’s safety and amenity will not be adversely affected contrary to the provisions of the Territory Plan. It is to their credit that after hearing evidence from Ms Jamaly and Mr Hatch at the hearing, the applicants did not press several issues that were raised in their application to the Tribunal.
I next note that in an endeavour to address the applicants’ concerns MHK put forward several revised drawings and plans each dated “19.01.17” to be used in substitution for drawings and plans that were approved by the decision now under review. The revised plans were as follows:
DA 003- Plan – Demolition & Site. Revision H
DA 101 – Plan – Ground Floor. Revision H
DA 102 – Plan – Upper Floor. Revision E
DA 201 – Plan – Elevations – South & North. Revision E
DA 202 – Plan – Elevations – East & West, Section. Revision F
DA 900 – Perspectives. Revision F
There was no objection to substitution of these plans for those that had been approved, and the Tribunal conducted its review of the decision on that basis.
MHK also put forward a revised vehicle turning plan (Revision D) and a different version of the survey certificate dated 26 February 2015. Regarding the survey certificate, the only difference was that it contained the signature of the registered surveyor. Where, as the Tribunal understands it, neither of those documents was among the drawings or plans approved by the decision under review, the Tribunal puts those documents aside.

Background

The subject block has an area of 1222.8m². It has a street frontage of approximately 32m to Smith Street narrowing to 17m at the rear of the block to the north. The site has a 5m fall from its south-west corner to its north-east corner. The subject block adjoins public open space to the east, being Ellen Clark Park. At present, the driveway entrance to the subject block is at a point where Smith Street makes approximately a 90° turn from the east to the south. At present there is a single dwelling on the subject block and numerous trees and vegetation.
I accept the applicants’ claim that the traffic volumes in Smith Street are low; that there are no footpaths on the verge between the subject block and the road; and that the street presents as a well-treed landscape with a high level of visual and residential amenity.
After hearing the evidence, Mr Gingell pressed three matters of alleged non-compliance with the Territory Plan, and relevantly the Multi Unit Housing Development Code (the MUHDC) forming part of the Territory Plan. The Tribunal deals with each matter in turn.

Contention 1 - the proposed driveway and garages

The applicants began by acknowledging two positive aspects of the proposed development concerning the driveway and parking.
First, under the approved plans the driveway will be relocated from the eastern side of the subject block at the point where Smith Street makes a 90° curve to the western side of the subject block where Smith Street is relatively straight. This, the applicants observed, will improve safety for vehicles entering or exiting the subject block and for other vehicles using Smith Street.
Second, the applicants are grateful to see provision for a visitor parking space on the western side of the driveway as a condition of approval of the development. This will enable a visiting car to park off the street and so improve safety for pedestrians and vehicles driving on Smith Street, noting that Smith Street is relatively narrow and that the subject block is at a point where Smith Street takes a 90° curve which limits visibility for oncoming traffic. A car parked on Smith Street outside the subject block would further reduce visibility.
The Tribunal notes that a car using this visiting car space will be able to drive into the space directly from the street, rather than needing to reverse park into it, and that the approved plans require that direct access into the visitor parking space from the street not be impeded.
The applicants questioned compliance of the driveway and garages on three issues: driveway gradient, garage size and garage access.
Mr Gingell submitted that Mr Kovacevic’s evidence regarding compliance with Australian Standard (AS) 2890.1 was “unconvincing”. I agree. Mr Kovacevic showed little understanding of AS 2890.1 and did not refer to many of the applicable provisions. His witness statement, drawings and oral evidence were of no value to me. For example, Mr Kovacevic was asked about clause B3.2(a), swept path clearances, which provides:
Manoeuvering clearance To cater for slow moving vehicles travelling within parking aisles or manoeuvering into parking spaces, i.e. at 10 km/h or less, a clearance of 300 mm shall be added to both sides of the turning path.
In response to a suggestion that his drawing depicting vehicle access to the garages did not allow for the necessary manoeuvering clearance, Mr Kovacevic gave his opinion, as an expert engineer, that compliance B3.2(a) was no longer necessary because most cars have parking sensors that enable drivers to park safely with much less margin for error. With respect, parking sensors fully activate well beyond 300mm from a hard surface. Within 300mm, avoidance of a collision involves the judgement of the driver. In any event, I do not accept that compliance with clause B3.2(a) is no longer necessary, regardless of what anyone might think about its usefulness, where it remains a provision of AS 2890.1.
Dr Jarvis did not rely on Mr Kovacevic’s report. He submitted however that the driveway and garages, as drawn on Drawing DA 101, Revision H, dated 19.01.17, are compliant with AS 2890.1 as a matter of mathematics. For the following reasons, I agree.
Driveway gradient
AS 2890:2004 concerns Parking Facilities. Part 1 of AS 2890 concerns off-street car parking.
Section 3, clause 3.3, of AS 2890.1 provides that the maximum gradients for internal domestic driveways shall be as determined under clause 2.6. That clause provides the maximum gradient shall be 1:4 (25%) and that the maximum gradient of the associated access driveway across a property line or building alignment shall be 1:20 (5%). Regarding change of gradient, clause 2.5.3(d) provides that the change of grade to prevent vehicles scraping or bottoming shall not exceed 12.5% for summit (ie crest) grade changes or 15% for sag (ie dip) grade changes unless there is a grade transition between the main grade lines as illustrated in Figure 2.10.
Regarding gradient, Drawing DA 101, Revision H, depicts compliance with clauses 2.6 and 3.3 by requiring the driveway to be level to the building line, then at a gradient of 1:8 (12.5%); then 1:4 (25%), then 1:6 (15%) and then level at the portion of the driveway adjoining the entry to the double garage for townhouse 1. Drawing DA 101, Revision H, then depicts compliance with clause 3.3 by requiring a similar gradient of 1:8; then 1:4; then 1:8 before reaching level ground at the entry to the double garages for townhouses 2 and 3.
Regarding change of gradient, the changes in each case between 10% and 12.5%, which are permissible under clause 2.5.3(d).
Garage size
Section 5.1 of AS 2890.1 states:
This Section specifies particular requirements for the design of car parks in structures. They are additional to requirements of this Standard which are relevant to all car parks.
Section 5.2 of AS 2890.1 states:
The design envelope around a parked vehicle which is to be kept clear of columns, walls or other obstructions, is shown in Figure 5.2.
The design envelope in Figure 5.2 shows a required length of 5400mm. Figure 5.2 shows a required width of a “space width from Figure 2.2”[1] plus a further 600mm (300mm either side) at the entrance to the parking bay tapered to a point 750mm into the parking bay. It follows that if the entrance was not tapered down by 600mm, the required width is 2 x 2400mm +600mm: 5400mm.
[1] Figure 2.2 in AS 2890.1 requires 2400mm per car space for a user class 1 or class 1A vehicle parked in a 90° parking bay
Drawing DA 101, Revision H, depicts a parking bay length of 5750mm, for the garage for townhouse 1, and 5500mm for the garages for townhouses 1 and 2. Each of the garages has a parking bay width of 5700mm. In short, the dimensions of the garages, both length and width, exceed the requirements under AS 2890.1.
Garage access
Clause 5.4(b) of AS 2890.1 provides for the design of a multiple vehicle garage with no internal walls. Each of the garages for each of the townhouses is such a garage. For a multiple vehicle garage with a single door for all spaces, as applies for each these garages, clause 5.4(b)(i) provides for the apron widths to permit angled entry to the garage as follows:
Apron widths for angled entry shall be at least equal to the aisle widths specified in Figure 2.2 for the corresponding parking angle and user class.
Figure 2.2 in AS 2890.1 shows the required dimensions for different kinds of angle parking. The dimensions vary according to the parking angle, the user class of vehicle, the width of the parking bays and whether the parking is to a wall or permits vehicle overhang.
Under Figure 2.2, access to parking bays at a 90° angle, relevant to all the proposed garages for all the townhouses in this case, by a user class 1A vehicle accessing a parking bay 2.4m wide against a wall requires a minimum aisle width of 5.8m.
Table 1.1 to AS 2890.1 provides details regarding classification of off-street car parking facilities. It then provides details regarding each user class of vehicle. In the case of user class 1A, Table 1.1 notes in relation to the required aisle width “three-point turn entry and exit into 90° parking spaces only, otherwise as for user Class 1.”
Regarding examples of user class 1A, Table 1.1 states “residential, domestic and employee parking”. However, Table 1.1 provides a note regarding examples of uses:
The modelling of vehicle manoeuvring into Class 1A spaces shows however, that many drivers may have difficulty driving into and out of such spaces, especially those with vehicles larger than the B85 vehicle.
Appendix A to AS 2890.1 provides details regarding design vehicle characteristics and dimensions.
A “B85 vehicle” means a vehicle in the 85^th percentile and having dimensions 4910mm long and 1870mm wide. Clause A3 states that a B85 vehicle “was found to be represented by the Ford Falcon sedan in all key dimensions (other than height and turning circle)” (emphasis added).
A “B99 vehicle” means a vehicle in the 99.8 percentile and having dimensions 5200mm long and 1940mm wide. Clause A4 states that a B99 vehicle would be represented by vehicles such as the 1999 model Holden Statesman or a 100 series Land Cruiser. In terms of 2017, it would in my view include, for example, most large SUV’s.
Appendix B to AS 2890.1 provides details regarding base dimensions and design standards. Clause B2.2 concerning the B99 vehicle states:
Design dimensions based on the B99 vehicle are required at all locations where failure of the vehicle to be able to physically fit into the facility would occasion intolerable congestion and possible hazard. Such locations shall include all access driveways, ramps and circulation roadways, unless there are special circumstances of severe space limitation coupled with relatively low traffic volumes in which case the B85 vehicle dimensions may be used.
Clause B2.3 concerning the B85 vehicle states:
Except as permitted in Clause 2.5.2(c) and Paragraph B2.2, design dimensions based on the B85 vehicle shall be limited to parking spaces and parking aisles.
Note: This is based on the philosophy that the statistical chance of two or more longer vehicles seeking to occupy adjacent parking spaces at the one time is relatively low, and where this does occur, a driver can divert to an alternative space with only minor disruption to other users.
The philosophy may be applicable in a public carpark, but in the case of these townhouses, the townhouse occupants cannot divert to an alternative space.
In Maurer & Ellis v ACTPLA[2] the Tribunal considered these provisions of AS 2890.1 in the context of another proposed multi-unit development and said:
The Tribunal considers that any space limitation is created by the size of the subject development. The normal requirement is to use a B99 car.
[2] [2016] ACAT 83 at [164]
That observation is true in this case also. For the purpose of determining access, a B99 vehicle should be used.
The question therefore becomes whether the proposed aisle width of 6m is sufficient to enable a B99 vehicle to enter and exit the single door double garages to or from a 90° angle parking space alongside another vehicle. Doing the best I can, I have concluded that the manoeuvre should be possible using a three-point turn.
Clause B4.4 to Appendix B states:
Constant radius swept turning paths, based on the design vehicle’s minimum turning circle are not suitable for determining the aisle width needed for manoeuvring into and out of parking spaces. Drivers can manoeuvre vehicles within smaller spaces than swept turning paths would suggest. Wider parking spaces required slightly smaller aisle width.
Table B2 gives aisle widths for 90° angle parking manoeuvres in one manoeuvre for a B85 vehicle. It shows that for a parking space width of 2.4m, the minimum aisle width (including manoeuvring clearance) required in order to satisfactorily park the vehicle in the space in one manoeuvre is 6.2m. However if the nominated parking space width is 2.5m, the minimum required aisle width reduces to 5.8m, and if the nominated parking space is 2.6m, the minimum aisle width reduces to 5.4m.
In this case several factors cause me to conclude that the aisle widths are sufficient to enable a B99 vehicle to be parked in either of the parking spaces alongside another vehicle in a satisfactory manner.
First, after allowing space for door openings of 300 mm on either side, the parking space widths are 2550mm each. Under Table B2, for a parking space width of 2500mm, the minimum required aisle width is 5.8m. For this development, the aisle width is 6m.
Second, it is acceptable that a B99 vehicle may need to make a three point turn in order to access a car space in the garage. The minimum required apron widths in Table B2 are to enable 90° angle parking in one manoeuvre.
Third, returning to Figure 2.2, for user class 2 vehicles the required parking space width is 2.5m and the required aisle width is 5.8m. Table 1.1 notes in regard to user class 2 vehicles the required aisle width (ie 5.8m) is the “minimum for single manoeuvre entry and exit”. User class 2 vehicles are described to include long-term city and town centre parking, sports facilities, entertainment centres, hotels, motels and airport visitors. Such a range of use would need to include B99 vehicles.

Contention 2 - Fences

Drawing DA 101, Revision H, depicts a fence along the eastern boundary of the subject block adjoining Ellen Clark Park. The Drawing describes the fence as “new 1500 high transparent steel mesh type fence on boundary line with internal hedging”.
Drawing DA 101, Revision H, also depicts dividing fences between each of the townhouses extending forward of the building line to the boundary fence. The dividing fences are described as “1800 high timber removable screen <25% openings”.
Rule 41 and Criterion 41 of the MUHDC state requirements regarding fences forward of the building line.
Regarding the boundary fence adjoining Ellen Clark Park, there was no suggestion that the fence is permissible under Rule 41. The question therefore became whether the fence is permissible under corresponding Criterion 41, which provides:
Fences may be permitted where the proposal meets the requirements contained in the Residential Boundary Fences General Code.
Criterion 8 of the Residential Boundary Fences General Code (the Fences Code) permits fences forward of the building line in certain circumstances. It provides:
Where a residence has a frontage to open space or is a battle-axe block, a fence forward of the building line can be considered subject to the fence being:
a.    Constructed a visually harmonious materials, colours and finishes with the surrounding area;
b.    Transparent type;
c.     A maximum height of 1.8m above the natural ground level; and
d.    Visually mitigated with planting grown as a hedge that is located wholly within the property boundary when grown.

The applicants accept that C8 is applicable because the boundary fence has a frontage to open space, namely Ellen Clark Park. They accept too that the proposed fence “appears to meet C8(a), (b) and (c)”, but challenge compliance with C8(d). They submit that it would not be possible to comply with C8(d) if the fence is constructed on the boundary because the hedge would extend through the fence onto the adjoining public land, contrary to C8(d) which requires the hedge to be “wholly within the property boundary when grown”. They submit that in order to achieve compliance with C8(d), the boundary fence would need to be constructed some distance into the subject block (they suggest “about 0.8m”) in order to allow the hedge to grow but remain wholly within the property boundary, and that this has “major ramifications” for assessing setback compliance and the utility of the reduced private open space then available to each of the proposed townhouses.
Ms Jamaly on behalf of the Planning Authority said that the proposed fence would comply with C8(d), notwithstanding the likelihood – or even the intention – of leaves from the hedge growing through the fencing mesh. She also proposed further conditions that (i) the fence instead be 1.8m high (permissible under C8(c)) to improve the privacy of the open space for each townhouse and (ii) that the proposed hedge plantings be advanced or mature stock.
Mr Hatch was similarly of the view that the proposed fencing complies with Criterion 41 of the MUHDC because it complies with C8 of the Fences Code. He supported a further condition that the proposed hedge plantings be advanced or mature stock. He agreed that the proposal is for the hedging to be “immediately inside [the] fence so that it can grow through the fence and ensure that the mesh fence is visually mitigated.”
It may be properly said that a well kept hedge extending past the boundary line between the subject block and Ellen Clark Park by say 150mm would not be of concern to anyone. It would certainly be an improvement on the present unkempt vegetation. However, as the applicants note, that is not consistent with C8(d). Neither the Planning Authority nor the Tribunal on review can disregard unambiguous mandatory words in planning provisions when determining whether a proposal is permissible.
I do not accept however that compliance with C8(d) requires the fence to be brought back from the building line into the subject block. C8(d) requires only that the fence be “visually mitigated” by the hedge. In other words, C8(d) contemplates that the fence can be seen. Indeed, the fence does not even need to be obscured by the hedge, provided it is “visually mitigated” by hedge growing behind it.
I have therefore concluded that the proposed fence, constructed on the boundary line, with a hedge grown on the subject block inside the fence would comply with C8(d) provided it is grown in such a way that it can be trimmed from the outer side of the fence back to the fencing mesh without materially affecting the health of the hedge or materially diminishing the privacy that the hedge provides to occupants of the townhouses. Much would depend on the choice of hedge and its characteristics in terms of transparency, health and necessary width in order to achieve privacy to a height of 1.8m.
I would expect that to achieve appropriate (i) visual mitigation, (ii) a healthy hedge and (iii) an ability to trim the hedge from the side facing Ellen Clark Park back to the fence mesh, the hedge would need to be planted at least .5m inside the boundary line. This would permit a hedge 1m in width when grown, with the boundary fence on the eastern side of the hedge.
I here add the trite but important point that the Tribunal is considering a planning application, which is concerned with what may be legally approved and what the developer then has a legal right to do, or must do or cannot do, as the case may be. Enforcement of planning obligations or limitations is a separate issue.
The observation is relevant in this case. Whilst I accept the applicants’ submission that the Crown lessee (and presently MHK) does not have the right to grow the proposed hedge in a manner that it encroaches onto adjoining land, and would be obliged to trim it to the boundary line if asked to do so, it is difficult to imagine a reasonable person would object to leaves from the hedge extending forward from the fence by say 150mm, which would significantly improve the visual amenity of those enjoying Ellen Clark Park and would not diminish the use of the park or the amenity of those passing through it.
Having regard to the above considerations concerning the fence, I accept Ms Jamaly’s viewpoint that further conditions ought to be placed on the approval requiring (i) the fence to be 1.8m high and (ii) the hedge plantings to be advanced or mature stock.

Contention 3 - Tree 12

Several of the trees on the subject block are ‘regulated trees’ as defined in section 10 of the Tree Protection Act 2005. Pursuant to section 10, a tree is a ‘regulated tree’ where it is 12m or more high; has a trunk with a circumference of 1.5m or more, 1m above natural ground level; has two or more trunks and the total circumference of all the trunks, 1m above natural ground level is 1.5m or more; or has a canopy 12m or more wide.[3]
[3] Under section 10(2) of the Tree Protection Act 2005, a tree is not a regulated tree if it is a pest plant under the Pest Plants and Animals Act 2005, but that is not relevant in this case
The trees on the subject block are noted and numbered on a landscape plan that was submitted as part of the development application. Some are marked for removal, and some for retention as part of the proposed development. Tree 12 is a regulated tree marked for removal. It is a Cedrus Deodora (Deodora cedar) approximately 14m high. It has a canopy or spread of approximately 13m and is described as having good health and structure. An arborist recommended it be retained, but the applicant wishes it to be removed in order to facilitate the proposed development.
Rule 91 of the MUHDC addresses regulated trees. It provides:
This rule applies to a development that has one or more of the following characteristics:
a.requires ground work within the tree protection zone of a protected tree[4]
b.is likely to cause damage to or removal of any protected trees.
The [Planning Authority] shall refer the development application to the Conservator of Flora and Fauna.
[4] A protected tree is defined in the Tree Protection Act, section 8, to mean a registered tree or a regulated tree
Rule 91 is a mandatory rule. There is no equivalent criterion.
In accordance with Rule 91, the Planning Authority referred the development application to the Conservator of Flora and Fauna for advice. By email dated 11 January 2016, a delegate of the Conservator advised that for five stated reasons, including that there “are no criteria present for the Conservator to support the removal of trees 11 and 12”, the development application was “not supported.”[5] The reasons including substantial impact on Tree 6 and an implicit understanding that the development application proposed removal of Tree 11.
[5] T document T40 page 385
By letter dated 21 March 2016, the architect for the proposed development advised that the proposal had been amended to allow increased protection and retention of Tree 6, increased protection for Tree 3 and retention of Tree 11. However, the architect stated “we have been unable to find a design solution which allows retention of Tree 12. ...The retention of Tree 12 would significantly impact this building envelope. We understand that the Tree Protection Unit[6] has indicated that they would not oppose removal of this tree on the basis that we have made every effort to protect the other trees noted above.”[7]
[6] The Tree Protection Unit is an advisory unit within the office of the Conservator of Flora and Fauna
[7] T document T32 page 356
The Planning Authority referred the amended proposal to the Conservator for advice. By email dated 18 July 2016, a delegate of the Conservator advised in light of the amendments that the development application was “supported provided there are conditions of approval.” The email then contained a proposed tree protection condition regarding proposed utility services within the tree protection zone of a regulated tree. Regarding Tree 12, the Conservator said:
Regulated tree number 12 propose[d] to be removed from the site does not meet any criteria for removal under the Tree Protection Approval Criteria Determination 2006 although this trees (sic) was assessed as medium quality and could be considered for removal under the Planning and Development Act 2005.[8]
[8] T document T18 page 196
Dr Jarvis submitted that it was “tolerably clear” that the Conservator did not oppose removal of Tree 12, having regard to the overall development proposal and protection of Trees 6 and 11, and did not support the proposed removal of Tree 12 only because its removal was not permissible under any of the removal criteria set out in the Tree Protection Approval Criteria Determination 2006 (No 2) for the purpose of approving removal of a regulated tree under the Tree Protection Act 2005. Such is clear, he said, from the Conservator offering that Tree 12 “could be considered for removal” under the Planning and Development Act 2005 (the P&D Act).
The Planning Authority, through its internal body known as the Major Projects Review Group (MPRG), reviewed the question of whether removal of Tree 12 should be approved having regard to the Conservator’s advice. Ms Jamaly gave evidence that the MPRG supported removal of Tree 12[9] pursuant to section 119(2) of the P&D Act, which provides:
(2) Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under section 148 (Some development applications to be referred) unless the person deciding the application is satisfied that—
(a)    the following have been considered:
(i)   any applicable guidelines;
(ii)any realistic alternative to the proposed development, or relevant aspects of it; and nine eyes I is a) of your
(b)    the decision is consistent with the objects of the territory plan.[10]
[9] T document T4 page 61
[10] Section 148(1) of the P & D Act provides that the Planning Authority must refer the development application prescribed by regulation to an entity prescribed by regulation. Section 26(3) of the Planning and Development Regulation 2008 then provides that if the Territory plan (which includes the MUHDC) requires a development application to be referred to an entity, the entity is prescribed
By email sent on 14 February 2017, a delegate of the Conservator added that although Tree 12 did not meet any of the criteria for removal under Tree Protection Act 2005, “the tree was assessed as medium quality due to the close proximity of a number of other trees and the disfiguration of the one sided canopy.”
Notwithstanding this history, Mr Gingell submitted that removal of Tree 12 has not been adequately considered. He submitted that alternative designs for the proposed development would enable Tree 12 to be retained, and that the Tribunal (and MHK) should give consideration to such alternatives.
For two reasons, the Tribunal rejects the submission.
First, relevant to tree protection, Rule 91 of the MUHDC requires that where a development is “likely to cause damage to or removal of any protected trees.” the Planning Authority “shall refer the development application to the Conservator of Flora and Fauna.” That occurred in this case. The referral was sufficient for the purpose of compliance with Rule 91. It is not for the Tribunal to call for or entertain alternative designs that may (or would) enable retention of Tree 12 when nothing in Rule 91 or the MUHDC generally requires retention of the tree.
The circumstance is materially the same as the Tribunal considered in Old Narrabundah Community Council Inc v ACTPLA[11] where the Planning Authority had referred a development application to the ACT Heritage Council for advice, but the applicant (on review of the Planning Authority’s decision to approve the development) submitted that the Tribunal should await the determination of the Council as to whether the subject land had heritage significance before deciding the application for review.
[11] [2016] ACAT 32
Rule 90 of the MUHDC provides that where land is subject of a development application contains “places or objects registered or provisionally registered under section 41 of the Heritage Act 2004” the Planning Authority “shall refer the development application to the Heritage Council.”
In Old Narrabundah, the Tribunal said:
A preliminary issue raised by the applicant was whether that Tribunal had jurisdiction to review entity advice received from the ACT Heritage Council ... and should await the determination of the Council as to whether the subject land has heritage significance.[12]
...
Section 60 of the Heritage Act requires the respondent to seek advice from the Heritage Council in certain circumstances. Additionally, Rule 90 of the [MUHDC] requires the respondent to refer a development application to the Heritage Council in the case of “land containing places or objects registered or provisionally registered under section 41 of the Heritage Act 2004.”[13]
The requirements of both section 60 of the Heritage Act and R90 of the [MUHDC] have been met by the respondent. The respondent is then required to consider any advice received from the Heritage Council before determining the application.
The Tribunal finds the respondent has considered such advice as was given. Though told by the Council that no advice would be produced, nonetheless it received and considered the advice given by the Council Chair. As such, there is no basis on which to further delay the hearing of the matter.[14]
[12] Old Narrabundah Community Council Inc v ACTPLA at [10]
[13] Old Narrabundah Community Council Inc v ACTPLA at [19]
[14] Old Narrabundah Community Council Inc v ACTPLA at [20] – [21]
In my view, the Tribunal’s conclusion in Old Narrabundah applies equally in this case. Referral of the development application to the Heritage Council in Old Narrabundah was sufficient for the purpose of complying with Rule 90, and – equally – referral of the application to the Conservator in this case was sufficient for the purpose of compliance with Rule 91.
In Glass v ACTPLA and Anor[15] the Tribunal considered Rule 21 of the Community Facility Zone Development Code (CFZ Development Code), which similarly required the Planning Authority to refer a development application to the Conservator where the development was “likely to cause damage to or removal of any protected trees.” The Tribunal determined that where the development was subject to a rule (ie Rule 21) regarding protected trees and the proposal complied with the rule, the Tribunal had no jurisdiction to review the Conservator’s response or the Planning Authority’s subsequent actions or decisions.
[15] [2016] ACAT 96 at [233] – [235]
The Tribunal’s conclusion arose from section 121(2)(a) of the P&D Act, which provides:
(2) If there is a right of review under chapter 13 in relation to a decision to approve an application for development approval for a development proposal in the merit track, the right of review is only in relation to the decision, or part of the decision, to the extent that—
(a)the development proposal is subject to a rule and does not comply with the rule;
In Glass, the Tribunal referred to and relied upon the Appeal Tribunal’s decision in Catherine Rudder v ACTPLA and Ors[16] where the Tribunal referred to its earlier decision in Thomson v ACTPLA[17] and then said:
That decision confirms that the Tribunal’s jurisdiction to review decisions about development proposals in the merit track is limited by section 121(2) of the Planning Act and that the limiting factor is compliance with a relevant rule. If a development proposal complies with a relevant rule, the Tribunal cannot review the decision to approval (sic) the proposal on that point.
[16] [2010] ACAT 24 at [14] – [15]
[17] [2009] ACAT 7 at [29]
Dr Jarvis submitted that the Tribunal’s decision in Glass was correct, and that I therefore do not have jurisdiction to entertain an alternative design that may enable retention of Tree 12. I accept the submission.[18]
[18] I was informed that the Tribunal’s decision in Glass is the subject of an appeal to the Supreme Court. Mr Gingell’s submission nevertheless obliged me to determine whether I, sitting as the Tribunal, had jurisdiction to consider an alternative design proposal that would enable retention of Tree 12 and I have done so
I recognise an argument that in the ordinary conduct of merits review, the Tribunal “standing in the shoes” of the Planning Authority, could decide not to approve the development proposal on the grounds that it was not satisfied of the matters listed in section 119(2)(a) and (b) of the P & D Act in relation to the removal of Tree 12. However such an approach would be to ignore the statutory limitation on the rights of review under section 121. In this case, there is rule concerning tree protection - rule 91 - and the right of review extends only to the extent that the development proposal does not comply with the rule. In this case, there is compliance with the rule.
My second reason for rejecting Mr Gingell’s submission is that even if the Tribunal had power to consider whether it was satisfied of the matters listed in section 119(2)(a) and (b) of the P & D Act in relation to the removal of Tree 12, I would reach the same conclusion as the Planning Authority. In particular, I am satisfied from viewing Drawing DA101, Revision H, and having regard to the location of Tree 12 and the letter dated 21 March 2016 from the architect, there is no realistic alternative to the proposed development that would enable retention of Tree 12.

Conclusion

With the proposed minor amendments to the approved plans, the Tribunal has concluded that the proposed development complies with the Territory Plan.
I am also satisfied that the proposed development, with the amendments, will be substantially the same as the development applied for originally and that the development application is still in the merit track. Accordingly, under section 144(2) of the P & D Act, the amendments may be made.
I am also satisfied that the proposed amendments do not affect any part of the application in relation to which the Planning Authority referred the application to an entity for comment. Accordingly, under section 145(4) of the P & D Act, the amendments need not be referred to any of the entities to which the development application was previously referred, nor do I see any reason why that should nevertheless occur. I am also satisfied of the matters set out in section 146(3) such that the requirement to publicly notify the amended application can and should be waived.
For this reason, the decision under review should be varied pursuant to section 68(3)(b) of the ACT Civil and Administrative Tribunal Act 2008 to facilitate approval of the substituted and the addition of the two further conditions regarding the fence on the boundary line between the subject block and Ellen Clark Park.
The Tribunal will relist the matter to hear from the parties upon appropriate orders to give effect to these variations to the decision under review.
………………………………..
Presidential Member G McCarthy

HEARING DETAILS

FILE NUMBER:	AT 71/2016.
PARTIES, APPLICANT:	Norm and Christine Gingell
PARTIES, RESPONDENT:	ACT Planning and Land Authority
PARTY JOINED	MHK Enterprises Pty Ltd
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	Dr D Jarvis
COUNSEL APPEARING, PARTY JOINED	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
SOLICITORS FOR PARTY JOINED	N/A
TRIBUNAL MEMBERS:	Presidential Member G McCarthy
DATE OF HEARING:	9 March 2017