Griffith Narrabundah Community Association INC. v ACT Planning and Land Authority (Administrative Review)
[2023] ACAT 13
•13 December 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GRIFFITH NARRABUNDAH COMMUNITY ASSOCIATION INC. v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2023] ACAT 13
AT 41/2022
Catchwords: ADMINISTRATIVE REVIEW – merits review of decision to approve development proposal to build three two-bedroom single dwellings on RZ1 block for use as supportive housing – considerations relevant to tribunal’s jurisdiction in a merits review of a planning decision – considerations affecting assessment whether conditional approval may be given under s 162(1)(b) – meaning of “consistent with the relevant code” in s 119(1)(a) – considerations affecting assessment whether a criterion is achieved – whether lease variation to permit use for “residential purposes and/or supportive housing” and removing restriction on the number of single dwellings in RZ1 is inconsistent with the Territory Plan – whether buildings accommodating supportive housing achieve consistency with the ‘desired character’ – meaning of “achieve consistency with desired character” – whether dwellings meet mandatory requirements for adaptable housing – level of detail required at development approval stage to demonstrate that dwellings meet requirements for adaptable housing – whether a condition of approval that a non-compliant development “is to comply” with a mandatory rule is permissible under s 162(1)(b) – whether a ‘temporary’ mesh fence is permissible forward of the building line – whether internal solar access requirements are met – whether PPOS provides a useable outdoor space suitable for relaxation, dining, entertainment and recreation – considerations affecting assessment of useability – whether PPOS achieves reasonable solar access – whether proposed internal driveway landscaping is adequate – whether shared use of a narrow driveway provides safe access to units for persons with a sensory or intellectual disability – whether resident parking in the front zone achieves consistency with the desired character – whether on-site operational parking must be provided for a supportive housing development – whether driveway design provides adequate manoeuvring clearances for vehicles – where development proposal found to be not consistent with all relevant codes – decision set aside and substituted by decision to refuse approval
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 22P, 68
Housing Assistance Act 2007 s 6
Legislation Act 2001 s 75
Planning and Development Act 2007 ss 119, 120, 121, 139, 156, 162, 408A
Subordinate
Legislation cited: Access and Mobility General Code
Lease Variation General Code, C1, C2
Multi-Unit Housing Development Code, C38, C40, R41/C41, R42/C42, C47, R57, R61/C61, R73/C73, C76, R77/C77, R82/C82
Parking and Vehicular Access General Code cl. 2.3.2, 3.1.4
Planning and Development (Plan Variation 357) Approval 2022 (NI2022-375)
Planning and Development (Plan Variation 357) Commencement Notice 2022 (CN2022-8)
Planning and Development (Plan Variation 358) Approval 2021 (NI2021-660)
Planning and Development (Plan Variation 369) Approval 2022 (NI2022-238)
Planning and Development (Plan Variation 369) Commencement Notice 2022 (CN2022-4)
Planning and Development (Technical Amendment – Code Amendment) Plan Variation 2021 (No 3) (NI2021-749)
Residential Boundaries General Code, R1
Residential Zones Development Code, C3, R4
Territory Plan (R268)
Water Ways: Water Sensitive Urban Design General Code
Cases cited:Allen v ACT Planning and Land Authority [2021] ACAT 88
Duffy v ACT Planning and Land Authority; Davidson v ACT Planning and Land Authority [2021] ACAT 104
GPT Re Limited v Belmorgan Property Development Pty Ltd [2008] NSWCA 256
Hamilton v ACT Planning and Land Authority [2018] ACAT 121
Javelin Projects Pty Ltd v ACT Planning and Land Authority [2017] ACAT 87
Johnson & Xu v ACT Planning and Land Authority [2012] ACAT 53
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23
Noah’s Ark Resource Centre Inc v ACT Planning and Land Authority [2017] ACAT 44
Noah’s Ark Resource Centre Inc v ACT Planning and Land Authority [2018] ACAT 95
Peraic v ACT Planning and Land Authority [2019] ACAT 118
Scott v Wollongong City Council (1992) 75 LGRA 112
Village No 22 Pty Ltd v ACT Planning and Land Authority [2021] ACAT 43
Publications cited: ARC, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39 (AGPS, 1995)
AS 2890.1 – Parking Facilities, Part 1: Off-street car parking
AS 4299 – 1995 Adaptable Housing
W. B. Lane and S. Young, Administrative Law in Australia (Lawbook Co., 2007)
Tribunal:Senior Member M Orlov
Senior Member G Trickett
Date of Orders: 13 December 2022
Date of Reasons for Decision: 6 March 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 41/2022
BETWEEN:
GRIFFITH NARRABUNDAH COMMUNITY ASSOCIATION INC.
ApplicantAND:
ACT PLANNING AND LAND AUTHORITY
RespondentAND:
COMMISSIONER FOR SOCIAL HOUSING
Party JoinedTRIBUNAL:Senior Member M Orlov
Senior Member G Trickett
DATE:13 December 2022
ORDER
The Tribunal declares that:
1.On the issue of consistency with the Residential Zones Development Code, the development proposal, as amended in accordance with the evidence at the hearing:
(a)satisfies C3(a);
(b)may comply with R4 but it is unnecessary to decide the issue considering the Tribunal’s findings on other issues.
2.On the issue of consistency with the Multi Unit Development Code, the development proposal, as amended in accordance with the evidence at the hearing:
(a)may satisfy C38(b) but it is unnecessary to decide the issue considering the Tribunal’s findings on other issues;
(b)may satisfy C40(c) and (d) but it is unnecessary to decide the issue considering the Tribunal’s findings on other issues;
(c)does not comply with R41 or satisfy C41 and cannot be justified under C42;
(d)satisfied C47(a);
(e)may comply with R57 but it is unnecessary to decide the issue considering the Tribunal’s findings on other issues;
(f)in the case of unit 1, does not comply with R61(c) or satisfy C61(e);
(g)in the case of unit 2, does not comply with R61(b) or satisfy C61(b);
(h)in the case of unit 3, does not comply with C61(b) but satisfies C61(a) to (f);
(i)does not comply with R73 or satisfy C73(a) and (c);
(j)does not satisfy C76;
(k)does not comply with R77(a) or satisfy C77(b);
(l)does not have to be assessed against R82/C82 because visitor parking is not required under the Parking and Vehicular Access General Code.
3.On the issue of consistency with the Parking and Vehicular Access General Code, the development proposal, as amended in accordance with the evidence at the hearing:
(a)requires operational parking to be provided for at least one vehicle used directly as part of the operation of the premises as supportive housing;
(b)does not provide for onsite operational parking to comply with clause 3.1.4;
(c)does not allow for swept path clearance of 300mm on both sides of the turning path for access to the unit 1, unit 2 and unit 3 garages to comply with clause 2.3.2(a)(i) of the Parking and Vehicular Access General Code, clause 10.3.1 of Design Standard 10 – Parking Areas and clause B3.1(a) and B3.2(b) of AS 2890.1.
4.On the issue of consistency with the Lease Variation General Code, the development proposal, as amended in accordance with the evidence at the hearing:
(a)does not satisfy C1(i) and C1(ii);
(b)does not satisfy C2(i).
5.Where the development proposal, as amended in accordance with the evidence at the hearing, is not consistent with all relevant codes and the Tribunal is not satisfied that the inconsistencies can be cured by a condition imposed under s 162(1)(b) of the Planning and Development Act 2007, pursuant to s 119(1)(a) of the Act development approval must be refused.
The Tribunal orders that
6.The decision to grant approval to DA Number 2021139714 is set aside and substituted by a decision to refuse approval.
7.The Tribunal will give reasons for its decision at a later date.
......................Signed.....................
Senior Member M Orlov
For and on behalf of the Tribunal
Contents
Introduction
The Tribunal’s jurisdiction in a merits review of a decision to give development approval to a proposal in the merit track
The ‘relevant code’
Assessment of the proposal for compliance with rules or satisfaction of criteria of relevant codes
Whether discretionary considerations under section 120 of the PD Act arise
Whether the risk that the premises will not be used as ‘supportive housing’ is a relevant consideration in assessing the proposal
Whether Housing ACT’s financial management decisions are a relevant consideration
Consistency with the Residential Zones Development Code (RZDC)
Criterion 3(a)
Criterion 3(b)
Rule 4
Consistency with the Multi Unit Housing Development Code (MUHDC)
Criterion 38(b)
Criterion 40(c) and (d)
Rule 41, Criterion 41, Criterion 42
Criterion 47(a)
Rule 57
Rule 61/Criterion 61
Unit 1
Unit 2
Unit 3
Rule 73/Criterion 73(a) and (c)
Criterion 76
Rule 77(a)/Criterion 77(b)
Rule 82/Criterion 82
Consistency with the Parking and Vehicular Access General Code (PVAGC)
Location of operational parking
Minimum swept path clearance
Consistency with Waterways: Water Sensitive Urban Design General Code (WSUDGC)
Consistency with the Lease Variation General Code (LVGC)
Criterion 1 (i) and (ii)
Criterion 2(i)
The correct or preferable decision
SCHEDULE – Extracts of relevant codes
RZ1 – Zone objectives
Residential Zones Development Code
Multi Unit Housing Development Code
Parking and Vehicular Access General Code
Lease Variation General Code
REASONS FOR DECISION
Introduction
1.This application concerns a development proposal by Housing ACT to construct three new single storey dwellings for use as supportive housing on an 1112m2 block in Sturt Avenue, Narrabundah (the block) within RZ1 – Suburban Zone (RZ1). The block is currently vacant. The single dwelling previously erected on the block was used for public housing and has been demolished.
2.The Commissioner for Social Housing (referred to interchangeably as the Commissioner or Housing ACT) is the Crown lessee of the block. The Crown lease permits the block to be used for residential purpose only and provides for the building erected on the land to be used as a single unit private dwelling. Subject to approval by the Territory, a second single unit dwelling may be permitted provided that any outbuilding erected on the block is not used for habitation.
3.Constructing three single dwellings on the block is permissible only for use as supportive housing and requires the purpose clause of the Crown lease to be varied.
4.The Griffith Narrabundah Community Association Inc (GNCA or the applicant), which describes it objects and purposes as being “to protect the amenity and interests of the Griffith and Narrabundah communities, particularly in relation to the preservation of community facilities and open space”, made representations to ACTPLA under section 156(1) of the Planning and Development Act 2007 (PD Act or the Act) opposing approval of the development application.
5.On 3 June 2022, a delegate of the ACT Planning and Land Authority (ACTPLA or the respondent) approved, subject to the conditions, Housing ACT’s development proposal including a variation to the Crown lease to add supportive housing as a permitted use and remove the two single dwellings limit on development.
6.On 20 June 2022, GNCA applied to the ACT Civil and Administrative Tribunal (ACAT) under section 408A of the PD Act for review of the decision.
7.On 13 July 2022, the Commissioner was joined as a party to the application.
8.The matter proceeded to mediation on 8 August 2022 but did not settle. On 10 August 2022, the ACAT made directions for the parties to prepare the matter for hearing. These included that the Commissioner must file and serve any amended plans and other material addressing the conditions of consent within seven days and, if GNCA considered that the development proposal (if amended in accordance with the amended plans) is not consistent with all relevant codes, GNCA must file and serve within a further seven days a statement of issues identifying the precise respects in which any relevant rules or criteria are not met.
9.The Commissioner filed amended plans[1] and other material on 17 August 2022, including an assessment report by Nicholas Goodwin of SQC Group demonstrating compliance with the Access and Mobility General Code and AS 4299-1995 Adaptable Housing (Goodwin report).[2]
[1] This became part of exhibit C1
[2] This became part of exhibit C1
10.The applicant filed a summary of issues on 24 August 2022 (Applicant’s Summary of Issues), identifying 27 matters for consideration or determination by the Tribunal. The applicant filed its evidence on 6 September 2022, comprising a brief witness statement by Richard Johnston (a retired town planner, formerly a Branch Head in ACTPLA and a Life Fellow of the Planning Institute of Australia)[3] addressing some but not all of the matters raised in the GNCA’s Summary of Issues. On 7 September 2022, the applicant filed written submissions (Applicant’s Submissions) identifying 19 issues for determination, which narrowed the issues to some extent but, as we discuss later, gave undue prominence to discretionary considerations that may become relevant only if the Tribunal found that the development proposal was consistent with all relevant codes and therefore not precluded from being given approval by section 119 of the PD Act.
[3] This became exhibit A1
11.The Commissioner filed a witness statement by Christie Hartfiel (a Senior Architect and Associate of SQC Group, who is the lead architect on the project)[4] on 21 September 2022 and, on 26 September 2022, a written outline of submissions addressing each of the issues raised in the Applicant’s Submissions (Commissioner’s Submissions).
[4] This became exhibit C2
12.ACTPLA filed an indexed bundle of Tribunal Documents (T Docs)[5] on 7 July 2022 and an indexed supplementary bundle of documents (Supplementary T Docs)[6] on 19 August 2022. On 30 September 2022, ACTPLA filed its written submissions (Respondent’s Submissions) and a witness statement by Graham Sandeman (Director, Merit Assessment, Environment, Planning and Sustainable Development Directorate).[7]
[5] These became exhibit R2
[6] These became exhibit R3
[7] This became exhibit R4
13.The application was heard over two days on 10 and 11 October 2022, commencing with a site view of the block and the immediate surrounds in accordance with an agreed itinerary provided by the parties.
14.Ms Hartfiel was the first witness to give evidence. The initial set of plans and shadow diagrams referenced by Ms Hartfiel[8] was found to contain errors and discrepancies and was amended and corrected overnight.[9] Ms Hartfiel gave further evidence explaining the changes the next day and was cross-examined. Questions asked by the Tribunal exposed that the amended shadow diagrams failed to show shadows cast by an approved extension on the adjoining property to the north and contained other discrepancies making them unreliable.[10]
[8] The plans were marked initially as MFI-1 and later became exhibit C3
[9] The amended plans became exhibit C4. The amended shadow diagrams became exhibit C5
[10] The plans for the extension on the adjoining property became exhibit R1
15.Mr Johnston gave evidence for the applicant and was cross-examined. He was followed by Mr Sandeman who gave evidence for ACTPLA and was cross‑examined also. A statement of “desired character” that Mr Sandeman prepared overnight was tendered through him.[11]
[11] This became exhibit R5
16.At the end of the second day, the hearing was adjourned part heard. The Tribunal gave leave for the Commissioner to file and serve amended shadow diagrams to address some of the problems identified during Ms Hartfiel’s oral evidence and for the applicant to file and serve a statement of “desired character”, in both cases within seven days. This was done and the Tribunal informed the parties that it would formally reserve its decision on 21 October 2022 unless any party wished to make submissions in relation to the new material.
17.However, on 25 October 2022, GNCA sought leave to rely on written submissions raising a new issue, namely whether Territory Plan Variation 369 (Living Infrastructure in Residential Zones), which commenced on 1 September 2022, applied to the proposal. The application for leave was heard on 13 December 2022, being the earliest day when all parties and the members of the Tribunal were available. Leave was refused after a brief hearing, as the Tribunal was satisfied that Variation 369 does not apply to the development proposal. We explain why later.
18.At the end of the hearing on 13 December 2022, the Tribunal informed the parties of its decision in relation to the substantive application for review. In summary, the Tribunal found that the development proposal, as amended in accordance with the evidence at the hearing, is not consistent with:
(a)the Multi-Unit Housing Development Code, specifically R41/C41, C42, R61/C61, R73/C73, C76 and R77/C77;
(b)relevant parts of the Parking and Vehicular Access General Code; and
(c)the Lease Variation General Code, specifically C1 and C2.
19.The Tribunal was not satisfied that these matters could be cured by conditions imposed under section 162(1)(b) of the PD Act. In those circumstances, section 119(1)(a) requires that approval must not be given.
20.In light of these conclusions, the Tribunal considered, but found it unnecessary to decide, many of the other issues referred to at the hearing.
21.Accordingly, the Tribunal ordered that the decision to grant approval to DA Number 2021139714 is set aside and substituted by a decision to refuse approval.
22.The following explains the Tribunal’s reasons for its decision.
The Tribunal’s jurisdiction in a merits review of a decision to give development approval to a proposal in the merit track
23.‘Merits review’ has been described as:
… the process whereby an administrative decision of the government is reviewed ‘on the merits’: that is, the facts, law and policy aspects of the original decision are all reconsidered afresh and a new decision – affirming, varying or setting aside the original decision – is made. Merits review is characterised by the capacity for substitution of the decision of the reviewing person or body for that of the original decision-maker.[12]
[12] ARC, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39 (AGPS, 1995), at [2.2], quoted in W. B. Lane and S. Young Administrative Law in Australia (Lawbook Co., 2007) at page 225
24.Section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) empowers the ACAT to exercise any function given to ACTPLA in deciding whether to give development approval to a proposal in the merit track. Under section 68(3), the ACAT must make an order confirming, varying, or setting aside the decision under review and, if the decision is set aside, make a substitute decision, or remit the matter to ACTPLA for reconsideration in accordance with any direction or recommendation the tribunal may make.
25.Section 119 of the PD Act provides for circumstances in which development approval must not be given for a development proposal in the merit track. Of relevance to this application is section 119(1)(a), which provides that approval must not be given unless the proposal is “consistent with the relevant code”. We discuss the meaning of this requirement later.
26.Section 120 provides that in deciding a development application in the merit track, the decision-maker must consider certain things, including the zone objectives, the suitability of the land for a development of the kind proposed, any representations about the development that have not been withdrawn, any relevant entity’s advice, and the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
27.Section 121 sets out limited circumstances in which an application may be made to the ACAT for review of a decision to approve a development proposal in the merit track. Section 121(2) provides that where there is a right of review under chapter 13 of the PD Act, the right of review is only in relation to the decision, or part of the decision, to the extent that the development proposal is subject to a rule and does not comply with the rule, or no rule applies to the development proposal.
28.The question whether this means that the tribunal is precluded from considering the matters under section 120 has given rise to controversy in the past. The consensus of opinion in recent decisions of the tribunal, is that if, after considering whether a development proposal is precluded from being given development approval under section 119, the tribunal finds that it is not, the tribunal must go on to consider the matters in section 120 and exercise the discretion accordingly.[13]
[13] Village No 22 Pty Ltd v ACT Planning and Land Authority [2021] ACAT 43 at [49]-[87]; Noah’s Ark Resource Centre Inc v ACT Planning and Land Authority [2017] ACAT 44 at [226]-[232]; Noah’s Ark Resource Centre Inc v ACT Planning and Land Authority [2018] ACAT 95 at [32]-[33]
29.To validly invoke the jurisdiction of the tribunal under section 121(2), an applicant for review must:
(a)identify the decision, or part of the decision, to which the right of review applies;
(b)identify the rule to which the development proposal is subject and with which it does not comply; and/or
(c)to the extent that no rule applies to the development proposal, identify the criterion or criteria that apply to the proposal and with which the proposal does not comply.[14]
[14] Noah’s Ark Resource Centre Inc v ACT Planning and Land Authority [2017] ACAT 44 at [226]-[230]
30.To be clear, under the current consensus view about the meaning of section 121(2), an application that seeks merits review of a decision to approve a development application solely on discretionary grounds under section 120 of the Act, does not validly invoke the jurisdiction of the tribunal under section 121(2).
31.In practice, this means that the issue whether a development proposal in the merit track is “consistent with the relevant code” is of primary importance in tribunal hearings. Although the onus is on the applicant to identify the rules and/or criteria of relevant codes with which the development proposal is said not to comply, the tribunal often will carry out its own assessment of the plans to identify additional areas of concern and bring these to the attention of the parties.
32.Where a proposal does not comply with an applicable rule or criterion, an issue may arise whether the proposal can be made code compliant by a condition under section 162(1)(b). The proponent bears the onus on this issue, although in practice it is often ACTPLA that will propose a condition upon which it says a development proposal should be approved.
33.However, conditional approval must not be given unless the tribunal is satisfied that the condition:
(a)will not result in a significant alteration to the development which is the subject of the development proposal; and
(b)does not lack certainty or offend against the principle of ‘finality’.
34.The onus to establish these matters lies on the party seeking to have the condition imposed.
35.The relevant principles have been considered in several decisions of the NSW Court of Appeal. In Scott v Wollongong City Council,[15] Samuels PA (with whom Meagher and Handley JJA agreed) said:
… The principle of ‘finality’ is intended to protect both the developer and those in the neighbourhood who may be affected by a proposal, against the consent authority’s reservation of power to alter the character of the development in some significant respect, thereby changing the expectations settled by the consent already granted. That consent may, of course, be subject to conditions; and those conditions are subject to the principle.
However, it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the proposal with absolute precision.
…
However, what distinguishes them is that the exercise of the decision-making power they each contemplate will certainly not alter the development “in a fundamental respect”, nor will the development be “significantly different” from that which the application for consent contemplated. They are all conditions which may be described as ancillary to the core purpose of the application…[16]
[15] (1992) 75 LGRA 112
[16] (1992) 75 LGRA 112 at [118]-[119]
36.In Kindimindi Investments Pty Ltd v Lane Cove Council,[17] which involved an appeal in relation to the validity of conditions of a development consent, Basten JA (with whom Handley JA and Hunt AJA agreed) said:
Although different language is used in relation to the separate categories of invalidity, it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On [the] other hand, a consent may fail, within the first category, where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests.[18]
[17] [2006] NSWCA 23
[18] [2006] NSWCA 23 at [28]
37.In GPT Re Limited v Belmorgan Property Development Pty Ltd,[19] Basten JA (with whom Bell JA and Young CJ in Eq, agreed) said:
Questions of finality and uncertainty will often be related, but are likely to bear upon the same question as that addressed in the first category discussed in Mison [Mison v Randwick Municipal Council (1991) 23 NSWLR 734]. In each respect the question must be whether a consent has been given to the development which was the subject of the application. Where conditions give rise to uncertainty, the fact that it is not possible to know whether the satisfaction of the conditions will give rise to a significantly different development may demonstrate that the consent is not a final and valid consent to the development as proposed. A degree of “practical flexibility” is likely to be necessary, especially in respect of complex developments … Where a condition requires variations which can be checked and approved by a council officer, by reference to prescribed criteria, it may readily be said that the consent is sufficiently final and certain. Where the criteria for future assessment are imprecise or unspecified, there may be an effective delegation of authority to the officer to exercise his or her judgement: if the delegation is not in itself a valid means of disposing of the application, the result will be invalid. On the other hand, if the delegation is valid, it may suggest that the consent purportedly given by the Council is not itself a valid consent.
The extent to which departure for the development described in the application is permissible may depend in part upon the requirements of public notice and the opportunity to be given for those potentially affected by the development to lodge objections.[20]
[19] [2008] NSWCA 256
[20] [2008] NSWCA 256 at [48]-[49]
38.An important consideration is whether satisfaction of the condition may cause the development to become non-compliant in unforeseen respects.
39.For example, in a recent matter involving an application to amend a tribunal decision made by consent to approve a multi-storey residential unit development subject to a condition requiring plans to be submitted showing finished floor levels (FFL) reduced by 250mm to reduce the impact on privacy of residents in an adjoining property, it was discovered later that this would cause the basement not to meet clearance requirements under AS 2890.1 – Australian Standard for Parking Facilities [21] and would make the basement ramp exceed the maximum permissible gradient under the standard. Increasing the length of the ramp to reduce its steepness would extend the basement level further into the rear zone, making it non-compliant with R13 of the Inner North Precinct Code, which is a mandatory rule. Other knock-on effects included that the development would not comply with R73 of the Multi Unit Housing Development Code, which requires an internal driveway to comply with AS 2890.1 and section 2.3.1 of the Parking and Vehicular Access General Code.[22] This illustrates the dangers inherent in amending development proposals ‘on-the run’, which happens frequently in applications for review of planning decisions in the ACAT. Even a precisely formulated condition intended to achieve a certain outcome may cause the development to become non-compliant such that development approval must be refused, or the development must be redesigned, possibly substantially.
[21] AS 2890.1 – Australian Standard for Parking Facilities, Part 1: Off-street car parking
[22] Duffy v ACT Planning and Land Authority; Davidson v ACT Planning and Land Authority [2021] ACAT 104
40.Only if the tribunal finds that development approval is not prohibited by section 119, does it become necessary for the tribunal to consider the matters under section 120 and exercise the discretion accordingly.
The ‘relevant code’
41.The ‘relevant code’ with which a development proposal must be “consistent” means a code in the Territory Plan that the relevant development table applies to the proposal.
42.A development must comply with all relevant codes, including any applicable general codes, subject to the code hierarchy under the PD Act, where the order of precedence in the case of inconsistency is precinct code, development code, and general code. There is no applicable precinct code in this case.
43.The RZ1 – Suburban zone development table states that development proposals in residential zones must comply with the Residential Zones Development Code (RZDC). Where a development in RZ1 is for use as ‘supportive housing’, RZDC Table 1 provides that the RZDC and the Multi Unit Housing Development Code (MUHDC) apply and that, in the event of inconsistency, the RZDC prevails to the extent of the inconsistency.
44.The following general codes are relevant also: Access and Mobility General Code (AMGC), Bicycle Parking General Code (BPGC), Crime Prevention through Environmental Design General Code (CPTEDGC), Lease Variation General Code (LVGC), Parking and Vehicular Access General Code (PVAGC), Residential Boundaries General Code (RBGC) and the Water Ways: Water Sensitive Urban Design General Code (WSUDGC).
45.In a merits review, the tribunal must decide whether the proposal is consistent with the relevant codes that apply to the proposal when it makes its decision. As the Territory Plan is amended frequently, a different version of the codes may apply when the tribunal makes its decision than when ACTPLA made the decision under review.
46.The development application was lodged on 18 November 2021. The then-current version of the Territory Plan was R261. Technical amendments were made to the Territory Plan, including to the MUHDC, by the Planning and Development (Technical Amendment – Code Amendments) Plan Variation 2021 (No 3) (NI2021-749), which commenced on 17 December 2021. The amendments appeared in version R265 of the Territory Plan, which also commenced on 17 December 2021. The decision to grant development approval was made on 3 June 2022. The then current version of the Territory Plan was R268.
47.As mentioned earlier, the applicant sought leave to raise an issue whether Variation 369 to the Territory Plan, as notified in N12022-238, applies to the proposal. Variation 369 amends the site open space requirements in the MUHDC for developments in RZ1. The commencement notice (CN2022-4) fixes 1 September 2022 as the day when the variation commences, but states that the variation applies only to development applications submitted for completeness check on or after that date. The amendments appeared in R274 of the Territory Plan.
48.Development applications are lodged electronically via ACTPLA’s eDevelopment portal. After the documentation is uploaded to the website, the next step is to click the ‘Submit for Completeness Check’ button, which uploads the documents to an internal data storage area. ACTPLA then checks the documentation against the minimum documentation requirements for lodgement of the relevant type of development application. This is the ‘completeness check’ and is carried out before the fees associated with the development application become payable. The date when the fees are paid is considered by ACTPLA to be the date of lodgement of the development application.
49.As Variation 369 applies only to development applications submitted for completeness check on or after 1 September 2022, and the present application was lodged on 18 November 2021, the variation does not apply to this proposal.
50.Variation 357, which commenced on 30 November 2022, also is not relevant for the same reason. The Planning and Development (Plan Variation 357) Approval 2022 (NI2022-375) made on 4 August 2022, replaced the Bicycle Parking General Code with the End-of-Trip Facilities General Code. However, the commencement notice (CN2022-8) states that the plan variation applies to development applications submitted for completeness check on or after 30 November 2022. The amendments appeared in R278 of the Territory Plan.
51.The Tribunal decided the application when it made final orders on 13 December 2022. The question is what version of the ‘relevant code’ applied to the proposal on that date. The version of the Territory Plan that was current then is R278, which includes amendments to the MUHDC by Variation 369 (first published in R274) and replaces the Bicycle Parking General Code with the End‑of-Trip Facilities General Code (first published in R278), neither of which apply to the proposal.
52.The earlier mentioned technical amendments that commenced on 17 December 2021 and first appeared in R265 of the Territory Plan, amended the MUHDC, but not the RZDC. As R268 was the version of the Territory Plan in force when the decision under review was made and none of the subsequent variations to the Territory Plan apply, the Tribunal has assessed the proposal against the version of the relevant codes published in R268.
53.Rules and criteria in relevant codes are reproduced for convenience in the schedule at the end of these reasons. Alternatively, they may be accessed by pasting into a web browser, which links to R268 of the Territory Plan.
Assessment of the proposal for compliance with rules or satisfaction of criteria of relevant codes
54.A proposal in the merit track must comply with all applicable rules, or their associated criteria (unless the rule is mandatory) in all relevant codes.
55.Rules generally provide quantitative, or definitive, controls on development, which are considered necessary to achieve the Territory’s planning objectives, or what may be described as ‘desired outcomes’. In most cases, an assessment whether a proposal complies with an applicable rule is relatively straightforward. Where a mandatory rule is not met, development approval must be refused. Where a non-mandatory rule is not met, or where only criteria apply, the proponent must demonstrate though drawings and supporting documentation, that the relevant criteria are satisfied.[23]
[23] Section 139(f) of the PD Act provides that an application for development approval in the merit track must be accompanied by information or documents addressing the relevant rules and criteria
56.Criteria provide qualitative controls on development, generally by specifying the features, characteristics and/or performance requirements that a particular aspect of the development must “achieve”, either in lieu of compliance with a non‑mandatory rule or where no rule is provided. The meaning of each criterion must be worked out considering its text, context, and purpose.
57.Where criteria are associated with a rule, the policy objectives or desired outcomes are the same as for the rule. Where the rule provides an acceptable way to achieve a desired outcome, criteria provide flexibility to achieve the same outcome in a different way. Hence the rule has been described as the “minimum ideal” from which departure from the rule must be assessed.[24]
[24] Javelin Projects Pty Ltd v ACT Planning and Land Authority [2017] ACAT 87 at [73], cited in Peraic v ACT Planning and Land Authority [2019] ACAT 118 at [81]-[83]
58.The degree of departure is relevant. A significant degree of departure may indicate that not all of the criteria are (or can be) achieved, particularly where a criterion is expressed in terms such as ‘reasonable’ or ‘proportionate’. Treating the rule as the point of departure against which compliance with relevant criteria should be assessed, reflects the assessment approach the tribunal has applied in previous decisions. However, the degree of departure from the rule is only ever a guide and does not necessarily determine the issue.[25]
[25] Allen v ACT Planning and Land Authority [2021] ACAT 88 at [209] and the decisions listed in f.n. 85
59.The Tribunal has applied these principles in its assessment of Housing ACT’s proposal.
Whether discretionary considerations under section 120 of the PD Act arise[26]
[26] Applicant’s Summary of Issues, items 4 to 7; Applicant’s Submissions, Issues 1-4
60.As the Tribunal found that development approval must not be given under section 119 of the Act, it is not necessary for the Tribunal to consider the matters under section 120(a), (b) (f) and (h) discussed in the Applicant’s Submissions, and nor is it appropriate for it to express any opinion on these matters.
Whether the risk that the premises will not be used as ‘supportive housing’ is a relevant consideration in assessing the proposal[27]
[27] Applicant’s Summary of Issues, item 3; Applicant’s Submissions, Issue 5
61.‘Supportive housing’ is defined in the Territory Plan to mean:
… the use of land for residential accommodation for persons in need of support, which is managed by a Territory approved organisation that provides a range of support services such as counselling, domestic assistance and personal care for residents as required. Although such services must be able to be delivered on site, management and preparation may be carried out on site or elsewhere. Housing may be provided in the form of self-contained dwellings. The term does not include a retirement village or student accommodation.
62.The Applicant’s Submissions refer to a statement published on the website of the ACT Community Services Directorate to the effect that “Public housing is a type of supportive housing where the Community Services Directorate provides low‑cost housing and a range of supports to help tenants establish and maintain effective and sustainable tenancies”. The applicant submits that Housing ACT’s interpretation is wrong. The submission appears to be informed by community concern that Housing ACT is seeking to take advantage of increased density permitted for a supportive housing development in RZ1, where it has no intention to use the development for that purpose. Rather, the dwellings will be used to provide low-cost public housing, except that there will be three single dwellings on the site, rather than one, or a maximum of two, as permitted by Crown lease. The applicant submits that if the development is approved, the permitted use should be restricted to ‘supportive housing’.
63.The Notice of Decision states that “As the lessee is ACT Housing and they will manage the subject block the development meets the supportive housing definition”.[28] Counsel for the Commissioner submitted, on instructions, that Housing ACT intends to use the premises as supportive housing operated by a third party but could not identify the kind of support services that may be provided on-site, or which organisation may provide them. Counsel for ACTPLA submitted, on instructions, that Housing ACT is not a Territory approved organisation of the kind mentioned in the definition of ‘supportive housing’. Counsel for the Commissioner disagreed, also on instructions. None of the submissions were supported by evidence.
[28] Exhibit R2, page 37
64.Ms Hartfiel, the lead architect for the project, provided the only probative evidence on the subject. Her witness statement says that the “current use of the property as public housing remains unchanged”.[29]
[29] Exhibit C2, item (d) in the table on the third un-numbered page of the witness statement
65.The Tribunal does not need to decide whether ‘public housing’ or ‘social housing’ managed by Housing ACT constitutes ‘supportive housing’ within the meaning of the Territory Plan. That issue may arise in a different context, for example if a complaint is made under Chapter 11 of the PD Act that Housing ACT is conducting a controlled activity. For present purposes, if Housing ACT’s proposed development for supportive housing meets all the requirements for development approval, community perceptions (or fears) that the dwellings may be used for an impermissible purpose is not a reason to refuse development approval.
66.The Crown lease permits the block to be used “for residential purposes only” limited to a “single unit private dwelling” but with scope to add a second dwelling subject to Territory approval. The lease variation approved by ACTPLA deletes the restriction on the number of dwellings and substitutes “residential purposes and/or supportive housing” for the permitted use.
67.However, a multi-unit housing development comprising three single dwellings is permissible in RZ1 only where the dwellings are for use as supportive housing.
68.In those circumstances, Mr Sandeman agreed that it would be appropriate to restrict the permitted use to ‘supportive housing’, although he thought that using the premises for residential purposes, rather than for supportive housing, would require a lease variation. However, the proposed variation permits the dwellings to be used for residential purposes “and/or” supportive housing – in other words, either or both uses are permissible. It appears to the Tribunal that the lease variation approved by ACTPLA would allow Housing ACT to use the dwellings for residential purposes as part of its low-cost social housing programme instead of exclusively for supportive housing, or to sell the completed development to a purchaser intending to use the dwellings for residential purposes only.
69.If the Tribunal decided to give development approval, it would have done so only on condition that the Crown lease be varied to provide for the permitted use to be restricted to “residential purposes limited to supportive housing”, rather than “residential purposes and/or supportive housing”. The Tribunal considers the same approach should be adopted in all approvals for multi-unit supportive housing developments in RZ1.
Whether Housing ACT’s financial management decisions are a relevant consideration[30]
[30] Applicant’s Summary of Issues, items 25 and 26; Applicant’s Submissions, Issue 6
70.The applicant sought to question whether Housing ACT was obtaining maximum value for money from the development, noting that the objects of the Housing Assistance Act 2007 include to facilitate the provision of housing assistance for those most in need and to maximise value for money in the provision of housing assistance.[31] The applicant submitted that the block is valued at over $1.5 million and that the estimated cost of construction is $475,000. An expedited sale of the property and investment in other suitable housing would accord with sound financial principles and maximise value for money in the provision of housing assistance.
[31] Housing Assistance Act 2007, s 6(1)(b) and (c)
71.Such considerations do not arise under sections 119 and 120 of the Act and are therefore irrelevant to the Tribunal’s decision in this matter.
Consistency with the Residential Zones Development Code (RZDC)
Criterion 3(a)[32]
[32] Applicant’s Summary of Issues, item 8; Applicant’s Submissions, Issue 7
72.The issue under C3(a) is whether buildings accommodating supportive housing achieve consistency with the ‘desired character’.
73.‘Desired character’ is defined in the Territory Plan to mean the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives and any statement of desired character in a relevant precinct code.
74.‘Streetscape’ includes the visible components within a street, or part of a street, including the private land between facing buildings, including the form of buildings, treatment of setbacks, fencing, existing trees, landscaping, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.[33]
[33] Definitions, Territory Plan (R268)
75.As there is no applicable precinct code, consistency with the desired character must be assessed against relevant RZ1 zone objectives. These are reproduced in the schedule at the end of these reasons.
76.We agree with and adopt the tribunal’s statement in Village No 22 Pty Ltd v ACT Planning and Land Authority[34] that the:
… definition of ‘desired character’ permits consideration of whether the manner or style of arranging and coordinating the component parts will have a “pleasing or effective result” regarding siting, building bulk and scale and resulting streetscape” and that whether the result is achieved “must be assessed by reference to relevant zone objectives.
[34] [2021] ACAT 43 at [126]-[127]
77.The issue we must decide is whether the siting, bulk and scale of the buildings and their effect on the streetscape, produces a result that is consistent with relevant zone objectives.
78.The applicant submitted that RZ1 zone objectives (a), (b), (d) and (e) are relevant. Sturt Avenue, it is said, “epitomises the objectives of an (sic) RZ1”, consisting of an area where the housing is low rise and predominantly single dwelling and low density in character. An ACTmapi aerial photo depicts how the proposed three units would impact on five adjoining neighbours and the street, although the submissions do not speak to the nature of the impact. (In fact, all the photo shows is that the block shares boundaries with five neighbouring properties.) Further, the proposed development is said to “consist of modern brutalist architecture with modern materials and colours that will sit in the middle of an RZ1 zone comprising single dwellings on each block”.[35]
[35] Applicant Submissions, page 10
79.In a supplementary submission filed on 17 October 2022, the applicant relied on parts of the Narrabundah Neighbourhood Plan, which was prepared by ACTPLA in September 2004 following a period of consultation with the local community. The purpose of the plan was to “outline the future character of the neighbourhood whilst protecting and enhancing the features currently valued” and to provide “planning strategies for the future of the local shopping centre, open spaces, residential areas, community facilities and movement networks” over the next 15 years.[36] At the time of publication it was intended that a “major and comprehensive review” of the plan would be undertaken seven years after it was placed on ACTPLA’s Register of Planning Guidelines. However, following a search of ACTPLA’s website, the Tribunal could not find any information about the creation or existence of such a register, or about any neighbourhood planning updates after August 2004.[37] While the plan provides information about the existing and planned future character of the Narrabundah residential areas as of 2004, the applicant did not make submissions about the present status of the document or the permissible use the Tribunal could, or should, make of it.
[36] Narrabundah Neighbourhood Plan, September 2004
[37] apps.actpla.act.gov.au/neighbourhood_plans/#updates
80.The plan does make clear, however, that no part of it overrides the Territory Plan. Thus, while it contains information of a kind that may have been relevant to an assessment of the ‘desired character’ of the Narrabundah residential areas at some point in time, the current Territory Plan definition of ‘desired character’ provides that relevant zone objectives and any statement of desired character in a relevant precinct code are the only permissible points of reference the Tribunal may consider.
81.The point the applicant seeks to emphasise is that the present character of the area has been maintained essentially because three-dwelling redevelopments historically have not been permitted in RZ1 and consequently there are no such developments in the area.
82.There are at least four difficulties with this submission.
83.First, it overlooks that the zone objectives provide for the establishment and maintenance of a predominantly, rather than exclusively, low rise, single dwelling, low density residential area.
84.Second, increased density of development is permitted in RZ1 on a block where the development is for supportive housing. A maximum of three single dwellings is permitted on a block with an 1100m2 site area.[38]
[38] MUHDC, R19 and Table A1
85.Third, the provision of supportive housing in RZ1 is consistent with zone objective (c). The social policy considerations informing the ACT Government’s decision to encourage such developments in RZ1 are not open for debate in the Tribunal.
86.Fourth, the submission assumes that the issue for determination is whether the development is consistent with the ‘desired character’. However, C3(a) raises a narrower issue: whether buildings accommodating supportive housing achieve consistency with the ‘desired character’. The facts that may determine whether a particular element in a development is consistent with the ‘desired character’ will depend on the context in which the issue arises. For example, in the MUHDC achieving consistency with the ‘desired character’ is a relevant criterion where the development does not comply with rules relating to the building envelope,[39] front, side and rear boundary setbacks,[40] courtyard walls,[41] and residents’ car parking.[42] Different considerations may be relevant in each case.
[39] R26/C26, R33/C33
[40] R29/C29, R30/C30, R31/C31, R32/C32
[41] R42/C42
[42] R77/C77, R79/C79
87.C3(a) of the RZDC requires buildings accommodating supportive housing on an RZ1 block in Narrabundah (where there is no applicable precinct code) to be assessed against relevant zone objectives. The Tribunal considers that buildings will not achieve consistency with the desired character where the siting, bulk and scale of the buildings, and the nature of the resulting streetscape:
(a)detracts from the character of the surrounding area with respect to the original pattern of subdivision and/or the density of dwellings;
(b)disrespects valued features of the neighbourhood and landscape character of the area; and/or
(c)unreasonably negatively impacts neighbouring properties.
88.Evidence before the Tribunal often consists of little more than bare assertions that something is or is not consistent with the desired character. Assertions of that kind do not acquire probative value merely because they are uttered by a person having apparent expertise as an architect or town planner.
89.Obviously, specific features to which parties may wish to draw the Tribunal’s attention on a view will be critically important. However, the parties are responsible to identify the factual findings they say the Tribunal should make based on what the Tribunal observed on the view.
90.A party seeking to persuade the Tribunal that an aspect of the development does not achieve consistency with the desired character must be able to explain to the Tribunal why that is so. Typically, this will require answers to at least some of the following questions, depending on how the issue is framed:
(a)What is the character of the surrounding area with respect to the original pattern of subdivision and/or the density of dwellings?
(b)How does the siting, bulk and scale of the buildings, and the nature of the resulting streetscape detract from the character of the surrounding area with respect to the original pattern of subdivision and/or the density of dwellings?
(c)What are the valued features of the neighbourhood?
(d)How does the siting, bulk and scale of the buildings, and the nature of the resulting streetscape disrespect the valued features of the neighbourhood?
(e)What is the landscape character of the area?
(f)How does the siting, bulk and scale of the buildings, and the nature of the resulting streetscape disrespect the landscape character of the area?
(g)How does the siting, bulk and scale of the buildings, and the nature of the resulting streetscape negatively impact neighbouring properties?
(h)Is the negative impact unreasonable?
91.The converse applies to a party seeking to uphold a development approval on the grounds that a particular aspect of the development achieves consistency with the desired character.
92.To say that a three-dwelling supportive housing development “will sit in the middle of an RZ1 zone comprising single dwellings on each block” – as the applicant submitted – says nothing about whether the buildings achieve consistency with the desired character. Even if it is accurate to describe the development as “modern brutalist architecture with modern materials and colours”, it does not follow that the buildings are not consistent with the desired character.
93.The assessment that C3(a) calls for is more nuanced.
94.Ms Hartfiel’s evidence did not shed much light on the issue. In her witness statement she claimed that the development is consistent with the desired character because it is similar in scale, comprises a single storey and is constructed from similar materials as the (previously) existing dwelling, with walls constructed predominantly of red brick with Colorbond ‘Monument’ (dark grey) coloured windows and cladding. However, she did not explain what she meant by ‘desired character’.
95.In oral evidence, Ms Hartfiel said the development picked up the “character and aesthetics of the houses around it”. This begs the question because the neighbouring property on the southern side consists of a large, modern two-storey home, featuring dark face brick and light coloured cement rendered panels and a dark metal roof. The house dominates the streetscape whilst bearing no resemblance to the general style of established single storey homes located nearby. The neighbouring property on the other side consists of a red-brick house undergoing extensive renovations, including the addition of a large garage and a modern two-storey box-like extension at the rear.
96.Ms Hartfiel went on to say:
So I mean the character of Narrabundah is changing. It’s becoming gentrified and densified. So on this block or this section alone, there’s a number of blocks that have been redeveloped and have a newer character about them. The corner blocks have been subdivided. So they’ve taken the small single dwelling and turned it into two large dwellings, and that’s – I can see that’s occurring two or three times, you know, in close proximity to this development, and if you drive down Sturt Avenue you will see the same things, multi dwellings popping up in place of a single, you know, often an ex-govie house. So there is a mix of old and new on Sturt Avenue in Narrabundah.[43]
[43] Transcript of proceedings, 10 October 2022, page 17
97.In his witness statement, Mr Sandeman said that the proposed siting of the dwellings on the block meets the required setbacks, and the building bulk and scale and the proposed building materials, textures, and finishes are not inconsistent with existing surrounding development. He noted that the adjoining dwelling is a large two-story contemporary single dwelling with a mix of veneer brick and cement rendered facade facing Sturt Avenue and that dwellings located on the opposite side of Sturt Avenue include large two-storey dwellings with Colorbond metal roofs.
98.Mr Sandeman was given leave to provide a written statement of the ‘desired character’ after the hearing, which became exhibit R5 and is reproduced below. It is more accurate to treat this as Mr Sandeman’s evidence describing the character (rather than the desired character) of the neighbouring area, which the Tribunal accepts as generally correct.
The desired character within the vicinity of … (the subject block) consists of predominantly low density one and two story dwellings with some blocks (such as … 49-44 Sturt Avenue) consisting of two dwellings. The dwellings feature various building forms (e.g., L shape, rectangular) and various building materials and textures (such as brick veneer, cement rendered facades) with various roof shapes such as hip, or skillion with tiles and/or Colorbond roofs. The blocks along with the dwellings feature a mix of grass, shrub and tree growth. The topography of the area is generally flat with slight falls on respective blocks from the rear boundary to the front boundary and side to side boundary.
Several blocks, such as … 34 Sturt Avenue … appear to consist of a complete demolition and new two-storey re-build. Other dwellings, such as … (1 Frome Street) appear to consist of a large building footprint on the block …. Some blocks located along Sturt Avenue have an open frontage where others have an established hedge.
Side setbacks of dwellings to other dwellings along Sturt Avenue vary from between approximate 2.5 metres to 6 metres. Setbacks of dwellings to respective dwelling front boundaries appear to be between 5 metres to 6 metres. Fencing between various blocks consists of a mix of material types, such as standard wood palings and Colorbond. Some blocks, such as… (4 Warburton Street) have brick feature pillars (approx. 1.8m high from datum level) located on their front boundary.
Sturt Avenue consist of a two-lane (one way) road separated by a grassed median strip, and a slip lane located on each side of the two-lane road directly servicing individual blocks. Sturt Avenue verge consists of a mix of grass and tree growth. Driveways consist of different surfaces and materials, such as paving, cement, cement drive strips, and bitumen. Some verges adjacent to blocks (such as the verge to 6 Warburton Street which is an approx. 120 metre walk to the subject block) support utility infrastructure facilities (i.e., a pad mount electrical transformer).
99.The Tribunal finds that C3(a) is achieved. The buildings do not appear to be inappropriately sited. Nor do they present as having excessive bulk and scale compared to other properties in the neighbourhood. The architectural design is unremarkable, as are the materials and textures chosen for the buildings. The buildings have minimal impact on the resulting streetscape, noting that the adjacent two‑storey dwelling dominates the streetscape and the general lack of consistency in style and character of other housing in the neighbourhood.
Criterion 3(b)
100.The applicant claimed initially that the proposal did not satisfy C3(b), which requires buildings accommodating supportive housing to achieve reasonable levels of privacy for dwellings on adjoining residential blocks and their associated private open space. The applicant presented no evidence and did not pursue the issue at the hearing. The Tribunal has treated the issue as abandoned.
Rule 4
101.R4 is a mandatory rule which requires all dwellings for the purpose of supportive housing to comply with Australian Standard AS 4299 Adaptable Housing (Class C) (AS 4299) and the Access and Mobility General Code (AMGC).
102.AS 4299 defines an ‘adaptable housing unit’ as a housing unit which is designed and constructed to meet the performance requirements stated in clause 2.2 and to include the essential features listed in Appendix A. An adaptable housing unit must be designed so that it can be modified easily in the future to become accessible to both occupants and visitors with disabilities or progressive frailties.[44]
[44] AS 4299, clause 1.4.3
103.The standard provides for three classes of adaptable housing units – Class A, Class B and Class C – the intention being that they be certified as such by an independent, suitably qualified person.[45]
[45] AS 4299, clause 1.2
104.Class C must include all essential features listed in Appendix A but need not incorporate any of the first priority or desirable features that distinguish a Class A or Class B adaptable housing unit. Dwellings for use as supportive housing must meet all of the requirements of a Class C adaptable housing unit.
105.Clause 2.1 states that the objectives for adaptable housing are:
(a)That housing be designed and constructed or altered in a way which satisfies the performance requirements for adaptable housing enumerated in Clause 2.2 below.
(b)That housing is designed in such a way that later alterations to suit individual requirements will be achievable at minimal extra initial cost.
(c)That housing be designed in such a way that it will easily adapt to suit the widest possible range of lifetime needs. This will include the needs of people with physical disabilities (including people who use wheelchairs, people with disabilities who are ambulant, and people with manipulatory disabilities); people with sensory disability (vision, hearing) and people with intellectual disability.
(d)The initial design will allow for visitability through an accessible path of travel to the living room and toilet.
106.Clause 2.2 states that an adaptable housing unit shall be designed and constructed to meet the following requirements (omitting notes):
(a)Visitability To be visitable by people who use wheelchairs, in that there must be at least one wheelchair accessible entry and path of travel to the living area and to a toilet that is either accessible or visitable.
(b)Avoidance of level changes To have no steps and to avoid level changes where possible.
(c)Manoeuvrability This shall include the following:
(i) To provide space sufficient to manoeuvre a wheelchair within a living area, the kitchen and an accessible path of travel linking these areas.
(ii) To provide space sufficient to manoeuvre a wheelchair within a bedroom, a bathroom and a toilet or to provide a design and details whereby after adaptation there will be sufficient space to manoeuvre a wheelchair within these facilities and an accessible path of travel linking these facilities to the entry, living and kitchen areas.
(d)Ease of adaptation If the design for adaptation requires further demolition of walls then these walls shall be non-load-bearing and free of electrical and plumbing services.
(e)Ease of reach To provide electrical controls, taps, and some shelves and cupboards at levels to suit people who use wheelchairs.
(f)Future laundry facilities To provide laundry facilities that after adaptation will be accessible to people who use wheelchairs. Those laundry facilities may be external to the adaptable housing unit, providing a wheelchair accessible path of travel is available from the adaptable housing unit to the laundry facilities.
107.Clause 2.3 provides that to obtain certification as an adaptable housing unit, ‘as built’ drawings must be provided showing the housing unit in its pre-adaptation and post-adaptation stages, with a description of how the adaptation is to be achieved.
108.Clause 3.3.1 requires that the development must be suitable for people with varying degrees of mobility, so that as a minimum, access for people with disabilities is available to at least one entry to the adaptable housing unit. Consideration should be given, among other things, to provision of on-site turning area for vehicles and driveway location with regard to resident’s safety and security.
109.Clause 3.3.2 provides in part:
Accessible pathway An accessible path of travel from the street frontage car parking area or drop-off point shall be provided to all adaptable housing units. As a minimum, this accessible path shall comply with AS 1428.1 and shall be continuous, slip-resistant, hard-surfaced and shall not incorporate any step, stairway or other impediment which would prevent it from being safely negotiated by people with disabilities.
110.Essential features for a Class C adaptable house enumerated in Appendix A include that drawings must be provided showing the housing unit in its pre‑adaptation and post-adaptation stages.
111.The Goodwin report was given to ACTPLA as evidence of compliance with R4. The report states that “The following assessment is based on the Preliminary issue of Development Application drawings prepared by SQC Group 20th August 2021”.[46] The author opined that the requirements of the AMGC and AS 4299 “have been generally met” in the development proposal drawings and that “detailed design issues can be resolved or confirmed at BA stage”.[47] Earlier, the author stated that “some design detailing will be necessary in the BA/documentation stage to ensure conformance shown on plan is maintained in elevation”.[48] The report listed the ten drawings on which the author based his opinion. The floor plan for unit 3 (drawing A102) was not mentioned, although this may be because unit 3 is the mirror image of unit 2. The version of the drawings on which Commissioner relied at the hearing were much later revisions of the drawings assessed by the author of the report and included additional plan and elevation drawings. There was no evidence whether the revisions affected or had the potential to affect the opinions expressed in the report.
[46] Exhibit C1, page 1
[47] Exhibit C1, page 5
[48] Exhibit C1, page 1
112.The DA assessment found that the proposal “is not inconsistent with the applicable requirements of the AMGC”.[49] The meaning of “not inconsistent” is not synonymous with “consistent”. The use of “not inconsistent” suggests that ACTPLA applied the wrong test in assessing the proposal against the requirements of section 119(a) of the PD Act. The proponent must establish that the proposal is “consistent with the relevant code”. A proposal that meets three of ten mandatory requirements of a relevant code but does not show how the other requirements are met, is not “consistent with the relevant code”. Depending on the circumstances, it may be accurate to described the proposal as ‘not inconsistent’ with the code, but this is not the test. Moreover, to describe a proposal as “not inconsistent with the applicable requirements” of a relevant code, does not enable the proponent, affected parties and the Tribunal on review, to identify the “applicable requirements” with which ACTPLA considers the proposal is consistent, and those where the proponent must do more to demonstrate that the proposal is code compliant.
[49] Exhibit R2, page 73
113.The Reasons for the Decision state that the “application was approved because based on the documentation and in the form modified by the imposed conditions it was considered to meet the relevant rules and criteria of the Territory Plan and section 120 of the Planning and Development Act 2007” (our emphasis). The conditions included the following:
The development is to comply with the relevant provisions of ‘AS1428.1-2009 Design for Access and Mobility’, any relevant provisions of the Premises Standards 2010 and the Disability Discrimination Act 1992 as applicable.
The proposal must be in accordance with relevant provisions of the Australian Standard AS1428.1-2009 and AS/NZ 2890.6-2009 and the National Construction Code.
114.Clearly, ACTPLA was not satisfied that the proposal met all the applicable requirements for design for access and mobility in AS 1428.1-2019, which means that ACTPLA could not be satisfied that the proposal met the mandatory requirements of R4 of the RZDC. Where the conditions of approval do not identify the respects in which the development does not comply with AS 1428.1, or what changes the proponent must make to make it comply, there is no certainty that compliance can be achieved and, if so, whether the conditionally approved proposal may need to be substantially redesigned to do so. The Tribunal considers that a condition expressed in such broad terms is probably invalid.[50]
[50] See the earlier discussion in paragraphs [33]-[39]
115.The power to approve a development application subject to a condition under section 162(1)(b) as an alternative to refusing a development application, is constrained by section 119(1)(a), which states that “development approval must not be given” for a development proposal in the merit track “unless the proposal is consistent with the relevant code”. Where a development proposal is not consistent with a relevant code because it does not comply with a mandatory rule, the application must be refused.
116.Conditional approval may be given in those circumstances only if the condition operates to make the development comply with the mandatory rule. This may require something to be done in the future – e.g., it may require a specific change to be made to a plan, drawing, specification, or other document to make the proposal comply with the mandatory rule and for the plan, drawing, specification or other document to be submitted for approval before the development, or a stated part of it, starts.[51] The principles of certainty and finality discussed earlier[52] do not require every last detail of the change to be worked out and documented before approval can be given. Nor do they preclude ACTPLA from applying a degree of practical flexibility to the extent of detail it may require at the development approval stage, particularly in complex developments. However, ACTPLA as the original decision-maker, and the Tribunal on review, must be satisfied that the required change operates to make the development comply with the mandatory rule without significantly altering the development, or causing it to become non-compliant in other respects.[53]
[51] See section 165(3)(p) and (q)
[52] See [33]-[38]
[53] We have given an example in [39]
117.The Tribunal considers that the statutory prohibition in section 119(a) against giving development approval to a development proposal that does not fully meet a mandatory rule, cannot be circumvented by a condition that requires, in effect, that the development is to comply with the mandatory rule. This simply restates what the code already requires.
118.The Goodwin report does not establish that the proposal complies with the code requirements for adaptable housing. The author’s opinion that the development can be made code compliant carries little weight where the report does not disclose the basis of the opinion and the author was not called to give evidence to enable his opinion to be tested.
119.Ms Hartfiel addressed the issues of compliance with the AMGC in paragraphs 13 to 15 of her witness statement and in her oral evidence. She claimed that the development is designed to meet AS 1428.1, AS 4821.4 and AS 4856 and provides for continuous flat and safe non-slip surfaces throughout both indoor and outdoor spaces and across the entire block. However, no plans were provided showing the proposed accessible pathway, which Ms Hartfiel agreed required pedestrians to use the driveway for access. This becomes relevant later when we discuss C76.
120.It was apparent when Ms Hartfiel gave evidence that the plans contained errors in the depiction of natural ground level and in various site elevations and cross‑sections that were material to the issue whether the development met the level access requirements for adaptable housing.
121.The Tribunal reiterates what it said during Ms Hartfiel’s evidence, that providing level access is a fundamental requirement for adaptable housing that must be demonstrated at the development approval stage. A proponent (in this case, the Commissioner) bears the onus on these issues. A bare assertion that compliance has been (or can be) achieved is not enough, regardless that the assertion may be couched as an opinion held by an apparently qualified person. An opinion lacking an appropriate evidentiary foundation and devoid of reasoning carries minimal weight.
122.Drawings showing the dwellings in their pre-adaptation and post-adaptation stages were not provided. It was not possible for the Tribunal to be satisfied whether adaptation can be achieved in a low cost way. Ease of adaptation is a fundamental requirement for adaptable housing and must be demonstrated by evidence at the development approval stage and not merely asserted as something that can be achieved.
123.The Tribunal notes that the ACT Government’s Adaptable Housing Requirements for Multi-Unit Developments includes comments on R14 of the MUHDC, which relates to adaptable housing requirements for standard blocks in RZ2. Additional dwellings permitted for adaptable housing above those shown in Table A2 must be designed and constructed to AS 4299 (Class C). The comments include:
This rule may allow you to build additional dwellings if you can show that all dwellings on the block comply with the Standard (Class C). This means that you may need to provide a greater level of detail than normally expected at the development application stage. For example, showing that door handles and hardware will be built to AS 1428.1.
124.Many of the essential features that must be incorporated in a dwelling for it to be termed an ‘Adaptable house class C’ in accordance with AS 4299, which is a mandatory requirement to meet R4 of the RZDC, were not demonstrated. Whether some of these requirements could be dealt with by conditions under section 162(1)(b) in accordance with the principles discussed earlier was not the subject of submissions. Ultimately, the Tribunal did not have to decide whether the proposal complies with R4 or can be made to comply by an appropriately framed condition, because approval was refused on other grounds.
Consistency with the Multi Unit Housing Development Code (MUHDC)
Criterion 38(b)[54]
[54] Applicant’s Summary of Issues, item 9
125.Mr Sandeman conceded that the site open space does not comply with R38 because less than 20% of the total site area is ‘planting area’.[55] The applicant submitted that the proposal does not satisfy C38(b), which requires site open space to provide sufficient space for planting, particularly trees with deep root systems, to accommodate on-site infiltration of stormwater run-off.
[55] ‘Planting area’ is defined in the Territory Plan to mean an area of land within a block that is not covered by buildings, vehicle parking and manoeuvring areas or any other form of impermeable surface and that is available for landscape planning.
126.Mr Sandeman considered there was space to plant a deep-rooted tree in the north‑west corner, where Tree 3 is shown on the plans although the tree has been removed. This appears doubtful considering its proximity to the extensions being built close to the boundary on the neighbouring block. As an alternative, he suggested an additional tree could be planted in the south-east corner, although the evidence about this was inconclusive.
127.An assessment whether there is sufficient room for a deep-rooted tree cannot be undertaken without considering the outcome that the criterion is intended to achieve – which is to accommodate on-site infiltration of stormwater run-off. Landscaping and site design affecting the control of stormwater run-off must be considered to determine whether a deep-rooted tree can be planted in a location which will accommodate infiltration and reduce run-off.
128.The block slopes from west to east toward Sturt Avenue and from south to north, directing surface flow of stormwater down the driveway and away from permeable surfaces. We are not persuaded that planting a deep-rooted tree in the north-west or south-east corner would materially improve on-site infiltration of stormwater run-off considering the current landscaping and site design.
129.Ultimately, the Tribunal did not need to decide whether C38(b) can be satisfied because approval was refused on other grounds.
Criterion 40(c) and (d)[56]
[56] Applicant’s Summary of Issues, item 10
130.The applicant questioned whether the landscape and site design achieves reasonable residential amenity and a contribution to energy efficiency by providing substantial shade in summer for unit 2 and unit 3 but did not press the issue at the hearing.
131.The Commissioner tendered revised landscape plans as part of exhibit C1 to address the concerns. Ms Hartfiel explained that the plans provided for plants to be added between the driveway and dwellings and between the driveway and the boundary, permeable paving to be provided in the front carpark area, and for concrete and hard surface areas located on the south boundary to be redesigned to allow for more planting areas and the use of artificial grass in some difficult to access areas.
132.Mr Sandeman considered that the changes achieved compliance with the relevant criteria without explaining why.
133.Ultimately, the Tribunal did not need to decide whether C40(c) and (d) are satisfied because approval was refused on other grounds.
Rule 41, Criterion 41, Criterion 42[57]
[57] The Tribunal raised this as an issue
134.Fences are permitted forward of the building line[58] only in the limited circumstances provided in R41, none of which apply to this development. This was not in dispute.
[58] The Territory plan defines ‘building line’ to mean a line drawn parallel to any front boundary along the front face of a building or through the point on a building closest to the front boundary.
135.C41 provides that fences may be permitted where the proposal meets the requirements in the Residential Boundary Fences General Code (RBFGC).
136.R1 of the RBFGC is a mandatory rule that prohibits front boundary fences or walls forward of the building line, except as provided for in the RZDC in the case of a courtyard wall and in other circumstances that are not relevant here. As the RZDC requires supportive housing to comply with the MUHDC, courtyard walls must comply with R42 or satisfy C42. The development does not include courtyard walls constructed at least partly of brick, block or stonework, as required by R42, and neither Ms Hartfiel nor Mr Sandeman attempted to justify the so-called ‘temporary’ wire mesh fencing enclosing the unit 1 PPOS as a courtyard wall under C42.
[73] north facing windows and doors to unit 1 and 2 are within 1.5 metres of the driveway. Neither unit has an intervening fence or wall, although some provision is made for screen planting.
174.It was common ground that the internal driveway does not comply with R73. The issue is whether it complies with C73. C73(a) requires that the internal driveway must provide sufficient space for planting along the property boundary. C73(b) requires sufficient space for planting between internal driveways and buildings. C73(c) requires reasonable residential amenity, particularly in relation to the intrusion of light and noise into habitable rooms. C73(d) requires clear differentiation between the driveway and parking spaces.
175.C73(b) and (d) is achieved. However, as we explain below, the Tribunal considers that the proposal does not satisfy C73(a) and (c).
176.Ms Hartfiel considered that C73 is achieved by “softening the edge” of the driveway with appropriately selected planting.[75] However, in the Tribunal’s view, the purpose of R73/C73 is to provide for adequate landscaping of internal driveways to ensure the privacy and amenity of habitable spaces facing the driveway and to soften the effect of a driveway on the resulting streetscape, particularly where a long driveway visible from the street is provided. The Tribunal considers the reason for requiring the setback to the side boundary to be planted to a minimum width of 1 metre is to provide adequate space for a hedge or other tall planting to screen the fence and provide reasonable privacy from overlooking by a neighbouring property, without interfering with manoeuvring clearances for the driveway.
[75] Transcript of proceedings, 10 October 2022, page 46
177.Overlooking from the neighbouring property is not an issue in this case because the plans for the new extension and garage show a 25.6 metre long brick wall with a single (approximately 2400 mm by 600 mm) window with a sill height of 1.8 metres. The wall of the garage has almost no setback to the side boundary for the first 8 metres and the rest is set back 1530 mm. However, this means that the outlook from the north facing windows of internal living areas (the kitchen in unit 1 and the dining/living area in units 2 and 3) is towards the driveway, fence and the brick side wall of the neighbouring property.
178.The proposed 350 mm wide planting strip would provide insufficient space for substantial screen planting. The proposed ‘accent planting’, as it is described on the landscape plans, will not provide adequate screening of the fence or achieve any meaningful improvement of the outlook from the dining/living area of unit 2, which is the worst affected. The narrowness of the planting strip means that if the plants listed in the landscape plan are used, their spread at maturity is likely to restrict the minimum useable width of the driveway. Lower growing plants with less spread could be substituted but would be even less effective to achieve adequate landscaping of the driveway.
179.However, the Tribunal considers that there is insufficient space to provide even a 350 mm wide planting strip, as we explain below.
180.The west elevation of unit 1 on drawing A201 revision J shows, in section, a 1.8 metre high wall above finished ground level (FGL) on the northern boundary. The FGL scales at 0.5 metre above natural ground level (NGL). The top of the wall scales at 2.3 metres above NGL. The east elevation of unit 2 on drawing A203 revision J shows, in section, a 1.8 metre high wall above NGL on the northern boundary. The FGL of the driveway scales at 200 mm above NGL and there is a 200 mm gap between the driveway and the wall on the boundary. The top of the wall scales at 2.3 metres above NGL.
181.The “3D Views drawing A900 revision I” shows the view from south-southwest at the bottom and from the north-northeast at the top. The bottom view shows a fence running the length of the northern boundary. The top view does not show the fence; however, it shows the driveway raised above NGL for most of its length, which is necessary to achieve the maximum permissible slope of 1:20 to comply with access requirements for an adaptable house (class C).
182.Condition 13 of the approval requires the existing fence separating adjoining residential blocks to be replaced with a 1.8 metre high fence. The Tribunal’s analysis of the proposed levels for the driveway shown on drawing A001 revision L, shows that at the boundary the FGL is raised approximately 300 mm above NGL for some distance along the driveway.
183.No overall cross sections and no detail sections showing the conditions at the northern boundary are available to resolve the apparent inconsistencies in levels.
184.However, from the Tribunal’s analysis of the drawings it appears a retaining wall is required to maintain the FGL and proposed edge planting and to support the new fence. The Tribunal envisages that a 190 mm blockwork wall on a reinforced concrete footing, or similar, would be required, which inevitably must encroach into the space allocated for the proposed 350 mm planting strip. Practically, this would limit the useable width of the planting bed to about 160 mm, or similar, before considering the requirements for footings and the sub-soil drainage.
185.Mr Sandeman suggested the proposal could be improved by increasing the width of the planting strip. However, Ms Hartfiel said:
Unfortunately it can’t be. We’ve talked to our civil engineer, and this driveway has been designed to the absolute minimum size that it can be designed to to (sic) account for all of the turning circles and to get all of the correct parking working.[76]
[76] Transcript of proceedings, 10 October 2022, page 47, lines 5-8
186.In fact, as we show later, the driveway fails to provide adequate manoeuvring clearance to meet the requirements of the PVAGC.
187.The landscape plan provides for ground cover planting in front of the north-facing full-length window to the dining/living area of unit 2. This provides no effective screening from the driveway, affecting both privacy of the internal living space and the amenity of residents, particularly with respect to the intrusion of light from cars at night. Provision is made for two Osmanthus delavayi ‘Heaven Scent’ shrubs (200 mm pots size) to be planted in front of the wall beside the window to provide screening to the PPOS. As noted earlier, this will start out about 400 mm high and eventually may grow to about 1.5 metres at maturity. As the shrubs spread, they may eventually provide some measure of screening to the front window, but that may depend more on how the gardens are maintained rather than on the landscaping and architectural design intent. In the meantime, the development does not achieve reasonable residential amenity for dining/living area of unit 2.
188.For these reasons, the Tribunal considers that the proposal does not satisfy C73(a) and (c).
Criterion 76[77]
[77] The Tribunal raised this as an issue
189.C76 requires internal driveways to be designed to be safely used by both pedestrians and vehicles. As noted earlier in our discussion of R4 of the RZDC, Ms Hartfiel acknowledged that the proposed accessible pathway requires pedestrians to use the driveway for access.
190.The proposed use of the dwellings is for supportive housing. Dwellings must be designed and constructed in such a way as to be easily adapted to suit the needs of people with a range of physical, sensory and/or intellectual disabilities.[78]
[78] AS 4299-1995, clause 2.1(c)
191.While there may be circumstances where an appropriately designed driveway may be adequate to provide safe, level access for a person with a physical disability requiring them to use a wheelchair, the Tribunal considers that it is inherently unsafe to provide for shared driveway access by a person who may be blind, deaf, and/or intellectually impaired. The safety issue in this case is magnified because the driveway is long and narrow and, as the turning demonstration plans show, does not achieve the required manoeuvring clearances for vehicles entering and exiting the garages of all units.[79] We discuss this further when we consider whether the development is consistent with the PVAGC.
[79] Exhibit C4, page 18
192.The Tribunal is satisfied that C76 is not met.
Rule 77(a)/Criterion 77(b)[80]
[80] Applicant’s Summary of Issues, item 15
193.The proposal does not comply with R77(a), which requires resident car-parking spaces on the site to be located behind the front zone, except for apartment parking. Two car-parking spaces are provided for residents adjacent to the front boundary. It is proposed to screen these from the street with hedge planting. Ms Hartfiel said that there was nowhere else for the car-parking spaces to go.
194.The issue is whether car-parking for residents in the front zone achieves consistency with the desired character. The Tribunal is firmly of the view that it does not. While the Tribunal accepts that the character of Narrabundah is changing as a result of redevelopment, particularly with respect to site coverage and the size of new dwellings, the Tribunal saw no evidence that the provision of car-parking in the front zone is either part of the existing character of the area, or that sites that have been redeveloped include provision for parking in the front zone.
195.It was suggested that the extensions to the neighbouring dwelling to the north included provision for parking in the front zone. However, the Tribunal is satisfied that this is a reversing area for vehicles backing out of the garage, to enable them to exit onto Sturt Avenue in a forward direction.
196.The Tribunal considers that permanent parking in the front zone that is visible from the street would have a significant, negative effect on the streetscape and serve as an undesirable precedent for future development in the area.
Rule 82/Criterion 82[81]
[81] Applicant’s Summary of Issues, item 16
197.The Tribunal is satisfied that it is not necessary to assess the proposal against R82/C82 because the PVAGC does not require car-parking to be provided for visitors in a development of this size.[82]
[82] PVAGC, clause 3.1.5 Schedule of parking provision rates for residential zones – requires 1 visitor parking space per four dwellings, whether comprising attached or detached houses.
Consistency with the Parking and Vehicular Access General Code (PVAGC)[83]
Location of operational parking
[83] The Tribunal raised this as an issue
198.Clause 3.1.4 of the PVAGC contains “specific requirements for the location of long stay, short stay and operational parking” for a development in a residential zone. ‘Operational parking’ refers to vehicles used directly as part of the operation within the development.
199.The Territory Plan definition of supportive housing is mentioned earlier in these reasons.[84] For a residential development to qualify as supportive housing, a Territory approved organisation must be able to deliver services to residents on‑site, including counselling, domestic assistance and personal care as required. As a minimum, one car-parking space must be provided for operational parking. More may be required depending on the nature of the services and the frequency with which they may be provided.
[84] See [61]
200.Clause 3.1.4 includes a “specific requirement” that operational parking within a development for residential use must be provided on-site. In contrast, clause 3.1.4 permits short stay and visitor parking to be provided on-site or within 100 metres. Although Mr Sandeman said there is a discretion to allow operational parking to be provided off-site, the Tribunal disagrees. The meaning of clause 3.1.4 is unambiguous and precludes this. The discretion that is available to provide for short stay and visitor parking within 100 metres of the site is not available for operational parking. The provision of on-site operational requirement is a “specific requirement” that must be met in a supportive housing development.
201.Mr Sandeman agreed that an assessment of operational parking needs for a supportive housing development requires information to be provided at the development approval stage about the type of supportive housing, and the nature of services to be provided to on-site.[85] Information of that kind was notably absent in this case. Counsel for the Commissioner submitted that the kind of services that may be provided will depend on the particular needs of occupants, and it is not possible to assess the nature of such needs without knowing the identity of the occupants. Nor is it possible to assess the kind of services that may be provided on-site because the Territory approved organisation that may be appointed to manage the supportive housing development has not been identified at this stage.
[85] Transcript of proceedings, 11 October 2022, page 137, line 27 to page 139, line 6
202.Ultimately, the Tribunal did not have to decide what significance should attend the absence of such information because, as a minimum, one on-site operational car-parking space had to be provided. Ms Hartfiel conceded that this was impossible. The development therefore does not comply with clause 3.1.4 of the PVAGC.
Minimum swept path clearance
203.Clause 2.3.2 of the PVAGC requires access to a car park to meet certain minimum requirements governed by engineering and other design manuals applicable to works in the Territory, including Design Standard 10 – Parking Areas (Department of Territory and Municipal Services) and AS 2890.1-2004 Parking Facilities, Part 1: Off-Street Parking (AS 2890.1).
204.Appendix B of AS 2890.1 applies to the design of internal driveways. It provides base dimensions (length, width and wheelbase) for two vehicle types (B99 and B85) to which operating clearances must be added to allow for turning, manoeuvring and parking. Base dimensions for the B99 and B85 vehicles are specified in Figures B1 and B2. B99 is the larger of the two vehicles.
205.Paragraph B2.2 requires internal driveways to be designed using the B99 design template, except in limited circumstances that do not apply here. Paragraphs B3.1(a) and B3.2(a) provide:
B3.1 Standard single turn swept path templates
(a) The B99 design templates The B99 template comprises an inner pair of unbroken lines representing the B99 base dimension swept path, and an outer pair of broken lines which includes both the manoeuvring clearance…and the circulation clearance…The broken line templates shall be used in the design of all access roadways, ramps and, circulation roadways, except where otherwise indicated in Paragraph B2.2.
B3.2 Swept path clearances
Clearances to be added to the base swept path templates in Paragraph B3.1 to provide the required design standard are as follows:
(a) Manoeuvring clearance To cater for slow-moving vehicles travelling within parking aisles or manoeuvring into parking spaces, i.e. at 10 km/h or less, a clearance of 300 millimetres shall be added to both sides of the turning path.
206.The Commissioner tendered amended turning demonstration plans as part of exhibit C4. It is apparent from the Tribunal’s assessment of the plans that inadequate manoeuvring clearance is provided for the B99 vehicle at the entrance to each garage. It is apparent also that the proposed landscaping of the planting strip next to the driveway may further restrict manoeuvring clearance as plants achieve full spread at maturity.
Consistency with Waterways: Water Sensitive Urban Design General Code (WSUDGC)
207.The applicant initially raised issues relating to compliance with R1/C1,[86] R2/C2,[87] R3/C3,[88] R9/C9[89] and C10[90] of the WSUDGC.
[86] Applicant’s Summary of Issues, item 17; Applicant’s Submissions, Issue 16
[87] Applicant’s Summary of Issues, item 18; Applicant’s Submissions, Issue 17
[88] Applicant’s Summary of Issues, item 19; Applicant’s Submissions, Issue 18
[89] Applicant’s Summary of Issues, item 20
[90] Applicant’s Summary of Issues, item 21
208.The Commissioner provide a revised response to the WSUDGC demonstrating compliance with all relevant provisions of the code to satisfy the conditions of approval under section 165 as part of exhibit C4, which Mr Sandeman accepted demonstrated compliance with the code.[91] The Tribunal accepts Mr Sandeman’s evidence.
[91] Transcript of proceedings, 11 October 2022, page 129
Consistency with the Lease Variation General Code (LVGC)
Criterion 1 (i) and (ii)[92]
[92] The Tribunal raised this as an issue
209.It follows from the Tribunal’s earlier findings that the lease variation approved by ACTPLA is not consistent with the Territory Plan because it would permit the development to be used for residential purposes as well as supportive housing, where a development consisting of three single dwellings in RZ1 is permissible only for use as supportive housing.
210.It follows also that although the block is suitable for a supportive housing development, it is not suitable for a development comprising three single dwellings for residential purposes and/or supportive housing as authorised by the lease variation approved by ACTPLA.
211.Accordingly, C1(i) and (ii) are not met.
Criterion 2(i)[93]
[93] Applicant’s Summary of Issues, items 1 and 2. Although the applicant asserted initially that compliance with C2(iv), C3(i), (iv) and (vii) has not been demonstrated, it abandoned these issues at the end of the first day of the hearing.
212.It follows from the Tribunal’s earlier finding in relation to the lack of on-site operational parking that insufficient parking is provided in accordance with the PVAGC. Accordingly, C2(i) is not met.
The correct or preferable decision
213.The respects in which the Tribunal has found that the development proposal is not consistent with relevant codes appear to stem from a design brief to fit three two-bedroom single dwellings on the block. Although notionally the block is of sufficient area to allow a maximum of three single dwellings for use as supportive housing, the proposed development is not consistent with all relevant codes.
214.There appears to be no scope for the development to be changed to make it code compliant without substantially altering the development.
215.Where the development proposal (as amended in accordance with evidence at the hearing) is not consistent with all relevant codes, and the Tribunal is not satisfied that the inconsistencies can be cured by a condition imposed under section 162(1)(b) of the PD Act, section 119(1)(a) of the Act mandates that development approval must not be given.
216.The correct (rather than preferable) decision in those circumstances is to set aside the decision to grant development approval and substitute it with a decision to refuse approval.
………………………………..
Senior Member M OrlovFor and on behalf of the Tribunal
Date(s) of hearing: 10 & 11 October, 13 December 2022 Applicant:
Dr D Denham and Mr J Edquist (authorised representatives)
Counsel for the Respondent: Mr S Oniteri Solicitors for the Respondent: Ms S Gasser, ACT Government Solicitor Counsel for the Party Joined: Ms A Costin Solicitors for the Party Joined: Ms S Lane, ACT Government Solicitor SCHEDULE – Extracts of relevant codes
RZ1 – Zone objectives
Residential Zones Development Code
Multi Unit Housing Development Code
Parking and Vehicular Access General Code
Lease Variation General Code
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