Griffith Narrabundah Community Association v ACT Planning and Land Authority (Administrative Review)
[2024] ACAT 74
•28 May 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SILVEY; GRIFFITH NARRABUNDAH COMMUNITY ASSOCIATION v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2024] ACAT 74
AT 73/2023
AT 81/2023
Catchwords: ADMINISTRATIVE REVIEW – review of decision to approve development application – proposed development in Griffith consolidating two blocks upon which four units are to be built – whether driveway fails to meet slope requirement – whether continuous path is impeded – whether proposed parking is too close to a habitable room – whether dimensions of principal private open space meet the requirements of rule 61(b) of the Multi Unit Housing – whether internal circulation fails to meet disability requirements – whether building materials fail to meet the relevant criterion – whether adjacent building is inappropriately overshadowed – whether the development is consistent with the ‘desired character’ – whether application meets objectives of section 120 of the Planning and Development Act 2007, particularly in relation to the operation of ACT Government’s ‘salt and peppering policy’ – lease variation – decision under review varied with conditions
Legislation cited: Planning and Development Act 2007 ss 119, 120
Subordinate
Legislation cited: Access and Mobility General Code R3/C3, R10
AS 1428.1:2021 – Design for access and mobility, Part 1: General requirements for access
AS 1428.2:1992 – Design for access and mobility, Part 2: Enhanced and additional requirements
AS 4299:1995 – Adaptable housing
AS/NZS 2890.1:2004 – Parking facilities, Part 1: Off-street car parking
Multi Unit Housing Development Code R26, R61, R72/C72, R82/C82, Table A9
Planning and Development Regulation 2008 s 5
Residential Zones Development Code C3, R4
Territory Plan 2008 (R270)
Cases cited:4THD Planning & Design Pty Ltd v ACT Planning and Land Authority [2021] ACAT 59
Baptist Community Services v ACT Planning and Land Authority [2015] ACTCA 3
Griffith Narrabundah Community Association Inc v ACT Planning and Land Authority [2023] ACAT 13
Hamilton v ACT Planning and Land Authority & Ors [2018] ACAT 121
Hipkins v ACT Planning and Land Authority & Ors [2022] ACAT 41
Lourandos and Yiannokopolous & ACT Planning and Land Authority [2011] ACAT 25Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355Re Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179
Sterner & Anor v ACT Planning and Land Authority [2023] ACAT 60
Village No 22 Pty Limited ACN 620 656 260 v ACT Planning and Land Authority & Anor [2021] ACAT 43
Tribunal:Senior Member P Spender
Senior Member G Tomlins
Date of Orders: 28 May 2024
Date of Reasons for Decision: 10 September 2024
Date of Publication: 18 September 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 73/2023
BETWEEN:
GERALD E. SILVEY
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
TIMOTHY KILLEN EKIN
First Party Joined
COMMISSSIONER FOR SOCIAL HOUSING
Second Party Joined
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 81/2023
BETWEEN:
GERALD E. SILVEY
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
TIMOTHY KILLEN EKIN
First Party Joined
COMMISSSIONER FOR SOCIAL HOUSING
Second Party Joined
TRIBUNAL:Senior Member P Spender
Senior Member G Tomlins
DATE:28 May 2024
ORDER
The Tribunal Orders:
The decision under review is varied as follows:
(a)Paragraph 1 - delete “in accordance with the plans, drawings and other documentation approved and endorsed as forming part of this approval” and substitute “in accordance with the final amended plans, drawings and other documentation approved and endorsed as forming part of this approval filed with the Tribunal on 17 May 2024 (the final amended plans)”.
(b)Condition 4 - add “(the New Crown Lease). The lessee shall restrict the permitted use of the New Crown Lease to residential purposes limited to supportive housing” after “approval”.
(c)Condition 17 - delete “approved plans” and substitute “final amended plans”.
(d)New condition 20 - add “20. LODGEMENT Prior to building work commencing on the site, the lessee must lodge the final amended plans with the Territory Planning Authority.”
……………………………………..
Senior Member P Spender
For and on behalf of the Tribunal
REASONS FOR DECISION
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refer to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the presently constituted tribunal. The second party joined – the Commissioner for Social Housing – and the Griffith Narrabundah Community Association are referred to as the ‘Commissioner’ and the ‘GNCA’ respectively. Occasionally, the applicants from each matter are referred to jointly as the ‘applicants’.
Background and legislative framework
The development application (DA) which formed the subject matter of these proceedings was lodged on 28 June 2022. The DA is regulated by the Planning and Development Act 2007 (PDA) and the Territory Plan 2008 (Territory Plan).[1] The relevant provisions of the PDA and the Territory Plan are set out in the reasons below.
[1] Territory Plan 2008 as at 28 June 2022 (the date the application was lodged, R270)
The Commissioner proposed to develop a site in Griffith which consolidated two blocks upon which four units were to be built (the development). The applicants made representations about the development. A decision was made to approve the DA on 8 August 2023 (the decision under review). The decision under review was challenged by Dr Silvey in proceedings commenced in ACAT on 25 August 2023 (AT73/2023) and by the GNCA on 4 September 2023 (AT 81/2023). Orders were subsequently made joining Mr Ekin and the Commissioner to both proceedings and for the proceedings to be heard concurrently.
A hearing was held on 26 March 2024 and 27 March 2024. The hearing commenced with a site view. After the hearing the parties filed and served written submissions during April and May 2024. The Commissioner filed and served final amended plans (the Final Amended Plans) pertaining to the DA on 13 May 2024. The Tribunal made a final decision on 28 May 2024 with reasons to follow. The reasons for the decision made on 28 May 2024 are set out below.
The issues in contention
The reasons below will set out the issues in contention in the proceedings. The Tribunal’s analysis of the issues in contention will proceed by nominating individual issues, then outline the parties’ submissions. This will be followed by the Tribunal’s consideration of each individual issue.
Summary of issues in contention
The applicants raised several concerns with specific aspects of the design of the development. These are summarised below:
(a)The driveway gradient is too steep, leading to a failure to meet the post occupancy waste management requirements.
(b)The continuous path fails to comply because of blockages such as fences, and the dogleg area between units 3 and 4 does not comply with accessible path of travel requirements.
(c)The parking proposed is too close to a habitable room.
(d)The principal private open space (PPOS) has several deficiencies including inadequate dimensions, obstacles placed within it, and a failure of all the garden beds to be accessible by people with disabilities.
(e)The internal circulation in some of the lounges, corridors, bedrooms, and kitchens fail to meet disability requirements.
(f)The building materials fail to meet the relevant criterion by not being consistent with materials in the locality.
(g)An adjacent building is inappropriately overshadowed.
(h)Desired character.
(i)Section 120 of the PDA considerations.
(j)Lease variation.
(k)Other matters.
The driveway gradient issue
This issue relates to the gradient of the kerb to boundary section of the driveway for the development. The argument was that:
the DA does not satisfy AS4299 (1995), as it does not satisfy: AS4299 section 3.3.2; the [e]ssential category for Item 2 of Annexure A; or the [f]irst priority desirable category for Item 3 of Annexure A.[2]
[2] Respondent’s submissions dated 8 May 2024 at [9]
The two existing driveways associated with the houses are proposed to be removed by the DA and replaced by a new driveway central to the development. Both the slope and the purpose, or the requirements that the new driveway needs to meet, are in dispute, with the applicants arguing that disability and slopes standards need to be applied and the Commissioner and the respondent claiming that they do not. The issue of safely moving wheelie bins to the kerb from their enclosures was a focus. The Commissioner tabled a policy which provides an alternative means of having the bins taken to the kerb,[3] and it too was challenged.
[3] City Services, Bin assistance, Exhibit PJ2-2
The relevant elements of the Territory Plan codes are outlined below:
The Access and Mobility General Code (AMGC) provides the following requirements concerning a continuous accessible path of travel and walkways at rule 3 and criterion 3 as follows:
The Multi Unit Housing Development Code (MUHDC) requirement for post occupancy waste management is outlined in criterion 94. There is no applicable rule. Criterion 94 states:
Post occupancy waste management achieves all of the following:
a) consistency with the desired character
b) reasonable levels of residential amenity for the dwellings and their associated private open space on the subject site
c) reasonable levels of amenity for dwellings on adjoining residential blocks and their associated private open space.
Submissions
Dr Silvey
Dr Silvey raised concerns about the slope of the driveway:
AS 4299 applies from street frontage to boundary for any Class C adaptable housing. Sections 3.3.2 and 3.2.2 and subsidiary AS1428.1, 1428.2 and AS 2890.1 indicate that the slope of the driveway’s verge crossing would be an impediment.[4]
GNCA
[4] Silvey’s submissions dated 15 May 2024 at page 1
The GNCA argued that the driveway fails to meet the slope requirements:
The GNCA notes from Mr Hetherington’s evidence that it is now accepted that the slope from the end of the drive to the kerb is 8.65% or between 1:11 and 1:12 and consequently not consistent with an accessible path.[5]
[5] GNCA’s submissions dated 15 April 2024 at [14]
The GNCA also contended that the Tribunal should not accept the bin collection service operated by City Services as an alternative. It stated:
An alternative solution appears to have been introduced by the Commissioner … in an oblique fashion, by drawing attention to the Bin Assistance program operated by City Services. However, this ‘solution’ has not been put forward in any submission from either the Respondent or the Second Party Joined, and there has been no opportunity to examine a witness about how this ‘solution’ would work. The GNCA is unclear as to how much weight can be attached to this ‘solution’ under these circumstances, nor how we are expected to assess or refute its utility in proving compliance.[6]
[6] GNCA’s submissions dated 15 April 2024 at [14]
The GNCA’s conclusion was that the Tribunal should not accept the bin collection service operated by City Services as an alternative. It did go on, however, to assess the applicability of the bin collection service in the circumstances of this site:
The Bin Collection … on the City Services website indicates that
• the chronically ill, frail aged or those with a disability may apply to ACT NoWaste for assistance;
• ACT NoWaste may require medical or other information to support an application.
• ACT NoWaste may refuse or withdraw the provision of assistance.
• an applicant is not eligible for the service if an able-bodied person lives at the premises …
• the bins must be easily accessible and not located behind gates (all four units have their bins behind gates)[7]
[7] GNCA’s submissions dated 17 May 2024 at [14]
The GNCA doubted that the bin assistance policy would be a guaranteed alternative to a design solution, listing the following concerns:
[I]t appears that there is no guarantee that residents would be classified as eligible for bin assistance, assessment prior to qualifying for the service might be intrusive and take an indeterminable period of time, the assistance could be terminated whenever No Waste believes an able bodied person is available to deal with the bins, whether this is or is not correct, residents will have to leave the gates to their bin enclosures open (making that of Unit 3 visible from the street). And of course, City Services could decide to defund the program at any time.[8]
The Commissioner
[8] GNCA’s submissions dated 17 May 2024 at [15]
Mr Bird, on behalf of the Commissioner, tabled the Bin Assistance policy[9] and examined Mr Hetherington on the policy and the process of relocating the bins for garbage collection. The representatives of the GNCA cross-examined Mr Hetherington on the proximity of bins to an entrance and private open space but not on the bin policy.[10]
[9] Exhibit PJ2-2
[10] Transcript of proceedings, 26 March 2024, pages 60, 80
On the matter of whether the kerb side location for the garbage bins should be accessible from the block, Mr Martin indicated that the provision of bins in an accessible location is not a requirement for a Class C adaptable housing such as the proposed development.[11]
The respondent
[11] Transcript of proceedings, 27 March 2024, page 132, lines 35-39, pages 86-88
The respondent considered the requirements of rule 72 of the MUHDC[12] in some detail noting that:
Contrary to references in Dr Silvey’s submissions to AS1428.1 and AS1428.2 in respect of the driveway verge, MUHDC R72 does not apply AS1428.1 and AS1428.2, nor does any other provision of the MUHDC, nor does AS2890.1.[13]
[12] R 72 and criterion 72 of the MUHDC are set out in the Schedule to this decision
[13] Respondent’s submissions dated 8 May 2024 at [22]
The respondent further argued that the verge crossing for this development is compliant with rule 72 and consequently criterion 72 need not apply.[14] The respondent pointed out that, as required by criterion 72, the application was referred to TCCS who administer verges and verge works. TCCS supported the application with conditions which were imposed as part of their decision.[15]
[14] Respondent’s submissions dated 8 May 2024 at [22]
[15] Respondent’s submissions dated 8 May 2024 at [24]
Regarding the slope of the driveway, the respondent also noted that clause 3.3(d) of AS/NZS 2890.1:2004 – Parking Facilities, Part 1: Off-street car parking (AS 2890.1) that is called up by rule 72(j) of the MUHDC which requires that:
where the driveway crosses a footpath, the driveway grade shall be one in 40 (2.5%) or less across the footpath over a lateral distance of at least 1.0 m.[16]
[16] Respondent’s submissions dated 8 May 2024 at [21]
The respondent further submitted that:
the AMGC provides that where dwellings are required to be adaptable, the dwelling must be designed in accordance with AS4299 Class C. Contrary to Dr Silvey’s submissions, Section 3.2.2 of AS4299 does not apply to the verge crossing, as that section relates to the gradient of the site itself, not the adjacent verge that is owned by the Territory.[17]
[17] Respondent’s submissions dated 8 May 2024 at [32]
The respondent did not consider it necessary for the Commissioner to demonstrate how the Bin Assistance policy may be achieved as the Bin Assistance document gives that explanation.[18]
Consideration
[18] Respondent's submissions dated 8 May 2024 at [28]
These matters are now considered in three parts:
(a)Whether the location of the bins on the site meets the relevant criterion.
(b)The slope of the driveway.
(c)The process of relocating the bins to the kerb for collection.
Bin location
The Site Plan and the Floor Plan[19] show the location of the bins and their relationship to adjacent residential sites and to the dwellings on the subject site. The bins are in enclosures or screened by gates in a manner which is consistent with the desired character and away from the side boundaries and so provide reasonable levels of amenity for the adjoining residential blocks. The bins are also screened from view from the dwellings on the site, and the principal private open space on the site, and meet the requirements for reasonable levels of amenity on the site. They are accessible from the dwellings on gentle slopes which meet the disability standards of being less than 1:20.
Driveway slope
[19] Final Amended Plans filed 17 May 2024, Plans 2 and 8
The evidence relating to the slope of the driveway is mixed. The Commissioner suggested that the gradient is 1:12 or about 8.75%.[20] The Site Plan[21] indicates that the driveway gradient has a slope of 1:15, whereas the Parking and Driveway Plan[22] shows a correction indicating that the slope is 1:12. We agree with the GNCA that the slope may be steeper in parts.[23]
[20] Commissioner’s submissions dated 8 May 2024 at [57]
[21] Final Amended Plans filed 17 May 2024, Plan 2
[22] Final Amended Plans filed 17 May 2024, Plan 3
[23] GNCA’s submissions dated 15 April 2024 at [14]
The Stormwater Plan, C0401,[24] shows three different sections of the driveway. The plan reflects one approach to driveway construction in areas where there is a slope. The driveway sometimes begins with a curve or a gently sloping section in a transitional area between the road and the central section of the driveway. The central section is steeper. At the property boundary another segment progressively reduces in slope to transition to the flatter area within the property. Plan C0401 shows the transitional areas having a slope of 2% and the central area of the driveway having a slope of 16%. Such an approach is consistent with the requirements relating to a driveway crossing a footpath.[25] Consequently, Plan C0401 is the more credible plan. A calculation shows that a driveway with two short segments with a slope of 2% and a central slope of 16% has an average slope of about 12% over its length, as shown in the Parking and Driveway Plan.[26] The higher slope complies with the TCCS driveway design standards which specify a maximum slope of 17%.[27] TCCS has endorsed the driveway imposing a condition that the driveway design standards be met.
[24] Exhibit PJ2-4 at page 165
[25] Respondent’s submissions dated 8 May 2024 at [21]
[26] Final Amended Plans filed 17 May 2024, Plan 3
[27] Driveways, Municipal Infrastructure Standards 07, Transport Canberra and City Services, September 2021, at page 20
We agree with the Commissioner that AS 4299:1995 – Adaptable housing (AS 4299) or other standards mentioned by Dr Silvey do not need to be considered in relation to the slope of the driveway because they are not referenced in the rules and criteria outlined above.
Bin collection
The third matter relates to the transfer of the bins to the kerb for collection. The Waste Management Plan,[28] shows a path from the bin collection point passing over the grass verge. This path clearly does not meet the gradient requirements to be an accessible path. Scaling off the plan, and calculating the slope, gives an average slope of 1:13, well short of the 1:20 necessary. Mr Hetherington did agree that, if an alternative approach meeting the accessibility requirements was required, a diagonal path across the verge to a different bin collection location could be constructed on a slope of 1:20.[29]
[28] Final Amended Plans filed 17 May 2024, Plan 32
[29] Transcript of proceedings, 26 March 2024, page 63, lines 20-24
The bin locations in the proposed development are in accessible locations but the kerb collection point is not. Criterion 94 of MUHDC and criterion 3 of the AMGC focus on activities within the block and consequently do not require accessible paths outside the block on the verge. This is considered reasonable. The prospect of people guiding their wheelchairs with one arm and juggling a wheelie bin (which may be up to the weight of an adult)[30] with the other arm on a slope adjacent to a road does not seem to be an activity that should be encouraged.
[30]City Services, Wheelie bin Collections, type="1">
As mentioned above, the GNCA argued that the bin assistance policy had not been formally advanced and should consequently be ignored. We consider that the policy should be taken into account. It was raised at an early stage of the hearing and analysed in some detail in the final submission of the GNCA. The GNCA pointed out that one of the requirements of the policy relating to the site is that the bins must be easily accessible and not located behind gates whereas all four units have their bins behind gates. The Tribunal notes that the residents may have to leave the gates to the bins open on collection days and, although that will expose some bins to be viewed from the street, everyone’s bins that are to be emptied are seen on collection day.
In view of the facts that the driveway meets the TCCS gradient requirements, that the waste management arrangements on the site comply with the criteria and that a viable bin assistance policy is available, we consider that the proposal meets criterion 94 of the MUHDC and criterion 3 of the AMGC.
Continuous path issues
This issue relates to accessible paths of travel around the units and through utility corridors. The argument was that the DA does not achieve compliance with section 3.3.2 in AS 4299, as it does not satisfy the essential category and ‘subsidiary’ standards in Appendix A, nor AS 1428.1:2021 – Design for access and mobility, Part 1: General requirements for access – New building work (AS 1428.1) and AS 1428.2:1992 – Design for access and mobility, Part 2: Enhanced and additional requirements – Buildings and facilities (AS 1428.2).[31]
[31] Respondent’s submissions dated 8 May 2024 at [9]
Views differed on the requirements relating to the provision of a continuous accessible path of travel and walkways providing a link from the dwellings to the facilities on the site.
The AMGC deals with the issue of accessible path of travel and walkways in rule 3 and criterion 3.
Section 3.1 of AS 1428.1 deals with continuous accessible paths of travel. Section 3.1 states:
A continuous accessible path of travel shall not include a step, stairway, turnstile, revolving door, escalator, moving walk or other impediment.
Section 7(b) of AS 1428.2 provides:
Accessible paths of travel shall connect accessible buildings, facilities, and spaces that are on the same site.
Submissions
Dr Silvey
Dr Silvey raised the matter that the fences in the DA are an impediment to a continuous path between units 1 and 2 and between units 3 and 4 on the basis contemplated by section 3.1 of AS 1428.1.
The Private path (shown in red as Private Accessible Path on RSG A-002) winds around all of the units – but not between units. …
Between Units 1 & 2 and Units 3 & 4 there are fences. These are impediments.
The Private accessible path is not continuous and therefore not compliant with AS 4299 …
The Private Accessible Path of Travel does not [connect accessible buildings, facilities, and spaces that are on the same site]. A resident cannot pass completely around the units. Fences between U1 and U2 and between U3 and U4 prevent a resident from doing so. Facilities, accessible buildings and spaces on the site are not connected. …
The Private Accessible Path of Travel does not [connect accessible entrances of each accessible building with those exterior and interior spaces and facilities that serve it]. A resident of Unit 3 and, especially, Unit 4 with ambulant disability or wheelchair dependency cannot pass completely around his or her unit. The Utility corridors of these two units, for some half their lengths, will be mulched. The Utility corridor of Unit 4 is further occluded partially with a rain water tank.[32]
GNCA
[32] Silvey’s submissions dated 17 April 2024 at page 4 (emphasis removed)
The GNCA raised a concern about access to the master switchboard and the circuit breakers which they argued are facilities of the building to which the continuous path needed to provide access.[33]
The Commissioner
[33] GNCA’s submissions dated 15 April 2024 at [9]-[10]
The Commissioner for Housing argued that fences are not impediments.
Nothing in the AMGC (or the Australian standards that it incorporates) requires a continuous path of travel from the private open space of one unit into the private space of another. Fences between units 1, 2, 3 and 4 are required for providing adequate privacy, security and a [delineation] between the garden areas for each unit. AS4299 (3.3.3) merely requires access to common use and shared facilities (such as car park, litter boxes, garage areas). That is complied with.[34]
The respondent
[34] Commissioner’s submissions dated 8 May 2024 at [22]
The arguments of the respondent on this issue have been set out above under the driveway gradient issue.
Consideration
Three main issues of concern arose: access to the main switchboards and possibly circuit breakers in the area between units 3 and 4 which was mulched; the ability for disabled residents to be able to have access completely around their units, and whether fences are impediments.
As mentioned above, the GNCA argued that access to the master switchboard and the circuit breakers is required via a continuous path because they are facilities of the building. Mr Edquist raised with Mr Martin the possibility that the switchboards contained circuit breakers which need to be turned on. Mr Martin indicated that access was not required for a Class C building.[35]
[35] Transcript of proceedings, 27 March 2023, page 135, lines 10-13
The Tribunal accepts Mr Martin’s evidence that the utility areas between units 3 and 4 are not required to be accessible for a Class C development and do not need to be on the continuous path.[36]
[36] Transcript of proceedings, 27 March 2023, page 135, lines 19-21
Criterion 3 contains no requirement for residents to be able to pass completely around their units. It might be posed that a continuous path around the units would minimise distances travelled between the elements of the building and the facilities as required by criterion 3(c). A perusal of the Floor Plan,[37] however, reveals that there is no extra distance impediment.
[37] Final Amended Plans filed 17 May 2024, Plan 8
Section 3.1 of AS 1428.1 specifically precludes a revolving door from an accessible path, but understandably does not preclude a door. It also specifically excludes a turnstile. Although it mentions ‘other impediments’, it is reasonable to conclude that a gate is not precluded because a more complicated version of a gate (that is, a turnstile) is precluded. For these reasons, the Tribunal does not consider a gate, which is an outside door and as easy to open as a door, to be an impediment.
We consider that accessible paths are provided to the requisite facilities and the requirements of criterion 3 of the AMGC are met.
Parking in proximity to a habitable room
This issue relates to the proximity of the rear visitor car parking space to habitable rooms. The argument was that “the DA does not satisfy rule 82 of the Multi Unit Housing Development Code (MUHDC)”.[38]
The MUHDC deals with visitor parking in rule 82 and criterion 82.
Submissions
Dr Silvey
[38] Respondent's submissions dated 8 May 2024 at [9(c)]
Dr Silvey argued that rule 82 is not satisfied:
The east west running visitor car park is within 1.5 m of the windows of habitable rooms, viz., Kitchen and Bedroom 2 of Unit 2. The shared area is an intimate part of the Visitor Car Park and privacy for Unit 2 is not achieved.
The internal driveway seemingly ends at the start of the visitor car park including its shared space. The bedroom window ends just beyond (east of) that point. Beyond that point the kitchen window is exposed. Nandina, a low growing shrub, is to be planted in the (at best) 500 mm space between the window and the car park and nothing in the possibly 300 mm between the southern wall of Unit 2 and the car park (RSG F-301, Doc 12 in 16Feb24 Bundle). The proximity of this shared space to the kitchen window would virtually bring any person using the visitor car park ‘into’, as it were, Unit 2 through the kitchen window.[39]
GNCA
[39] Silvey’s submissions dated 17 April 2024 at page 6
The GNCA submission expressed concerns that:
a (very selfish) visitor might park in the ‘shared area’ associated with the disabled visitor parking area at the end of the drive, breaching MUHDC rule R73. The GNCA concedes that these concerns are baseless if it is conceded that the small circle in the shared area actually represents a bollard.[40]
The Commissioner
[40] GNCA’s submissions dated 15 April 2024 at [13]
The Commissioner argued that the visitor space between units 2 and 3 is at least 2.4 m from the nearest window or door and AS 2890 delineates between a dedicated parking space and shared area adjacent to that dedicated space. The Commissioner added that Mr Hetherington’s evidence was not contradicted by any expert and is otherwise consistent with relevant Australian standards.[41]
The respondent
[41] Commissioner’s submissions dated 8 May 2024 at [34]-[38]
The respondent provided a diagram to illustrate their views and argued that the visitor car parking space is 2900 mm from the closest wall of unit 2.[42]
Consideration
[42] Respondent’s submissions dated 8 May 2024 at [37]
The juxtaposition of the visitor car parking space and the various entrances to the units shown on the Floor Plan[43] demonstrates that the visitor car parking space provides a high level of accessibility for all visitors and its proximity to the units provides safe and direct entry. It is within a few metres of two units and clearly within 50 metres of all units.
[43] Final Amended Plans filed 17 May 2024, Plan 8
The bollard between the kitchen of unit 2 and the visitor car parking space adjacent to the unit will ensure that cars are parked at least 1500 mm from bedroom 2 and a little further from the kitchen complying with the requirements of rule 82(c) of the MUHDC.
We consider that both rule 82 and criterion 82 are met.
For the sake of completeness, the Tribunal notes the GNCA submission that the Tribunal should impose a condition to the effect that the small circle appearing in the relevant plans represents a bollard.[44] The Tribunal considers that such a condition is unnecessary.[45]
The principal private open space issue
[44] GNCA’s submissions dated 15 April 2024 at [13]
[45] Cf Commissioner’s submissions dated 8 May 2024 at [39]
This issue “relates to the dimensions of principal private open space (PPOS) for each of the units”. The argument was that “the DA does not satisfy MUHDC R61(b)”.[46]
[46] Respondent's submissions dated 8 May 2024 at [9]
Views differed on the requirements of the Territory Plan regarding the private open space and the accessibility of garden beds for disabled residents and whether the criteria were met.
The MUHDC deals with PPOS in rule 61 and criterion 61. They state as follows:
Table A9 of the MUHDC requires that dwellings in zones RZ1 or RZ2 which have two or three bedrooms and are wholly or partially at lower floor level have a principal private open space of 36 square metres minimum area with minimum dimension of six metres. The area includes an allowance of two square metres for service functions such as clothes drying and air conditioners.[47]
[47] MUHDC, Table A9 – Principal Private Open Space
The Territory Plan states that ‘dwelling’ has the same meaning as in the Planning and Development Regulation 2008.[48]
[48] Territory Plan, Part B – Definition of Terms (definition of ‘dwelling’)
Section 5 of the Planning and Development Regulation 2008 states:
(1)In this regulation:
dwelling–
(a) means a class one building, or a self-contained part of a Class 2 building, that–
(i)Includes the following that are accessible from within the building or the self-contained part of the building:
(A)at least one but not 2 kitchens;
(B)at least one bath or shower
(C)at least one toilet pan; and
(ii)does not have access from another building that is either I class one building or the self-contained part of a Class 2 building; and
(b) includes any ancillary parts of the building and any class 10a buildings associated with the building.
(2)In this section:
kitchen does not include–
(a) outdoor cooking facilities; or
(b) a barbecue in the enclosed garden room
Submissions
Dr Silvey
Dr Silvey argued that the PPOS is inadequate because rule 61 is not met, and the criterion is unclear and should not be considered. His case was as follows:
Floor Plan shows the PPOS of:
Unit 1 to be short of a 6 m minimum north-south dimension,
Unit 2 to be quite short of a 6 m minimum east-west dimension,
Unit 3 to be less than 36 m2 (at 30.5 m2) with maximum dimension of 5.5 m, and
Unit 4 largely satisfies the rule save for the rounding of the courtyard walls which deplete the area and dimension required to satisfy the rule.
C61 allows the PPOS of each dwelling to be achieved if:
(a) an area proportionate to the size of the dwelling is provided.
However, a measure of proportionate is not given and rules/criteria on how to judge such measures are not provided. In their absence the rule and dimensions in Table A9 should be followed. The PPOS of each unit at best just meets minimum requirements. As planned, they fail on the side of being less generous than what is expected to be provided.[49]
GNCA
[49] Silvey’s submissions dated 17 April 202 at page 7
The GNCA noted that both Mr Hetherington and Mr Martin were of the view that areas within the private open space (POS) did not have to be accessible to people with a disability and pointed out that this seemed to be at variance with the view of the tribunal in Griffith Narrabundah Community Association Inc v ACT Planning and Land Authority [50] (GNCA 2023) where the decision to approve the DA was overturned.
the GNCA believes that [the tribunal’s] interpretation of this rule [in GNCA 2023] … is the correct one and consequently contends that the PPOS areas of all four dwelling units, not just dwelling Unit 3, are not compliant with rule 61 of MUHDC.[51]
[50] [2023] ACAT 13
[51] GNCA’s submissions dated 15 April 2024 at [12]
The GNCA took issue with the Commissioner’s contention that there is no requirement that supportive housing tenants have access to the garden beds in the private open space of their units because the word ‘dwelling’ in rule 4 of the Residential Zones Development Code (RZDC) (which applies AS 4299 and the AMGC to supportive housing), only applies to the physical building and not the remainder of the block.[52]
[52] GNCA’s submissions dated 17 May 2024 at [22]
The GNCA contended that it is reasonable to accept that ‘dwelling’ means not only a physical building but the features of the surrounding block, such as pathways, rubbish bin areas, driveways, gardens, POS, and PPOS. The GNCA submitted that the Commissioner’s proposed interpretation is incorrect and that ‘dwelling’ in the RZDC means a building and its surrounding on the block.[53]
[53] GNCA’s submissions dated 17 May 2024 at [22]
The GNCA therefore argued that:
the landscaping provision of AS4299 under 3.5 can be applied to the surroundings of a house occupied by a person or persons with a disability or progressive frailty. Clause 3.5 requires that “When considering landscaping … attention shall be given to the following:
(a) …
(b) Accessibility of private gardens or allotments to the owners;
(c) …” …
[We consider that] the required action is to make such private gardens accessible. Mr Martin’s views notwithstanding, the meaning of the standard is quite clear except for those prepared to undergo some energetic contortions.[54]
The Commissioner
[54] GNCA’s submissions dated 17 May 2024 at [23]
The Commissioner noted that clause 3.5(b) of AS 4299 merely requires “attention” to be given to “accessibility of private gardens or allotments to owners”.[55] The Commissioner argued that the proposed development complies with at least the criterion with respect to all four units for the reasons given by Mr Martin and Mr Hetherington. Each of the units provides PPOS that is proportionate to the size of the dwelling and the applicants adduced no expert evidence to the contrary.[56]
The respondent
[55] Commissioner’s submissions dated 8 May 2024 at [27]
[56] Commissioner’s submissions dated 8 May 2024 at [28]-[29]
The respondent submitted that each of the PPOS areas complies with all elements of criterion 61, and argued that:
(a) The proportion of these PPOS areas to the size of each dwelling is shown by [the Floor Plan]. [T]hese units are each two-bedroom units and the PPOS areas are approximately equivalent to the sizes of the internal living areas for each of the units.
(b) The PPOS areas are adjacent to and extend the function of each of the respective living areas.
(c) The PPOS areas are directly accessible from the dwelling by sliding glazed doors.
(d) Service functions (other than air-conditioning units, which are within the PPOS) are achieved in other POS areas within the yards for each unit.
(e) Each PPOS is screened by fences, providing privacy.
(f) Each PPOS has reasonable solar access.[57] (citations removed)
Consideration
[57] Respondent’s submissions dated 8 May 2024 at [44]
The first issue concerns what can be in open space including mulch, garden beds, posts, and mechanical devices.
The GNCA referred to the views expressed by the tribunal in GNCA 2023. In considering the PPOS in that proposal, the tribunal commented as follows:
The space is a maximum of 3 metres wide and approximately 15.4 metres long. ... A garden bed is located adjacent to the western wall of unit 1. Exact dimensions are not given but working from the floor plan for unit 2 suggests that it occupies an area of approximately 7.7 by 0.5 metres. The effective width of approximately half the length of the PPOS therefore is 2.5 metres, not 3 metres. There is a small, landscaped space, approximately 9 m2 in area, on the southern side of the drying area extending to the rear boundary of the block, which will have a mulched surface and be planted with a Cornus kousa ‘Aurora’, a vigorous compact tree with a dense upright habit, underplanted with Lomandra domestica. We do not consider this area is useable and have excluded it from our assessment of PPOS.[58]
[58] GNCA 2023 at [162], (citations removed)
The tribunal in GNCA 2023 did not discount all mulched or planted areas, only the area which was not considered to be useable. The consideration would have been in terms of criterion 61 and, in particular, whether the space contributed to the functions of relaxation, dining, entertainment and recreation.
The GNCA took issue with the Commissioner’s position that rule 4 in the RZDC only applies to the physical buildings, that is, dwellings. The definition of ‘dwelling’ in the Planning and Development Regulation 2008 refers to the building and not the block. Even if this view is not accepted, it is noted that clause 3.3.3(a) of AS 4299 states:
Access for people with disabilities should be available to all common use facilities including car park, letterbox area, laundry and clothes drying area, garbage disposal area and at least part of the garden.
The Floor Plan[59] shows that these requirements are met.
[59] Final Amended Plans filed 17 May 2024, Plan 8
A further aspect of this issue is the shape of the open space and the accessible area. The tribunal in GNCA 2023 went on to examine the capacity of the open space to accommodate a 1.0 m square table capable of seating four people, with each person requiring 800 mm to 1.0 m on their side of the table for seating and concluded that the minimum space required was a 2.6 m square. The tribunal noted that access to the open space was through a sliding door from the dining/lounge room, which could not be achieved while the table was in place in the three-metre-wide open space with half-metre-wide garden bed. The tribunal considered that the arrangement would be unsatisfactory even if the table was moved for reasons particular to the design.[60]
[60] GNCA 2023 at [165]-[166]
The application of that assessment to the proposed development is instructive. Along the back fence the space is generally wider than the 3 m setback and is over 34 m long, which is over twice the size of the area discussed in GNCA 2023 and provides over 100 m2 of open space to be shared between units 2 and 3. This space and the other open space in the setbacks that the units enjoy is an addition to the approximately square areas of PPOS in all units except unit 4 which has this space as a separate area.
An examination of the open space layouts indicates that it is possible to locate a table capable of seating four people and accommodate wheelchair access from the adjacent part of the dwelling and a 360° movement of the wheelchair.
Dr Silvey argued that to accept an adjusted area of PPOS based on proportionality would “skimp on the minimum amount of space to be provided to occupants of the units according to the rule”.[61] The tribunal has addressed this issue in 4THD Planning & Design Pty Ltd v ACT Planning and Land Authority as follows:
Where terms such as ‘proportionate’ and ‘reasonable’ are used in criteria, the Tribunal considers it useful to consider the ‘minimum ideal’ as set out in the related rule as a useful guide. Whilst clearly ‘something less’ than the rule requirements may be approved, the degree of divergence from the rule requirement is a matter that will help guide the Tribunal in its consideration of the evidence provided in support of satisfying criterion.[62]
[61] Silvey’s submissions dated 15 May 2024 at page 2
[62] [2021] ACAT 59 at [27]
In the current case, if mulch and planting were considered to be an impediment to incorporating the full areas of the PPOS designs in the calculation for the purpose of meeting the requirements, a condition could be imposed requiring their removal. Such an action would be detrimental to the function of the open space by reducing the shading in summer and increasing the temperature in the courtyards. It would also reduce the attractiveness of the development from the street and have adverse environmental impacts. As the Cover Sheet and the Site Plan show,[63] trees in the courtyards nearest to the street contribute to a vegetative presentation to the street. On this basis, we consider that the size and shape requirements of criterion 61 are met.
[63] Final Amended Plans filed 17 May 2024, Plans 1 and 2
The issue of mechanical services was also raised. Three of the courtyards contain air conditioning units, which are permitted, and all have a post supporting a pergola, but they do not contain clothes lines, which are permitted, and which would reduce the space available for other activities, at least on some occasions. Stud walls intrude slightly into the open space in units 1, 2, and 3 but not in a way which reduces their functionality.
Privacy and solar access are also considerations for this issue. Courtyard walls or fences afford privacy within the PPOS of all units. Sheet 01 of the Shadow Diagrams[64] reasonably demonstrates that the courtyards are located on the north-eastern or north-western side of the units and receive three hours of direct sunlight onto 50% of their area between the hours of 9:00am and 3:00pm on the winter solstice (21 June). The requirement for reasonable solar access is met.
[64] Final Amended Plans filed 17 May 2024, Plan 5
The courtyards are generally a little larger than the living areas of the units and are considered to have an area proportionate to the size of the dwelling. They are directly accessible from the dwelling and meet their functional requirements. They afford reasonable privacy and receive ample solar access. While rule 61 is not met, criterion 61 is met.
The internal circulation spaces issue
This issue relates to “internal circulation spaces in bedrooms, kitchen areas, and living areas”. The argument was that –
the DA does not meet AS4299 (1995), as does not satisfy: section 4.1.1 and the [e]ssential category for Item 62 of Annexure A; s 4.5.2 and the [e]ssential category for Item 42 of Annexure A; and section 4.5.2 and the [e]ssential category for Item 36 of Annexure A.[65]
[65] Respondent's submissions dated 8 May 2024 at [9]
The internal circulation space was the subject of significant discussion during the hearing and issues were resolved progressively. A revised floor plan was tabled at the hearing, but some details were still in contention.
The AMGC rule 10 states:
where dwellings are required to be adaptable, the dwellings must be designed in accordance with AS 4299 Class C (adaptable housing).
Appendix A of a AS 4299 provides a schedule of features for adaptable housing. It states that an adaptable house Class C requires all essential features to be incorporated but desirable features do not need to be incorporated. The specific requirement for the bedrooms is listed at item 62 as follows:
at least one bedroom of area sufficient to accommodate queen size bed and wardrobe and circulation space requirements of AS 1428.2.[66]
[66] AS 4299, Appendix A, item 62
AS 1428.2 deals with circulation around beds in clause 24.3(e) which states:
The clear circulation space around beds shall not be less than that shown in figure 29.[67]
[67] AS 1428.2, clause 24.3
Figure 29 shows, for a double bed, a circulation space of 1000 mm on both sides of the bed and notes that 1200 mm is preferred. It also shows a side table in this space. At the end of the bed is a circulation space which is required to be in accordance with clause 6.2[68] which states:
Circulation space for 180° wheelchair turn The space required for a wheelchair to make a 180° turn shall be not less than 2070 mm in the direction of travel and not less than 1540 mm wide.
NOTE: a space of 2270 mm in the direction of travel and 1740 mm wide is preferred.[69]
Submissions
Dr Silvey
[68] AS 1428.2, clause 24.3
[69] AS 1428.2, clause 6.2
Dr Silvey raised issues with the bedrooms, kitchens, and corridors in the plans and indicated the relevant sections of the specific Australian Standards involved.
Bedrooms …
For Beds AS 1428.2 1992 Sect 24.3 (e) Fig. 29 shows Circulation space in accordance with clause 6.2 (180° wheelchair turn) to apply at foot of bed but to be 1000 minimum to any obstruction (1200 preferred) beside a bed. Bed 1 of U1, U2, and U3 comply but not Bed 1 U4 with both of its sides at 1200 mm (<1500 mm). Getting into this bed from a wheelchair would be constrained.
Beds 1 in Units 1-3 provide 1540 mm on the side of the bed that is closest to the door but Unit 4 does not. The sense of AS 1428.2-1992 §6.2 and AS 1428.1-2021 §3.5.4 is to make getting in and out of bed as straight forward as possible. As proposed, circulation space in the bedrooms does not so allow.
For 60° to 90° turns Beds 1 in Units 1, 2 and 3 fail on one side of the bed and foot and Bed 1 in Unit 4 fails on both sides of the bed.
No bedroom in any of the units with queen sized beds (rooms labelled Bed 1) has space for a wheelchair to turn half circle (180°) on all sides of the bed. Only one side of the bed in each of Bedrooms 1 in Units 1, 2 and 3 but not 4 could accommodate a 180° turn. Bedroom 1 in Unit 4 has space at the end of the bed for a 180° turn.
No bedroom has space for a 360° wheelchair turn in line with AS 1428.2 1992.
Kitchen areas
… Minimum clearance in front of appliances and between opposing base cabinets shall be provided at the outset. A minimum clear floor space of 1500 mm x 820 mm that allows either a forward or parallel approach by a person in a wheelchair shall be provided at the sink and all appliances in the kitchen. In addition a minimum clearance of 1550 mm shall be maintained between all opposing base cabinets, appliance and walls to allow for a 180° turn by a person in a wheel chair. For further guidance see AS 1428.2 (AS 4299-1995 – §4.5.2 pg 23 and Appendix A, Item 42 [e]ssential …)
Kitchen in Unit 3 is less than 1550 mm wide between bench workspaces and base cabinets, refrigerator and cabinets, oven and pantry …
Living areas
… Provision shall be made for circulation space to enable a 360° wheelchair turn after the furniture has been placed.
Note: an area of 2250 mm minimum diameter after the furniture has been placed will satisfy this requirement. (As 4299-1995 §4.7.1 pg 27 and Appendix A Item 36 [e]ssential)
Dining table in Unit 3 Living area obstructs passage to Kitchen.
East-west running corridors in all units are less than 1540 mm wide which is specified for 180° turns under AS 1428.2-1992 §6.2 and AS 1428.1-2021 Section 3.5.4.[70]
The Commissioner
[70] Silvey’s submissions dated 17 April 2024, pages 8-9, (emphasis removed)
The Commissioner responded that the arguments had no merit because:
(a)the bed in bedroom 1 of unit 4 provides the required 1540 mm of space on the side that is closest to the door (it provides 1550 mm);
(b)there is no requirement for a 180° wheelchair turn on all sides of a bed;
(c)there is no requirement for a 360° turn as alleged;
(d)the kitchen in unit 3 is compliant with all requirements;
(e)dining tables and other loose items of furniture can be moved; and
(f)the corridors comply with AS 4299 and AS 1428.1.[71]
The respondent
[71] Commissioner’s submissions dated 8 May 2024 at [44]
The respondent also rejected all the claims in Dr Silvey’s submissions and argued that:
(a)the double beds in the bedrooms comply with figure 29 in AS 1428.2;[72]
(b)each kitchen shown in the Floor Plan is marked with a circulation area of 1550 mm, meeting the requirements;[73]
(c)similarly, a circulation area of 2250 mm is marked on the living areas therefore meeting requirements;[74]
(d)the corridors for each unit comply with the requirements for the width of the continuous accessible paths of travel which is 1000 mm except in the case of a curved ramp or walkway, and corridors are not circulation spaces as such spaces are accommodated at the ends of corridors.[75]
Consideration
[72] Respondent’s submissions dated 8 May 2024 at [46]-[47]
[73] Respondent’s submissions dated 8 May 2024 at [48]
[74] Respondent’s submissions dated 8 May 2024 at [49]
[75] Respondent’s submissions dated 8 May 2024 at [50]
The Commissioner argued that this issue was not raised at the hearing and none of the Commissioner’s experts were cross examined about the issues and the applicants have produced no evidence in support of their contentions. Consequently, it was argued that the Tribunal should not permit these issues to be raised at this late stage.[76] Conversely, the GNCA expressed concerns about new versions of the plans that were provided by the Commissioner during the hearing and beyond.[77]
[76] Commissioner’s submissions dated 8 May 2024 at [42]-[45]
[77] Transcript of proceedings, 26 March 2024, page 14, lines 42-44
On balance, the Tribunal has decided to consider Dr Silvey’s concerns, taking into account the following factors:
(a)the Floor Plan is dated 25 March 2024,[78]indicating that it was completed the day before the hearing;
(b)the revision number is P22, in contrast to many, but not all, of the other plans which have revision numbers in single digits, suggesting that this issue has been well discussed and more changes have been made to this plan than to others;
(c)the parties have taken some steps in order to solve some complex problems;
(d)the parties needed to take some time to consider the plans given the range of standards involved;
(e)the parties each had three weeks after the hearing to consider this issue, and the revised plans, to consult their experts and make further submissions if necessary.
[78] Transcript of proceedings, 26 March 2024, page 15, line 31
The sub-issues relating to the bedrooms, the kitchens, and the living areas and corridors are now considered in turn.
Dr Silvey accepted the arrangements in units 1, 2, and 3 but was concerned with the spaces beside the bed in unit 4 stating that they are only 1200 mm. As indicated above, however, figure 29 indicates that 1200 mm is the preferred minimum dimension and is acceptable.
In the case of kitchens, AS 4299 outlines 12 requirements. The issue raised by Dr Silvey concerns item 42, which states:
minimum width 2.7m (1550 mm clear between benches).
Dr Silvey argued that the kitchen in unit 3 is less than 1550 mm wide between bench workspaces and base cabinets, refrigerator and cabinets, oven, and pantry.[79] Unit 3 has the tightest of the kitchens and has the minimum distance of 1550 mm between the various kitchen elements. A check shows that the kitchen is 2750 mm wide, with 600 mm benches on each side, which leaves a 1550 mm space between them, and consequently meets the standard.
[79]Silvey’s submissions dated 17 April 2024 at item 8
Dr Silvey also contended that the dining table in unit 3 living area obstructs passage to the kitchen.[80] Measurements taken by scaling off the plan nominated by Dr Silvey, the Floor Plan, indicate that the separations between the various items of furniture and between the furniture and the walls on a path to the kitchen are more than 1600mm, in excess of the 1000 mm to 1200 mm required.
[80] Silvey’s submissions dated 17 April 2024 at item 8
In relation to the living areas, two issues are involved: circulation in the living areas and the width of the corridors. The AS 4299 requirements for circulation in the living room and dining room are stated in item 36:
Provision for circulation space of min. 2250 mm diameter.[81]
[81] AS 4299, Appendix A, item 36
The requirement which relates to corridor width is at item 34 which states:
Internal corridors min. width of 1000 mm.[82]
[82] AS 4299, Appendix A, item 33
A circulation space of 2250 mm is marked in each of the four living areas in accordance with the requirements.
Dr Silvey further argued that east-west running corridors in all units are less than 1540 mm wide which is specified for 180° turns under section 6.2 of AS 1428.2 and section 3.5.4 of AS 1428.1.[83] As outlined above, however, the required width for corridors is 1000 mm. The Floor Plan identifies the corridor dimensions for the east-west corridors to the left and right of the page. The widths are 1358 mm, 1522 mm, 1230 mm, and 1230 mm for units 1 to 4 respectively and hence they comply.
[83] Silvey’s submissions dated 17 April 2024 at item 8
On this issue, the Tribunal concludes that rule 10 of the AMGC of the Territory Plan is met.
The building materials issue
This issue concerns the building materials for the development. The argument was that they are not compatible with existing houses on Roe Street and the neighbourhood and therefore the DA does not meet criterion 3(d) of the RZDC.[84]
[84] Respondent's submissions dated 8 May 2024 at [9]
The buildings are proposed to be constructed of little Hampton bricks, which are red bricks with some variation and white spotting, corrugated metal roofing, dark vertical courtyard elements and screening, and basalt coloured roller doors to the garages. Views differed as to whether these materials were compatible with those in the locality.
The RZDC criterion 3 states:
buildings accommodating supportive housing or retirement village achieve all of the following:
a) consistency with the desired character
…
d) compatibility with the exterior building materials of existing buildings in the locality.
We will discuss the desired character aspect later in these reasons but deal with the building materials aspect here.
Submissions
Dr Silvey
Dr Silvey argued that, as the site visit showed, the building materials are unlike any other residences in the street, including the Commissioner’s previous development. He provided the following detailed commentary:
RSG A-901 shows “Little Hampton Bricks”, corrugated roofing, aluminium sheets of one finish or another, and aluminium vertical screening.
The site visit of 26 March 2024 would have shown that on Roe Street and in the immediate vicinity, for example, Bannister Gardens and parts of Barrallier and Lockyer Streets, dwellings are predominantly constructed of Canberra red bricks, terracotta roofing tiles and timber fascia and fittings. There are exceptions: No. [X] Roe Street and … [X] Captain Cook Crescent. The exceptions are aberrations: the Griffith Neighbourhood Plan, current at the time of the construction of these exceptions, should have precluded their constructions.
Accordingly, the plan proposes to use exceptions to existing [structures] thereby creating a disjunction between what largely remains of common materials existing in the street from inception and those planned to be used.
Building materials are not compatible with existing on Roe Street and neighbouring. RZDC C3 (d) is not achieved.[85]
The Commissioner
[85] Silvey’s submissions dated 17 April 2024, page 11 (emphasis removed)
The Commissioner commented:
The building materials of the proposed development are unobjectionable. There is a wide and diverse range of building materials in other houses in the area. The very notion of affordable housing - which the zone objectives expressly contemplate - means that public housing projects will not comprise precisely the same type of materials that some of the private land owners in the suburbs may choose to employ and enjoy.[86]
The respondent
[86] Commissioner's submissions dated 8 May 2024 at [73]
The respondent submitted:
The house on the north side of the development site is not a red brick building, nor does it match the appearance of other buildings on [Roe] Street. Furthermore, a prime example of modern architecture is situated nearby at [X] Captain Cook Crescent which was identified during the site view. … [T]he development for support[ive] housing achieves compatibility with exterior building materials of existing buildings in the locality per RZDC C3 (d), noting also that the building will be constructed of red brick.[87]
Consideration
[87] Respondent’s submissions dated 8 May 2024 at [54]-[55]
On the issue of compatible styles, the tribunal has previously stated the following in relation to new developments occurring in existing residential areas (when discussing dual occupancy blocks):
Opinions as to design preferences and outcomes will invariably differ. Development on dual occupancy surrendered blocks will always be new. Satisfying the criterion does not require replication and development on these blocks [and] will invite a more modern approach to design and architectural styles.[88]
[88] Hipkins v ACT Planning and Land Authority [2022] ACAT 41 at [99]
A perusal of the aerial photography of the area in the present case shows that white, grey, and light-coloured roofs are dotted around the adjacent roads. Red brick, the main material of the walls in the proposed development, is a long standing and often used material in the Griffith area and were referenced positively by Dr Silvey, although he stated that the Little Hampton bricks are not the same as Canberra red bricks.[89] While red brick, white render and terracotta tiles are prevalent in the area, many of the newer houses are using different materials. The house to the north of the subject site has darker tiles and different bricks to the Griffith norm. The walls, including garages, and roofing materials have the main influence on the appearance of the development. Dark screens and basalt coloured roller doors are unexceptional and are a small component of the street elevation which benefits from a blend of colours. The roof will be reflective for an initial period until it dulls to a traditional corrugated colour.
[89] Silvey’s submissions dated 20 December 2023, part 4 item 7
We consider that the building materials are compatible with exterior building materials of existing buildings in the locality. Criterion 3 is met.
The overshadowing issue
This issue concerned the structure on the neighbouring block which was variously described as a ‘garage’ or a ‘studio’. The argument was that it “is a habitable room and the shadow diagrams do not show the impact of the proposed development on the neighbouring land”.[90]
[90] Respondent's submissions dated 8 May 2024 at [13]
A structure in the rear of Dr and Mrs Silvey’s residence was the subject of overshadowing concern.
The relevant part of rule 26 of the MUHDC states:
Buildings sited wholly within the solar building envelope formed by planes projected over the subject block at X° to the horizontal from the height of the solar fence on any northern boundary of an adjoining residential block.
The height of the solar fence is:
…
i) In the primary building zone - 2.4m
ii) all other parts of the boundary - 1.8m
Table A4 gives the result of 32° for the aspect of the northern boundary between N 10° to less than 20° W.[91]
Submissions
GNCA
[91] MUHDC Table A4 - Apparent Sun Angle at Noon on the Winter Solstice at page 14
The discussion was complicated by a disagreement concerning the status of the structure that is used by Mrs Silvey. The GNCA commented as follows:
The GNCA welcomes ACTPLA’s statement that the structure described as a ‘garage’ is a habitable room. For convenience we shall refer to this structure as the studio. The GNCA’s concern was (and is) that it is not clear from the shadow diagrams how far up the wall of the studio the shadow of the proposed development will be at various times of 21 June.[92]
[92] Commissioner’s submissions dated 15 April 2024 at [24]
The Tribunal will refer to this structure as the ‘Silvey structure’.
The Commissioner
The Commissioner argued that the proposed development does not have any material impact on the solar access of the Silvey structure stating that evidence in Exhibits PJ2-4 and PJ2-5 indicates that the shadowing of the structure is mostly attributable to the fence that already exists to separate the two properties.[93]
The respondent
[93] Commissioner’s submissions dated 8 May 2024 at [65]
The respondent outlined its agreement with Mr Hetherington who gave evidence in some detail that the requirements of the Territory Plan were met [94]and included a diagram explaining that the requirements of the code had been met.[95]
Consideration
[94] Transcript of proceedings, 26 March 2024, page 56, lines 16-19
[95] Respondent’s submissions dated 8 May 2024 at [60]-[61]
A trigonometrical calculation based on the section on Plan 18, Sections,[96] demonstrates that the shadow cast at 12:00pm on the winter solstice would fall well short of the top of the fence and would not add to the overshadowing of the Silvey structure.
[96] Final Amended Plans filed on 17 May 2024, Plan 18
It is not necessary for the Tribunal to make a finding about the nature of the Silvey structure. The issue of concern is whether the proposal meet the requirements of the Territory Plan relating to overshadowing. Essentially, rule 26 of the MUHDC requires the highest point of any building to the north of the studio to be lower than a line drawn from a point 1.8 metres above the ground level at the fence line and increasing at an angle of 32°. Any building within this envelope will not cast a shadow which is contrary to the requirements of the rule. As mentioned above, this issue is addressed in Plan 18 of the Final Amended Plans. The allowable building envelope is shown on the left-hand component of the section third from the top. Scaling off that plan indicates that the proposed building is 1.2 m lower than allowable at the gutter nearest the fence and the Silvey structure, and about 3 m lower at the peak of the roof and hence does not cast an unacceptable shadow.
Consequently, rule 26 of the MUHDC concerning overshadowing is satisfied.
The desired character issue
Criterion 3 (a) of the RZDC states as follows:
Buildings accommodating supportive housing or retirement village achieve all of the following:
a) consistency with the desired character … of existing buildings in the locality.
‘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.
‘Streetscape’ includes the –
visible components within a street (or part of a street) including the private land between facing buildings, … 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.[97]
[97] Territory Plan, Part B – Definition of Terms (definition of ‘desired character’)
Section 119 of the PDA states that –
development approval must not be given for a development proposal in the merit track unless the proposal is consistent with–
a) the relevant code.
The applicants argued that the DA does not meet criterion 3(a) of the RZDC, because it is at odds with the predominant existing character.[98]
[98] Silvey’s submissions dated 17 April 2024 at page 10
For the sake of completeness, the Tribunal also notes that the applicants argued that the development must comply with section 120 of the PDA insofar as that provision requires the tribunal to consider the zone objectives under subsection 120(a), the suitability of the land under subsection 120(b), each representation under subsection 120(d), and the probable impact of the proposed development under subsection 120(h). [99] Section 120 is set out below. The Tribunal will predominantly discuss the parties’ submissions regarding subsections 120(b) and 120(h) later in these reasons. However, as regards subsection 120(a), because that provision focuses upon zone objectives, there is some overlap with a discussion of the relevant codes themselves e.g. RZ1. Dr Silvey’s submissions dealt with the desired character under his submissions regarding subsection 120(a) therefore his arguments will be set out immediately below under the discussion regarding criterion 3(a) of the RZDC.
Submissions
Dr Silvey
[99] For example, GNCA submissions dated 15 April 2024 at pages 11-13
In his submissions regarding the desired character, Dr Silvey argued that the plans show a character quite at odds with the dwellings on Roe Street and in the streets that bookend it as well as throughout the older, core Griffith. He contended that multiple units are not characteristic of the street, which features single dwellings: one per block. He argued that although the aged persons units (APUs) at Roe Street contradict this claim because they are not single dwellings they have hipped, tiled roofs and are stuccoed brick with red brick fascia around their windows – all of which go some of the way to matching what was around them at the time of their construction and, with ageing, remain somewhat complementary. The proposed units are quite different, presenting a highly contemporary character, which is at odds with even the more traditional features of the APUs. He contended that the roofs differ to the hipped roofs of the APUs and the proposed units are skewed several degrees to the driveway, unlike all other driveways in the street and throughout Griffith. Further, he said the driveway opens to courtyards rather than front yards and is all but barren of trees.[100]
[100] Silvey’s submissions dated 17 April 2024 at page 10
In his submissions regarding section 120(a) of the PDA (which is set out below), Dr Silvey pointed to the proposed development with its metal clad, longitudinally running gabled roofs, fascia of plastic, metal and fibre, brick other than red, street‑side units with courtyards projecting to within less than three metres of the front boundary which, he argued, were not complementary to the existing streetscape. He stated that the proposed development is not of low density, but taken together on a consolidated block as planned, is dense and tight. He submitted the face is not of single dwellings but of units around a “barren, unshaded, straight driveway more in the manner of a motel”.[101] He stated that the site visit would have shown the character of single dwellings on Roe Street and nearby. He pointed to the dwellings on the street which he argued mainly date from 1939. From the top down, all display hipped and tiled roofs, red brick, either painted or naked, front yards with greater than the six-metre set back, verges grassed and with ash trees, and single driveways running perpendicular to the street.[102]
[101] Silvey’s submissions dated 17 April 2024 at page 12
[102] Silvey’s submissions dated 17 April 2024 at page 12
Dr Silvey further argued that the valued features of the neighbourhood continue to be those described in the Griffith Neighbourhood Plan 2004. This document illuminates the character of the residential area of Griffith as it stood in 2004:
Griffith is primarily residential and is known for its beautiful streetscapes with generous streets, wide verges containing mature trees, and many original rendered, painted and red brick homes with pitched terracotta tiled roofs and attractive front gardens. Its residential character still typifies garden city planning principles. The suburb has been experiencing some change in recent years with an increase in the number of apartments and dual occupancies in the area.[103]
[103] Silvey’s submissions dated 17 April 2024 at page 13, referencing Griffith Neighbourhood Plan 2004, page 21
Dr Silvey commented that the Griffith Neighbourhood Plan goes on to speculate about the future character of the suburban (residential) area:
Whatever the change the low-density character, established street trees and mature garden setting will remain [and] … [t]he redevelopment of new single dwellings and dual occupancies must be in keeping with the existing suburban character …[104]
[104] Silvey’s submissions dated 17 April 2024 at page 13, referencing Griffith Neighbourhood Plan 2004, pages 24, 25
Dr Silvey argued that while ACTPLA may have withdrawn this document, ostensibly replacing it with the Griffith Precinct Code, a completely different type of document, the principles and sentiments remain.[105]
GNCA
[105] Silvey’s submissions dated 17 April 2024 at page 13
The GNCA argued that there are 12 blocks in Roe Street with the four corner blocks principally engaging with Lockyer and Barrallier streets. Of the eight remaining blocks, two (one quarter) have already been combined with a central driveway. This proposal involves two more being combined with a central driveway resulting in half the street being changed from the original street layout.[106] The subject site is zoned RZ1[107] and the GNCA referred to Sterner & Anor v ACT Planning and Land Authority (Sterner)[108] in which the tribunal ‘usefully examined section 120 (d) PDA on limiting the extent of change’. The GNCA quoted the tribunal in that case as follows:[109]
The Court of Appeal in Baptist drew attention to the relationship between objectives and the codes as being in providing instructions to the drafter of the codes.[110] Such instructions are very evident in the terms of the present objective b) and its corresponding objectives for RZ2 and RZ3, as below:
a) RZ1 - Protect the character … by limiting the extent of change that can occur particularly with regard to the original pattern of subdivision adopted in the establishment of the area and the density of dwellings
b) RZ2 - Provide opportunities for redevelopment by enabling a limited extent of change with regard to the pattern of subdivision and the density of dwellings.
c) RZ3 - Provide opportunities for redevelopment by enabling changes to the pattern of subdivision and the density of dwellings.[111]
The Commissioner
[106] GNCA’s submissions dated 20 March 2024 at [57]
[107] The Zone Objectives of RZ1 are set out in the Schedule to these reasons
[108] [2023] ACAT 60
[109] GNCA’s submissions dated 20 March 2024 at [58]
[110] Citing Baptist Community Services v ACT Planning and Land Authority [2015] ACTCA 3 at [47]
[111] Sterner & Anor v ACT Planning and Land Authority [2023] ACAT 60, (emphasis added)
The Commissioner relied upon the witness statement of James Hetherington[112] to establish compliance with criterion 3(a) of the RZDC.[113] Mr Hetherington stated the following regarding this issue:
34. Roe Street Griffith and its neighbouring streets contain a variety of housing types that reflect the era in which they were built, [r]anging from Interwar period housing, through to late 20th century housing. These buildings can be characterised as generally single storey rendered and painted red brick homes.
35. More contemporary housing constructed in the vicinity can generally be characterised as two storeys rendered and painted triple fronted brick veneer. The neutral colours and finishes are typically in contrast with the red brick and terracotta tiled roofs exhibited in the older style of housing.36. The proposed development demonstrates consistency with the desired character by being consistent with the Zone Objectives [of residential zone 1 (RZ1)].[114]
[112] Witness statement of James Hetherington dated 16 February 2024 (Exhibit PJ2-5)
[113] Commissioner's submissions dated 8 May 2024 at [68]
[114] Witness statement of James Hetherington dated 16 February 2024 at [34]-[36]
Mr Hetherington addressed the objectives of RZ1 with reference to the DA as follows. The extracts below focus upon the objectives that were in contention in the proceedings:
a)objective a) – by keeping the development to a single-storey
b)objective b) the existing dwellings on blocks 21 and 22 are adjoining with a common wall on the shared boundary. This gives the appearance of a single frontage across two blocks. The proposed redevelopment is more consistent with the typical single dwelling street front patter[n]ing and exhibits a distinct frontage to each block.
c)objective c) – the provision of Class C adaptable public housing achieves the objective to increase the volume of affordable and sustainable housing choices that meet changing household and community needs
d)objective d) – the development respects the existing features of the neighbourhood and landscape character, with its wide tree lined verge and semi formal landscaped edge to the front boundary. Both existing verge crossings are in poor condition and will be removed and improved by consolidation into a new single verge crossing and driveway.
e)objective e) – the proposed development is residential in nature and is compatible with the objectives of possible home-based employment.
f)objective f) – the proposed development is classified as supportive housing and is compatible for residential use in Suburban Zones.
g)objective g) – the proposed development orients living spaces and principal private open spaces to the north with the objective to maximise solar energy throughout the year.[115]
[115] Witness statement of James Hetherington dated 16 February 2024 at [38]
The Commissioner made the following submissions in support of the argument that criterion 3(a) has been met.
70. The buildings are appropriately sited on a large, consolidated block (1647sm). The zone objectives do not prohibit multi-unit housing. The buildings are single storey and do not present excessive bulk and scale. There is no material impact on the streetscape. Only one dwelling on each block to be consolidated presents to the street.
71. The proposed development will bring the bulk and scale of the building on the site more in line with the size and scale and associated plot ratios with what is typical for the area. The site, unlike most of the neighbouring properties, has not maximised development efficiencies and plot ratios: compare the bulk and scale of the housing in Bannister Gardens in particular (which, as Mr Ekin correctly observes, is essentially an extension of Roe Street under another name).
72. Importantly, the zone objectives expressly provide for a wide range of affordable housing. Supportive housing is permissible in the RZ1 development table. Residents of any residential suburb in Canberra (including the wealthier suburbs) can reasonably expect supportive housing projects of this nature to coexist with private household constructions.[116]
The respondent
[116] Commissioner's submissions dated 8 May 2024 at [70]-[72]
The respondent argued that the proposed development is consistent with the desired character of the RZ1 Suburban Zone insofar as it provides for low rise and is low density in character. The APUs in Roe Street demonstrate that multi-units are characteristic of the street. Further, the house on the north side of the proposed development is not a red brick building, nor does it match the appearance of other buildings on Roe Street. Furthermore, a prime example of modern architecture is situated nearby at Captain Cook Crescent, which was identified during the site view.[117]
[117] Respondent's submissions dated 8 May 2024 at [54]
The respondent argued that the principles that are relevant to a consideration of desired character are set out in the decision of the tribunal in GNCA 2023. Although GNCA 2023 involved a development in Narrabundah and the principles were therefore applied to a different development, street and suburb, the respondent argued they are equally applicable to the present DA:
99. [. . .] 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 … the general lack of consistency in style and character of other housing in the neighbourhood.
Consideration
The question for the Tribunal in relation to this issue is whether buildings accommodating the supportive housing will achieve consistency with the ‘desired character’.
As mentioned above, ‘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. ‘Streetscape’ includes the visible components within a street, or part of a street, including the private land between facing buildings, 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.[118]
[118] Territory Plan, Part B – Definition of Terms (definition of ‘streetscape’)
There is no applicable precinct code, therefore 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.
We agree with and adopt the tribunal’s statement in Village No 22 Pty Ltd v ACT Planning and Land Authority that the:
The definition of ‘desired character’ permits consideration of whether the manner or style of arranging and co-ordinating the component parts … will have a “pleasing or effective result” regarding siting, building bulk and scale and resulting streetscape.
A ‘pleasing or effective result’ is not to be judged at large. It must be assessed by reference to relevant zone objectives.[119]
[119] [2021] ACAT 43 at [126]-[127]
The present Tribunal also agrees with and adopts the reasoning of the tribunal in GNCA 2023[120] that the 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.
[120] [2023] ACAT 13
The Tribunal notes the argument made by the respondent and the Commissioner that the buildings are low rise and low density in character. It has 4 dwellings on a large, consolidated block (1647 sm). Overall, the Tribunal does not consider that the buildings are inappropriately sited, nor do they present as having excessive bulk and scale compared to other properties in the neighbourhood. Like the tribunal in GNCA 2023, the present Tribunal observes that the architectural design, the building materials (as is discussed in more detail above) and textures are unremarkable. The Tribunal considers that GNCA 2023 may be distinguishable because there is greater consistency in the style and character of the other housing in the neighbourhood in Griffith than the neighbourhood in Narrabundah under consideration in that case but that is not a remit for the Tribunal to accept the invitation of the GNCA to apply Sterner to limit the extent of change by the application of criterion 3 of the RZDC via RZ1. Apart from the statement quoted by the GNCA, the present Tribunal does not consider that Sterner stands for a general proposition that change in the RZ1 zone should be discouraged. Each type of housing and the character of the neighbourhood in which is it situated must be considered on its own facts.
The Tribunal observed changes in the neighbourhood during the site view, for example the modern architecture exemplified by the development at Captain Cook Crescent. The zone objectives do not prohibit multi-unit housing and supportive housing is permissible in the RZ1 zone. The presence of the APUs in the street also shows that transitions have occurred in the long term in features of the neighbourhood away from the original character of the street that Dr Silvey references. Likewise, two of the eight remaining blocks have a central driveway which the GNCA notes means, as regards the driveways, half the street will have changed from the original street layout. Dr Silvey’s submissions reference the Griffith Neighbourhood Plan, which noted in 2004 that Griffith had been experiencing some changes at that time, with an increase in the number of apartments and dual occupancies in the area. The Tribunal notes the significance of the submissions made by Dr Silvey about the desired character of Griffith and recognises that its low-density character, established street trees and mature garden setting is a significant feature of the suburb. However, the Tribunal considers this development incorporating single dwellings as well as landscaping clusters that increase the number of trees and shrubs on the site is not inconsistent with the desired character of both the suburb of Griffith and its progression over time as well as RZ1 more generally.
The Tribunal finds that criterion 3(a) is achieved.
The section 120 of the PDA issue
The relevant provisions of section 120 of the PDA state as follows:
120Merit track–Considerations when deciding development approval
In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:
(a) the objectives for the zone in which the development is proposed to take place;
(b) the suitability of the land where the development is proposed to take place for a development of the kind proposed; …
(h) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
The applicants argued that the DA does not achieve the objectives in subsections (a), (b), and (h) of section 120 of the PDA.
The Tribunal has outlined the arguments made by the applicants regarding subsection 120(a) above. In their representation about the DA, the GNCA argued that subsection 120(b) should be applied because the land is unsuitable for the proposed development because it will create a conglomeration of social housing in the area that is not only contrary to the government’s policy but also does not accord with sound planning practice.[121] In the ACAT proceedings the GNCA also made arguments about the application of subsection 120(h). As set out above, this subsection requires the respondent (and the tribunal upon review) to consider the “probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts”. The GNCA’s arguments about subsection 120(b) and subsection 120(h) essentially raise the question about the operation of the ACT Government’s ‘salt and peppering policy’. Both submissions assert that the concentration of social housing on Roe Street breaches the salt and peppering policy.
Submissions
GNCA
[121] GNCA Representation dated 5 July 2023, Tribunal documents at pages 373 - 399 at 397-398
The GNCA described the salt and peppering policy as follows.
‘Salt and peppering’ or ‘pepper potting’ is the urban design practice of mixing social housing into residential neighbourhoods. This tenure diversification is designed to lead to an increased social mix in areas to help create more “balanced” and stable communities [and] is “thought to ensure tenure blindness, since homes serving different tenures are, for all purposes, indistinguishable”.[122]
[122] GNCA Representation dated 5 July 2023, Tribunal documents at pages 397-398, quoting Ryan van den Nouwelant and Bill Randolph, ‘Mixed tenure development literature review’ 2016 page 2
The GNCA quoted the ACT Minister for Housing, Yvette Berry, who commented:
The renewal program has been following and continues to and will follow the principle of “salt and peppering”.
This program accords with best practice urban design.[123]
[123] Yvette Berry, speech to the ACT Legislative Assembly 29 March 2017 quoted in GNCA representation 5 July 2023 at Tribunal documents, page 398
The GNCA said that the outcome of the proposed DA is that Roe Street, which is a small street, will have 70% social housing and this reverts to the old practice of amalgamation of social housing in a cluster.[124] This argument was repeated in the GNCA’s submission on subsection 120(h): it submitted that a previous decision of the tribunal in Lourandos and Yiannokopolous & ACT Planning and Land Authority (Lourandos)[125] supported the view that the phrase ‘environmental impacts’ in the text of subsection 120(h) includes social impacts.
[124] GNCA Representation dated 5 July 2023, Tribunal documents page 398
[125] [2011] ACAT 25 at [217]
During the ACAT proceedings, the GNCA’s submissions on this issue evolved, so they contended that there is a strong argument that context must be used when interpreting section 120. The GNCA argued that such an approach is consistent with High Court authority that has decided that context is not something to which reference will only be made after other approaches have failed to reveal the meaning of a statute or its provisions. Context is to be considered much earlier in the process of interpretation.[126] The GNCA said that the tribunal has faced challenges in interpreting section 120 and there is a strong argument that the context must be used in such circumstances including objects clauses and extrinsic materials.[127]
[126] GNCA submissions dated 20 March 2024 at [45] citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384
[127] GNCA submissions dated 20 March 2024 at [48], citing Hamilton v ACT Planning and Land Authority& Ors [2018] ACAT 121
In their post hearing submissions, the GNCA commented that the salt and peppering policy is ACT government policy and relied upon Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (Drake No 2)[128] where Brennan J concluded that decision makers charged with the responsibility of undertaking merits review should generally apply ministerial policy unless the policy was unlawful or “there are cogent reasons to the contrary”.[129] The reason for this, said the GNCA, is so citizens know what to expect from a decision maker. For example, a person making a decision about the purchase of a property anticipates the application of the government’s stated salt and peppering policy.[130] When applied to the current development the ‘area’ referred to in the government policy is encompassed by the street and shows significant density of social housing in Roe St. Other social housing properties in neighbouring streets have been sold, thereby increasing the densification in Roe St.[131]
Dr Silvey
[128] [1979] AATA 179
[129] GNCA submissions dated 15 April 2024 at [28] citing Drake No 2
[130] GNCA submissions dated 15 April 2024 at [28]
[131] GNCA submissions dated 15 April 2024 at [33]
Dr Silvey made similar arguments about the salt and peppering policy in his submissions. His submissions attached a memorandum from the Executive Director, Housing and Community Services dated 23 March 2016 which referred to Housing ACT’s policy on salt and peppering. This document includes the following statement:
Salt and peppering is not a mathematical formula which stipulates the level of public housing in any one area. Instead, it is an outcome achieved through the application of [certain] principles that guide decisions about the establishment and renewal of public housing.[132]
[132] Memorandum, Executive Director, Housing and Community Services, 23 March 2016, Silvey’s submissions dated 20 December 2023 Attachment A at pages 18-22
One of the principles referred to in this document is that public housing should be included in as many suburbs as possible. However, Dr Silvey pointed to a further principle that is stated in the memorandum: public housing should be well located in good proximity to shops, transportation etc. The document continues:
In practice, this requirement may see the establishment of more than one low density multi-unit development within an area but care will be taken to ensure broad consistency with the objective of equitable distribution of public housing across suburbs.[133]
Mr Ekin
[133] Memorandum, Executive Director, Housing and Community Services, 23 March 2016, Silvey’s submission dated 20 December 2023 Attachment A at pages 18-22 at 22
Mr Ekin argued that a superior outcome for the site would be to sell the land and use the income generated elsewhere to provide the best value for public money.[134]
The Commissioner
[134] Ekin’s submissions dated 17 April 2024 at [17]
The Commissioner submitted that the GNCA’s submissions had misconceived the nature of policy and the principles of administrative law that apply to it.[135] The Commissioner noted that there are different types of government policy that operate in this area: high level policy that set out a government’s approach to a particular issue and government policy that is developed for the express purpose of guiding the exercise of statutory discretions. The Commissioner submitted that the salt and peppering policy falls within the first category, not the second. The salt and peppering policy was not developed to guide the respondent or the tribunal upon review in the exercise of any statutory discretion under the PDA. The Commissioner noted that the policy set out in the document provided by Dr Silvey is a ‘Housing ACT’ policy. It makes no reference to any statutory discretion under the PDA. The Commissioner contended that it would not be open to the tribunal to interpret the document as intending to guide the exercise of any discretion under the PDA. Housing ACT does not make decisions under that legislation.[136]
[135] Commissioner’s submissions dated 8 May 2024 at [75]
[136] Commissioner’s submissions dated 8 May 2024 at [75]-[79]
Further, the Commissioner contended that the PDA is prescriptive about the matters that must be taken into account under section 120 when deciding whether to approve a development application.[137] There is no general discretion conferred by that section to refuse a development application. Section 120 contains specific considerations. The proper approach to section 120 (which is binding upon the Tribunal) was set out by the ACT Court of Appeal in Baptist Community Services v ACT Planning and Land Authority (Baptist).[138] The Court of Appeal explained that “the only meaningful way of interpreting section 120” is to construe it as a discretion to reject a code compliant proposal only after consideration of all of the matters in section 120 of the PDA (where they are relevant).[139]
[137] Commissioner’s submissions 8 May 2024 at [80], citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
[138] [2015] ACTCA 3
[139] Commissioner’s submissions dated 8 May 2024 at [81], citing Minister for Aboriginal Affairs v Peko- Wallsend Ltd [1986] HCA 40
Relevant matters to be taken into account are to be determined by implication from the subject matter, scope and purpose of the statute.[140] The Commissioner respectfully warned:
Nothing in the PDA expressly or impliedly requires or authorises the Tribunal to consider and apply Housing ACT Policies to determine for itself whether, or the extent to which, a development proposal falls within the parameters of that policy. The Commissioner respectfully submits that if the Tribunal did that it would exceed its jurisdiction.[141]
[140] Commissioner’s submissions dated 8 May 2024 at [82]
[141] Commissioner’s submissions dated 8 May 2024 at [82]
However, Commissioner accepted that the probable impact of a proposed development under section 120(h) is not limited to merely "environmental" impacts, which means that the social impact of any development proposal can be considered.[142]
[142] Commissioner’s submissions dated 8 May 2024 at [83]
The Commissioner argued that the probable social impact of this development is a positive one because it seeks to provide supportive housing on land where public housing has already existed for decades. The proposal is to consolidate two blocks and to provide four units where less privileged members of the community will be supported.[143] Further:
there is no evidence to support a finding that there would be a detrimental social impact to the local community if the supportive housing proposal is approved. None of the Applicant parties gave evidence of any crime or social incohesion attributable to public housing in the area. The concern was only addressed in vague and general terms.[144]
The respondent
[143] Commissioner’s submissions dated 8 May 2024 at [83]
[144] Commissioner’s submissions dated 8 May 2024 at [85]
The respondent submitted that the salt and peppering policy is not relevant to the PDA. Importantly section 120 does not bind the decision maker to consider any such policy nor is it to be regarded as a relevant fact which the tribunal is bound to consider.[145] The respondent referred to the Griffith Precinct Map and Code which prohibits the development of supportive housing in a defined area of Griffith. The corollary of this specific prohibition on the development of supportive housing in the delineated area is that there is no such prohibition on the development of supportive housing in other areas of Griffith. In the absence of such a prohibition in those other areas, the salt and peppering policy does not otherwise prevent or prohibit such development.[146]
[145] Respondent’s submissions dated 8 May 2024 at [80]
[146] Respondent’s submissions dated 8 May 2024 at [81]
To the extent that such a policy could potentially be relevant to section 120 of the PDA, the salt and peppering policy could only be potentially relevant to subsection 120(h) by reference to the probable impact including the nature, extent and significance of probable environmental impacts.[147] This remains a question of the probable impact of the proposed development rather than its consistency with any government policy.
[147] Respondent’s submissions dated 8 May 2024 at [82] (original emphasis)
In any event, the respondent contended that the DA does not infringe the salt and peppering policy. The policy itself identifies the principle that salt and peppering is not a mathematical formula where social housing should be included in as many suburbs as possible. This development is a new development of an existing housing property. It is already owned by the Commissioner and has been for several decades i.e. since 1999 pursuant to the existing crown leases. The redevelopment of the blocks is consistent with the salt and peppering policy as it is redeveloping existing houses which is part of providing good quality housing, well designed and constructed with a look and feel which is indistinguishable from other housing in the neighbourhood.[148]
[148] Respondent’s submissions dated 8 May 2024 at [83]-[85]
Furthermore, said the respondent, the applicants and relevant parties joined in these proceedings have not provided any admissible evidence to show that the salt and peppering policy has not been applied. There is no evidence to support Dr Silvey’s submission that quiet amenity would be at risk of deterioration.[149] Nor is there any evidentiary foundation to assert that the DA will have any probable impact at all.[150]
Consideration
[149] Respondent’s submissions dated 8 May 2024 at [86] referring to Silvey’s submissions dated 17 April 2024 at page 14
[150] Respondent’s submissions dated 8 May 2024 at [86]
The Tribunal notes that the land which is being redeveloped has been used for social housing since at least 1999.[151] The difference between its current use and its proposed use under the development proposal is that there will be four dwellings on a consolidated block, as opposed to two dwellings on two separate blocks. As discussed below, the Commissioner agreed to a condition being imposed on the proposed development requiring the crown lease for the consolidated block to restrict the permitted use to “residential purposes limited to supportive housing.”
[151] Tribunal documents, pages 1098 and 1103
It is not necessary for the Tribunal to consider the context of section 120 because its application in the present case does not engage with complex questions of statutory interpretation. As the Commissioner submitted, its operation in this case involves an ordinary reading of the subsection 120(h).[152] This ordinary reading allows the Tribunal to consider the social impact of any development under subsection 120(h). In that respect, the Tribunal agrees with the GNCA and adopts the reasoning of the tribunal on this issue in Lourandos that social impacts may be considered when applying the term “environmental impacts” in s 120(h) to the present DA.
[152] Commissioner’s submissions dated 8 May 2024 at [83]
The Tribunal also considers that the principle stated by Brennan J in Drake No 2 is not relevant to this case and agrees with the Commissioner that Drake No 2 is distinguishable because the relevant policy in this case is a “high level policy”. The Tribunal is bound by Baptist to consider the probable environmental impacts which include social impacts, but it is not bound to apply the salt and peppering policy when undertaking an ordinary reading of section 120. The Tribunal agrees with the submissions made by the Commissioner and the respondent that no effective evidence has been led about probable impacts (including social housing) impacts that will arise from the development proposal. We acknowledge that Dr Silvey provided a witness statement by neighbours which contained some information about local social housing, but we consider that this information did not establish detrimental social impacts were probable.[153]
[153] Exhibit A1-1
Even if the Tribunal was minded to apply the salt and peppering policy, we note that it cannot be reduced to a “mathematical formula”. This is clear from the submissions of the GNCA itself. If the relevant area for the operation of the salt and peppering policy is Roe St it may be the number of social housing properties is in the vicinity of 70%. However, if the relevant area includes surrounding streets, the number declines. If the area includes Griffith, the percentage of social housing is probably around 5.2%.[154]
[154] GNCA’s submissions dated 15 April 2024 at [29]
The Tribunal has considered the probable impact of the proposed development including the nature, extent and significance of probable environmental impacts, which we read to include social impact. The Commissioner argued that the probable impact of the proposed development will be to support public housing tenants and that this is unambiguously a positive impact. It is not necessary for the Tribunal to find the positive impact under Section 120(h). We do not consider that the salt and peppering policy is relevant to a reading of this provision either by way of context or ministerial policy but, even if it was, we consider that the probable impact of providing supportive social housing by the development proposal does not militate against the approval of the DA.
The Tribunal considers that its reasoning that is set out above in relation subsection 120(h) also applies to subsection 120(b). Therefore, having considered the suitability of the land where the development is proposed and the probable impact of the proposed development, including its social impact, the Tribunal does not consider that these grounds militate against the approval of the DA.
Lease variation
The respondent and the Commissioner both agreed to restrict the future crown lease to future uses of supportive housing only and to amend Condition 4 of the decision under review to clarify this point. The parties did not resile from this position, and the matter is not contentious.[155]
Other matters
[155] Respondent's submissions dated 8 May 2024 at [12], GNCA submissions dated 15 April 2024 at [5], Commissioner’s submissions dated 8 May 2024 at [8] referring to the Commissioner’s submissions dated 13 November 2023 at [58]
An application for interim orders was heard in AT 78/2022 on 1 February 2023.[156] In addition to the matters raised by the parties, the Tribunal in this matter suggested several other matters which were not resolved. The main matters identified were as follows.
[156] Silvey v ACT Planning and Land Authority, Application for Interim Orders, 1 February 2023, Tribunal documents, pages 683-700
(a)Review the requirements for internal circulation.[157]
(b)Increase the size of the garages.[158]
(c)Show the natural ground level on relevant plans.[159]
(d)Reduce the height of courtyard walls.[160]
(e)Ensure that the access to the entrances is at 1:20 or flatter.[161]
(f)Provide surveillance of the street.[162]
(g)Provide appropriate access to the clothes lines for units 1 and 2.[163]
(h)Provide 2 disabled car parking spaces, at least one of which meets disabled access standards.[164]
(i)Ensure that the drainage arrangements being claimed are met by the structure of drainage proposed for the site.[165]
(j)Provide shadow diagrams.[166]
[157] Tribunal documents, page 686 at lines 33-35
[158] Tribunal documents, page 686 at lines 23 and 29-30
[159] Tribunal documents, page 687 at lines 18-19
[160] Tribunal documents, page 687 at line 32
[161] Tribunal documents, page 687 at line 36
[162] Tribunal documents, page 688 at line 28
[163] Tribunal documents, page 688 at line 44
[164] Tribunal documents, page 689 at lines 9, 35
[165] Tribunal documents, page 690 at line 1
[166] Tribunal documents, page 690 at line 30
The internal circulation issues and the shadow diagrams have already been addressed. The other matters will be dealt with more expeditiously because they were not matters that remained in contention in the proceedings.
(a)The garage dimensions are marked on the Floor Plan: they are all 6000 mm deep; the single garages are 3952 mm for unit 1 and 3950 mm for unit 2; the double garages are both 6500 mm. All now meet the requirements.
(b)The natural ground level is now shown on a number of relevant plans.
(c)The Elevation Plans,[167] show that the courtyard walls have now been reduced to a height below 1.8 m which affords privacy and have been arranged in a way that provides for unobscured surveillance of the street as is marked on unit 1 of the plans showing the elevations of units 1 and 2.[168]
(d)The Site Plan[169] shows that the access to the units is at 1:20 or flatter which meets the standards outlined above.
(e)The Floor Plan[170] shows that all clothes lines are positioned with at least 1500 mm of clearance to allow for wheelchair access.
(f)Two car parking spaces are provided and at least one meets the disability standards.
(g)The drainage calculations have been altered to reflect the fact that only about half of the roof drains into the rain water tanks. The calculations show that the code has been met. The down pipes have been adjusted to meet the latest strategy.
Conclusion and Orders
[167] Final Amended Plans filed 17 May 2024, Plans 13 and 14
[168] Final Amended Plans filed 17 May 2024, Plan 13
[169] Final Amended Plans filed 17 May 2024, Plan 2
[170] Final Amended Plans filed 17 May 2024, Plan 8
For the reasons set out above, the Tribunal has varied the decision under review. The orders made by the Tribunal on 28 May 2024 are set out above.
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Senior Member P Spender
For and on behalf of the Tribunal
SCHEDULE
Rule 42 of the MUHDC:
RZ1 – Suburban zone of the Territory Plan:
Zone Objectives
a) Provide for the establishment and maintenance of residential areas where the housing is low rise and predominantly single dwelling and low density in character
b) Protect the character of established single dwelling housing areas by limiting the extent of change that can occur particularly with regard to the original pattern of subdivision and the density of dwellings
c) Provide for a wide range of affordable and sustainable housing choices that meet changing household and community needs
d) Ensure development respects valued features of the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties
e) Provide opportunities for home based employment consistent with residential amenity
f) Provide for a limited range of small-scale facilities to meet local needs consistent with residential amenity
g) Promote good solar access
h) Promote energy efficiency and conservation
i) Promote sustainable water use
j) Promote active living and active travel
R/C 72 of the MUHDC:
Date(s) of hearing: 26, 27 March 2024 Applicant for AT 73/2023: In person Applicant for AT 81/2023: Ms S Tongue & Mr J Edquist, authorised representatives Counsel for the Respondent: Mr J Larkings Solicitors for the Respondent: Ms L Chandra, ACT Government Solicitor First Party Joined: In person Counsel for the Second Party Joined: Mr J Bird Solicitors for the Second Party Joined: Ms S Lane, ACT Government Solicitor
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