Gutta and Act Planning and Land Authority (Administrative Review)

[2013] ACAT 63

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GUTTA & ACT PLANNING & LAND AUTHORITY (Administrative Review) [2013] ACAT 63

AT 13/33

Catchwords:             ADMINISTRATIVE REVIEW – decision to refuse development approval for second driveway – amended application – fresh public notification not required – status of Lease Conditions and Development Requirements for Palmerston Four Estate – development proposals must comply with pre-existing approved lease and development conditions – development inconsistent with entity advice  - realistic alternative to proposed development available  – construction within vicinity of stormwater easement – design standards for urban infrastructures – access driveways – unsuitability of land – inconsistency with existing streetscape – impact on adjoining property – development not respecting valued features of neighbourhood and landscape character

Legislation: ACT Civil and Administrative Tribunal Act 2008, ss 9 and 68

Planning and Land Development Act 2007 ss 7, 48, 50, 51, 52, 53, 54, 55, 119, 120, 121, 145, 146 and 408

Subordinate

Legislation:ACT Civil and Administrative Tribunal Regulation 2008,
s 26(2b)

The Territory Plan - Zone RZ1 Suburban Zone

Single Dwelling Housing
         Development Code, Rules 17 & 28, and Criteria 17, 28 and 40

Cases:   Baptist Community Services – NSW and ACT and ACT Land
  and Planning Authority & Ors [2012] ACAT 58

Lourandos & Yiannokopoulos & ACT Planning and Land Authority & Ors (2011) ACAT 25

Re Calardu Pty Ltd (No.2) (1991) 109 FLR 361

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Telstra Corporation Ltd v Aboushadi [2004] FCA 811

Walkington & Ors and ACT Planning and Land Authority
           [2010] ACAT 81

Tribunal:  Ms E. Symons - Presidential Member

Date of Orders  23 September 2013

Date of Reasons for Decision:         23 September 2013    

AUSTRALIAN CAPITAL TERRITORY    )                 

CIVIL & ADMINISTRATIVE TRIBUNAL)     AT13/33  

BETWEEN:

RAMAKRISHNA PRASAD GUTTA

Applicant

AND:

ACT PLANNING & LAND AUTHORITY

Respondent

TRIBUNAL:            Ms E. Symons, Presidential Member

DATE:  23 September 2013

ORDER

The Tribunal Orders that:

1. The decision under review is confirmed.

………………………………..

Ms E. Symons, Presidential Member

REASONS FOR DECISION

Background

1. On 29 October 2012 the applicant lodged an Application (DA No. 201222639) (“the proposal”) in the Merit Track with the Respondent for approval for construction of a second driveway and associated landscaping at the property owned by the applicant being block 14 section 176 Palmerston and known as     71 Sugarloaf Circle, Palmerston ACT (“the subject property”).  The proposed second driveway was to give access to Kosciuszko Avenue.

2. On 3 December 2012 the Respondent’s delegate refused the proposal. The Notice of Decision stated in the Reasons for the Decision:

   “In accordance with section 119 of the Planning and Development Act 2007, the application was refused because it did not comply with the legislated requirements for merit track applications.

   The application was inconsistent with:

   ·advice given by an entity, the entity being Territory and Municipal Services Directorate; and

   ·the relevant code, being the Single Dwelling Housing Development Code.”

3. On 20 December 2012 the applicant sought reconsideration of the decision (“the original decision”) by the Respondent to refuse the proposal. On 12 April 2013 the delegate of the Respondent confirmed the original decision (“the reconsideration decision”) and stated in the reasons:

   “The original decision was confirmed because:

   (a)   The development application was not supported by an entity i.e. Territory and Municipal Services Directorate (TAMSD) does not support the proposal.”

4. The TAMSD’s advice in the reconsideration decision stated that:

   “The proposal is not supported:

   Reasons

   The current proposal does not demonstrate that the proposed driveway access complies with TAMS requirements and therefore TAMS is unable to support the secondary driveway:

   1.   Kosciuszko Ave is a Major Collector Road and the Residential Code requires that Front In and Front Out access be provided to prevent vehicles reversing onto on-coming traffic. However, the proposal submitted so far will not guarantee that reversing into Kosciuszko Ave will not take place.

   2.   Kosciuszko Ave has a traffic volume in excess of 3500 VPD and therefore this access arrangement will have significant safety implications on traffic along Kosciuszko Ave, pedestrians along the footpath and residents, particularly the elderly and disable drivers.”

5. On 8 May 2013 the Applicant applied to the ACT Civil and Administrative Tribunal (“the tribunal”) for review of the reconsideration decision.

6. At a directions hearing on 31 May 2013 a time table was set directing both parties to give each other party and the tribunal a statement of facts and contentions, the statement of any witness on whose evidence each party relied and any other material each party intended to rely upon at the hearing.

7. On 1 July 2013 the Applicant filed new drawings relating to the proposal (“the modified proposal”).

8. The Applicant filed a witness statement by Graeme Shoobridge dated 25 June 2013 (Exhibit A1) on 1 July 2013.  The Applicant did not file a statement of facts and contentions.

9. The Respondent filed witness statements by Lingam Jatheendran dated 18 July 2013 (Exhibit R2) and Dominic Riches dated 18 July 2013 (Exhibit R4) and asserted in its statement of facts and contentions filed 19 July 2013 that the proposal, including the modified proposal, must be refused under section 119 of the Planning and Land Development Act 2007 (“the Planning Act”) for the following reasons:

   1.inconsistency with Entity Advice;

   2.Code non-compliance; and

   3.unsuitability of the land.

10. On 2 August 2013 the Applicant filed a supplementary witness statement by Graeme Shoobridge dated 2 August 2013 (Exhibit A2) and a further set of amended plans (“the appeal plans”) (Exhibit R1) which sought to address the issues raised in the Notice of Decision and the statement by Mr Jatheendran dated 18 July 2013.

The Hearing

1. The matter was heard on 13 and 14 August 2013 and commenced with a site visit by the tribunal on 13 August 2013. The parties and their representatives were present.  At the site visit the Applicant and Mr Shoobridge confirmed that the Application to be considered by the tribunal was limited to the proposed driveway access over the verge at Kosciusko Avenue.

2. The Applicant was self-represented at the hearing but Mr Shoobridge acted as his representative in cross examining witnesses. Dr Jarvis of counsel appeared for the Respondent.

3. The Applicant gave evidence and called evidence from Mr Graeme Shoobridge. Mr Shoobridge is a Civil Engineer employed by Mott MacDonald Australia Pty Ltd. He has worked as a civil engineer and a traffic engineer for 40 years in private practice and for government agencies in the ACT and NSW.[1] He is experienced in the preparation of traffic impact and parking assessment reports, undertaking of road safety audits and the design of infrastructure for urban developments, (including urban renewal projects).

   [1]    Graeme Shoobridge Witness Statement dated 2 August 2013 at paragraph 3(Exhibit A2)

4. The Respondent called evidence from Mr Lingam Jatheendran and Mr Dominic Riches.

5. Mr Jatheendran is employed as Civil Engineer, Asset Acceptance, in the Operational Support Branch of the Directorate Services Division in the Territory and Municipal Services Directorate (TAMS). Prior to his present position he worked for two years as Manager, Commercial Development, Asset Acceptance in TAMS and for more than 15 years before that he was a Senior Traffic Engineer with Roads ACT in TAMS in charge of Traffic Management and Operation throughout the ACT.[2]

   [2]     Lingam Jatheendran Witness Statement 18 July 2013, paragraph 3

6. Mr Riches is a Development Assessment Officer in the Planning Delivery Division of the ACT Planning and Land Authority (the Authority) with responsibility as a delegate on behalf of the Authority for assessment and/or determination of development applications. He was the assessing officer for DA 201222639 in relation to the subject site.

7. At the conclusion of the hearing the tribunal reserved its decision.

Applicable Law

1. The tribunal derives its power to review a reviewable decision upon application from section 9 of the ACT Civil and Administrative Appeals Tribunal Act 2008 (“the ACAT Act”). Section 68 of the ACAT Act provides that the tribunal may exercise any function given by an Act to the entity for making the decision. The tribunal has all of the powers of the Respondent in reviewing the decision to the extent that those powers are related to the making of the decision under review.[3]

   [3]     Telstra Corporation Ltd v Aboushadi [2004] FCA 811 at [28] – [35]; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

2. The relevant Act is the Planning Act. The decision is a reviewable decision by virtue of section 408 and Schedule 1 Column 2 item 13 of that Act.

3. Pursuant to subsection 119(1) of the Planning Act approval for a development in the merit track must not be given unless approval is consistent with the relevant code. Subsection 119(2) provides:

   119Merit track—when development approval must not be given

   (2)Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under division 7.3.3 unless the person deciding the application is satisfied that—

   (a)the following have been considered:

   (i)any applicable guidelines;

   (ii)any realistic alternative to the proposed development, or relevant aspects of it; and

   (b)the decision is consistent with the objects of the territory plan.

1. Section 120 of the Planning Act sets out the matters that the tribunal, as decision-maker, must consider and states:

   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;

   (c)each representation received by the authority in relation to the application that has not been withdrawn;

   (d)if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications)—the entity’s advice;

   NoteAdvice on an application is given in accordance with section 149 if the advice is given by an entity not later than 15 working days (or shorter prescribed period) after the day the application is given to the entity.  If the entity gives no response, the entity is taken to have given advice that supported the application (see s 150).

   (e)if the proposed development relates to land that is public land—the plan of management for the land;

   (f)the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.

1. The tribunal also considered the Territory Plan 2008 (the Plan), the relevant provisions in Part 5.1, section 48 and Part 5.2, sections 51, 52, 53, 54 and 55 of the Planning Act. These sections state:

   Part 5.1 The territory plan, its object and effect

48Object of territory plan

The object of the territory plan is to ensure, in a manner not inconsistent with the national capital plan, the planning and development of the ACT provide the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation.

Part 5.2 Contents of territory plan

51Contents of territory plan

(1)   The territory plan must include the following:

(a)    a statement of strategic directions;

(b)    objectives for each zone;

(c)    development tables;

(d)    codes;

(e)    a map (the territory plan map).

NoteFor more about development tables, see s 54.  For more about codes, see s 55.  For more about a territory plan map, see s 56.

(2)   The territory plan may, but need not—

(a)    identify future urban areas and include the structure plans that apply to those areas; and

(b)    identify areas of public land reserved in the plan (whether in a map or elsewhere in the plan) for a purpose mentioned in section 315 (Reserved areas—public land); and

(c)    to give effect to the object of the plan—provide for other matters relevant to the exercise of the powers of the Territory, the Executive or a territory authority under a territory law; and

(d)    make provision in relation to affordable residential housing; and

(e)    include anything else relevant to the object of the territory plan.

52Statement of strategic directions

(1)   The statement of strategic directions in the territory plan may contain planning principles covering areas of national, regional and Territory interest, including principles for sustainable development.

(2)   The function of the statement of strategic directions is to—

(a)    contain broad strategic principles to guide long term planning for the ACT; and

(b)    guide the preparation and making of variations to the territory plan; and

(c)    guide environmental impact statements, planning reports and strategic environmental assessments.

(3)   The statement of strategic directions in the territory plan should promote the planning strategy.

53Objectives for zones

(1)   The objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone.

(2)   Each objective for a zone must be consistent with the statement of strategic directions.

54Development tables

(1)   A development table for a zone must set out—

(a)    the minimum assessment track that applies to each development proposal; and

Note   Assessment tracks are dealt with in ch 7.

(b)    development that is exempt from requiring development approval; and

Note   Exempt developments are further dealt with in div 7.2.6.

(c)    development that is prohibited; and

(d)    the code that development proposals must comply with.

(2)   A development table may exempt a development proposal from requiring development approval subject to a condition.

Example of possible condition

A development proposal is exempt from requiring development approval if the building plans for the proposal comply with a code that applies to single residences in the development table that applies to the proposal.

NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3)   The assessment tracks, from minimum to maximum, are as follows:

(a)    code track;

(b)    merit track;

(c)    impact track.

55Codes in territory plan

(1)   A code (other than a general code or precinct code that is a concept plan) in the territory plan must contain either or both of the following:

(a)    the detailed rules that apply to development proposals the code applies to;

(b)    the criteria that apply to development proposals the code applies to, other than proposals in the code track.

(2)   A code must be consistent with each objective for the zone to which the code relates.

(3)   A code that sets out the requirements that apply to stated areas, or places, or states that it is a precinct code, is a precinct code.

NoteA concept plan is a precinct code (see s 93 (b)).

(4)   A code that sets out the requirements for types of development, or states that it is a development code, is a development code.

(5)   A code that sets out requirements applicable to the Territory, the Executive, a Minister or a Territory authority is a general code.

(6)   To remove any doubt, a general code may also contain—

(a)    policies to be complied with; and

(b)    rules and criteria applicable to development proposals the code applies to.

The Application for Review

1. The applicant told the tribunal that his intention in seeking development approval was to get driveway access to the lower level of his property so he could accommodate his elderly parents, who have mobility issues, in the lower level of his home. His parents currently reside in India. His father is aged 87 years and has had two strokes and his mother is aged 79 years and has had a stroke. His home has two levels which are connected by an internal staircase.

2. He said he had considered a wide range of alternatives to accommodate his parents including moving to a new home; accommodating them on the upper level of his home which has driveway access to Sugarloaf Circle; accessing the lower level and installing a lift. In the end, he made the considered decision that the proposed driveway access from Kosciusko Avenue to the lower level, which is the subject of this review, provided his parents the best opportunity for independent living and was affordable for him.

3. At this stage he is only seeking approval for the construction of a cement apron across the verge with a view to having a second driveway from Kosciusko Avenue which would enable an ambulance and other vehicles to access the downstairs portion of his home. If he is successful he will lodge, for development approval, detailed plans relating to the proposed driveway and extensions to his home to accommodate his parents. He described the drawings which had been submitted to date with his application as “concept drawings”.

4. The Applicant attached written reasons[4] for seeking the review in which he stated:

   ‘The reasons for refusal [by ACTPLA and TAMS] made me to conclude that my merit application wasn’t subjected for equitable and fair assessment process based on the facts given below. Also there was no basic consideration given to decent quality of life for people with disability and partial functioning to maintain their independence and access to emergency medical aid when a situation arises. The decision was made on prejudice, hypothetical scenarios and preconceived view rather [than] on merit of application.”

[4] T 011- T 013

1. The Applicant also responded to the reasons given by TAMS for refusing the application and his application for reconsideration. The tribunal has summarised the Applicant’s responses to the reasons:

   i.the application hasn’t demonstrated that the proposal would permit safe and efficient access for all residents of the block and users of Kosciusko Ave

   .

   
   Response :  Driveways on Kosciusko Ave. have forward entry and reverse exit;
   the driveway application submitted for approval is forward entry and forward exit with a reversing bay that gives better pedestrian safety;

   ii.the visual impact to the streetscape will be affected as the verge crossing doesn’t accommodate the existing pedestrian network and impacts on the existing landscape features (existing retaining wall).

   Response: 

   Ø   ACTPLA and TAMSD addressed this issue when considering the original estate development and capped the retaining wall height to one metre to have clear line of sight.

   Ø   Neighbours’ driveways which have forward entry and reverse exit were built with one metre retaining wall height.

   Ø   The one metre high retaining wall in front of the Applicant’s property continues along Kosciusko Ave and into Amarina Street.

   Ø   In Amarina Street two properties have driveways built with one metre high retaining walls. There is no difference in streetscape or line of sight.

   Ø   The ground level of the Applicant’s block is elevated; any pedestrian movements are clearly visible from driveway ground level or the line of sight of the driver.

   Ø   Pedestrian movement observed over one month was not high.

   Ø   Estimated vehicular traffic on the proposed driveway will be minimal as main driveway and garage are accessed by driveway from Sugarloaf Circle.

   Ø   Considering the very low pedestrian network and very low vehicular movement from the proposed driveway, the probability of risk that was mentioned for refusal is close to zero.

   iii.The development proposal is inconsistent with the lease and development conditions – Palmerston Four Estate- Stage 2. In particular, the L&D’s depict Block 14 as having a mandatory driveway location from Sugarloaf Circle.

   Response:

   Ø   The mandatory driveway location is from Sugarloaf Circle.

   Ø   TAMSD have not substantiated their claim with written proof that the second driveway is not permitted in the Australian Capital Territory Plan as per development conditions.

   Ø   TAMSD’s claim that there would be a flood of applications, if the additional driveway application was approved, is a hypothetical scenario without factual basis. Each application needs to be assessed on its merit in an equitable and fair process.

   TAMSD’s Reason for Refusal [after Reconsideration].
   Kosciusko Avenue is a major collector road; the Residential Code requires that Front In and Front Out access be provided to prevent vehicles reversing onto on-coming traffic and the proposal submitted so far will not guarantee that reversing into Kosciusko Ave will not take place.

   Response:

   Ø  The application provides a forward entry and a forward exit.

   Ø  The existing retaining walls have been skewed to better enhance the line of sight.

   Ø  Existing driveways within the vicinity of Applicant’s property joining to Kosciusko Ave did not skew the retaining wall for better line of sight.

   Ø  Currently there are around 90 driveways joining to Kosciusko Ave and each one has a forward entry and a reverse exit without reversing bay.

   Ø  What more can the Applicant do to guarantee that reversing into Kosciusko Ave will not take place in future?               

Agreed Facts

1. At the commencement of the hearing the Applicant confirmed that he agreed with the following facts set out in the Respondent’s Statement of Facts and Contentions:

   i.In October 2012, development application 201222639 (the proposal) relating to block 14 section 176 Palmerston (the subject block) was lodged on the applicant’s behalf;

   ii.The subject block is 637m², and has a single dwelling on it;

   iii.The subject block is located in a RZ1 zone;

   iv.The proposal sought approval for the construction of a 2^nd driveway into the subject block (T 98-125). The driveway and associated retaining walls are in an easement on the eastern boundary of the block, shared with block 13;

   v.The 2^nd driveway is said to be associated with future extensions to the dwelling on the block (T11), but the proposal sought approval only for the driveway (T100);

   vi.The subject block falls steeply from RL 617 to 612.5 in the roughly one-third portion nearest to its front boundary to Kosciusko Avenue;

   vii.The subject block’s current driveway access is from Sugarloaf Circle via a driveway shared with blocks 2, 13 and 15/176;

   viii.A development estate known as “Palmerston 4, stage 2” includes the subject block and surrounding blocks;

   ix.The developer of the estate was Palmerston Four Pty Limited;

   x.Development Conditions (LDCs) applying to the subject block were approved in 1999, pursuant to a Deed of Agreement between the Gungahlin Development Authority (GDC) and the developer of the estate;

   xi.On block 13/176 there is an easement of similar dimensions that is immediately adjacent to the easement on the subject block;

   xii.The easements on blocks 13 and 14 are shown in the LDCs;

   xiii.The topography of the blocks of adjacent development is similar to the subject: blocks 21, 22, 14, 10, 9, 6;

   xiv.The adjacent development features a series of large dwellings set on high sloping blocks on the southern side of Kosciusko Avenue;

   xv.These blocks have a series of 1 m retaining walls that retain landscaped areas forward of the building line;

   xvi.Several pairs of these blocks (including 13 and 14) have a shared pedestrian stairwell access from the footpath: photos T77 – 83);

   xvii.The retaining walls and pedestrian access stairwells are constructed of consistent-coloured stone;

   xviii.There are no driveways into Kosciusko Avenue between Buller Crescent and Gungahlin Drive;

   xix.Asset Acceptance of the TAMS directorate was notified of the proposal on 31 October 2012 and provided advice on 16 November 2012;

   xx.The proposal was refused approval in an original decision and a reconsideration at T16-T27;

   xxi.TAMS directorate provided further advice on referral of the reconsideration: T31-T33;

   xxii.On 1 July 2013 the applicant filed new drawings relating to the proposal (“the modified proposal”).

2. It is also agreed that:

   a.       the subject land where the proposed development is to occur is in The Territory Plan Zone RZ1 Suburban Zone (RZ1) and is subject to the RZ1 Suburban Code – Objectives and Development Tables; and

   b.       the proposed development is in the merit track.

Consideration of the Issues:

(a)Initial question of law:

1. As the Applicant had lodged the appeal plans on 2 August 2013, before the hearing, the tribunal considered, as an initial question of law, whether the hearing should be adjourned to enable public notification of the revised development application (the appeal plans) and for this application to be referred again to TAMS for comment.

2. It was contended by the Respondent that the request by the applicant that the tribunal approve the appeal plans was subject to section 145 and 146 of the Planning Act as the original application had, prior to amendment, been referred to an entity, TAMS, for comment and had been publically notified.  

3. Section 145 requires an amended application to, again, be referred to that entity, subject to subsection 145(4) which provides that this need not be done if the tribunal is satisfied that the proposed amendment does not affect any part of the application in relation to which the entity to which it was referred made a comment.

4. Section 146 provides for further public notification of an amended application, subject to subsection 146(3) which empowers the tribunal to waive this requirement if satisfied that no one other than the applicant will be affected by the amendment and the environmental impact caused by the approval of the amendment will do no more than minimally increase the environmental impact of the development.

5. The tribunal noted that the original plans, which were publicly notified, were for a second driveway with access from Kosciusko Avenue, turning circle and garage and the modified plans were for the proposed driveway only. At the site view on 13 August 2013 the Applicant told the tribunal that he wanted to confine his application for review to the driveway crossing the verge as shown in the appeal plans.

6. Dr Jarvis referred the tribunal to earlier tribunal decisions in Walkington & Ors and ACT Planning and Land Authority[5] (“Walkington”) and Baptist Community Services – NSW and ACT and ACT Land and Planning Authority & Ors.[6] (“BCS”).  In Walkington the tribunal concluded that it did not need to refer the amended application to any of those entities stating[7]

   “In relation to section 145, while the original application was referred to various entities, the Tribunal was satisfied that the proposed amendment of the application does not affect any part of the application in relation to which an entity had made a comment.”

   [5] [2010] ACAT 81

   [6] [2012] ACAT 58

   [7]     At [34]

7. In Walkington the tribunal also considered public notification of an amended application under section 146(2) of the Planning Act. While noting that many of the adjoining lease holders who had lodged objections to the original proposal, had lodged applications for review before the tribunal which were the subject of the hearing and had indicated their consent to the amendments, the tribunal was mindful of the fact that not all original objectors were applicants. The tribunal also noted its responsibility as expressed by Higgins J in In Re Calardu Pty Ltd (No.2)[8] to

   “be satisfied that to allow that amendment …would not prejudice the rights of … any potential objector. It is a situation which necessarily requires careful consideration to avoid that result because, ex hypothesi, potential objectors are unrepresented. A more robust approach to allowing amendments is appropriate when all possible interested parties are represented and can state grounds for opposing or supporting the proposed amendment.”

   [8] (1991) 109 FLR 361

8. The tribunal in Walkington made orders requiring the developer party joined to submit further detailed drawings to the respondent, the applicants, the second party joined and all adjoining lessees who were notified of the original proposal. The tribunal also made orders requiring the respondent to assess the proposed development against the provisions of the Territory Plan and provide a copy of the assessment to the applicants, the second party joined, all other adjoining lessees notified of the original proposal and the developer party joined.

9. In BCS the tribunal considered whether the appeal plans should be subject to further public notification and waived the requirement for public notification under section 146(2) of the Planning Act as it was satisfied that there was nothing in the amendments proposed that would adversely affect anyone other than the applicant and the amendments were unlikely to increase, minimally or at all, the environmental impact of the proposal.[9]

   [9]     At ]39] – [40]

10. Dr Jarvis submitted that the limited application now before the tribunal would not have any, or any greater, impact on anyone who objected during the first public notification. The tribunal noted that no written representations were received during public notification.[10]

    [10]    T63  Reasons for Decision Part 2 Public Notification and Entity Advice; Dominic Riches witness statement 18 July 2013 at paragraph 7

11. Dr Jarvis also submitted, in relation to section 145 of the Planning Act, that Mr Jatheendran who was the Chief Engineer of Asset Acceptance in the Operational Support Branch of the TAMS Directorate Services Division, the entity who commented on the first application and the application for reconsideration, was present at the hearing. Dr Jatheendran confirmed that the Respondent’s position was that there was no practical utility in referring the appeal plans back to TAMS as “the answer will still be no.” Dr Jarvis supported the tribunal proceeding with the hearing.

12. In this regard Mr Shoobridge submitted, on behalf of the Applicant, that the matters set out in paragraph 47 (a), (d), (e) & (f) of Mr Jatheendran’s witness statement are still relevant to the appeal plans and make clear that the Respondent does not support the Applicant’s proposal. Mr Shoobridge supported the tribunal proceeding with the hearing.

13. The tribunal is satisfied that, given the limited nature of the appeal plans, there was nothing in the amendments proposed that would adversely affect anyone other than the applicant and the amendments were unlikely to increase, minimally or at all the environmental impact of the proposal. The tribunal concurs with Dr Jarvis’ submission and Mr Shoobridge’s submission, in all the circumstances that the tribunal hearing should proceed. The tribunal is satisfied it is appropriate to exercise the waiver in section 145(3) and 146(2) of the Planning Act to enable the hearing to proceed.

    (b)The main issues

14. Mr Shoobridge submitted there were three main considerations relevant to the tribunal’s assessment of the appeal plan application:

    a.the Lease Conditions and Development Requirements for Palmerston Four Estate (LC&DR);

    b.engineering standards and technical requirements; and

    c.other issues.

15. In the Respondent’s statement of facts and contentions, the Respondent identified the following issues:

    a.inconsistency with Entity Advice;

    b.Code non-compliance; and

    c.unsuitability of the Land.

16. The appeal plans show a number of significant changes to the proposed development, including:

    1.deletion of garage and carport and replacement with an uncovered car space along the eastern boundary of the site;

    2.relocation of the driveway to be perpendicular to the kerb and offset 1.2 metres from the sump located at the kerb in Kosciusko Avenue;

    3.retention of the existing rock steps at the northern corner of the block;

    4.the approximate location of the existing stormwater pipe within the easement has been shown on longitudinal section; and other minor adjustments and details have been included in the drawings.

17. Mr Shoobridge described what he understood was the proposed limited application now before the tribunal. He said:

    “The Applicant proposes development of a concrete apron across the verge with modifications to the kerb and guttering which would end at the property boundary.”

18. Mr Shoobridge confirmed, if the limited application is approved, there would need to be a further development application for the turning pad. He also agreed that the tribunal should take into account the proposed driveway and turning bay when considering the application.

Issue A: The Lease Conditions and Development Requirements (LC&DRs)
 Issue E: Code non compliance

1. The tribunal noted that Mr Shoobridge stated [11] in relation to the LC&DRs:

   “the status of Lease Conditions and Development Requirements of future development applications is not clear to me in the light of the fact that a Certificate of Compliance has previously been issued for the whole estate – thereby confirming compliance with the Lease Conditions and Development Requirements and Appendix 111.1 Residential Design and Siting Code for Single Dwellings which applied to the original development of the estate.”

   [11]    Paragraph 9 Supplementary Witness Statement 2 August 2013

2. The Respondent’s position was that the LC&DRs, inter alia, mandatorily prohibited vehicular access from Kosciusko Avenue to the subject block, as well as to other blocks within the vicinity.

3. Dr Jarvis made detailed submissions in relation to the development of the LC&DRs to support the Respondent’s position in the previous paragraph. The tribunal has considered the evidence and these submissions below.

Consideration

1. Mr Riches’ witness statement (Exhibit R4) included, as an attachment, the holding lease for the “Palmerston 4 Estate” which was granted on 23 March 1999. The holding lease defines “deed” under ‘INTERPRETATION’ at 1(d) as:

   “deed” means the deed of agreement between the lessee and the Authority a copy of which comprises Attachment A to this lease and which contains provisions as to planning, completion of the Works and associated activities.

   Dr Jarvis submitted and the tribunal concurs, that this was an agreement collateral to a lease made before the commencement of the Planning Act.

1. The holding lease also defines “works” at 1(j) as:

   “works” means all the works and activities which the lessee is or may be required to execute or engage in under the deed and includes design, remedial work, temporary work and variations of work.”

   The works required to be done by the developer which relate to the Estate Development works are set out in paragraph 2.

2. Attachment A to the holding lease is the Deed of Agreement which sets out the conditions for the Estate planning and Estate development. The conditions in that Agreement answer the description of “Development Condition” as defined in the Territory Plan[12].

   [12]    Development condition means any condition subject to the Planning and Development Act 2007, contained in a lease or an agreement collateral to a lease, or in a lease or an agreement collateral to the lease that was made prior to the commencement of the Planning and Development Act 2007.

3. While Rule 17 and Criteria 17 in the Residential Zones – Single Dwelling Housing Development Code (“the Code”) refer to ‘Lease and Development Conditions’ as opposed to ‘Development Conditions’ referred to in the Territory Plan definition, the tribunal notes that that discrepancy and language was held by the tribunal not to be a difficulty in Lourandos & Yiannokopoulos & ACT Planning and Land Authority & Ors. [13] That tribunal carefully considered, in some detail, the issue of a document in very similar form as the Agreement in the present case and accepted it answered the description of ‘Lease and Development Conditions’ in the relevant Rule in the Code (albeit an earlier version of a different Code) and ‘Agreement Collateral to Lease’.

   [13] (2011) ACAT 25

4. The conditions in the Deed of Agreement (Attachment A to the holding lease) contain a hierarchy of provisions ranging from the broad construction of the estate down to the plans and specification for individual blocks.

5. The planning of the whole estate is found in Part 3 of the Deed of Agreement. Clause 3.4 ‘Project Planning Conditions’ requires the Developer to comply with, inter alia, pursuant to clause 3.4.1(b), the Special Project Conditions in Annexure A2 to the Deed of Agreement which includes Plans relating to Driveways. Clause 3.6 sets out Development Conditions Applicable to Consequent (i.e. Retail) Leases and mandates the Developer to prepare and submit for approval by the Estate Manager documentation required under clause A2.4 of the Special Project Conditions,  namely Conditions relating to Consequent Leases.

6. Pursuant to clause A2.1 of the Special Project Conditions, the Developer is obliged to comply with Special Estate Planning Conditions and Guidelines identified in clauses A2.1 to A2.16. Clause A2.1.2 mandates the Developer to prepare a Project Implementation Plan (“PIP”). Sub paragraph A2.1.2 (f) mandates that the Developer is only allowed to alter the PIP if the detailed subdivision design, and where appropriate, development controls are incorporated into the detailed plan and shall demonstrate that the intended Estate development will provide an efficient, safe and attractive urban environment.

7. The requirements which are not permitted to be altered include vehicle access restrictions in A2.1.12 which draws the developer’s attention to the mandatory requirement prohibiting vehicle access and access along parts of Kosciusko Avenue (tribunal’s emphasis) “due to the steep high batter formed during the construction of the road. ….Vehicle access restrictions shall be incorporated into the Developer’s estate planning.”

8. A2.4 of the Special Project Conditions sets out the Special Project Conditions relating to Consequent Leases required pursuant to clause 3.6 of the Deed. The Developer is required to prepare and submit for approval by the Estate Manager a document designating all lease and development conditions for all consequent leases within each stage. The document is to include Standard (non site specific) Development Conditions relating to each block which are set at A2.4.1(d)(i) and Site specific Special Development Conditions which are set out at A2.4.1(d)(ii) and – “shall be presented in the form of Integrated Development Plans which may refer to individual blocks, groups or the whole estate depending on the amount of detailed information to be depicted. …”.

9. On 19 October 1999 the Estate Manager signed and stamped his approval on the LC&DRs submitted by the Developer. The LC&DRs for Palmerston Four Estate Stage 2 (annexed to Mr Riches’ witness statement) set out the Development Conditions in section 5 and the Fencing and Special Development Conditions in section 6.

10. Section 5.1. refers to the relationship between the Territory Plan and the Land (Planning and Environment) Act 1991 and departures and, relevantly, states-

    5.1.1 These Conditions are “development conditions” for the purposes of the Territory Plan and set out specific provisions and guidelines applying to identified blocks within this Estate. Development Management Branch is required by the Territory Plan [since repealed] to take the development conditions into account when considering any applications for approval under Part VI of the Land (Planning and Environment) Act1991.

    5.1.2. These Conditions are to be read in conjunction with the relevant provisions of the Plan, particularly

    i.Appendix III.1 – Residential Design and Siting Code for Single Dwellings in the ACT;

    ii.….

    iii.Canberra Landscape Guidelines

    ….

    5.1.5.Any proposal to depart from these conditions will be dealt with on its merits having regard to:

    ·   Relevant Objectives and Performance Criteria in the Residential Codes’

    ·   The original intention of the Conditions,

    ·   Consistency in their application; and

    ·   The effect on the amenity of neighbours.

11. Integrated Development Plans referred to in the Special Project Conditions in A2.4.1 and A2.4.2 are found at Section 5.2 of the LC&DRs. Section 5.2.1 states that specific provisions and guidelines are shown in the Integrated Development Plans contained in Part 6 and Section 5.2.2 provides:

    “The Integrated Development Plans consist of a Development Intentions drawing for each group of blocks…together with Planning Controls Plan.”

1. The Fencing and Special Development Conditions are found in Section 6 of the LC&DRs and include 16 sheets of Drawings, Development Conditions (sheets 7 and 8) and a Schedule of Blocks (sheet 2). The Schedule provides information on the blocks and cross references to the Development Intentions Plan (DIP) (at sheet 3) and the Planning Controls Plan (PCP) (at sheet 4). For the subject block the DIP shows the retaining walls and footpath along Kosciusko Avenue and the easement over blocks 13 and 14.  The PCP shows the prohibited motor vehicle access along Kosciusko Avenue in front of blocks 9, 10, 13, 14 (the subject block) and part of block 22. The Driveways Plan (at sheet 6) shows the location of the mandatory driveway locations and the preferred driveway locations. Block 14 is shown as having a mandatory driveway location on Sugarloaf Circle.

1. Condition 15(e) of the Development Conditions (in sheet 7) which referred to additional driveways states “Additional driveways or vehicular crossings will not be permitted unless specifically considered and endorsed by the developer and PALM”.

2. Dr Jarvis put to Mr Shoobridge that pursuant to condition 15(e) additional driveways are only allowed where vehicular access is permitted. Mr Shoobridge referred to and relied upon the Preferred and Mandatory Driveway locations in condition 15(f) and the provision there for departure from preferred driveway locations. The tribunal noted that condition 15(f) identified block 14 section 176, as having a mandatory driveway location.

3. This raises the question - does the mandatory preclusion of a driveway in the LC&DRs in this location mean that the preclusion prevails or do the LC&DRs allow for consideration of an additional driveway or for an alternative driveway location from those indicated in the LC&DRs which would be determined on its merits and have to comply with Australian Standards?

4. Mr Shoobridge acknowledged [14] that the LC&DRs placed restrictions on vehicular access to the subject block from Kosciusko Avenue however he submitted that the intentions set out in the LC&DRs make provision for merit based assessment on any application for an additional driveway or for a driveway in an alternative location from those indicated in the LC&DRs.

   [14]    At paragraph 10 of his Supplementary Witness Statement 2 August 2013

5. Mr Shoobridge also acknowledged[15], notwithstanding the LC&DRs may no longer form part of the Territory Plan as such, that the LC&DRs set out intentions and objectives for the Palmerston Estate and it is appropriate for future development to consider these guidelines, requirements and objectives.

   [15]    At paragraph 11, Witness Statement

6. He opined[16] that the LC&DRs anticipated that changes may be made and that a procedure was established for the application for and the approval of such changes; the protocols allowed for merit based assessment by the Developer and PALM in the first instance and other authorities, as appropriate, for final approval.

   [16]    At paragraph 11, Witness Statement

7. He based this opinion on, firstly, Paragraph 4.4- Nature Strips and Driveways in Section 4, Standard Servicing Conditions and advice of the LC&DRs which states:

   “Locations of driveways shall be in accordance with the Development Intentions Plans unless detailed alternative plans are submitted by the lessee and approved by Traffic and Roads Section”   

   and, secondly, on Condition 15(a) of the LC&DRs which states:

   “The location of the driveway will be as shown on Section 6.0, Sheet 12 of 16 unless amended by subsequent Building Approvals.”

8. Mr Shoobridge relied on the following conditions in the LC&DRs as permitting the Applicant’s development proposal:  

   (a)Condition 15(e) of the Development Conditions Applicable to Dwellings on Palmerston Four Estate – Stage 2 which refers to Driveways & Footpaths and states:

   “Additional driveways: Additional driveways or vehicular crossings will not be permitted unless specifically considered and endorsed by the Developer and PALM.”

   (c)Section 5.0 Development Conditions, paragraph 5.1 Relationship with Territory Plan and Land Act – paragraph 5.1.1. which states:

   “These Conditions are ‘development conditions’ for the purpose of the Territory Plan and set out specific provisions and guidelines applying to identified blocks within this Estate”

   (d)        Paragraph 5.1.2 which provides that the conditions are to be read in conjunction with Appendix III.1  - Residential Design and Siting Code for Single Dwellings in the ACT and that paragraph 5.1.5 provides for departures and states:

   “Any proposal to depart from these conditions will be dealt with on its merits having regard to: - Relevant Objectives and Performance Criteria in the Residential Codes, the original intention of these conditions, consistency in their application and the effect on the amenity of neighbours.”

9. Dr Jarvis opposed the Applicant’s application and submitted that where, as in this matter, there are pre-existing approved lease and development conditions, development proposals must comply with the pre-existing approved lease and development conditions.

10. Dr Jarvis referred the tribunal to paragraph 119(1)(a) of the Planning Act which provides that development approval must not be given for a development proposal in the merit track unless the proposal is consistent with the relevant code. The relevant code is the Single Dwelling Housing Development Code (“the Code”) as it existed prior 5 July 2013.

11. Dr Jarvis submitted that the Applicant’s proposal, even confined to the verge crossing, is inconsistent with the Code because of Rule 17 and Criterion 17. Rule 17 and Criterion 17 specifically refer to pre-existing Lease and Development Conditions and that these Conditions take precedence over any Rules in the Code.

12. Rule 17 provides:

    “The development proposal complies with any relevant pre-existing approved Lease and Development Conditions and any relevant developer’s consent has been provided. To the extent of any inconsistency, the requirements of the Lease and Development Conditions will take precedence over any Rules in the Single Dwelling Housing Development Code as is listed below.

13. Relevantly for this matter, the Rules in the Single Dwelling Housing Development Code list, inter alia, ‘vehicle access’.

14. Criterion 17 of the Code requires the development to meet the intent of the lease and development conditions – in this case the Respondent submitted the intent is not to permit a driveway in the proposed location. The Respondent submitted that the tribunal has sufficient material to rule that the proposed driveway verge crossing is inconsistent with Criterion 17.

15. As stated above, the Applicant relied on condition 15(a) – the location of the driveway will be as shown on the Driveway Plan unless amended by subsequent Building Approvals, condition 15(e) - additional driveways or vehicular crossings will not be permitted unless specifically considered and endorsed by the Developer and PALM, and the LC&DR Development Conditions in 5.0, in particular 5.1.5.

16. Dr Jarvis submitted that the Applicant’s claim that condition 15(e) – Additional Driveways; overrode the LC&DRs was wrong. The LC&DRs specifically and mandatorily provided that there was not to be vehicular access from Kosciusko Avenue to the subject block and to other blocks on Kosciusko Avenue. Dr Jarvis described this as ‘a higher level prohibition’. He submitted condition 15(e) was not intended to provide an exception in prohibited locations[17]; rather it enabled additional driveways elsewhere in permitted locations subject to considering the mandatory prohibition and the reasons for that prohibition. The reason for the mandatory prohibition in this location was the steep slope of the batter[18].

    [17]    Dominic Riches Witness Statement, at paragraphs 108,109

    [18]    Refer Annexure A2 to the Deed of Agreement which is Attachment A to the original lease at A2.1.12

17. Notwithstanding that condition 15(e) specifically required endorsement by the Developer and PALM, there was no evidence before the tribunal that the developer of the Palmerston Four Estate or the Authority had been consulted and had endorsed any of the plans relied on by the Applicant throughout this process.

18. While this may have created difficulties for the Applicant as the development work was carried out in 1999 and the developer had moved on, Dr Jarvis submitted this emphasized that it was not intended that in seeking an additional driveway, one could override a higher level prohibition. This prohibition is in the Vehicle Access Restrictions (at A2.1.12) in the Special Project Conditions which are Annexure A2 to the Deed of Agreement and refers to the mandatory requirement prohibiting vehicle access along parts of Kosciusko Avenue and other parts of the estate due to the steep high batter formed during the construction of the road. The Developer was mandated to incorporate these vehicle access restrictions into the Developer’s Estate Planning.

Conclusion

1. The Development Conditions in the LC&DRs, in particular 5.1.5. require the tribunal, when considering any proposal to depart from these conditions on its merits, to have regard inter alia, to the Relevant Objectives and Performance Criteria in the Residential Codes, the original intention of the conditions and consistency in their application.

2. Rule 17 of the Code clearly and unambiguously requires the proposal to comply with any pre-existing approved Lease and Development Conditions and, to the extent of any inconsistency, states the requirements of the Lease and Development Conditions will take precedence over any rules in the Code including in this case, in relation to vehicle access. Criterion 17 of the Code requires the development to meet the intent of the lease and development conditions.

3. The LC&DRs set out clear intentions and objectives for the Palmerston 4 Estate; the Planning and Controls Plan specifically and mandatorily provides that there is to be no vehicular access from Kosciusko Avenue to the subject block. The tribunal noted at the view that there are no access driveways in the prohibited location on Kosciusko Avenue; this supports the consistency of the application of the conditions referred to in 5.1.5 of the Development Conditions.

4. The tribunal had no hesitation in accepting the Respondent’s submissions on this issue.

5. The tribunal noted Mr Shoobridge’s concession[19] that he was not clear about the status of the LC&DRs for future development when a certificate of compliance has been issued for the whole estate.

   [19]    At paragraph 48

6. The tribunal is not persuaded by the Applicant’s submissions that as the existing driveway from Sugarloaf Circle had been provided in accordance with the mandatory driveway location shown in the planning control plan and a certificate of compliance had been issued for the whole estate it could be satisfied that the mandatory requirement had been met and the LC&DRs anticipated an additional driveway at a location prohibited by the LC&DRs such as is sought in the application before the tribunal.

7. Sheet 4 of the Planning Controls Plan in Section 6 of the LC&DRs identifies ‘no vehicle access’ from Kosciusko Avenue in front of the subject block. Condition 15(f) in Section 6 of the LC&DRs clearly identifies the subject block (Block 14) as having a mandatory driveway location. The remainder of Condition 15(f) refers to preferred driveway locations and departures from preferred driveway locations. It does not refer to departures from mandatory driveway locations.

8. For the above reasons, the tribunal is satisfied that the Applicant’s proposal, confined to the verge crossing, does not comply with R17 or C17 of the Code and it does not comply with the LC&DRs.

Issue D: Inconsistency with Entity Advice

Issue B: Engineering Standards and Technical Requirements

1. Section 120 of the Planning Act sets out considerations the decision maker must take into account when deciding an application for approval in the merit track. These mandatory considerations are set out in paragraph 21 above.

2. Section 120(d) requires the decision maker to take into account an entity’s advice. The application was referred for entity advice to TAMS as the application relates to unleased or public land, namely the verge. TAMS is the custodian of that land. Regulation 26(2)(b) of the Planning and Development Regulation 2008 states:

   (2)The following entities are prescribed for a development application in the merit track:

   (a)if the application relates to any part of a declared site within the meaning of the Tree Protection Act 2005—the conservator of flora and fauna;

   (b)if the application relates to unleased land or public land—the custodian of the land.

3. Referral for entity advice was also required by Criterion 28 (C28) and Criterion 40 (C40) of the Code.

4. The entity advice did not support the proposal.[20] The reasons given by the entity are set out in paragraphs 2, 3 and 4 above.

   [20]    T84-85

5. Section 119 of the Planning Act states when development approval must not be given for an application in the merit track. Pursuant to subsection 119 (1) the proposal must be consistent with, inter alia, the relevant code.

6. The tribunal does not have jurisdiction to overturn TAMS’ advice. Like the Respondent, the tribunal may only override entity advice if it is satisfied that the matters in subsections 119(2)(a) and 119(2)(b) of the Planning Act have been considered.

7. Turning firstly to the matters in subparagraph 119(2)(a)(ii) of the Planning Act, -“any realistic alternative to the proposed development, or relevant aspects of it”, Dr Jarvis submitted that the onus is on the Applicant to show that there are no realistic alternatives, in a planning sense, available to the tribunal than to ignore the entity advice and approve the Applicant’s proposal.

8. In this case, the Applicant has not provided any or any persuasive evidence that there was no realistic design or siting alternative to the second driveway crossing he is proposing or relevant aspects of it.

9. Mr Riches gave evidence that there are realistic alternatives in relation to the proposed driveway crossing from Kosciusko Avenue. Indeed, Dr Jarvis described as ‘the elephant in the room’ the existing driveway from Sugarloaf Circle as the realistic alternative as occupants of the subject premises, whoever they are, can enter the subject property with ease and convenience through the existing driveway. He submitted that ‘realistic alternative’, in a planning sense, is not necessarily limited to one particular idiosyncratic family situation and its particular arrangements.

10. Subparagraphs 119(2)(a)(i) and (ii) of the Planning Act are not alternate or optional considerations. The tribunal is required to consider both of these considerations as well as whether the decision is consistent with the objects of the Territory Plan in paragraph 119(2)(b).

11. The Applicant’s failure to address the requirements of subparagraph 119(2)(a)(ii) of the Planning Act when the Respondent has provided unchallenged evidence that there is a realistic alternative to the Application, namely the entry from Sugarloaf Circle, virtually determines the outcome of this application.

12. Subparagraph 119(2)(a)(i) requires the tribunal to consider ‘any applicable guidelines’. The applicable guidelines are the Construction within the Vicinity of Stormwater Easements (Summary Requirements) (TAMS 2008); AS 2890.1; the Design Standards for Urban Infrastructure – 11 Fences, Guardrails and Barriers; and Residential Driveways across the Verge.

13. In considering these guidelines, the tribunal notes that Mr Shoobridge agreed[21] that the tribunal should take into account the proposed driveway and turning bay when considering the application notwithstanding the Applicant seeks to confine the application before the tribunal to the driveway verge access.

[21]    See Paragraph 47 above,

1. Mr Shoobridge said [22] that the engineering issues include: 

   (a)all issues included in Rule 40 (1.2 metre offset from sumps and services, 6.0 metre clear of tangent point, uphill grade of less than 17%, right angle to kerb, maximum width of 5.5 metres, outside drip line of trees, compliant with AS 2890.1); and

   (b)works within the stormwater easement must comply with the TAMSD standard for “Construction within the Vicinity of a Stormwater Easement.”

   [22]    Paragraph 14, Witness Statement 2 August 2013

2. Mr Shoobridge believed that the amended drawings demonstrated a technical solution for all of the issues raised by TAMS, however acknowledged that further design development and documentation may be required with respect to matters such as driveway design.

3. In relation to the guidelines for Construction within the Vicinity of Stormwater Easements, Mr Jatheendran said TAMS had previously raised, as an issue, the configuration of the proposed driveway in relation to the storm water easement. He had checked the appeal plans and told the tribunal that the configuration of the proposed driveway in the ‘Section 1:75 Proposed Garage and Basement Additions’ drawing continues to be an issue in relation to the stormwater easement.

4. It is not in dispute that there are two easements located next to each other, namely stormwater within block 14 (the subject block) and sewer within adjoining block 13. A 225 mm diameter stormwater pipe provides connection to block 15 (which is immediately behind the subject block) and block 12 (which is immediately behind block 13) from the stormwater main running along Kosciusko Avenue. The pipe connection is located at an angle of approximately 17% to the horizontal.

5. Both Mr Jatheendran and Mr Shoobridge agreed that the proposed retaining wall as shown on the appeal plans does not comply with TAMS’ Requirements for Construction in the Vicinity of Stormwater Easements as shown at Figure 2 for Retaining Walls and Cuttings[23]. As shown, the foundation for the retaining wall will encroach into the adjoining property which has a sewerage easement. As such, it would be incapable of approval without a joint application.

   [23]    Page 287 Respondent’s Documents

6. If the retaining wall was wholly relocated within the Applicant’s property and complied with the guidelines for Construction within the Vicinity of Stormwater Easements, Mr Jatheendran said that this would adversely impact on the proposed car parking space which was confined between the retaining wall and the building wall. The resulting distance between the house wall and the retaining wall would not comply with AS 2890.1 at 5.2.

7. Mr Jatheendran identified other unresolved issues relating to this guideline in the appeal plans. The appeal plans currently provide for an area to be excavated for a car parking space.He had prepared his own drawing (Exhibit R3) based on the appeal plans’ ‘1:75 Proposed Garage and basement additions’ dated 2 August 2013 drawings and established a number of inaccuracies, including that the depth below the sump cover was 1.79 metres and not 2.20 metres as shown on the appeal plans and that the invert level of the stormwater pipe at a slope of 17.21% came to within 300 millimetres of the proposed excavation for the car parking area as opposed to the 940 millimetres detailed in the appeal plans.

8. In his opinion these inconsistencies may result in an unsafe load on the underground infrastructure (pipes) in the two easements along the boundary with block 13/176. He did concede, in cross examination, that theoretically there could be an engineering solution such as a suspended concrete slab in the car parking space which did not place load on the pipe but was of the opinion that the associated costs would make that an imprudent decision.

9. Mr Jatheendran opined that the proposed car park excavation would not be possible without relocating the stormwater pipe. Given the site constraints such as the existing building foundation and the level difference between end connections of the existing storm water pipe, he said that it will not be possible to relocate the storm water pipe within the available land between the building and the block.

10. When it was put to him that this was a matter of reducing the size of the extension to accommodate this requirement, Mr Jatheendran said that TAMS cannot assume some future changes in plans which will rectify everything. TAMS has to consider the application on the information provided by the Applicant.

11. In relation to the “Guidelines for Residential Driveways Across the Verge”; Mr Jatheendran said that the proposed gradient of the ramp will not comply with AS 2890.1 whereas Mr Shoobridge asserted that the first plans did comply.

12. In relation to the Design Standards for Urban Infrastructure- 11 Fences, Guardrails and Barriers; Mr Jatheendran told the tribunal that TAMS formed the view that there was a problem with the driveway gradient in the plans lodged on 1 July 2013. He said that the differences in levels were not clearly shown in the drawings in relation to the driveway gradient.  He expressed concerns about a number of safety issues for a driver exiting the parking space and proceeding along the sloped driveway to the road.

1. As the appeal plans no longer proposed removing the stone steps accessing the subject property and the neighbouring property, the driveway now had a deviation of about one metre around the existing stair well. Mr Jatheendran described this as a ‘kink’. In his opinion, as a driver exiting the property would be required to veer left because of the kink in the driveway, there needed to be a wall where the driveway kinked to alert the driver to veer left. There also needed to be a guard rail or a vehicle barrier on the Kosciusko Avenue side of the turning bay to ensure driver safety during this driving manoeuvre. This guard rail would obstruct vision when the driver was driving around the kink and proceeding towards Kosciusko Avenue.

2. Mr Shoobridge said, if necessary, a safety barrier could be constructed above the top of the retaining wall to address Mr Jatheendran’s concern that there would need to be a vehicle prevention barrier along the side of the proposed turning area nearest to Kosciusko Avenue. In his opinion the safety barrier would not obstruct a driver’s vision of pedestrians.

3. When asked, in cross examination, why he had brought up design issues at this stage when the architect design had not been formalized Mr Jatheendran told the tribunal that TAMS needed to know what and where the driveway was accessing to know what is required. He reiterated that if the application was limited to verge access for the driveway, the application would be refused for the same reasons as set out in his witness statement – the design features; the landscape; non- compliance with the Territory Plan; it did not meet the Zone objectives and TAMS did not support it.

4. Mr Jatheendran did agree in cross examination that there was plenty of scope within the 25% driveway gradient in AS 2890.1 2.6.2 to adjust the driveway design to accommodate the necessary clearance to the storm water pipe. However, he reiterated, as with the retaining wall, unless the submitted Proposal demonstrates compliance with the Guidelines, TAMS will not be able to accept it.

5. Mr Shoobridge told the tribunal that while he had not checked the dimensions on page 3 of the appeal plans, namely the longitudinal section of “the proposed garage and basement additions”, the measurements would have to be verified, from the works as executed drawings from TAMS or by obtaining a survey; the driveway gradient would have to be adjusted to provide the necessary clearance to the stormwater pipe and the builder would have to comply with TAMS’ requirements for construction in the vicinity of storm water easements.

6. Mr Shoobridge and Mr Jatheendran gave different evidence in relation to the issues relating to location of the driveway access, sight distance at the proposed access driveway exit and minimum sight lines for pedestrian safety.

7. Mr Shoobridge referred the tribunal to AS2890.1 clause 3.2 ‘Access Driveway – Width and Location’ which sets out the considerations to be made when selecting the suitable location for a driveway; clause 3.2.4 of AS2890.1 which sets out requirements for sight distance at access driveway exits and Figure 3.3, page 33 – Minimum Sight Lines for Pedestrian Safety.

8. He told the tribunal that the distance from the proposed driveway access on Kosciusko Avenue was 280 metres from the Gungahlin Drive intersection. He acknowledged that, between the Gungahlin Drive intersection and the subject property, there was a significant dip on Kosciusko Avenue. Mr Jatheendran described this as a 3 metre dip.

9. At the site view Mr Shoobridge had shown, by placing bollards at various distances along Kosciusko Avenue between the proposed driveway access and the Gungahlin Drive intersection, that the available sight distance towards the Gungahlin Drive intersection for a driver exiting the subject property with an eye height of 1.15 metres above the road surface[24] was 170 metres. Mr Shoobridge said this significantly exceeded AS2890.1 clause 3.2.4 which states that ‘entering sight distance for a domestic property access for a road with an operating speed of 70km/h is 70 metres.’

   [24]    AS 2890.1:2004 at 3.2.4. Note 7

10. Mr Shoobridge also told the tribunal that the sight distance at domestic access driveway exits along the frontage road (as shown in the table in Figure 3.2, clause 3.2.4) provided that if a vehicle was travelling along the frontage road (Kosciusko Avenue) at 110 kph then, according to the table, the desirable gap was 153 metres. The tribunal could therefore, be satisfied that a motor vehicle entering the road from the proposed domestic access driveway could stop and have time to reverse.

11. Mr Jatheendran disagreed that the appeal plans complied with the minimum sight line requirements for Pedestrian Safety in Figure 3.3. He referred the tribunal to Figure 3.3 and said that the applicant’s proposed access driveway was a single lane, not a double lane as depicted in Figure 3.3 and the 2.5 m x 2.0m sight triangle had to be kept clear on each side of the single driveway. Further, the driver in Figure 3.3 was shown as ‘coming straight to the exit’ whereas the driver using the Applicant’s proposed single driveway would have to concentrate on the kink in the driveway and on the footpath when proceeding to the exit. In his opinion the kink in the proposed driveway and the need for a safety barrier at the turning area complicated this issue.

12. Mr Shoobridge alleged that the safety barrier would not obstruct visibility of pedestrians. He based this evidence on the pedestrian eye height being 1.07 metres (i.e. for a pedestrian in a wheelchair). He said that it would not be expected that a pedestrian with an eye height of less than 1.07 metres would be unaccompanied.

13. Mr Jatheendran also expressed concern that the appeal plans show two retained pieces of stone wall on the driver’s right hand side when exiting the proposed driveway in places that should be kept clear.

14. Mr Shoobridge did not agree[25] with Mr Jatheendran that the sight distance to pedestrians would be restricted by the existing stone steps to the right on departure or the parts of the retaining wall being retained. He was aware of TAMS’ concerns about the impact on sight lines by the height of the remaining wall and while he did not think it necessary, he said the wall could be raked down or lowered or rebuilt to improve sightline.

    [25]    In his Supplementary Witness Statement at paragraph 16(c)

15. Mr Jatheendran volunteered that the Applicant would need to produce drawings to establish at what point the driver approaching Kosciusko Avenue access would be free (after managing the kink) to look left and right and, subject to these drawings satisfying TAMS requirements, they might be approved.

16. Mr Shoobridge acknowledged[26] that Kosciusko Avenue is a major collector road; carrying in excess of 3800 vehicles per day and residents who currently access Kosciusko Avenue have difficulties entering and exiting from their properties during peak hours[27]. He observed that currently there are four driveways located in close proximity to the west of the subject property with no provision for forward out from the properties. He said the accident statistics do not support any suggestion of a major traffic hazard for vehicles entering or leaving these properties. He reiterated that the location selected for the first driveway west of the intersection along Kosciusko Avenue was related to the terrain and high batter walls, not to the traffic conditions.

    [26]    Paragraph 16(e), Supplementary Witness Statement

    [27]    Paragraph 16(f), Supplementary Witness Statement

17. He opined that there are no safety hazards arising by virtue of the traffic conditions prevailing along this section of Kosciusko Avenue for a vehicle entering and leaving the subject property in a forward direction, which the appeal plans now allowed for, from the proposed driveway access location.

18. Mr Jatheendran also expressed a safety concern for drivers turning west from Buller Road (eastern section) into Kosciusko Avenue, which was within the area marked by the bollard at 170 metres, as well as cars proceeding in a westerly direction along Kosciusko Avenue from the intersection. In each case these vehicles would be proceeding past the entrance to the subject property.

19. Mr Jatheendran’s position was that the problems he had identified in paragraph 47, of his witness statement still exist. The tribunal noted that (f) – access to Block 13 was addressed in the appeal plans. The remaining problems are:

    a.  the Lease and Development conditions prohibit vehicular access from Kosciusko Avenue;

    b.    there are two easements, storm water on Block 14 and sewer on the adjoining Block 13. Construction of retaining walls and other structures as per standards will not be possible without encroaching into other property;

    c.    excavation for the proposed car space will expose the storm water pipe;

    d.   the gradient of the ramp shown on drawing will not satisfy AS 2890.1 (section 2.6.2 paragraph 1);

    e.    AS 2890.1 requirements for pedestrian safety at access driveways will not be satisfied (refer page 33 figure 3.3) without removing part of the neighbour’s retaining walls and the step.

Conclusion

1. Mr Shoobridge did not believe there were any issues which could not be resolved, which would prevent the merit based assessment and approval (subject to conditions) of this driveway access application. Mr Jatheendran said if the drawings took into account the sight and safety concerns raised by TAMS they might be able to be approved.

2. As stated above, Mr Shoobridge told the tribunal, in the light of Mr Jatheendran’s evidence, that the measurements currently shown in the appeal plans would have to be verified from the works as executed drawings from TAMS or by obtaining a survey; the driveway gradient would have to be adjusted to provide the necessary clearance to the stormwater pipe and the builder would have to comply with TAMS’ requirements for construction in the vicinity of storm water easements.

3. The tribunal noted the difficulty for TAMS, and indeed the tribunal, when required to assess an application when the drawings did not detail all relevant design issues and some of the detail was inaccurate.

4. However, it appears to the tribunal that in considering ‘Inconsistency with Entity Advice’ and the “Engineering Standards and Technical Requirements”, the issues raised by Mr Jatheendran and acknowledged by Mr Shoobridge could be resolved and that this issue, of itself, would not prevent a merit based assessment and approval of the application subject to conditions.

Issue F: Unsuitability of Land

1. Pursuant to subsection 120(b) of the Planning Act the tribunal must consider the suitability of the land where the development is proposed to take place.

2. The tribunal is satisfied that the prohibition in the Estate Development Plans and Conditions prohibits driveways at this site. Mr Riches gave evidence that the steep batter in the terrain was the reason for the prohibition of driveways here.

3. Mr Jatheendran gave evidence of the traffic and design difficulties of this proposed location. However, he did not confine himself to sight lines or distance. He considered a range of issues including the slope of the block; its location in the topography of Kosciusko Avenue; the three metre dip in Kosciusko Avenue restricting visibility of vehicles approaching from the east along that Avenue and the location of the sewerage and storm water connections resulting from the slope of the block.

   Conclusion

4. While the tribunal has found that some of the issues relevant to the guidelines may be capable of resolution with further detailed and accurate drawings, the tribunal is satisfied that, in addition to the prohibition referred to in paragraph 136, the topography of the land and the proposed location of the driveway access in this topography, make the land not suitable for this proposed application.

Issue C: Other issues

1. Subsection 120(a) of the Planning Act requires the tribunal to consider the objectives for the zone in which the development is proposed to take place. The objective for the RZ1 – Suburban Zone which is relevant to this assessment is:

   (e)Ensure development respects valued features of the neighbourhood and landscape character of the area and does not give unreasonable negative impacts on neighbouring properties.

2. Mr Shoobridge included streetscape, visual impact of removal of parts of the stone retaining walls, safety for elderly or disabled drivers, precedence of second driveways, compromise to pedestrian safety, Group Packaging Developing Conditions (LC&DRs), safety barriers, height of retaining walls and method for measurement of sight distances under this heading.

3. The tribunal has already considered some of these issues. The tribunal will consider the remaining issues of streetscape, visual impact of removal of parts of the rock retaining walls and landscaping when considering Objective (d) RZ1.

4. Mr Shoobridge qualified his evidence in relation to these matters with the statement that this was not within his area of expertise and his evidence was based on his observations.

5. He pointed out the disparity of the treatment of the rock wall by property owners emphasizing that the rock walls had been softened by vegetation. He did not believe that the streetscape would be compromised by the removal of five metres of the retaining wall and of the second retaining wall for the driveway. He suggested that any impact could be muted with landscaping.

6. The neighbourhood area in this matter may be defined as Kosciusko Avenue from its eastern end where it intersects with Gungahlin Drive to Gingera Street. The Respondent described this neighbourhood and landscape character in paragraph 34 of its statement of facts and contentions as:

   “A series of large dwellings are set on high blocks sloping towards the southern side of Kosciusko Avenue. The blocks on the northern side of Kosciusko Avenue are largely at road level. None of the blocks in this area has a driveway into Kosciusko Avenue. The southern blocks have a series of 1 metre stone retaining walls near the front boundary, retaining landscaped areas forward of the building line. Several pairs of these blocks (including 13 and 14) have a shared stairway access from the footpath, built of stone blocks. The retaining walls and stairwells are constructed in consistent stone materials.”

7. The Respondent submitted[28] that the proposal does not meet the objective of respecting this neighbourhood and landscape character because it:

   (a)   removes landscaped area forward of the building line to provide a vehicle turning point;

   (b)   adds a driveway in a section of the street characterized by the absence of verge crossings;

   (c)   requires additional retaining walls > metre to retain the turning area, producing inconsistency with neighbouring blocks;

   (d)   requires a further additional wall or vehicle barrier for the vehicle turning area to comply with Design Standards;

   (e)   alters the finished ground level so that it is inconsistent with the block adjacent to the proposed driveway; which reduces the amenity of the area by creating a disparity of finished ground levels.

   Conclusion

   [28]    Statement of Facts and Contentions paragraph 35.

8. The tribunal is satisfied that the current proposal has a direct, negative and unreasonable impact on the adjoining property; block 13, as it proposes that the foundations for the retaining wall be located on that property.

9. The tribunal is satisfied that the existing retaining walls were an original design element and are an integrated design element with the neighbouring blocks[29].

   [29]    Dominic Riches’ witness statement paragraphs 36, 38

10. The Applicant’s proposal involves cutting away segments of two levels of the bluestone walls which is located in front of a whole series of blocks in this area on the same side of Kosciusko Avenue as the subject property between the intersection of Amarina Street and Kosciusko Avenue and the intersection of Gingera Street and Kosciusko Avenue.

11. This neighbourhood has a distinct character (see T126). The chief feature of that area of the suburb is the bluestone retaining walls and series of stairwells from the same stone providing access to the groups of blocks along that section. Some of the bluestone walls have been planted with vegetation and used as a feature.

12. The neighbourhood currently has each dwelling set on the third level up from Kosciusko Avenue, with two retaining walls between each house and the street. This serves to emphasize the continuity of the level in each of the dwellings.

13. The tribunal is satisfied that the Applicant’s proposal to remove the second retaining wall will remove the continuity with the levels associated with those houses in the neighbourhood including the house on block 13. The proposal does not protect the existing retaining wall features.

14. Further, the tribunal is satisfied that the proposal to excavate the second level to create a turning pad which will be attached by a driveway to the verge crossing and to the car parking space is inconsistent with the existing streetscape which is characterised by an absence of verge crossings.

15. The tribunal concurs with the Respondent’s submission in paragraph 148 above. It is not satisfied that the proposed development respects valued features of the neighbourhood and landscape character of the area, or that it will not have a negative or unreasonable impact on neighbouring properties.

CONCLUSION

1. The Applicant urged the tribunal to find that the LC&DRs, particularly the mandatory driveway locations for Stage 2 approved by the Estate Manager in 1999, had been met and a certificate of compliance had issued for the whole estate.

2. While acknowledging the restriction on access from Kosciusko Avenue, he submitted that Clause 5.1 of the LC&DRs as it related to the Territory Plan and the Planning Act, recognized at 5.1.5 that there could be a proposal for departure from the development conditions which would be assessed on its merits having regard to the objectives and performance criteria in the relevant Codes, the original intention of the conditions, consistency in their application and the effect on the amenity of neighbours. The tribunal has considered these matters in determining the merits of the Application.

3. The tribunal is satisfied, for the reasons set out above, that the Applicant’s Proposal does not comply with the pre existing LC&DRs or their intention (as the Planning Control Plan clearly depicts no vehicular access to Kosciusko Avenue from block 14) as required by Rule 17 and Criterion 17 and, therefore, that it does not comply with the Code as required by subsection 119(1) of the Planning Act. The tribunal is also satisfied that the mandatory requirements in the LC&DRs restricting vehicle access to the subject block from Kosciusko Avenue take precedence over the Rules in the Code[30] in relation to vehicle access.

   [30] Rule 17 of the Code

4. While Condition 15(e) of the Special Project Conditions permits additional driveways the tribunal notes that the Application has not been endorsed as required by that condition. In any event, the tribunal is not satisfied that this condition overrides the higher level prohibition in the LC&DRs.

5. Condition 15(f) in the Special Project Conditions identifies the subject block as having a mandatory driveway from Sugarloaf Circle and does not refer to departures from mandatory driveway locations; rather it refers to departures from preferred driveway locations.

6. In considering the provisions of subsection 119(2) of the Planning Act, while the tribunal was satisfied that the Applicant may be able to meet some of the technical issues [31] which address the outstanding safety issues raised by Mr Jatheendran, as well as address the current non compliance with the guidelines (as required by subparagraph 119(2)(a)(i) of the Planning Act)  for construction over stormwater easements, the Applicant did not provide any evidence of any realistic alternative to the proposed development as required by subparagraph 119(2)(a)(ii) for the tribunal to consider. The Respondent provided unchallenged evidence that a realistic alternative was the current driveway access from Sugarloaf Circle.

   [31] concerning the driveway’s compliance with the Australian Standards, namely sight distance, proximity to intersection and pedestrian sighting

1. Pursuant to paragraph 119(2)(b) of the Planning Act, the tribunal must be satisfied that approval of the Application, when such approval would be inconsistent with TAMS’ advice, is consistent with the objects of the Territory Plan. The stated object of the Plan[32] is to ensure, in a manner not inconsistent with the national capital plan, the planning and development of the ACT provide the people of the ACT with an attractive, safe and efficient environment in which to live work and have their recreation.  The Territory Plan has 11 zones and each zone has objectives that set out the policy outcomes intended to be achieved by applying the applicable development table and code. Subsection 120(a) of the Planning Act requires the tribunal to consider the objectives for the relevant zone when deciding development approval in the merit track. The tribunal has already found that this Application does not meet Objective (d) of the RZ1-Suburban Zone.

   [32] section 48, Planning Act

2. Having considered all of the matters before it and for the above reasons, the tribunal is satisfied that the decision under review should be confirmed, pursuant to section 68(3) of the ACAT Act.

   ........……………..

   Ms E. Symons

   Presidential Member
   PUBLICATION DETAILS

FILE NUMBER:	AA 13/33
PARTIES, APPLICANT:	RAMAKRISHNA PRASAD GUTTA
PARTIES, RESPONDENT:	ACT PLANNING AND LAND AUTHORITY
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	Dr D Jarvis
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	Aditi Mohindra – ACT Government Solicitor
TRIBUNAL MEMBERS:	Ms E. Symons
DATE OF HEARING:	13 August 2013
PLACE OF HEARING:	CANBERRA