Hill & Act Planning & Land Authority
[2008] ACTAAT 32
•25 November 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:HILL & ACT PLANNING & LAND AUTHORITY & ANOR [2008] ACTAAT 32 (25 NOVEMBER 2008)
AT08/55
Catchwords: Land and planning – approval of pre-existing tennis court lights – whether lights previously approved – jurisdiction – applicability of Territory Plan – issues of height, visual impact, noise and disturbance – impact on nature reserve – application of AS4282.
Building Act 2004
Environment Protection Act 1997
Land (Planning and Environment) Act 1991, ss 8, 276
Land (Planning and Environment) Regulation 1992, s 43, sch 7
Planning and Development Act 2007, s 205Eames and ACT Planning & Land Authority [2003] ACTAAT 43 (24 September 2003)
Stanley and Minister for Planning [2002] ACTAAT 40 (20 September 2002)
Tribunal:Ms P O’Neil, Senior Member
Dr E McKenzie, Senior Member
Mr J Ashe, Member
Date:25 November 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/55
LAND AND PLANNING DIVISION )
RE: PJ & JM HILL
ApplicantsAND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: CARMELA CARRABS
& RELTON ALLAN
HELMAN
Party Joined
DECISION
Tribunal : Ms P O’Neil, Senior Member
Dr E McKenzie, Senior Member
Mr J Ashe, Member
Date : 25 November 2008
Decision :
The decision under review dated 19 October 2007 is varied by omitting conditions 1 and 2 and substituting the following:
That the development is to be carried out only in accordance with the following:
(a)site plan stamped approved on 16 April 2008 modified to remove the shade cloth to the chainwire fence on the western side of the tennis court and to reflect accurately all relevant dimensions;
(b)additional drawings and engineer’s specifications approved in accordance with the following conditions.
That, by 27 February 2009, the applicants lodge with the Authority for approval further drawings and engineer’s specifications prepared by an appropriately qualified person showing compliance with Australian Standard 4282 (1997).
…………………………..
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/55
LAND AND PLANNING DIVISION )
RE: PJ & JM HILL
ApplicantsAND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: CARMELA CARRABS
& RELTON ALLAN
HELMAN
Party Joined
REASONS FOR DECISION
25 November 2008 Ms P O’Neil, Senior Member
Dr E McKenzie, Senior Member
Mr J Ashe, Member
This is the second of two applications arising from a dispute between neighbours about a tennis court. Mr Peter and Mrs Janet Hill (“the applicants”) live at 103 Hawkesbury Crescent Farrar. They have sought review of a decision of the Land (Planning and Environment) Act 1991 (“the Land Act”) retrospectively approving with conditions tennis court lights at the home of Ms Carmela Carrabs and Mr Relton Helman (“the party joined”), of 105 Hawkesbury Crescent Farrar (“the subject land”). Both matters were heard together on 11-12 November 2008.
2. The lights comprise four Hubbell 1000 watt tennis lights mounted on tapered metal poles, two on the northern side of the court and two on the south. The underside of each light is about 9.3 metres from the surface of the tennis court. On the western side of the court facing the applicants’ residence, the poles are some 8.8 metres from the tennis court fence, which is some 100-150 millimetres from the boundary. The nearest part of the applicants’ residence is 9.4 metres from the boundary. The court extends across the full width of the block and adjoins Farrer Ridge Nature Reserve.
Background
It is unclear when the lights were installed, but an ACT Electricity Authority installation inspector signed off a ‘Ready for Test Certificate’ for the wiring for the lights on 9 August 1978 and left them connected. This confirms that the lights were installed some time before that date, probably not long before.
4. In response to complaints by the applicants on 11 May and 1 June 2007 that the lights were unapproved and were causing light pollution on their land, the respondent wrote to the party joined on 14 June 2007, informing them that a search of the files for the block indicated that the light towers and attached floodlights were not approved. The respondent stated that in order to regularise the matter the party joined would need to lodge a development application for the unapproved structures or remove them.
5. On 10 July 2007 the party joined submitted a development application seeking approval of the lights. The applicants opposed the application in writing on 15 August 2007. On 19 October 2007 the respondent approved the existing tennis court lights with conditions, in particular that the party joined were required to lodge with the respondent for approval revised architectural drawings:
(i)Revised site plan showing location of the tennis court fence, including setbacks from all boundaries, and setbacks from the Southern boundary.
(ii)Diagram indicating that the light spill is contained within the tennis court area in accordance with Australian Standard, AS4282 ‘Control of the Obtrusive Effects of Outdoor Lighting’.
6. Under cover of a letter dated 22 January 2008 and a development application dated 24 January 2008 the party joined submitted revised architectural drawings. In their letter of 22 January 2008 they indicated that the revised plans and details were prepared following consultation with Mr Gordon Ahern of John Ranieri and Associates, Consulting Engineers–Architectural Lighting Consultancy. The letter states that it is proposed to adjust light angles and fit each of the four existing lights with new baffles and shielding so that light levels do not exceed 10 lux on the relevant boundaries as per AS4282. It was also proposed, in order to reduce light levels as far as possible below 10 lux, to fit maximum obscuration shade cloth to the chainwire fence on the western (relevant) site boundary. The party joined also proposed not to operate the lights during curfewed hours (11 p.m. till 6 a.m.). The revised plans include the following annotations:
NOTE:
LIGHTS–ADJUST ANGLE &FIT WITH NEW BAFFLES
& SHIELDS
RELEVANT BOUNDARIES–
ILLUMINANCE IN VERTICAL
PLANE NOT TO EXCEED
10 LUX AS PER AS4282
TABLE 2.1
and
PLASTIC COATED CHAINWIRE
FENCE TO 3600 HIGH
91% SHADE CLOTH TO
RELEVANT BOUNDARY
CHAINWIRE FENCE
In addition, each of the two plans include handwritten annotations by Mr Ahern:
Solution in accordance
with AS4282JE Ahern
24/01/08
7. On 16 April 2008, following further consultation with the applicants, who maintained their opposition to the lights, the respondent approved the revised drawings. The applicants subsequently sought unsuccessfully to have the decision revoked. On 23 June 2008, by leave of the Tribunal, the applicants lodged their application for review of the respondent’s decisions approving the lights and the revised architectural drawings.
Do the lights need approval?
8. The party joined do not agree that the lights require approval. They contend that “the tennis court lights as indicated on amended plan 29980/A, were approved and erected in accordance with referenced plans and as per regulations current at time of approval”. Building plan 29980/A, which was submitted on 24 May 1973 and approved on 31 May 1973, includes a diagram of the proposed tennis court but does not include any reference to the tennis court lights other than the following note: ‘P.P. & Fut. Court Light Conn.’ with an arrow leading to an electrical power point symbol. We interpret this note to be shorthand for ‘Power Point and Future Court Light Connection’ and a reference to tennis court lights to be installed at some time in the future. In the absence of any other reference on this plan to the lights, we do not accept that this plan provides evidence that the lights were approved, merely that the proposed location of an electrical power source for future lights was approved. Nor do we attach any significance, as do the party joined, to the fact that there is no note on plan 29980/A requesting details of either lights or supporting structures or any restrictions on type of luminaire, height or detail of supporting structure. This is consistent, we believe, with an absence of any firm proposal to build a tennis court at that time and that this was a matter to be dealt with in the future.
9. The party joined also refers to the Ready for Test Certificate 095413 issued by the ACT Electricity Authority for the wiring for the lights on 9 August 1978 and see this as supporting their contention that the lights were approved. Although confirming the existence of the lights at that time, this certificate only constitutes approval for the electric wiring work for the lights not the lights themselves or the supporting poles. Nor, we find, can one infer with any confidence existence of approval for the lights from the existence of approval for the electrical wiring.
10. The party joined are supported in their contentions by evidence provided by Mr Wagdy Hanna, who provided an expert witness report for the party joined and appeared before the Tribunal. Mr Hanna, a retired architect and principal of Wagdy Hanna and Associated Pty Ltd. Architects and Property Consultants with extensive experience in all facets of the building industry, is very familiar with planning and building approval processes in the ACT. Mr Hanna sets great store by the professional competence of ACT Government officers and believes that if the tennis court lights were not approved when they were installed this would have come to the notice of officers during the approval processes for the various additions and alterations that have occurred to the property over the years. He is of the view that the fact that this did not occur suggests that the Department was satisfied that the tennis court, lights and fence were approved structures. Although Mr Hanna’s evidence has been helpful to the Tribunal, it falls short, we believe, in providing convincing evidence that the lights were ever approved.
11. The Tribunal has concluded therefore that the lights were not approved prior to the approval by the respondent on 19 October 2007.
The Tribunal’s jurisdiction
The question whether the Tribunal has jurisdiction to hear the applicants’ appeal against the respondent’s decisions of 19 October 2007 and 16 April 2008 was considered by the President of the Tribunal on 14 August 2008. It was argued in that hearing that the Tribunal did not have jurisdiction because of the operation of section 43 of the Land (Planning and Environment) Regulations 1992, which excludes the operation of section 276 of the Land Act if the development in question is listed in schedule 7 of those regulations. The President concluded that the neither item 5 nor item 6 in schedule 7 exclude the jurisdiction of the Tribunal. Counsel for the respondent provided further submissions on this issue in the substantive hearing, but has not persuaded the Tribunal that it should depart from the ruling by the President on 14 August 2008.
The Territory Plan
13. The applicants argued that the respondent and this Tribunal are required to assess applications for unapproved developments under the provisions of section 205 of the Planning and Development Act 2007 (“the 2007 Act”). This requires the respondent to treat an application for approval for a development that has already been undertaken as if the development had not been undertaken. Section 205 does not, however, apply to the development application under review, which is being governed by the provisions of the Land Act. The Land Act was repealed and replaced by the 2007 Act on 31 March 2008, when a new Territory Plan also came into effect. However transitional provisions require this application to be considered under the Land Act and the version of the Territory Plan in force at the date of the development application. While the Land Act has no provision comparable to section 205 of the 2007 Act, a decision cannot be made that is inconsistent with the Territory Plan (section 8 Land Act). That has been the approach of the Tribunal in earlier cases where approval has been sought for existing developments (see for example, Stanley and Minister for Planning [2002] ACTAAT 40 (20 September 2002). In this case concerning tennis court lights, however, the Plan is of only limited assistance.
14. The Territory Plan has no specific provisions relating to tennis courts in residential areas, but provisions of varying degrees of relevance are to be found in Part B1: Residential Land Use Policies and Part A3: Plan Administration Policies, especially paragraphs 9.2 (d) and (e); 9.3 (a), (b), (c), (d), (e), (j) and (p). Appendix III.1: Residential Design and Siting Codes for Single Dwellings has limited relevance except for Performance Control 6: External Appearance of Buildings as it relates to structures, plant and equipment visible above roofs. There are no setback provisions applying to the lights.
The evidence
15. As in the case of the fence, all parties provided written evidence and Mrs Hill, Ms Carrabs and Mr Green gave oral evidence. Mr Hanna provided expert evidence on behalf of the party joined and Dr Doug Jarvis appeared for the respondent. None of the parties called a person with technical expertise in lighting to give evidence at the hearing.
16. The applicants object to approval of the lights on a number of grounds, of which the principal ones, in summary, are as follows: (1) compliance with AS4282 has not been adequately demonstrated; (2) the floodlights are of excessive height; (3) the floodlights are a cause of intrusive visual impact; (4) there is excessive night-time noise and disturbance associated with the use of the floodlights; and (5) no light management plan has been submitted to address light pollution impacts on Farrer Ridge Nature Reserve. The applicants also object to the proposal to install shade cloth on the western fence of the tennis court.
Compliance with AS4282
17. The applicants argue that the revised architectural drawings submitted by the party joined in January 2008 do not demonstrate compliance with AS4282 and merely state incompletely what the standard requires. They also question whether it will be possible to modify and adjust the lights so as to achieve compliance with the standard. The party joined and the respondent have relied on the professional engineering advice from Mr Ahern that, by appropriate modifications and adjustments, compliance with the standard can be achieved. The contribution of Mr Ahern under the auspices of John Raineri & Associates Pty Ltd was limited and he was not called to give evidence, but neither did the applicants seek to provide the Tribunal alternate expert evidence to contest his views.
18. The Tribunal understands that, in addition to planning approval, the modified lights will also require building approval under the Building Act 2004 which will require a demonstration of compliance with AS4282 before a certificate of occupancy and use may be issued by the respondent. The respondent has commented that compliance is a matter of enforcement not planning and if the lighting system does not comply the party joined will be in breach of the approval and remedial action may be taken.
19. The plan approved on 16 April 2008 as giving effect to the conditions of approval shows on the fence nearest the applicant’s residence “Plastic coated chainwire fence to 3600 high 91% shadecloth to relevant boundary chainwire fence”. The applicants object to the approval of the heavy shade cloth over the 3600 metre fence for the whole of its side facing their residence. They believe it would be unsightly and a detriment to their amenity.
20. On 28 August 2008 the ACT Government Solicitor wrote to the applicants on behalf of the respondent as follows:
I am instructed to advise that, should the matter proceed to hearing, the respondent will propose to the Tribunal the following amendment to the decision under review:
That the site plan (T14, folio 55) provided in response to condition 2(a)(ii) of the decision be amended to remove the shade cloth from the chainwire fence.
21. Two reasons were given in the letter. Firstly, it was stated that the shade cloth was not necessary to achieve compliance with AS4282. Secondly, it was conceded that the shadecloth would have a detrimental effect on the applicants’ amenity.
22. However, when the matter came to hearing the respondent disavowed that undertaking and submitted that the provision of shade cloth should remain within the approval, as a precautionary measure. Given the respondent’s earlier concession in the letter of 28 August 2008 and in the absence of a technical report or expert evidence explaining the necessity of such an extensive area of shade cloth, we are not inclined to approve that aspect of the decision.
23. We note that the plan was endorsed by Mr Ahern as meeting AS4282 with shade cloth on the western fence nearest the applicants’ residence. However we also note that at the eastern fence the relevant standard was expected to be met without shade cloth, which we question can be attributed to vegetation beyond the fence. In the absence of a technical report or other expert evidence, the Tribunal is not able to find with certainty that AS4282 can be satisfied. However, given (1) the views of the respondent in the letter of 28 August 2008 that the shade cloth is not necessary for compliance with AS4282; (2) the apparent endorsement of Mr Ahern that the standard can be met; and (3) the application of the Building Act, we would be prepared to approve the development subject to a condition requiring the provision of a more precise technical specification of what is required in order to meet the relevant sections of AS4282.
Height of the lights
24. The applicants argue that the lights, being mounted 9.3 metres above the surface of the tennis court and at an even greater height above natural ground level, are of excessive height. They assert that the lights contravene provision O1.1 and P1.1 of Appendix III.1 of the Territory Plan, which regulate the height of residential buildings. They also rely on research they have undertaken into tennis court designs and codes indicating that lights with a height of 6–7 metres are adequate for a residential court. They see the Tribunal’s decision in Eames and ACT Planning and Land Authority [2003] ACTAAT 43 (24 September 2003) as providing a precedent for requiring the height of tennis court light poles to be no greater than 6 metres.
25. The respondent comments that the lights have been on the subject land for over 30 years and were there when the applicants bought their land 19 years ago. The respondent is of the view that the circumstances taken as a whole do not warrant an order that the party joined partly demolish the light towers to reduce their height to one seen by modern light installers as sufficient. The respondent considers that an obligation to reduce the height of the towers would be unduly onerous for the party joined and would provide little benefit for the applicants. It is the respondent’s view that the Tribunal’s decision in Eames is distinguishable from the current matter, as that case involved construction of a new tennis court not alterations to an existing court. The respondent argues that the applicants’ reliance on Appendix III.1 to claim the height of the towers should not exceed 8.5 metres is misplaced as Appendix III.1 applies to ‘buildings’ not ‘structures’ and the towers are structures not buildings. Finally, the respondent submits that, having regard to AS4282, any reduction in the height of the towers would be likely to increase light spill to the western boundary, although the applicants contest that assertion.
26. The party joined argues, on the basis of enquiries with lighting equipment suppliers, that putting in lights complying with AS4282 on the existing poles at 6 metres height would not light the court adequately. In light of the evidence, the Tribunal has concluded that requiring the party joined to reduce the height of the existing lights in their present locations is not justified in the absence of more certain evidence as to how AS4282 can best be met. We are satisfied that there is no requirement in the Territory Plan requiring reduction of the height of the lights below their present level.
Visual impact of the lights
27. The applicants argue that the floodlights tower high above nearby 2-storey rooftops and that the negative impact is exacerbated when the lights are switched on at night. In the applicants’ view the floodlights infringe provisions O6.2 and P6.2 of Appendix III.1 of the Territory Plan, which provide as follows:
O6.2:To ensure that external colours and finishes of buildings and structures above roofs are not excessively obtrusive or likely to cause a loss of amenity to the streetscape or neighbours.
P6.2:Structures, plant and equipment situated on or visible above roofs to be so located and treated as to be as inconspicuous as possible.
28. The applicants say that neighbours, friends and passing strangers who live in the area have commented adversely on the visual impact of the lights in a residential setting. The applicants also argue that the Tribunal’s decision in Eames was made largely to reduce adverse visual impact.
29. The respondent repeats its submissions in relation to the applicants’ complaints about the height of the floodlights in its comments about the visual impact of the lights. As the respondent sees it, the essence of the complaints about the towers’ height is their visibility. Concerning the impact of the lights at night, the respondent draws attention to the requirement to comply with AS4282. The respondent is also of the view that the impact of the lights is also rendered acceptable by distance and the scope for screening by vegetation on the applicants’ block.
30. Referring to provisions P6.2, Dr Jarvis submitted that P6.2 is not intended to refer to court lights but rather radio antennae. He noted that performance measure D6.2 provides that single masts may be located on a free-standing structure at the rear of a dwelling; and that viewed from the street one of the lights is visible above the roof line of the subject land only from one vantage point, complying with P6.2 and O6.2. During its view of the subject land the Tribunal noted that only one light was visible from one vantage point in the street.
31. In light of the evidence the Tribunal is not persuaded that the applicants have demonstrated that the visual impact of the light is so significant that the lights should be removed or reduced in height. We are also of the view that the lights meet the requirements of provisions O6.2 and P6.2 of Appendix III.1of the Territory Plan and are not otherwise in conflict with the Plan.
Noise and disturbance associated with the use of the floodlights
32. The applicants have complained that in addition to light pollution the lights facilitate noisy and disturbing use of the tennis court during hours of darkness, which disturbs their amenity. They allege among other things that it is impossible to sleep or rest in their bedrooms or work effectively in their studies when the tennis court is in use.
33. The party joined has disputed the seriousness of these claims and proposed in their letter of 22 January 2008 not to operate the lights during curfewed hours (11 p.m. to 6 a.m.). The respondent argues that there is insufficient justification to impose more onerous curfew conditions than those proposed by the party joined and that the applicants cannot reasonably complain that neighbours use their property for the purpose for which it was intended and outside curfewed hours. They add that if noise is excessive, irrespective of its source, the noise can be addressed in the ordinary way by complaint to the police or Environment ACT.
34. The Tribunal notes that paragraph 9.3(d) of Part A3 of the Territory Plan requires a relevant authority when assessing a development proposal to carefully consider “impacts on the amenity of surrounding land uses, including impacts on … the level of noise generated…”. However, in the circumstances of this case where the tennis court is already in place, the Tribunal considers that the Territory Plan is not the appropriate vehicle for dealing with the noise issue and that any future concerns, should they arise, should be taken up with Environment ACT for consideration in terms of the provisions of the Environment Protection Act 1997.
Impacts on Farrer Ridge Nature Reserve
The respondent sought comments on the original development application submitted by the party joined on 10 July 2007. In response Environment ACT replied that the application could be supported provided that all outdoor lighting complies with AS4282 and that a light management plan must be submitted which covers issues such as spill to adjacent areas and proposed times of operation.
36. The applicants assert that no light management plan was submitted and that no compliance with AS4282 was demonstrated in relation to the reserve. The respondent has questioned the bona fides of the applicants in raising this issue and asserts that this is not a matter about which the applicants have a legitimate interest. The respondent notes that the conditions of approval require compliance with AS4282, and observes that no complaint has been raised by Environment ACT, which has responsibility for the reserve. The party joined dispute that there is a requirement to consider the issue of light spill onto the reserve.
37. The Tribunal notes that paragraph 9.3 (j) of Part A3 of the Territory Plan requires a relevant authority when assessing a development proposal to carefully consider “impacts on flora and fauna wildlife habitats”, and we have done so. No evidence has been provided of any adverse effects on Farrer Ridge Nature Reserve from the lights or the use of the tennis court at any time during the 30 or more years that the lights have been in existence, and we have concluded that any impacts are likely to be minor. Moreover, we note that compliance with AS4282 should prevent any light spill onto the reserve thus avoiding any adverse impacts from the use of the lights.
Conclusion
38. There is no requirement arising from the Territory Plan or otherwise that would justify imposing a requirement to remove or reduce the height of the existing lights. The Tribunal has concluded that approval of the development with conditions would not be inconsistent with the Territory Plan. On the basis of the evidence we are satisfied that the existing lights can be modified or adjusted so as to ensure compliance with AS4282 and that the lights should be approved. The intent of this decision is to ensure that the party joined may have lights on the existing poles so long as compliance with AS4262 is achieved. It would be appropriate, however, to vary the conditions imposed by the respondent in its decision of 19 October 2007 so as to provide a more precise technical specification of what is required in order to meet AS4282, to ensure the dimensions are correctly represented on the site plan and also to remove the proposed shade cloth. The installation of shade cloth on the fence on the western side of the tennis court appears to be unnecessary to meet AS4282 and would have detrimental effect on the applicants; the conditions of approval will be amended accordingly.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT08/55
APPLICANTS: PJ & JM HILL
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: CARMELA CARRABS & RELTON ALLAN HELMAN
COUNSEL APPEARING: APPLICANTS:
RESPONDENT: DR D JARVIS
PARTY JOINED:
SOLICITORS: APPLICANTS:
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTY JOINED:
OTHER: APPLICANTS: SELVES
RESPONDENT:
PARTY JOINED: SELVES
TRIBUNAL MEMBER/S: MS P O’NEIL, SENIOR MEMBER
DR E MCKENZIE, SENIOR MEMBER
MR J ASHE, MEMBER
DATE/S OF HEARING: 11 & 12 NOVEMBER 2008 PLACE: CANBERRA
DATE OF DECISION: 25 NOVEMBER 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
0
0