Hipkins v ACT Planning and Land Authority & Ors - [2022] ACAT 41

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HIPKINS v ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2022] ACAT 41

AT 97/2021

Catchwords: ADMINISTRATIVE REVIEW – planning and development – proposed development of dual occupancy in RZ1 – multiple issues raised under the Multi-unit Housing Dwelling Code – inaccurate site area affecting calculation of plot ratio – whether stair area included in gross floor area calculation – designed according to site conditions but consequential issues with setbacks, fences and courtyard walls – consideration of contribution to streetscape – safety of basement ramps and functionality of basement car parking – not inconsistent with zone objectives

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Common Boundaries Act 1981
Planning and Development Act 2007 ss 50, 119

Subordinate

Legislation cited: Australian/New Zealand Standard – Parking facilities – Off-Street Parking – AS 2890.1
Territory Plan
Multi Unit Housing Development Code
Planning for Bushfire Risk Mitigation General Code
Residential Boundary Fences General Code
RZ1 Suburban Zone

Cases cited:Downer Community Association and ACT Planning and Land Authority [2007] ACTAAT 20
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Eldridge v ACT Planning and Land Authority [2020] ACAT 22
Glass v ACT Planning and Land Authority [2016] ACAT 96
Goffman & Ors v ACT Planning and Land Authority & Ors [2012] ACAT 7
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85
4thd Planning and Design Pty Ltd v ACT Planning and Land Authority & Ors [2021] ACAT 59

Tribunal:Senior Member K Katavic (Presiding)
Senior Member G Trickett

Date of Orders:  20 May 2022
Date of Reasons for Decision:      20 May 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 97/2021

BETWEEN:

MARCUS HIPKINS
Applicant

AND:

ACT PLANNING AND LAND AUTHORITY
First Respondent

TERENCE PHILLIP RING

First Party Joined

D&H DEVELOPMENTS PTY LTD

Second Party Joined

TRIBUNAL:Senior Member K Katavic (Presiding)
Senior Member G Trickett

DATE:20 May 2022

ORDER

The Tribunal orders that:

The decision under review is set aside and substituted with a decision that Development Application 202139020 is refused.

………………………………..
Senior Member K Katavic
For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

Mr Hipkins, the applicant, lives across the road from a proposed development on Block 1 Section 77 Ainslie (the subject site). The subject site is a former ‘Mr Fluffy’ block which has been cleared. The proposal seeks to demolish an existing shed and some hard landscaping and construct two new two storey dwellings with separate basement car parking to each with landscaping and associated site works.[1]
[1] T-documents pages 7-13
On 17 September 2021, the respondent approved the development as described above subject to conditions (the decision).[2] The applicant seeks review of that decision on the basis that it is inconsistent with various parts of the Territory Plan as detailed below.

The hearing and evidence

[2] T-documents pages 7-13

The applicant relied upon his written submissions dated 16 December 2021. He did not give evidence at the hearing. The applicant seeks orders setting aside the decision and substituting it with a decision refusing approval.
The respondent relied upon its written submissions dated 25 January 2022 and a witness statement of Christopher Gell dated 27 January 2022.[3] Mr Gell gave evidence before the Tribunal and was cross-examined. The respondent also relied upon the statement of findings dated 29 October 2021.[4]
[3] Exhibit R1
[4] Exhibit R2
Initially, the respondent supported the development subject to some minor variation to the conditions and sought orders to vary the decision. In the course of final submissions however, the respondent’s position changed and it submitted that the development could not be approved in its current form and should be refused. Counsel for the respondent was reluctant to make any substantive submissions on the specific issues raised and explored during the course of the hearing, however the Tribunal indicated it was necessary to understand the respondent’s position on those issues so that they could be resolved by the Tribunal and the parties joined would be sufficiently informed as to what required amending should the Tribunal adopt the course suggested by the respondent.
The first party joined, Mr Ring, is an architect who had oversight of the design and submitted the development application for approval. He relied upon a written statement filed on 13 January 2022.[5] He gave evidence before the Tribunal and was cross-examined. He also relied upon an email dated 4 February 2022 from David Stone at Veris[6] and an email dated 18 February 2022 from Kristian Starkovski.[7]
[5] Exhibit PJ1
[6] Exhibit PJ2
[7] Exhibit PJ3
The second party joined is the crown lessee and developer. It was represented by Mr Wen Tao Ding. The second party joined did not file any written submissions or evidence. Mr Ding participated in the hearing and made brief submissions only.
In preparing these reasons the Tribunal has had regard to the T-documents, the submissions and evidence relied upon by the parties and the transcript of the hearing.

The subject site and the proposal

The subject site is a corner block located at Chisholm and Ebden Streets in Ainslie. Its site area is an issue in contention and discussed below. The original dwelling was a semi-detached duplex and was demolished as part of the ‘Mr Fluffy’ asbestos removal program. The other duplex was also demolished and is a separate site.
It is a surrendered residential block in RZ1 as defined in the Territory Plan.
The land has been mostly cleared except for a shed and a substantial mature hedge that boarders the perimeter of the site. The site is not level and slopes down from east to west with a large excavation hole left behind following the removal of the existing dwelling. Mr Ring gave evidence as to how the design utilised the peculiar topography of the site. He said that:
The nature of the ‘Mr Fluffly’ block is that during the removal process of contaminated materials the site was left extremely altered with ground levels now reflecting a site that saw extensive excavation; resulting in the design having to combat these large excavations. The hole in the ground created by the removal of the existing ‘Fluffy’ houses shown on the existing survey, but is not the natural ground level of the site.
As has been noted the block sees a natural slope to the side boundary to the rear of Unit 2 which in combination with the extensive removal of soil due to Asbestos removal has resulted in the proposal of a terrace that is retained to this side to maintain a usable area that provided amenity to the occupants as this space is their Private Open Space.
Part of the approval has required that these boundary conditions do not exceed 1.8m in height from the Natural Ground Level; the proposed retaining wall is to be accompanied by a fence that changes in height to meet this height limit as well as hedging to provide adequate amenity to the neighbouring block as well as the occupants of the proposed Units.
The proposed revised plan for Unit 2 incorporates a reduction in level of 500mm, lowering the required retention to the side of the boundary however introducing a cut to the front boundary that would require its own retention.[8]
[8] First Party Joined submission dated 13 January 2022 pages 1-2
In this decision we have referred to the dwelling which faces Ebden Street as house 1 and the dwelling which faces Chisholm Street as house 2. Both dwellings are proposed to have four bedrooms, kitchen, living and dining areas over two storeys. There is basement car parking separately servicing each dwelling with accommodation for up to three vehicles per dwelling.
We have set out below our analysis and findings based on the drawings[9] which has informed the Tribunal’s reasons.
[9] T-documents pages 129-149
The block is located on the corner of Ebden Street and Chisholm Street. An existing hedge extends along both street boundaries.
The house 1 and 2 lower level setbacks are four metres to Chisholm Street. The upper level external wall setback is six metres and the eaves and full-height external louvres setback are 5.554 metres. The lower level eaves setback is four metres.
The house 1 lower level balcony or terrace setback is 3 metres to Ebden Street, the lower level external wall setback is 7.023 metres. The upper level external wall setback is 6.023 metres. The upper and lower level eaves, and full-height external louvres setbacks are 5.423 metres (7.023 metres – 1.600 metres).
The east side boundary to house 2 extends from Chisholm Street up to 2.475 metres from the rear of the site where the boundary has a slight change in bearing which results in a 2.475 long rear boundary. The house 2 lower level wall setback is 3.003 metres at the front to 3.077 metres at the rear. The beam and supporting 400mm column, near the rear of the site, setback is 0.377 metres. The protruding attached column and beam structure setback is 2.4 metres. The upper level wall setback is 11.75 metres.
The north side boundary to house 1 extends from Ebden Street 14.065 metres where the boundary has a slight change in bearing which results in a 29.315 long rear boundary. The house 1 lower level balcony or terrace, inclusive of retaining walls, is built to the boundary. The lower level wall setback is 3.003 metres at the front to 3.018 metres at the rear. The chimney setback scales 2.8 metres. The upper level external wall setback is 3.0 metres. The upper and lower level eaves, and the full-height external louvres setbacks scale 2.4 metres.
The north boundary to house 2 is a rear boundary. The house 2 lower level balcony or terrace, inclusive of retaining walls, is built to the boundary. The lower level wall setback is 3.056 metres. The chimney setback scales 2.85 metres. The upper level external wall setback is 4.294 metres. The upper level eaves setback scales 3.6 metres and the lower level eaves setback scales 3.0 metres.
The northern raised balconies or terraces have perimeter retaining walls. The Detail Survey drawing[10] shows that for approximately 15 metres along the north boundary the levels shown are not datum ground levels and depict where the site has been excavated or levels adjacent to excavated material. This has necessitated the datum ground levels to be extrapolated for this part of the boundary. The datum ground levels of 606.5 metres and 607.5 metres on the north boundary can be relied on as unexcavated levels. The datum ground level of 607 metres can be extrapolated from a point at the perimeter of the site cut across to the same contour on the northern neighbouring block, Block 2, adjacent to the spot level of 607.1 metres to provide an approximate level of 607 metres on or about 15 to 16 metres from the Ebden Street front boundary along the northern boundary of the subject site. The height of the balcony or terrace walls above datum ground level at house 1 varies from an extrapolated 0.6 metres, adjacent to grid 3 to the east, to 1.4 metres to the west. The height of the walls above datum ground level at house 2 varies from approximately 0.3 metres at the eastern end to an extrapolated 1.8 metres adjacent to grid 3.
[10] T-documents page 148
The retaining wall of the raised balcony or terrace to house 1 returns to the south for 8.3 metres. It has an approximate height of one metre above datum ground level at the southern end.
Both of the descending driveway ramps have retaining walls to their sides that extend to form part of the basement structures. The house 2 driveway retaining wall to house 1 returns for eight metres to the west and is located 0.7 metres from the street front boundary to enclose a courtyard south of house 1. The retaining wall to house 2 extends from the house to the south 0.7 metres from the street front boundary and returns to the west for six metres to enclose a courtyard.
Part of the principal private open space (PPOS) to each house is defined by a 1.5 metre fence supported on the retaining wall extending nearly the length of the north boundary up to three metres from the front boundary. The PPOS (designated for R61) of each dwelling is located partly within the northern setback. The PPOS of house 1 is also partly located in the Ebden Street front setback. This section is therefore forward of the building line in the front zone of the block on Ebden Street. The western side of the PPOS to house 1 would require some type of fence or balustrade. A fenced in section is noted on northern elevation 2 on T136 and on the floor plan on T130 however the west elevations 4 and section AAs do not depict a balustrade or fence. As the balcony is greater than one metre above the adjacent ground level the BCA would require a one-metre-high barrier. It is not possible to determine the opacity of the balustrade or fencing from the documents. Landscape plans show that shrubs will be planted inside the northern fence line, which will eventually provide some screening and thus reduce overlooking of the neighbouring property but may also reduce the useable PPOS for each dwelling.
Each PPOS has a structural column that supports the upper levels to each house located within the designated minimum six metres diameter area. The column to house 1 is close to the centre of the designated area. The column to house 2 is located in the southwest segment of the designated space.

Issues for consideration

Section 50 of the Planning and Development Act 2007 (the Planning Act) states:
Effect of territory plan
The Territory, the Executive, a Minister or a territory authority must not do any act, or approve the doing of any act, that is inconsistent with the territory plan.
Section 119(1)(a) of the Planning Act relevantly prohibits the approval of a development proposal in the merit track unless the proposal is consistent with the relevant code.
These provisions apply to the Tribunal as it is conducting a merits review of the decision and stands in the shoes of the respondent.[11] The Tribunal must:[12]
(a)confirm the decision under review; or
(b)vary the decision under review; or
(c)set aside the decision under review and either substitute it with a different decision or remit the matter back to the respondent to consider in accordance with the reasons given by the tribunal.
[11] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589; Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 at [10] (Smithers J); see also, Glass v ACT Planning and Land Authority [2016] ACAT 96 at [18]; Downer Community Association and ACT Planning and Land Authority [2007] ACTAAT 20 at [5]; Eldridge v ACT Planning and Land Authority [2020] ACAT 22 at [21]; see especially ACT Civil and Administrative Tribunal Act 2008 section 68(2)
[12] ACT Civil and Administrative Tribunal Act 2008 section 68(3)
The applicant contended that the development did not comply with the following parts of the Territory Plan:
(a)Multi-unit Housing Development Code (MUHDC):
(i)      R7: Plot ratio – dual occupancy – standard blocks in RZ2 and surrendered residential blocks – RZ1
(ii)     R/C25: Building envelope – all blocks except buildings over three storeys and commercial zones
(iii)   R/C29: Front boundary setbacks
(iv)   R/C30: Side and rear boundary setbacks
(v)     R/C38: Site open space – RZ1 and RZ2
(vi)   R/C41: Fences
(vii)     R/C45: Electrical and telecommunication facilities
(viii)   C56A: Building design – dual occupancy on surrendered residential blocks in RZ1
(ix)   R/C68: Ramps to basement car parking – RZ1 and RZ2
(x)     C76: Internal driveways
(xi)   C94: Post occupancy waste management
(b)Planning for Bushfire Risk Mitigation General Code
(c)Relevant Zone Objectives[13]
[13] Applicant’s submissions dated 16 December 2021 at [14]-[97]
The applicant also raised an issue regarding condition 2(a)(ii) of the approval regarding the height of fencing/courtyard walls.
Plot ratio (R7) MUHDC
Rule 7 is a mandatory rule, there is no corresponding criterion. It relevantly requires a plot ratio of 50% which is calculated excluding basement car parking. There are two parts to this issue. The first issue relates to the correct site area for the subject site as the basis for calculating the plot ratio and the second relates to whether the stairwell has been correctly captured in the calculation of gross floor area (GFA).
Both the respondent and first party joined submitted the site area for the subject site is 861m². This is based on information derived from ACTmapi. This was the figure used to calculate the plot ratio. Using this site area figure, the total GFA must be no more than 430.5m² to meet the 50% requirement. The GFA calculated for each dwelling is 214m² for house 1 and 216.5m² for house 2.[14] This equates to the maximum GFA assuming the site area is 861m².
[14] See drawings at T-documents pages 129-147
The parties joined did not obtain an updated independent site survey for submission with the development application nor for the purposes of the hearing. They instead rely upon the email from David Stone at Veris,[15] which asserts the site area is 861m². Mr Stone was not called to give evidence before the Tribunal and the Tribunal was unable to ascertain with any certainty the accuracy of his assertion or the basis for it.
[15] Exhibit PJ2
The Tribunal has before it a site survey prepared by Veris for the ACT Government and submitted by the first party joined as part of the development application which states the site area is “860m²”[16] and the crown lease which states the site area is “860 square metres or thereabouts”.[17] The Demolition Plan has “860?m²” on it.[18]
[16] T-documents page 148
[17] Exhibit R1, Annexure CG1
[18] T-documents page 135
In light of the discrepancy and the inability to independently verify the site area we do not consider R7 has been met. The GFA for both dwellings is 430.5m² and we cannot be comfortably satisfied that the site area is 861m² and prefer the information contained on the site survey and the crown lease. For this reason it is over the required 50%.
As this is a mandatory rule and it is has not been met, this is sufficient basis to refuse the development approval.
The second issue regrading plot ratio is based on the applicant’s interpretation of how the stairwells are to be treated for the purposes of calculating GFA. In this development the area occupied by the stairs has only been counted once in the calculation of the GFA. The applicant submits the area of the stairwell should be included in the GFA calculation for every level. He relied upon the definition of GFA in the Territory Plan and contented that nothing in the definition suggests stairs are only counted once or that it required looking at whether the areas were usable or walkable.
Against this argument, the respondent submitted it was usual practice to only count the stairwell once in the GFA and that this was also consistent with the findings in Goffman & Ors v ACT Planning and Land Authority & Ors (Goffman).[19] In Goffman the Tribunal said:
36. The second issue is whether the Territory Plan requires the ‘area’ of internal stairs to be included at all levels. All parties appeared to agree that the entire ground floor level area should be included in the calculation of the GFA, inclusive of the area under a stair whether it could be walked on, or was usable, or not. The Applicants contended that the area to be included in the GFA on the upper level should also include the stair area, that is, the area where the stair is located above the ground floor level at the upper level.
37. The Tribunal agrees with the Respondent and the First Party Joined that the Territory Plan does not require the ‘stair area’ on the upper level to be included in the calculation of the GFA.[20]
[19] [2012] ACAT 7
[20] Goffman & Ors v ACT Planning and Land Authority & Ors [2012] ACAT 7 at [36]-[37]

The term GFA is defined in the Territory Plan as follows:
Gross Floor Area (GFA) means the sum of the area of all floors of the building measured from the external faces of the exterior walls, or from the centre lines of walls separating the building from any other building, excluding any area used solely for rooftop fixed mechanical plant and/or basement car parking.[21]
[21] Territory Plan, Definitions, page 33
We agree with the approach taken in Goffman and add the following. The definition of GFA calls for the measurement of floors. It establishes how that measurement is to be carried out and specifies the areas expressly excluded from the calculation. Stairs operate as a transition between floors, they are not themselves floors. It is true the stair area creates a footprint in the dwelling, which should be counted in the GFA once in a multi-storey dwelling, but each of the stairs between each level cannot be regarded as part of the floor and are not captured by the definition of GFA.
For this reason we do not accept the applicant’s argument as to how the stair areas should be treated in the calculation of GFA.
Building envelope (R/C25) MUHDC
The upper floor of both dwellings encroaches the building envelope to the north. Only the roof area, eaves and part of the wall encroach the building envelope, the floor does not. The dimensions of the encroachment are 2.150m horizontally and 2.113m vertically for the full length of the upper floor to house 1 and 1.123m vertically and 1.130m for house 2. The encroachment in relation to house 1 has been mitigated by the installation of louvres and high rectangular windows. House 2 is cited higher and although high rectangular windows have been placed along the norther boundary, the encroachment does not extend to the windows.
In order to satisfy C25, buildings must achieve consistency with desired character and achieve reasonable levels of privacy for dwellings on adjoining residential blocks and their associated private open space.
We do not regard these encroachments as being inconsistent with desired character as they are relatively minor. We are satisfied any privacy issues are ameliorated by the high level windows and louvres. C25 is satisfied.
Setbacks and encroachments MUHDC
Front setbacks (R/C29)
The Territory Plan defines ‘front boundary’ as “any boundary of a block adjacent to a public road, public reserve, or public pedestrian way”. The block therefore has two front boundaries. The proponent has nominated Chisholm Street as the secondary street frontage of the corner block.
The applicant said that the distance from Ebden Street boundary to house 1 unroofed terrace is around 2 metres with a height at the northwest corner between 1.4 metres and 1.45 metres. He referred to the definition of setback in the Territory Plan being the horizontal distance from the front boundary to the outer face of the balcony. R/C29 states that front setbacks comply with Table A5. The front setbacks for house 1 from Ebden Street are six metres for both levels. He said that the distance to the upper level from Ebden Street was 5.422 metres. He said that distance from the Chisholm Street boundary to the upper level metal louvres was less than six metres.
The applicant also said that the distance from the Chisholm Street boundary to the front retaining walls and associated terraces to each house was less than one metre. He estimated the height of the retaining walls was a maximum of 0.6 metres.
Mr Gell gave evidence that the front boundary setback for the house 1 raised terrace complied with R29 as it met the definition of building line in the Territory Plan. He said that as the terrace was less than 1.5 metres it was not deemed to be part of the building. The respondent said that the upper level encroachment of 1.6 metres for 13 metres on the Ebden Street boundary was significant. Mr Gell said that the upper level encroachments to Chisholm Street were minor. He said that as the definition of building line did not deem courtyard walls or retaining walls to be part of the building the courtyard walls met the rule.
Mr Ring said that the upper level encroachment to Ebden Street was not 1.6 metres. He said that the upper level wall was set back six metres and that the eaves and louvres encroachments were 0.6 metres. He conceded that the location of the front boundary on section AA on T-documents page 144, that Mr Gell referred to, was incorrectly drawn.
R29 requires front boundary setbacks to comply with Table A5. A block in a subdivision approved before 18 October 1993, as this block is, must have minimum six metre setbacks to both levels on Ebden Street. The block is defined in the Territory Plan as a large block and must have a minimum lower level setback of four metres and a minimum upper level setback of six metres on Chisholm Street.
The Tribunal does not agree with the respondent that the definition of building line in the Territory Plan is determinative for R29. ‘Setback’ is a defined term in the Territory Plan and means the horizontal distance between a block boundary and the outside face of any building or structure on the block including, relevantly, a balcony, deck or verandah.
The area of concern is designated on the documents as the PPOS for house 1 with a six-metre circle while the area has an overall width of the same dimension and is higher than one metre above datum ground level for that portion which is less than six metres from the front boundary.
‘Balcony’ is defined in the Territory Plan to mean “a small outdoor area, raised above the ground, directly accessible from within the building and open except for a balustrade on at least one side”. The raised area meets the common meanings of a balcony or a deck or a verandah.
The Tribunal regards R29 as specifically dealing with setbacks from front boundaries. The definition in the Territory Plan for ‘front zone’ makes it clear that the building line and the front setback may be the same or may be two different distances. The front wall of the balcony is three metres from the street boundary,[22] which encroaches the required setback by 50% for 40% of the Ebden Street frontage.
[22] Refer T-documents page 130 and T-documents page 147
We find that R29 for the Ebden Street front boundary setback is not met. C29 was not addressed by the parties other than in a general comment related to the overall development being partly screened by the retention of the existing hedge. We do not regard this as a sufficient basis for satisfying C29. We are doubtful an encroachment of such significance is consistent with desired character. The Tribunal is not in a position to find C29 has been satisfied.
Side and rear setbacks (R/C30)
Side boundary is defined in the Territory Plan as a block boundary extending from the front boundary along a single bearing. The block therefore has two side boundaries and two rear boundaries as discussed above.
The applicant set out his understanding of the site datum ground level along the northern boundary. He said that the development proposed structures with no setback to the northern boundary up to a height of 1.9 metres and that it would be remarkable if this was consistent with the desired character and achieved reasonable separation between the adjoining developments. He said there were also encroachments on the eastern boundary setback. He said there was no justification given by the proponent for these setbacks in accordance with C30.
Mr Gell gave evidence noting the applicant’s concerns regarding the northern terraces in relation to the boundary. He said that these would be addressed by the condition 2(a)(ii) which states “the top of the fencing/courtyard walls is not to exceed 1.8 metres above Natural Ground Level”. He said that he would anticipate that the height of the terraces would need to be reduced to meet this condition. He said that the encroachment of the column into the eastern setback would have little impact on the neighbour as it was adjacent to the neighbour’s garage and carport.
Mr Ring said that he would be able to amend the design to comply with the relevant condition for the northern boundary setback and that he could relocate the eastern column into the external glazed wall of house 2.
R30 requires side and rear boundary setbacks to comply with Table A6. In the primary building zone each of the basement, lower level and the upper level external walls must have minimum three metres setbacks to the side boundary. The upper level unscreened elements must have minimum six metres setbacks to the side boundary. The side setbacks in the rear zone and the rear boundary setbacks must have minimum three metres setbacks at the lower level and all upper level setbacks must have minimum six metres setbacks from the boundaries.
The ‘rear zone’ is defined in the Territory Plan to be the “area of a block behind the primary building zone”. It is not necessary to consider the rear zone in this instance however the rear boundary setbacks are relevant.
We understand condition 2(a)(ii) is relied on by the respondent to resolve the issue of satisfying C30 with respect to desired character, reasonable separation between adjoining developments and reasonable privacy for dwellings on adjoining residential blocks. In its current form the Tribunal does not consider C30 is satisfied.
We also have concerns about the workability of the condition and consider it may not have the desired effect. It may potentially result in non-compliance with other rules and criteria in the MUHDC. R/C61 is one example as the PPOS to house 2 presently extends up to the northern boundary fence line with the six-metre minimum dimension, identified in Table A9 of the MUHDC, depicted as a circle on the plan. Lowering the outdoor level may require the lowering of the indoor FFL as well to provide direct access as required by R61 as terracing only a portion may reduce the level area for the PPOS and result in a reduction to the six-metre minimum dimension. The lowering of the retaining walls and fencing will further reduce the non-complying screening of the overlooking from house 2 and its outdoor space into the kitchen window of house 1 which is not compliant with R/C59. The Tribunal was not provided with documents that showed how compliance with the condition could be achieved and how consequential issues could be resolved.
The wall to the upper level of house 2 is 4.294 metres from the rear boundary which is an encroachment of 1.706 metres for a length of 7.2 metres. The upper level eaves is 3.694 metres from the boundary which is an encroachment of 2.306 metres.
We find that R30 for the north side and rear boundary setbacks are not met. The requirements of C30 with respect to desired character, reasonable separation between adjoining developments and reasonable privacy for dwellings on adjoining residential blocks have not been satisfied.
Allowable encroachments – setbacks (R/C31 and R/C32)
R31 permits encroachments into the side and rear setbacks including up to 0.6 metres for eaves or roof overhang and unroofed terraces which are no more than one metre above finished ground level.
The Tribunal considers that the northern balconies or terraces to each house which are built to the boundaries do not comply with R31. The rule refers to one metre above finished ground level. ‘Finished ground level’ is defined in the Territory Plan and means “the ground level after completion of all excavation and earthworks”. The rule does not refer to datum ground level. As the development is built up to the northern side and rear boundaries there is no finished ground level along the boundary other than at the western end where the balcony or terrace level is shown as 1.4 metres above the finished ground level on elevation 4. The ground levels on the neighbouring block are datum ground levels and excavated levels but are not necessarily finished ground levels. The excavated levels are below datum ground levels and natural ground level.
If we are wrong then an assessment against the datum ground level shows that the house 1 unroofed terrace is greater than one metre above the datum ground level for approximately 13 metres of the 18.7 metre overall length and the house 2 unroofed terrace is one metre above the datum ground level for approximately nine metres of the 21.5 metre overall length.
For this reason the Tribunal does not consider C31 is satisfied.
‘Desired character’ is defined in the Territory Plan and relevantly means “the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code”. ‘Streetscape’ is also defined and relevantly includes “the visible components within a street … including the private land between facing buildings, including the form of buildings, treatment of setbacks, fencing…”.
Adopting the datum ground level or if alternatively the only finished ground level that is at the western end of the boundary then with the addition of a 1.5 metre fence above the retaining wall and the unroofed terrace floor level, for the full length, the development is not consistent with the desired character. A 2.9 metre high structure located three metres from the Ebden Street front boundary and on the northern side boundary is not consistent with the desired character. Adopting the datum ground level the structure at the highest point would be 3.2 metres while at least a length of 21 metres of the structure would have a height above 2.5 metres which is not consistent with the desired character.
The Tribunal has also considered R/C32 in relation to the proposed development. R32 permits encroachments into the front setbacks including up to 0.6 metres for eaves or roof overhang and landings and steps not more than one metre above finished ground level.
We find that the eave overhangs comply with R32.
We find that the steps to the balcony or terrace to house 1 comply and that the balcony or terrace is not a landing and as such the balcony or terrace cannot be assessed against R/C32.
Site open space (R/C38) MUHDC
The applicant contended there was insufficient information contained in the drawings to assess whether site open space was compliant. Rule 38 requires no less than 40% of total site area be allocated to either communal open space or private open space and not less than 20% be planting area.
Mr Gell gave evidence that he had calculated the relevant areas to determine compliance with R38. He concluded that private open space was over serviced at 52.7% and planting area was at 20%. He conceded he based his calculations on a site area of 861m2. The applicant cross-examined Mr Gell as to the margin of error involved in his calculations. Taking into account some margin of error and based on the Tribunal’s own examination, we are satisfied R38 is met. Even if there were some minor adjustments to those calculations we accept Mr Gell’s evidence that the over supply of private open space could be re-allocated to planting. In any event, the current arrangement would satisfy C38, but that is not necessary given our finding in relation to R38.
Fences and Courtyard walls (R/C41 and R/C42) MUHDC
The applicant said that the site plan L1 (T-document page 147) shows fencing forward of the building line on the Ebden Street side and that the authority had not addressed R/C41 as the respondent found that R41 was met.
Mr Gell said that he recommended that additional information be required pursuant to a conditional approval with the colour and material of the fencing and the height of the protective fencing to the driveway ramps to be indicated on the plans.
R41 of the MUHDC permits fences forward of the building line in the front zone or on the front boundary only where they comply with any of three circumstances, none of which apply to this development. Therefore R41 is not met. The fences are not gates in an established hedge, they are not exempt under the Planning Act and they are not permitted under the Common Boundaries Act 1981. C41 permits fences where the proposal meets the requirements contained in the Residential Boundary Fences General Code (RBFGC).
R1 of the RBFGC is mandatory and states front boundary walls or fencing are not permitted forward of the building line except as provided in five circumstances: in accordance with the Residential Zone Development Code in the case of a courtyard wall, and Items 2.2 – 2.7 of the RBFGC. Items 2.2 and 2.3 of the RBFGC are relevant and include C2, C3, C4 and C5. Mandatory R1 also requires that fences are constructed so that the front fence faces Territory land (f).
C2 is only relevant to house 1 as it is limited to where the residence faces the corner (both street frontages). It permits a front fence forward of the building line on one side of the residence if it is of transparent construction; a maximum height of 1.5 metres above Natural Ground Level (NGL), and visually mitigated by planting grown as a hedge that is located wholly within the property boundary when grown.
C3 and C5 are relevant to house 1 and house 2 and permit a fence if the location of the fence does not adversely affect the streetscape qualities.
C4 is only relevant to house 2 as it is limited to where the residence is setback from the secondary street frontage. It permits the same as C2.
The drawing that best depicts the location of the fences is the Plan L1 at T-documents page 130 which is the lower level floor plan. The key on the site plan L1 includes a symbol that represents fences. The symbol is depicted along the western side of the balcony to house 1. We are of the view that this is a balustrade rather than a fence. We have determined that the balcony as located does not comply with nor satisfy R/C29 of the MUHDC (see paragraphs 53 and 54 above) and therefore we do not propose to deal with it as a fence.
The symbol is depicted along the northern side of the balcony to house 1. We have determined that this fence does not comply with nor satisfy R/C29 and R/C30 of the MUHDC as it is not consistent with the desired character (see paragraphs 53 and 54 above).
The symbol is depicted along the southern retaining wall to the driveway ramp of house 1. The fence scales 5.5 metres from the Ebden Street boundary. The building line to Ebden Street, the point or points on the building closest to the Ebden Street boundary, are the upper and lower level eaves, and full-height external louvres which have a setback of 5.423 metres. This fence is behind the building line.
The symbol is depicted along the western and eastern retaining walls to the driveway ramp of house 2. These fences are forward of the building line and are not visually mitigated with planting grown as a hedge (C2 and C4). Condition 2(a)(iii) will reduce the length of these two fences by approximately 1.5 metres, however, they will still be forward of the building line. The fences are perpendicular to the Chisholm Street boundary and do not comply with R1 (f) of the RBFGC which mandates front fences are constructed so that the front fence faces Territory land.
C41 is not satisfied for those sections of the two fences forward of the 4-metre building line as they do not meet the applicable requirements of the RBFGC.
The applicant submitted that the distance from the Chisholm Street boundary to the retaining walls and associated terraces is less than one metre. He said that the walls retain up to a height of 0.6 metres.
Mr Gell gave evidence that he assumed the planting showed that the existing hedge was to be retained. He said the documents should have indicated the height, materials and colours of the courtyard walls and the driveway ramp walls/fencing. He said that the condition 2(a)(iii) of the decision required the walls to comply with AS 2890.1 for site lines and therefore would need to be amended.
R42 permits courtyard walls forward of the building line relevantly where they comply with a minimum setback from the front boundary of not less than two metres, trees and/or shrubs between the wall and the front boundary, and do not obstruct sight lines for vehicles and pedestrians on public paths or driveways and accordance with AS 2890.1 – Off-Street Parking. C42 relevantly requires the courtyard walls achieve consistency with the desired character.

The courtyard retaining walls do not comply with R42 as they are located 0.7 metres from the front boundary. The existing hedge is documented to be retained. We have concerns with the viability of the hedge if the walls are to be located as documented. The hedge is shown on the elevation 1 and 2 drawings as being about 0.5 metres in from the boundary and the survey drawing shows that the hedge extends in places at least 2.0 metres in from the front boundary.
Mr Gell and Mr Ring both said that the hedge was important to the development in that it obscured much of each house, the basement ramps and the walls and fences when viewed from the street and they each relied on this when considering consistency with the desired character.
The construction of the courtyard retaining walls will require excavation for footings as well as drainage behind the wall such as an agricultural drain with granular backfill. This construction will be at or adjacent to the base of the hedge trunks and most probably will have a detrimental effect on the viability of the hedge. Without the hedge the opinions of desired character cannot be sustained. Reliance on the retention of the hedge alone as a basis for establishing consistency with desired character is not a sufficient basis for satisfying C42 and for this reason, on the information before us, the Tribunal finds C42 is not satisfied. The walls would need to be at or be close to a two-metre setback as set out in R42.
Electrical and telecommunication facilities (R/C45) MUHDC
The applicant contended no plans regarding electrical and telecommunication had been submitted, yet the respondent decided R45 had been met. The plans were provided to Evoenergy for entity advice. In a statement of conditional compliance, Evoenergy required conditions regarding provision of a new underground service and associated meter box requirements. We note that condition 5 of the approval requires compliance with all conditions imposed by the relevant entities in their advice. The imposition of the condition required by Evoenergy deals with R45.
Building design (C56A) MUHDC
C56A applies to the development as it is a dual occupancy on a surrendered residential block in RZ1. C56A states:
…The design of buildings encourages high quality architectural standards that contribute to a visually harmonious streetscape character with variety and interest, whilst not detrimental to, or overtly distracting from the existing streetscape character.
The applicant accepted the design encouraged high quality architectural standards and did not take issue with that aspect of C56A. His main contention related to the latter part of C56A regarding its contributed to a visually harmonious streetscape character.
The applicant argued that when looking at the proposed modern, box-like structures with flat rooves he did not see any reflection of the surrounding houses. He submitted this could be addressed by the use of more brickwork in the exterior or brick elements. He also submitted the lack of a pitched roof weighed against the design being visually harmonious when none of the surrounding houses has flat rooves. Overall, the applicant submitted the design lacked any effort to fit in.
Mr Gell gave evidence about the range of building design seen in the surrounding area. He considered that architectural design should reflect the time it was built and that the criterion did not call for the replication of an earlier architectural style. He also said the design created contemporary visual interest through its articulation, palette and variety of materials.
The subjective nature of C56A may give rise to controversy. Opinions as to design preferences and outcomes will invariably differ. Development on dual occupancy surrendered blocks will always be new. Satisfying the criterion does not require replication and development on these blocks will invite a more modern approach to design and architectural styles. In some cases, a development with design outcomes such as this may be the first of its kind in a particular location, but may not be the last. The renewal of surrendered sites and C56A requires balance, but also recognises the contribution different architectural styles makes to the vibrant fabric of residential areas.
We consider the development satisfies C56A and does not overtly detract from the existing streetscape character.
Principal private open space (R/C61) MUHDC
R61 relevantly requires each dwelling to have at least one area of PPOS that has the minimum area and dimensions specified in Table A9 and screened from adjoining public streets and public open space. Table A9 requires a minimum area of 45m² with a minimum dimension of six metres for dwellings with four bedrooms.
Compliance with R/C61 was raised with the parties by the Tribunal at the commencement of the hearing.
House 1 has an area of 45m² but does not comply with R61 as there is a structural column in the centre of the designated six metre minimum dimension expressed as a circle. This notional circle cannot be relocated in the proposed plan so that the column is outside of the notional minimum six metre dimension. House 2 may comply with R61 as the area is greater than 45m² and if the designated six metre minimum dimension circle is relocated on the documents so that the structural column is not located within the circle.
Mr Ring said that he could redesign the house 1 structure so that the column was not required with the upper level designed as a cantilever. We were not provided with further evidence to support this proposal. C61 was not addressed by any party. It is however unnecessary for us to consider this proposal as we have already found that the balcony or terrace to house 1 extends three metres into the front setback and does not comply with the R/C29 or R/C32. As the PPOS minimum dimension would be reduced to three metres as a result of locating the balcony or terrace so that it was at the minimum setback of six metres we are satisfied that R/C61 cannot be met for house 1.
Ramps to basement car parking – RZ1 and RZ2 (R/C68) and Internal driveways (C76) MUHDC
The applicant submitted that R/C68 was not met as the ramps to the basement car parking are forward of the building line. He said that the proponent for the development has not demonstrated that the criteria have been satisfied. He further said that the proponent has not demonstrated that C76 is satisfied.
Mr Gell said that the retention of the existing hedge provides a high level of screening to these ramps, when viewed along the streets, providing compatibility with the streetscape. He said that condition A2(a)(iii) of the approval addressed required site lines. He said that basement car parking is unusual for dual occupancies however it ensures better outcomes for the streetscape by removing the dominance of garage doors and parking areas.
Mr Ring said that meticulous work had been done on the design to ensure that the proposed basement ramps were compliant with TCCS through the engagement of a civil engineer, with the resulting design and proposed levels reflecting this design process.
Both proposed basement ramps are forward of the building line. The drafting of R68 is problematic in relation to its application to a corner block such as this one. The rule applies to the block and must exhibit all of the characteristics listed. However, it contemplates only one street frontage: “less than 30 m wide at the street frontage” [emphasis added]. ‘Street frontage’ is not defined in the Territory Plan definitions. On one view, R68 does not apply to the development at all because the Chisholm Street frontage is more than 30 metres wide and as a consequence it is not necessary to consider C68. This produces an undesirable outcome as the result is that there would be no applicable control in relation to basement ramps forward of the building line on a corner block where one side is greater than 30 metres.
If we are wrong about that, in the alternative, R68 applies only to the Ebden Street frontage as this is less than 30 metres wide and is to be assessed against C68. This may also be so given that Ebden Street has been nominated as the block’s primary street frontage.
C68 permits basement ramps forward of the building line provided all elements of the criterion are met. That is, they must achieve compatibility with the streetscape, retention of existing street trees, safe and convenient pedestrian and bicycle crossings, and adequate line of sight for cars entering and/or leaving the car parking area. Both ramps retain the existing street trees.
Assuming, as the parties did, R/C68 applies, we have set out our findings below in relation to the Ebden Street ramp and not the Chisholm Street ramp for house 2.
None of the parties relied upon evidence from a civil engineer or other suitably qualified expert in relation to the configuration of the basement ramps or their functionality. The Tribunal has made the following findings based on its own review of the drawings provided and the evidence given by Mr Gell and Mr Ring.
The existing verge crossing on Ebden Street is to be reused in part. It was proposed to be widened to the north to provide an approximate eight metre width at the back of the curb. Condition 3 of the approval requires the verge crossing to be reduced in width to five metres, with the reduction being to the south.
The Tribunal was not provided with an amended drawing showing the new verge crossing as required by the condition. The arc at the curb on the corner of Ebden and Chisholm Street commences just south of the centre line of a revised driveway that is required to comply with Condition 3. There are footpaths bordering both street frontages alongside the retained perimeter hedge. The verge crossing to house 1 will be approximately three metres from the Chisholm Street boundary and footpath to the south, and adjacent to the dripline of a street tree to the north. There is a rise of 1.25 metres from the back of the curb to the front boundary. After the removal of 2 metres of the existing perimeter hedge on both side of the amended driveway there will be an opening in the hedge at the driveway of at least nine metres which is just under half the street frontage inclusive of the arc.
R72 c) of the MUHDC and Fig 3.1 of AS 2890.1 ‘Prohibited Locations of Access Driveways’, require a verge crossing to be 6 metres horizontally clear of the tangent point of the radius of the curve on a corner block. The tangent point of the corner of Ebden and Chisholm Streets is located just to the south of the centreline of a verge crossing that would comply with Condition 3. This would locate that proposed verge crossing approximately eight metres closer to the corner than the requirements of both R72 and AS 2890.1.
The notes on the architectural drawings state that the “proposed ramp(s) as per civil documentation”. In doing so, the ramped driveway slopes down from the boundary at 2% for the first two metres. It then has a slope of 10% for the next two metres and then for 6.7 metres it has a slope of 21.6% before it transitions at 12.5% into the basement.
A car ascending the house 1 ramp would need a reasonable amount of acceleration to the top of the 21.6% slope where there is a further ramp length of four metres up to the front boundary. The four metres of ramp, while sloping up at reduced slopes, is the only length of the ramp where a driver is afforded an adequate view of the footpath that is located along the boundary.
A B99 car has an overall length of 5.2 metres inclusive of a rear overhang of 1.2 metres. In our view, even with the addition of the required site lines provided by the removal of two metres of hedge, this ramped driveway forward of the building line does not achieve a safe and convenient pedestrian and bicycle crossing as there is no margin for error for a B99 car at the front boundary line where the two reduced slopes have a combined length of four metres. There is the potential for a B99 car to be driven up the steeper ramp and stop just beyond the combined four metre of the two lesser sloping ramps resulting in the front of the car extending forward of the boundary and encroaching into the footpath where pedestrians and bicyclists need to be able to safely traverse the verge crossing. The combined effect of the above the finding is that we do not regard the basement ramp for house 1 to achieve C68 iii) and iv).
In relation to achieving compatibility with the streetscape, Mr Gell and Mr Ring both gave evidence that the retention of the substantial, mature hedge to the front of both Ebden and Chisholm Streets provided a high level of screening of the basement ramps. Mr Ring also gave evidence that the basement ramps were a more desirable outcome than double garage doors being added to the facades. He also said the basements utilised and incorporated the depth of the site left by the removal of the ‘Mr Fluffy’ dwelling. Mr Gell also gave evidence that basement car parking is unusual for dual occupancies.
We agree basement car parking in dual occupancies is unusual and are of the view that it is also unusual for single residences in RZ1, and relevantly in this location of Ebden Street. It does not mean it cannot be done or that in every case it would be incompatible with the streetscape. The issue, however, is that in this case, to achieve compatibility with the streetscape, the respondent and the parties joined have relied wholly on the retention of the hedge as a means of screening the basement ramps. What happens if the hedge dies? There is no condition to retain the hedge, nor could there be. Reliance on the retention of the hedge alone to achieve streetscape compatibility is insufficient. We do not agree that the ramp that commences decent at the boundary will have a high level of screening once the hedge is removed to provide the required site lines. It provides some screening. The opening in the hedge at the driveway will be at least nine metres wide which is just under half the street frontage inclusive of the arc. The ramps and associated walls and fencing will be visible from the street for 45% of the frontage.
The notes on the architectural drawings state that proposed verge crossing and the proposed ramps are as per the civil documentation. In various locations the levels and/or the individual lengths of the ramp slopes are different on the architectural drawings to those on the engineering drawings. The floor levels to the basements and the terraces above the basement entries are different on the architectural drawings to those on the engineering drawings. The location of the terrace above the entry to the basement of house 2 extends further over the ramp than it is shown on the floor plan and the engineering drawings. If, as required by the documentation, the development was built to the levels shown on the engineering drawings then the floor levels to the houses would need to be raised by at least 150mm and possibly 250mm to maintain the architectural design in relation to the documented floor to floor dimensions for the levels above the basements.
A ‘basement’ is a defined term in the Territory Plan and relevantly it is a space within a building where the finished floor level of the level above the space is less than one metre above datum ground level. Using the floor levels as set out on the architectural drawings, both the basement structures have their northwest corners at the maximum one metre level above datum ground level. The datum ground level for the basement to house 1 can only be extrapolated and is approximately at the maximum one metre height at the northwest corner where the floor level above is 608. The datum ground level for the basement to house 2 is 608.120[23] at the northwest corner where the floor level above is 609.15. This is an insignificant 30mm above the one metre maximum, but still higher than the requirement. If the floor levels were to be higher, as documented on the engineering drawings, it would result in the basement carparks not being considered as basements and their areas would be required to be included in the calculation of the GFA.
[23] T-documents page 148
The Turning Demonstration Plan at T-documents page 149 depicts a B99 car being parking in one space to each basement car park. The plan is at a very small scale and does not depict the basement ramp curved wall structure to house 2 nor the opening at the panel lift door. AS 2890.1 sets out that the minimum radius turn for a B99 is 6.3 metres[24]. During the first day of hearing the Tribunal asked the First Party Joined for further drawings that would include the correct structure and additionally show the necessary turning demonstration for a second car in each basement. This was not provided. In our view the car turning paths extend into the inner curved wall structure and garage door opening to the ramp for house 2 so that it is not workable as designed.
[24] AS 2890.1 page 60
The proposal does not satisfy C68 and C76.
Post occupancy waste management (C94) MUHDC
The applicant submitted the development does not contain any information about post occupancy waste yet was regarded by the respondent as satisfying C94. There was suggestion of a condition being imposed to address C94,[25] yet no condition was included in the decision.
[25] T-documents page 39
Mr Gell agreed the design does not indicate on-site storage. Mr Gell also stated that the site had sufficient space and locations to accommodate the usual residential bin storage. We agree. In addition, condition 3k. of the approval requires waste to be collected along the kerbs in accordance with TCCS requirements. While it is desirable for bin storage to be shown on the drawings, the condition does not imply anything other than usual kerbside bin collection. It is not proposed to use large hoppers.
C94 is satisfied.

Planning for Bushfire Risk Mitigation General Code

The applicant contended this Code applied to the development and had not been considered by the respondent properly or at all. He acknowledged the Code was outdated but nonetheless submitted a Bushfire Risk Assessment was required.
Mr Gell gave evidence that bushfire mitigation measures were voluntary and an advisory note had been included in the decision to the effect that consideration of the bushfire prone area is subject to the Building Code of Australia and will be considered during the building approval stage.[26] He also said that he considered the opening to Mount Ainslie Reserve at the corner of Duffy and Chisholm Streets to be a secondary frontage under part 4.3 of the Code. On his estimation the subject site was approximately 69 metres away and was not within the 50 metre distance of a secondary frontage that would require submission of mitigation measures.[27] Mr Gell was not challenged on his evidence in relation to the Code.[28]
[26] Respondent’s submissions dated 20 September 2021, advisory note, paragraph 4
[27] Transcript of proceedings 3 February 2022 at page 53
[28] Transcript of proceedings 21 February 2022 at pages 81-82
We accept the evidence of Mr Gell and conclude that the proposed development is not inconsistent with the Code.

Relevant zone objectives

Much has been said in previous decisions as to how the Tribunal is to regard relevant zone objectives. As the tribunal observed in 4thd Planning and Design Pty Ltd v ACTPLA & Ors:[29]
It bears repeating the finding in Argos Pty Ltd v Corbell, that one purpose of the zone objectives is to “provide guidance in interpreting the rules and criteria found in the codes”. As the tribunal said in Javelin Projects v ACTPLA, the objectives provide an important yardstick on the degree of ‘stretching’ the interpretation of the rules and criteria in the code can bear when discretionary decisions are to be made. It seems to us that if the development had been assessed as code compliant, there will be a strong presumption that the zone objectives have themselves been met. [footnotes omitted][30]
[29] [2021] ACAT 59 at [156]
[30] The Tribunal notes the decision under review in 4thd Planning and Design Pty Ltd was a refusal to approve the proposed development.

In light of our findings above, we do not propose to dwell on consideration of the RZ1 zone objectives. There are a number of areas in which this development is not code-compliant, and therefore in accordance with section 119 it cannot be approved. While section 120 confers a requirement to consider the relevant zone objectives, and if found to be inconsistent with the zone objectives confers an additional discretion on the Tribunal in relation to refusing to approve the development. In other words, notwithstanding this development is not code compliant, inconsistency with the relevant zone objectives when viewed through the lens of section 120 may give rise to another basis for refusal. In this case we do not think it does.
The applicant has confined his contentions regarding zone objectives to paragraphs a), b) and d) of the RZ1 zone objectives. In general, his complaint relates to the scale and density of the development and lack of integration with the neighbourhood.
Dual occupancy, two storey development is permissible in RZ1. This site is particularly attended with an expectation of dual occupancy as it is a former ‘Mr Fluffy’ site. The plot ratio is one control on scale and density and in this case although it exceeds the required 50% it is minor. Development up to the 50% plot ratio requirement will not be inconsistent with a). Its development as dual occupancy is not inconsistent with b). As we have said, the design reflects a modern architectural style and need not replicate the surrounding style of dwellings. It is not inconsistent with d).

Conclusion

The development does not comply with a number of rules and criteria under the MUHDC and therefore cannot be approved. The decision under review is set aside and substituted with a decision that Development Application 202139020 is refused.

………………………………..

Senior Member K Katavic
For and on behalf of the Tribunal

Date(s) of hearing:	3 & 21 February 2022
Applicant:	In person
Counsel for the Respondent:	Ms A Costin
Solicitors for the Respondent:	Mr M Roberts, ACT Government Solicitor
First Party Joined:	In person
Second Party Joined:	Mr W Ding, authorised representative