HOBBS v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review)

[2020] ACAT 58

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HOBBS v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2020] ACAT 58

AT 93/2019

Catchwords:               ADMINISTRATIVE REVIEW – planning and development – appeal against decision to approve development with conditions – whether there are encroachments into boundary setbacks – whether the failure to comply with the rules for setbacks on any side is relevant to compliance with the criteria – whether the failure to comply with the setbacks means that the buildings do not achieve consistency with the desired character as set out in the zone objectives and provide reasonable amenity for residents – whether setbacks meet zone objectives for low density and respect valued features of the neighbourhood and landscape character – effect of time limits on the respondent for making the decision – relevance of zone objectives – height of building – privacy – obligation of quiet enjoyment – requirement for surveillance – appropriate solar access – overshadowing  – protection of trees – protection of views – traffic and parking – driveway verge crossings – breach of human rights, especially in relation to privacy – discrimination on the basis of age and elder abuse

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 9, 32, 48, 68

Discrimination Act 1991
Human Rights Act 2004 ss 12, 31, 40B
Human Rights Commission Act 2005
Planning and Development Act 2007 ss 7, 119, 120, 121, 122, 139, 141, 144, 162, 163, 166, 167, 407, 408A

Subordinate

Legislation:                 Territory Plan, in particular:

RZ1 zone objectives
Multi Unit Housing Development Code Rs 7, 16, 23, 25, 26, 29, 30, 47, 57, 60, 61, 63, 70, Cs 26, 29, 30, 47, 60, 61, 70
Parking and Vehicular Access General Code, s 3.1.1
Residential Boundary Fences General Code, R 1, Cs 3, 8

Cases cited:Aldred’s Case (1610) 9 Co Rep 57; 77 ER 816

Bathurst City Council v Saban (No.2) 1986 LGRA 201 (NSWSC)
Deakin Residents Association Inc v ACT Planning and Land Authority [2015] ACAT 37

Hamilton v ACT Planning and Land Authority [2018] ACAT 121
Javelin Projects v ACT Planning and Land Authority [2017] ACAT 87
Kent v Johnson (1973) 21 FLR 177

McAndrew v ACT Planning and Land Authority; Owen v ACT Planning and Land Authority & Anor [2019] ACAT 102

Munro v Inner West Council [2020] NSWLEC 1240

Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority [2017] ACAT 44
Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority [2018] ACAT 95
North Canberra Community Council v ACT Planning and Land Authority & Anor [2019] ACAT 87

Owen v O’Connor (1963) 63 SR (NSW) 1051

Peraic v ACT Planning and Land Authority [2019] ACAT 118

Sladic v ACT Planning and Land Authority [2018] ACAT 38
Thomson v ACT Planning and Land Authority [2009] ACAT 38

Texts/papers cited:     Lexis Nexis Concise Australian Law Dictionary

Tribunal:Senior Member R Orr QC (Presiding)

Senior Member G Trickett

Date of Orders:  6 August 2020

Date of Reasons for Decision:      6 August 2020

AUSTRALIAN CAPITAL TERRITORY          

CIVIL & ADMINISTRATIVE TRIBUNAL     AT 93/2019

BETWEEN:

PETER HOBBS

Applicant

AND:

ACT PLANNING AND LAND AUTHORITY

Respondent

AND

ANTHONY VARTULI

Party Joined

TRIBUNAL:Senior Member R Orr QC (Presiding)

Senior Member G Trickett

DATE:6 August 2020

ORDER

The Tribunal orders that:

1.The decision of the respondent to approve the development subject to conditions is set aside and is substituted by a decision to refuse the application.

2.The respondent expedites to the extent possible the consideration of any further development application by the party joined.

…………………………………..

Senior Member R Orr QC

For and on behalf of the Tribunal

REASONS FOR DECISION

1.Peter Hobbs (Mr Hobbs or applicant) has sought review of a decision of a delegate of the ACT Planning and Land Authority (Authority or respondent) made on 24 September 2019 under section 162 of the Planning and Development Act 2007 (Planning Act) to approve subject to conditions (decision) a development application (DA no.201935367) (DA) made on behalf of Anthony Vartuli (Mr Vartuli or party joined) for a construction at 10 Browne Place, Kambah, which is block 5 section 334 Kambah (subject site).[1]

[1] Exhibit T1 at pages T34-43

2.The subject site is 903 square metres and is in the RZ1 suburban zone (RZ1). It fronts Browne Street on the east, where the street is a cul-de-sac, with a public walkway on the south-east side.[2] The subject site is a former loose fill asbestos affected block, generally known as a ‘Mr Fluffy block’. The approved development application is for construction of one two storey dwelling (with four bedrooms) (unit 1) at the northern end of the block, adjacent to Mr Hobbs, and one single storey dwelling (with three bedrooms) (unit 2) on the southern end of the block adjacent to the public walkway, and associated works (proposal).[3]

Summary of the Tribunal’s decision

[2] Exhibit T1 at pages T44, T67 and T77; exhibit R2

[3] Exhibit T1 at pages T44 and T53-T77; exhibit R2

3.All the parties accepted that the development was subject to the Multi-Unit Housing Development Code (MUHDC) of the Territory Plan. The development of two residences, one of which is two storeys, is permitted and complies with the rules concerning height and building envelope.

4.The proposal does not comply with the rules for boundary setbacks, R29 and R30 of the MUHDC. But it can comply with the MUHDC if it meets the relevant criteria. The respondent and party joined argued that it met the relevant criteria C29 and C30. Mr Hobbs principally argued that the development had to comply with R29 and R30. This is not correct, and the Tribunal addressed his concerns principally as an argument that the proposal does not comply with C29 and C30.

5.The Tribunal finds that the front setback proposed in relation to the porch to unit 1 facing Browne Place on the east diverges significantly from R29. Also it does not provide for low density dwellings (C29(a) of MUHDC and zone objective RZ(1)(a) and (b)), respect valued features of the neighbourhood and landscape character of the area, and has unreasonable negative impacts on neighbouring properties (C29(a) of MUHDC and zone objective RZ(1)(d)). Therefore, we have decided that it does not comply with C29 of the MUHDC in this respect. It may be possible to formulate a condition to deal with this.

6.The Tribunal finds that the front setback proposed in relation to unit 2 facing the public walkway to the southeast diverges very significantly from R29 for a very large part of this boundary. The amount of this divergence strongly suggests that this also does not comply with C29. This aspect of the proposal does not provide for low density dwellings (C29(a) of MUHDC and zone objective RZ(1)(a) and (b)), respect valued features of the neighbourhood and the landscape character of the area, and has unreasonable negative impacts on neighbouring properties (C29(a) of MUHDC and zone objective RZ(1)(d)). Therefore, we have decided that it does not comply with C29 of the MUHDC in this respect. Because of the extent of this divergence it does not seem possible to develop a condition which will bring this aspect of the development within R29/C29. Any such condition may significantly disadvantage the party joined in his design options for complying with this requirement.

7.The Tribunal also finds that the proposal does not comply with R70/C70 in relation to driveway crossings. It is also difficult to develop a condition which deals satisfactorily with this divergence.

8.The Tribunal also has some concerns as to whether the proposed setbacks to the north and west have unreasonable negative impacts on neighbouring properties (C30(a) of the MUHDC and zone objective RZ(1)(d)). Mr Hobbs clearly regarded the impact of the proposed development as unreasonably negative on his property, but this arises principally from the height of unit 1 and its position on the block. But there is no significant divergence from the rule requirement in R30. The negative impacts have been managed to a significant extent by the conditions concerning windows facing north towards Mr Hobbs, and plantings to the north and west. Therefore, we find that there is compliance with C30.

9.Mr Hobbs also raised concerns about the time frame for the decision, whether the zone objectives were generally met, the height of the development, privacy, overshadowing, the loss of a view, traffic and parking, breaches of his human rights, discrimination against him because of his age, and elder abuse. The Tribunal finds that these grounds of objection were not made out. The privacy issues were dealt with in the conditions imposed by the decision-maker and which could be imposed by the Tribunal. Other minor matters raised in the hearing could be dealt with by further conditions.

10.But as noted, we do not think it is appropriate or even possible to develop conditions to deal sensibly in relation to the failure to comply with R29/C29 and R70/C70. We therefore set aside the decision of the respondent to approve the development subject to conditions and decide to refuse the application.

11.We think that this is a harsh outcome for the party joined. In our view the respondent should have required the party joined to deal properly with the issues we have raised. It is clear that the party joined can make a further application. In our view the respondent should expedite the consideration of any further application by the party joined.

12.The Tribunal found against Mr Hobbs in relation to most of his claims. In our view Mr Hobbs should consider whether he makes those claims in relation to any further application. We cannot prevent him doing so but note that he may be subject to having his application dismissed or struck out and a costs order made against him if he does so in the tribunal.

Background

13.A development application for the subject site was lodged on behalf of Mr Vartuli on about 8 April 2019. The proposal was for the construction of two new residences, one two storey and the other single storey.[4]

[4] Exhibit T1 at pages T274-T349

14.The proposal was considered in the merit track under sections 119-122 of the Planning Act. When the proposal was advertised, the Authority received some comments, including from the applicant with other persons dated 26 April 2019.[5]

[5] Exhibit T1 at page T113

15.The party joined lodged amended plans and documentation under section 144 of the Planning Act on about 27 June 2019.[6]

[6] Exhibit T1 at pages T101-T107

16.The Authority approved the amended proposal, subject to conditions, on about 24 September 2019,[7] and provided a statement of findings dated 4 November 2019.[8] It did so under section 162 of the Planning Act which provides in part:

162   Deciding development applications

(1)     The planning and land authority … must—

(a)approve a development application; or

(b)approve a development application subject to a condition; or

(c)refuse a development application.

[7] Exhibit T1 at pages T34-T43

[8] Exhibit T1 at pages T44-48

The relevant terms of the decision are discussed below.

17.Further amendments to the plans were submitted on about 8 October 2019 in accordance with conditions of the decision.[9]

[9] Exhibit T1 at pages T53-T77

18.A decision under section 162 to approve a development application in the merit track is reviewable by the tribunal under sections 407, 408A and Schedule 1, item 4 of the Planning Act.[10] The applicant is an eligible entity who can apply for review of the decision; no challenge was made to his ability to do so. Under section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) the Tribunal may exercise any relevant function given by an Act to the Authority, and must confirm the decision, or vary the decision, or set aside the decision and make a substitute decision, or remit the matter for reconsideration.

Challenge

[10] See also section 9 of the ACT Civil and Administrative Tribunal Act 2008

19.By application dated 15 November 2019 the Mr Hobbs sought review of the decision (Application or exhibit A1). He was granted an extension of time to do so.

20.This matter was heard on 20 March 2020. This began with a view of the property. The applicant represented himself. He provided no evidence in addition to the Application. He provided a reply to the witness statement of Ms Lana dated 9 March 2020 (exhibit A2), and a reply to respondent’s submissions dated 9 March 2020 (exhibit A3).

21.The hearing was meant to have finished on 20 March, including the submissions by Mr Hobbs, the other parties, and a reply by Mr Hobbs. However, after the evidence was concluded, Mr Hobbs sought an adjournment to enable him to prepare his submissions. This and other adjournments were granted to Mr Hobbs over the objections of the respondent and the party joined. In the end Mr Hobbs provided a written submission dated 8 May 2020 (applicant’s submissions) and submissions in reply dated 22 May 2020 (applicant’s submissions in reply).

22.The T-documents in relation to the decision were provided by the respondent (exhibit T1). The respondent was represented by Ms Musgrove instructed by the ACT Government Solicitor. The respondent provided a statement by Sheikh Lana (Ms Lana) dated 3 February 2020 (exhibit R1). Ms Lana gave oral evidence, during which she provided a further plan (exhibit R2). The respondent provided written submissions dated 3 February 2020 (respondent’s February submissions) and then 15 May 2020 (respondent’s May submissions).

23.The party joined represented himself. The party joined provided shadow diagrams (exhibit PJ1) and solar access diagrams (exhibit PJ2). He also provided submissions filed on 15 May 2020 (party joined’s submissions).

24.After final submissions were provided, the Tribunal raised issues concerning compliance with R70/C70 of the MUHDC concerning driveway verge crossings and other issues. The parties provided further submissions in relation to this issue (applicant’s, respondent’s and party joined’s submissions on driveway issues).

25.The issues raised by the Application in relation to the decision are now considered in turn. The Application contained a document headed attachment 3 which set out the grounds. These reasons generally follow the structure of that document.

Timeframe for the decision

26.Mr Hobbs referred to section 163(3) of the Planning Act which provides that if there is no decision in relation to a development application before the expiration of the prescribed period, the Authority is taken to have refused it. Mr Hobbs argued that the time limit was not met and that ‘due process’ may not therefore have been observed in relation to the decision.[11]

[11] Exhibit A1, Application, attachment 3, page 1; applicant’s submissions at pages 2-3

27.The DA was made on 8 April 2019. Under section 122(b) it must be decided not later than 45 working days after that. This time can be extended if the respondent asks for further information under section 141 (section 166(1)(a) and (2)) and can be further extended under section 167. Further information was requested. Even so, it seems that the decision was not in the end made within the time required. The respondent did not provide detailed information in relation timing of the decision or argue that it was within the timeframe.[12]

[12] Respondent’s February submissions at [22]-[29]; respondent’s May submissions at [5]-[7]

28.However, the respondent relied on section 163 of the Planning Act which provides in part:

163   Power to approve etc development applications deemed refused

(1) This section applies if—

(a)   a development application has been made; and

(b)   the time for deciding the application has ended; and

(c)    neither the planning and land authority nor the Minister has  

decided the application under section 162.

(2) The planning and land authority or, if the Minister has decided to consider the application under division 7.3.5, the Minister, may approve the application, or approve the application subject to a condition, under section 162 despite the ending of the time for deciding the application…

29.As the respondent argued section 163(2) is clear and unambiguous. Even if the time for making the decision had ended, which does seem to have been the case, the respondent could approve the application generally, or approve the application subject to conditions. It approved the decision subject to conditions. Mr Hobbs has had a full opportunity to complain about the proposal to the respondent and in this Tribunal, so there has been no failure to provide due process or procedural fairness to him. It would seem quite unfair if the party joined could not have his application assessed because the respondent did not do so in the prescribed timeframe. Therefore, the failure of the respondent to comply with the time limit is not a basis for setting aside the decision.

Zone objectives

30.Mr Hobbs referred to the relevant zone objectives for RZ1 which are as follows:

RZ1 – Suburban zone

Zone objectives

a) Provide for the establishment and maintenance of residential areas where the housing is low rise and predominantly single dwelling and low density in character

b) Protect the character of established single dwelling housing areas by limiting the extent of change that can occur particularly with regard to the original pattern of subdivision and the density of dwellings

c) Provide for a wide range of affordable and sustainable housing choices that meet changing household and community needs

d) Ensure development respects valued features of the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties

e) Provide opportunities for home based employment consistent with residential amenity

f) Provide for a limited range of small-scale facilities to meet local needs consistent with residential amenity

g) Promote good solar access

h) Promote energy efficiency and conservation

i) Promote sustainable water use

j) Promote active living and active travel

31.Mr Hobbs pointed out that section 120(a) of the Planning Act provides that in deciding a development application in the merit track, the decision-maker must consider the objectives for the zone. In relation to paragraph (b) of the RZ1 zone objectives Mr Hobbs noted that with the proposed development there would be three blocks within section 334 that are of dual occupancy with 5 two storey dwellings. In relation to paragraph (d), Mr Hobbs argued that the height of the proposal “would interrupt and, in some cases, obliterate [his] views of Mt Taylor, the Brindabella Ranges, Mt. Tennent and the Tuggeranong Valley potentially reducing the value of properties so affected notwithstanding the effect on the ambience of the area”, and would invade the privacy of the adjoining blocks. In relation to paragraph (g), Mr Hobbs argued that the development will have an adverse effect on the solar access of adjoining properties. Mr Hobbs stated that the development would cause traffic congestion, parking problems and potentially a dangerous situation at the end of Browne Place.[13]

[13] Exhibit A1, Application, attachment 3, at page 4; applicant’s submissions at pages 4-8

32.The respondent did consider the zone objectives in its decision, and found that the DA met all relevant objectives of the zone.[14] But the respondent noted that section 121(2) of the Planning Act provides that the right of review in the tribunal is only in relation to the decision to the extent that the development proposal is subject to a rule and does not comply with the rule, or no rule applies to the development proposal. It is not completely clear what this provision means. In Sladic v ACT Planning and Land Authority[15] and Peraic v ACT Planning and Land Authority[16] the tribunal there held that its task on review of a merit track decision was to consider the questions of code compliance only, by which it meant compliance with the relevant codes including provisions in them which are called rules, such as R29 and R30 of the MUHDC, as well as provisions which are called criteria, such as C29 and C30. The decisions held that the tribunal cannot review the development decision in relation to the broader considerations listed in section 120 of the Planning Act, including section 120(a) concerning zone objectives.

[14] Exhibit T1 at page T45

[15] [2018] ACAT 38, see especially [6]-[7]

[16] [2019] ACAT 118, see especially [21]-[22]

33.Mr Hobbs argued that there were alternative views which allowed review in the tribunal on the basis of whether section 120(a) had been met. But he provided little basis for preferring those alternative views. The decisions Sladic and Peraic are detailed and considered. In the absence of strong arguments that they are wrong the Tribunal thinks they are correct and will take this approach.

34.But there is a further issue about what the Tribunal may do if the requirements of section 121(2) are met, for example if it finds that the R29 and C29 are not complied with. In Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority [2017] ACAT 44 at [230] the tribunal stated:

If an eligible entity can demonstrate that the requirement of section 121(2)(a) or section 121(2)(b) is met, the role of the Tribunal is to conduct a merit review of the Authority’s decision to approve the DA. At that point, the Tribunal is the decision-maker. It would be inconsistent with this scheme of decision-making to conclude that, at that point, the Tribunal cannot consider the matters listed in section 120 in the way that the Authority, as the original decision-maker, was required to do.

The tribunal in Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority [2018] ACAT 95 confirmed this position, though this seems to be principally on the basis that the view taken in the earlier Noah’s Ark case should be maintained rather than reconsidered. In our view the issue of the relevance of the zone objectives at this stage does not need to be considered in this case. Further, in the absence of any substantive argument on this issue it is not appropriate for us to do so.

35.Therefore, generally, since there are specific provisions in relation to height and size and setback of the proposed buildings, there can be review in the Tribunal in relation to these issues, but not a general review on the basis that the height and size and setback of the buildings are inconsistent with the relevant zone objectives. However, the zone objectives are specifically adopted by the relevant specific code provisions, and we have regard to them in this context below in relation to setbacks.

Height

36.Mr Hobbs raised the height of the building as an issue.[17] Under the MUHDC, dual occupancy was permitted for the development as was a building two storeys (R16). The development was within the maximum plot ratio (R7). It is important to note that this rule applies to standard blocks in RZ2, which the subject site is not, and also “blocks defined as a surrendered residential block in RZ1”. ‘Surrendered residential block’ is defined to mean a block that has been surrendered under the Loose Fill Asbestos Insulation Eradication Buyback Program (Buyback Program). The subject site is such a block. That is there is a specific provision for such blocks, which while not increasing the plot ratio, allows for dual occupancy and two storeys where both dwellings front a public road. Mr Hobbs’ concerns arise to some extent from this arrangement, but as the respondent pointed out it is an arrangement specifically allowed for in the MUHDC as part of the policy of the government to facilitate the operation of the Buyback Program.

[17] Exhibit A1, Application, attachment 3, at [2.1(i)]

37.Rule 23, height of buildings, was complied with, and rule 25, building envelope, was also complied with.[18] No issue was taken by the applicant in relation to the development’s compliance with these specific requirements. He seemed to acknowledge that the pitch of the roof is within the building envelope.[19]

[18] Exhibit T1 page T87; respondent’s February submissions at [34]

[19] Exhibit A1, Application, attachment 3, at page 2

38.Mr Hobbs was clearly concerned about the height of unit 1 as it would result in the loss of his view. He stated that the proposed building “would interrupt and in some cases, obliterate [his] views of Mt Taylor, the Brindabella ranges, Mt Tennent and the Tuggeranong Valley.”[20] He suggested that this would potentially reduce the value of his property, though he provided no evidence of this. But he could not point to any regulation which protected his view. The respondent noted that there is no rule or criteria in the MUHDC that addresses the protection of a view, nor apparently any regulation elsewhere. Even if the zone objectives are somehow relevant, they say nothing about protecting views. We return to the issue of view below at [136]-[141].

Privacy

[20] Exhibit A1, Application, attachment 3, at page 2

39.Mr Hobbs also complained that the development would invade the privacy of adjoining blocks, and that the “representation comment [in the assessment by the respondent] is considered inadequate.”[21] The comment was that the issue of height is “to be addressed by Condition of approval requiring windows to have min. 1700mm sill height.”[22] Mr Hobbs argued that this will not preclude an invasion of privacy.

[21] Exhibit A1, Application, attachment 3, at pages 2 and 3

[22] Exhibit T1 at page T85

40.The relevant rules of the MUHDC are R30/C30 (which we discuss below at [56]-[116]) and R60/C60. R60/C60 provide:

R60 This rule applies to principal private open space on the same block and on adjacent blocks.

a)A person (with an eye height of 1.5m) standing at any point on the extremity of an unscreened element of one dwelling shall not have a direct line of sight to more than 50% of the minimum principal private open space of any other dwelling.

b)The direct line of sight is a minimum distance of 12m.

C60 Evidence is provided demonstrating that reasonable privacy of principal private open space of each dwelling is achieved through design solution.

Note: this does not include installing high sill windows, obscured glass, and/or angled louvres.

41.A relevant condition was attached to the approval. This was that “drawing No.A201 to be updated to show fenestration on the upper floor of the northern elevation for Unit 1 consistent with the Unit 1 Upper Floor Plan shown on drawing No. A101. The upper floor windows on this elevation shall have minimum window sill height of 1700mm.”[23] The respondent stated that the change in height will preclude direct observation and R60 (and R30) of the MUHDC in relation to screening and principal private open space on the adjacent blocks will be complied with.[24] The evidence of Ms Lana was that the high window sill “will restrict direct overlooking” and the “arrangement will protect reasonable amenity between neighbouring bocks both to the private open spaces and to the dwellings.”[25]

[23] Exhibit T1 at page T18

[24] Respondent’s February submissions at [35]

[25] Exhibit R1 at [60]

42.The operation of R60/C60 and how they interrelate are not at all clear. The condition imposed does not help with compliance of C60, including the note. However, in our view this condition will mean that R60 will be complied with in respect of this northern aspect. No condition was necessary in relation to the windows facing west.

43.Mr Hobbs and the other objectors also stated that “every Australian has the legal right to privacy.”[26] No basis was given for that right. We make the following comments in this respect. We note that there is a Commonwealth Privacy Act 1988 and an ACT Information Privacy Act 2014, but they are not relevant in these circumstances.

[26] Exhibit T1 at page T113

44.More relevantly section 12 of the ACT Human Rights Act 2004 (Human Rights Act) states that “everyone has the right not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily.” This refers to privacy being ‘interfered with’. It has generally been accepted that looking from one’s property into a neighbour’s property, or from a public place into private property, does not of itself interfere with this right to privacy, nor does generally walking up to and knocking on the front door. It is open to the owner to put up a fence, screen or curtains, and lock any gate, if they object to this.

45.Importantly, section 12 only prohibits ‘unlawful or arbitrary’ interference with privacy, family and home, not any interference. There does not seem to be anything unlawful about the party joined building a family home on his property, so long as it complies with the Territory Plan, and then using that property as a family home. Nor is this arbitrary, since the issues of privacy and amenity of adjoining properties are explicitly considered and addressed in the Territory Plan.[27]

[27] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [49]-[51]

46.It is true that the Territory Plan is to be interpreted so far as possible in a way that is compatible with this right (section 31 of the Human Rights Act). The interpretation of R60 and C60 (and R30 and C30) may be affected by this right to privacy. But as R60 provides for a specific protection of privacy, in particular of 50% of the minimum principal private open space of any other dwelling, there would seem to be little room for the interpretive principle to operate to expand that protection. Further, it is unlawful for a public authority, which would include the respondent and the Tribunal, to act in a way that is incompatible with a human right, or, in making a decision, to fail to give proper consideration to a relevant human right (section 40B of the Human Rights Act). Consideration is therefore given to the right to privacy here. But again, the clear terms of R60, and the clear protection it gives to privacy, and the fact that the proposal complies with R60, means that in our view section 40B can have little operation here.

47.There is no other general relevant right to privacy. In relation to the right in section 12 of the Human Rights Act, and even if there were any other general right, the party joined would enjoy it to the same extent as the applicant and the other objectors. The position is that just as Mr Hobbs and the other objectors can look into the party joined’s property, so he can look into theirs. Mr Hobbs and the other objectors are not obliged to block all their views into the party joined’s property; he is not obliged to block all his views into theirs. If they want to, they need to protect their privacy whilst on their property from neighbours by their own lawful actions.

48.The relevant issue is that the party joined needs to comply with the Territory Plan in relation to his development, which does have significant provisions in relation to privacy. The key provision is R60 of the MUHDC, which as discussed above is complied with, and R30/C30 which are discussed below.

49.Mr Hobbs also makes some complaints about the proposed screen planting.[28] This is relevant to the setback issue which we discuss below.

Quiet enjoyment

[28] Exhibit A1, Application, attachment 3, at pages 3-4

50.The Application refers to quiet enjoyment, which was raised in the representation by Mr Hobbs and others, and said that “every Australian has the legal right to … the quiet enjoyment of their home.”[29] There was no indication as to the basis of that right. We note that it is generally the case that a lessee, which Mr Hobbs and the others who own property in the street are, has a right to undisturbed occupation and possession of their leased land.[30] But the approval of the development application does not give the party joined or anyone else any right to interfere with the occupation and possession by Mr Hobbs of his land, or of the other objectors of their land. Further, whatever right Mr Hobbs and the other objectors have to quiet enjoyment, the party joined has the same rights in relation to his land. The party joined is simply seeking to exercise his right to quiet enjoyment and build on his land, as Mr Hobbs and the other objectors have been able to do. We agree with the respondent that this ground of objection is not made out. Again, the relevant issue is that the party joined needs to comply with the Territory Pan in the development.

Inspection of the site

[29] Exhibit A1, attachment 3, at page 3; exhibit T1 at page T113

[30] Lexis Nexis Concise Australian Law Dictionary

51.Mr Hobbs raised an issue in relation to the fact that there was no inspection of the site at the assessment stage.[31] It is not clear what the relevance of this is to compliance with the Territory Plan. At any rate there was a view of the site in which Mr Hobbs participated as part of the Tribunal hearing.

Additional information requests – driveway to unit 2

[31] Exhibit A1, attachment 3, at page 4; exhibit T1 at page T86

52.Mr Hobbs noted that the Transport Canberra and City Services Directorate (TCCS) made some comments in relation to the driveway for unit 2. These were that “the driveway for unit 2 is not supported, as it encroaches on the existing footpath.” This is noted in the assessment by the respondent.[32]

[32] Exhibit T1 at pages T86 and T120

53.The party joined has amended the plans to provide for the construction of a new path so that the driveway does not encroach on the new pathway.[33] Further the decision contains significant conditions in relation to the driveway. These are that the driveway must be designed and constructed in accordance with TCCS Design Standards, and the verge crossing must be constructed in accordance with various standards.[34] In our view the concern of the TCCS has at least in part now been dealt with. We have a more general concern in relation to the driveway and R70/C70 which we discuss below at [145]-[152].

[33] Exhibit T1 at pages T68 and T69

[34] Exhibit T1 at page T36

54.The respondent in these proceedings has also indicated that Site Plan should be consistent with the advice provided by TCCS and also with the Civil Works Plan in relation to the replacement of the existing path in the verge area, and requested that a condition be imposed.[35] If the Tribunal were to amend the decision it would impose such a condition (see paragraph [163] below).

[35] Exhibit R1 at pages [72]-[73]; exhibit T1 at page T58; respondent’s May submissions at [49]

55.The TCCS also noted that “it appears that there are a few trees and shrubs on the front verge” however nothing has been shown on the drawings. The conditions of the decision provide for protection of the verge.[36] In our view this concern of the TCCS has been met.

Setbacks

[36] Exhibit T1 at page T36, condition (7)(g) and (h)

56.Mr Hobbs raised issues in relation to the setbacks of the proposal from the boundaries of the subject site.[37] It was agreed by the respondent that none of the front boundary setbacks required by the relevant rule R29, Table A5 and Appendix 1 in the MUHDC were complied with. It was said that they complied with the criteria, which is as follows:

C29 Front boundary setbacks achieve all of the following:

a) consistency with the desired character

b) reasonable amenity for residents

c) sufficient space for street trees to grow to maturity.

[37] Exhibit A1, Application, attachment 3 at page 4; applicant’s submissions at pages 12-15

57.It was agreed by the respondent that none of the side and rear boundary setbacks required by the relevant rule R30, Table A6 and Appendix 1 in the MUHDC were complied with.[38] It was said that they complied with the criteria, which is as follows:

[38] Transcript of proceedings on 20 March 2020 at pages 39-44; respondent’s May submissions at [15]

C30 Buildings and other structures are sited to achieve all of the following:

a) consistency with the desired character

b) reasonable separation between adjoining developments

c) reasonable privacy for dwellings on adjoining residential blocks

d) reasonable privacy for principal private open space on adjoining residential blocks

e) reasonable solar access to dwellings on adjoining residential blocks and their associated principal private open space.

Front setback from Browne Place

58.The original decision noted that the proposed street frontage setback did not comply with R29. It was suggested that this was because unit 1 is 5105mm from the front boundary (this seems to be the study south of the porch). It was noted that the front porch is 4221mm from the front boundary, but that this is allowed by R32. Further it was suggested that the unit 2 garage is only 5819mm from the front boundary. The requirement is a setback of 6m under Table A5. The encroachments were therefore said to be of 15% (unit 1 study) and 2% (unit 2 garage), and if the front porch is also subject to the rule, 30%. It was said this complied with C29.[39]

[39] Exhibit T1 at pages T88-T89

59.Ms Lana said that the ground floor of unit 1 encroached into the front street setback by approximately 1.78m. This seems to indicate that the distance from the support post of the roofed front porch to the front boundary was 4.2m,[40] and that R32 is not relevant. We accept that position.

[40] Exhibit R1 at [23]

60.Ms Lana said that the proposal complied with C29. The reasons Ms Lana gave were first that unit 1 complied with the height restrictions, and the upper level complied with the setback requirements. Second, that material and colour samples reflect consistency with the surrounding residential developments. Third, she said that reasonable amenity for future residents will not be affected. The front zone and verge were considered to be a reasonable separation from the street. Further, the plan shows a mulched area and a tree proposed within the front zone and the width of the verge is adequate for mature street trees. As such the proposal was said to be consistent with C29.[41]

Front setback from public walkway

[41] Exhibit R1 at [23]-[24]

61.‘Front boundary’ is defined to mean “any boundary of a block adjacent to a public road, public reserve or public pedestrian way.” The south eastern boundary next to unit 2 is adjacent to a public pedestrian way. The original decision said the unit 2 garage was 1500mm from the boundary. It seems that this is required to be 6m, or 4m if the pedestrian path is wider than 6m. This is an encroachment of 62% if the requirement is four metres. The original decision said this was consistent with some of the existing dwellings on blocks which face the public pedestrian paths. There was little further evidence of this. It also noted that there are several mature trees along the south eastern boundary which will soften the view of the single story building. It was said that the proposal complied with C29. It noted a condition of approval in accordance with R41 which deals with fences forward of the building line.[42]

[42] Exhibit T1 at page T88

62.Ms Lana assumed that the required setback under R29 is 4m, and that the garage (which is at the front of the block near Browne Place) is proposed to be setback 1.5m, and the dwelling (from the garage to the back of the block) 2.2m, and that these therefore do not comply with the rule.[43] This is an encroachment into the requirements of R29 of 62% for the garage, and 45% for the dwelling.

[43] Exhibit R1 at [25]

63.Ms Lana stated that the proposal complied with the criteria because it is only a single dwelling. A condition has been imposed requiring a transparent type fence with planting wholly contained in the block. She noted that there are established trees within the adjoining public space which ensures better amenity for the residents, and the overall setting and scale does not restrict consistency with the desired character.[44]

Northern setback

[44] Exhibit R1 at [25]-[28]

64.The original decision provided that the “minimum setback from south (side) and western (rear) boundaries are 2500mm (to unit 1 alfresco column/roof) and 2187mm (to unit 2 al fresco column/roof)”. It seems the reference to the south side should be the north side.[45] The requirement on the north side for the lower level is 3m. (At the upper level the requirement is 3m in the primary building zone and 6m in the rear zone.) At the lower level this is an encroachment of 17% on the north side. The assessment noted that locating alfresco areas and private open space within the setback will give rise to a lack of privacy for principal open spaces on adjoining blocks, and “hence is not with (sic) the desired character.” It proposed a condition requiring screen planting along the northern and western boundaries, presumably to address this issue.[46]

[45] Exhibit T1 page T89

[46] Exhibit T1 page T89

65.Ms Lana stated that for the north side unit 1 encroaches at the lower level by 0.5m and at the upper level 0.87m (apparently in the rear zone). As noted, this is an encroachment at the lower level of 17% from what the rule allows. At the upper level it is an encroachment of 15%.

66.Ms Lana said that she thought this complied with C30. It was said that there was reasonable separation from the adjoining development, there will be no overshadowing, the window on the upper level will have a high sill to ensure reasonable privacy, and the unit complies with the maximum height restriction.[47] A condition was imposed to show semi-mature trees along the northern boundary, which she said will ensure reasonable privacy.[48] A condition was also imposed to require high sills on the windows facing north (see paragraph [41] above).

Western rear setback

[47] Exhibit R1 at [29]-[31]

[48] Exhibit T1 at page T35, condition 1(c)

67.The original decision stated that there were western rear encroachments of 2500mm (to unit 1 alfresco column/roof) and 2187mm (to unit 2 al fresco column/roof) and therefore did not comply with R30. The requirement is 3m. This is an encroachment of 17% and 27%. Ms Lana also noted a minor corner encroachment for unit 2 of 0.08 of a metre. We note that the plans show that unit 1 encroaches 400mm into the setback at the south west corner.[49]

[49] Exhibit T1 page T316

68.Ms Lana thought these complied with C30 because the neighbouring dwelling is located a distance from the rear boundary, and there will therefore be reasonable separation between the developments. The lower level encroachment is only 0.5m and is a corner encroachment which she thought acceptable. She noted that the proposal complies with the maximum allowable height. She therefore thought that the proposal was consistent with the C30.[50]

[50] Exhibit R1 at [33]-[40]

69.A condition was also imposed to show semi-mature trees along the western boundary, which she said will ensure reasonable privacy.[51]

[51] Exhibit T1 at page T35, condition 1(c)

70.As Mr Hobbs pointed out,[52] the assessment suggested that there should be a condition that the upper storey western elevation for unit 1 also be updated to show fenestration with minimum 1700mm window sills.[53] It appears that this did not make it into the decision. We assume that this was because the upper storey appears to already comply with R30 as it is set back more than 6m.[54]

Summary of encroachments into R29 and R30 requirements

[52] Application, attachment 3, at page 4

[53] Exhibit T1 at page T89

[54] Exhibit T1 at page T58

71.In summary therefore it seems to be agreed that there are the following encroachments in relation to the requirements of R29 and R30:

East side on Browne Place

Unit 1, front porch: required setback 6m; actual setback down to 4.2m; up to 30% encroachment for about 2.5m.

Unit 1, study next to the porch: required setback 6m; actual setback down to 5105mm; up to 15% encroachment for a short distance.

Unit 2 garage: required setback 6m; actual setback down to 5.8m; up to 3% encroachment for about 1 m.

Southwest side on public walkway

Unit 2 garage: required setback 4m; actual setback 1.5m; 62% encroachment for about 6.5m

Unit 2 house: required setback 4m; actual setback 2.2m; 45% encroachment for about 15m

The encroachment by the garage and house together is for about 70% of the whole boundary.

North side

Unit 1 garage and house lower floor: required setback 3m; actual setback 2.5m; 17% encroachment for about 15m. The encroachment runs for about 55% of the whole boundary.

Unit 1 upper floor level, rear zone: required setback 6m; actual setback 5.1m; 15% encroachment for about 3m.

West side

Required setback 3m; actual setback 2.7m to unit 1 southwestern corner, 2.5m to unit 1 alfresco column/roof, 2.2m to unit 2 alfresco column/roof, and 0.1m to corner of unit 2; these are encroachment of 10%, 17%, 27% and 3% for short distances.

Application of the criteria

72.There are therefore setback encroachments into the requirements of the rules on the four significant sides of this development. We make some preliminary comments about these encroachments before considering the terms of the criteria.

73.There are significant encroachments into both front boundaries and as a consequence the resultant building line to the street is reduced by 30% and to the pedestrian path by 62%. A consequence of the reduced building line to the street and thus the reduced depth of the front zone is that the garage to unit 2, which under R77 is to be located behind the front zone, is permitted to be located forward of the 6m setback.

74.While the building encroachments along the western side are stepped and as such have a mitigating effect to the form of the buildings, the building encroachments to both the north and southeast along the public pathway are set parallel with the boundaries. To the north the extent is approximately 80% of the length of the rule compliant footprint (that is from the front to the rear rule required setbacks), although a proportion of this is patio. Along the pathway it is 98% of the length of the rule compliant footprint (that is from the front to the rear rule required setbacks).

75.The respondent acknowledged that the terms of the rules were relevant to interpreting the criteria. The Tribunal agrees with this.[55]

[55] Hamilton v ACT Planning and Land Authority [2018] ACAT 121 at [24]; Javelin Projects v ACT Planning and Land Authority [2017] 87 at [73]; Deakin Residents Association Inc v ACT Planning and Land Authority [2015] ACAT 37 at [35]; North Canberra Community Council v ACT Planning and Land Authority [2019] ACAT 87; McAndrew  v ACT Planning and Land Authority ; Owen v ACT Planning and Land Authority [2019] ACAT 102 at [37]-[39]

76.The respondent argued that the rules are not more significant than the criteria. The Tribunal also agrees with this. The Introduction to the MUHDC notes that rules provide quantitative or definitive controls, while criteria are chiefly qualitative in nature. It goes on to state:

Where a rule is fully met, no reference to the related criterion needs to be made. Where there is a departure from a rule … the onus is on the applicant to demonstrate that the relevant criterion is satisfied through supporting drawings and/or written documentation.

Similar statements are made in Part 1.1 Governance of the Territory Plan. Section 139(2)(d) of the Planning Act also provides in relation to a development in the merit track that it needs to be accompanied by information or documents addressing the relevant rules and criteria.

77.These provisions make clear that the criteria are a legitimate way of complying with the Territory Plan. Because they are qualitative, there is an onus on the developer to demonstrate that the relevant criteria are satisfied. But if satisfied, the failure to comply with the rule is generally irrelevant. As noted, the related rule may be relevant to interpreting the criteria and thereby determining whether it is met.

78.Mr Hobbs repeatedly argued that the rules must be complied with, even where there is a relevant criteria. In his submissions he stated ‘rules are rules’ and should be treated the same way as speeding limits.[56] As the provisions set out above show, this is not correct. Where there is a rule and a criteria, the party joined can meet their legal obligations by complying either with the rule or the criteria. Where there is a rule and a criteria, they do not need to comply with the rule if they comply with the criteria. It is correct, as Mr Hobbs also notes, that the criteria are broad quantitative measures, which can give rise to disputes as to whether they have been met. On this basis we take Mr Hobbs to be arguing that the criteria have not in fact been met.

[56] For example, see applicant’s submission’s at pages 13-14

79.We raised with the parties whether it was relevant to the application of the criteria that on no significant side did the development comply with the rules. The respondent in particular addressed this issue and argued that the criteria should be considered in relation to each boundary, and that it was not appropriate to take a global view of non-compliance. It was said that this is the way the MUHDC operates. We agree with this approach.

Consistency with the desired character (C29(a) and C30(a))

80.The relevant criteria are set out in paragraphs [56] and [57] above. The first is consistency with the desired character. The concept of desired character is defined in the Territory Plan to mean “the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code”. ‘Streetscape’ is also defined to include “… private land between facing buildings, including the form of buildings, treatment of setbacks … driveway and street layout …”[57]

[57] Territory Plan, Part 13, Definitions

81.The RZ1 zone objectives are therefore central to the concept of desired character. The relevant RZ1 zone objectives are set out at paragraph [30] above.

RZ1 zone objective (a) – low density

82.The RZ1 zone objectives begin with providing for the establishment and maintenance of residential areas where the housing is low rise and predominantly single dwelling and low density in character. The proposal is for private residences, so this is consistent with the maintenance of a residential area. It is unclear what low rise means. But the MUHDC allows for two storeys in RZ1 areas, so this suggests that two storeys are low rise. This development is for unit 1 to have two storeys but no more, and this complies with all the height restrictions in the MUHDC. The development is not a single dwelling, rather it is two dwellings. But this is specifically allowed.

83.Low density is not defined. But again, we note that two dwellings are specifically allowed. This development has altogether seven bedrooms which would seem to be at least approaching the outer limits of low density.

84.But having allowed two dwellings, and one with two storeys, in our view the requirements for setbacks take on an added importance. These setbacks are clearly related to the siting, building bulk and scale of the development, and whether it is consistent with the objective of low density.

RZ1 zone objective (b) – density of buildings

85.The zone objective then states: “(b) protect the character of established single dwelling housing areas by limiting the extent of change that can occur particularly with regard to the original pattern of subdivision and the density of dwellings.” As noted, this proposal is not a single dwelling. It is two residences, but this is specifically allowed for. This is a change from the original pattern of development and density of dwellings, but the objective allows for some change in this regard. Again, the setbacks are clearly relevant to the concept of density of dwellings in this objective.

86.As we have noted the development does not comply with any of the setback rules. And there are significant failures to do so up to by 62% on the southeast along the public walkway. Further the building encroachments to the southeast along the public walkway (and to the north) are set parallel with the boundaries and run for the vast majority of the boundary, on the pathway along 98% of the rule compliant footprint. This clearly gives rise to an issue as to whether this proposal reflects a level of density that is consistent with zone objectives (a) and (b). In our view these can be seen as major departures from the RZ1 character of the established single dwelling houses particularly with regard to the siting and appearance of density of dwellings in the area.

RZ1 zone objective (c) – wide range of housing

87.The zone objectives also state: “(c) provide for a wide range of affordable and sustainable housing choices that meet changing household and community needs.” It appears that the development will provide for a range of housing choices. There was no evidence of affordability. It appears that the development will meet the relevant sustainability requirements though there was no specific evidence of this apart from the decision-maker’s assessment. The Tribunal accepts that the proposal will add to the range of housing choices in this area. Mr Vartuli indicated that his elderly in-laws will be housed in unit 2,[58] and in our view this confirms that the development will meet changing household and community needs.

RZ1 zone objective (d) – valued features of the neighbourhood and landscape character

[58] Party joined submissions, page 2

88.The zone objectives then state: “(d) ensure the development respects valued features of the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties.” There is no definition of valued features or landscape character. However we consider that valued features of the neighbourhood and landscape character include the streetscape, namely the visible components within a street, private land between buildings and treatment of setbacks.[59] In this instance the setbacks in Browne Place appear to be generally typical with respect to RZ1 development with building lines that are 6m or more. The dwelling in section 333 on the opposite side of the pathway is set well back from the street providing a wide open appearance to the pathway from the end of Browne Place.

[59] Definition of streetscape in Territory Plan, Part 13

89.We think that that the proximity of the proposal to Browne Place and the public walkway, demonstrated by the failure to comply with R29 on the Browne Place and public walkways sides, in particular the very significant divergence from the rule on the pathway side, have a negative impact on the valued features and landscape character in relation to the streetscape, especially if there are no requirements for improving the verge area and maintaining the trees next to the public walkway. The decision noted that there would be no adverse impact on the potential for street trees on Browne Place, and there was sufficient space for the trees on the walkway to grow to maturity.[60] We doubt this and return to this issue below.

RZ1 zone objective (d) – unreasonable negative impacts on neighbouring properties

[60] Exhibit T1 at page T88

90.Zone objective (d) also refers to unreasonable negative impacts on neighbouring properties. In our view the arguably relevant negative impacts include the failure to comply with the setback on the northern side. Mr Hobbs focussed on the loss of his view in respect to this objective. The main feature affecting his view is the height of unit 1 and as we have noted repeatedly the proposal complies with the MUHDC as to height. We discuss the issues of views further below at [136]-[141].

91.On the northern side, at the lower level the building is 2.5m from Mr Hobbs’ property, while R30 provides for 3m. This is not a significant encroachment, but as noted it extends for a significant distance.

92.A condition is imposed requiring planting of semi-mature trees in this area. We agree that this condition supports the compliance with C30. However, planting in this location may have a negative impact on the solar access to the meals room which is the only north facing habitable room at this level not impacted by the shading of the alfresco area. We would amend this condition to exempt the area outside this room from the requirement for the screen planting of semi-mature trees.

93.At the upper level the encroachment in the rear zone is 870mm from a requirement of 6m. This is not significant, and as noted a condition requires only high windows which cannot be looked out of. There is no overshadowing by the proposed development to the north.

94.On the western side, the adjacent dwellings are well back from the boundary. The encroachment is limited and will be addressed to some extent by required semi-mature tree planting in the area. There is some overshadowing which we discuss below (see paragraph [109]), but this is not significant.

95.The proposal does encroach within the 6m rule required setback from the street, Browne Place, both in relation to the entrance to unit 1 and study, and the garage to unit 2 to a more than minor extent. Further, as we have noted the proposal will be very close to the walkway to the south east of the subject site. Both these can be seen to have some negative impact on the amenity of neighbouring properties.

96.In considering unreasonable negative impacts on neighbouring properties we take the desired character to be the character that the zone objectives, and other statements, are promoting or aiming towards. The key indications of this are the terms of the MUHDC itself, but C29 and C30 specifically refer to these broader objectives. The main issue from our point of view is whether the proposed setbacks to Browne Place, the walkway to the southeast and the north have unreasonable negative impacts on neighbouring properties. Mr Hobbs clearly regards the impact of the proposed development as unreasonably negative on him, but this arises principally from the height of unit 1 and its position on the block; in this regard the development complies with the relevant rules. His concern does not seem to arise principally from the setback. But generally, the density which results from the encroachments into the R29 and R30 requirements can be seen as a negative impact on the amenity of the neighbours.

Summary in relation to the zone objectives

97.Therefore, while the setbacks in the proposal may achieve the objective of providing a wider range of housing (zone objective(c)), we have serious doubts that they provide for housing which is low density in character (zone objective (a)), protect the current character of established housing areas by limiting the density of buildings (zone objective (b)), and respect valued features of the neighbourhood and landscape character and do not have unreasonable negative impacts on neighbouring properties (zone objective (d)).

Reasonable amenity to residents C29(b)

98.It is not clear whether residents in C29(b) means the neighbouring residents, or residents of the proposed development. Whichever it is, this consideration does not apply on the northern and western boundaries; it only applies to front boundary setbacks under C29.

99.If it applies to the neighbouring residents this requirement is similar to that arising from RZ1 objective (d) which refers to not having unreasonable negative impacts on neighbouring properties. The issues we have discussed above in relation to objective (d) apply here.

100.If, as seems more likely, it applies to the residents of the proposed development, further issues arise. There is a real issue as to whether the setback along the south eastern boundary adjacent to the public walkway does achieve reasonable amenity for the residents of proposed unit 2. Unit 2 has three bedrooms, two of which are located adjacent to the public walkway. The main bedroom has a high-level window in the façade facing the public walkway and additional windows to the other walls of the room. This room will have reasonable amenity. The other bedroom has one single window with a low sill which is in the façade facing the public walkway. It is the only means of direct natural light and ventilation to this room. The respondent submitted that C47 (which is discussed below at [117]-[122]) was complied with as the surveillance of the public walkway is achieved through the transparent fence and plantings proposed. The only window to a habitable room that may be able to achieve any surveillance is the bedroom window which is 2.2m from this front boundary and in our view may not provide privacy, and thus reasonable amenity from the public space with respect to noise and direct line of sight. The elevation at page T329 of exhibit T1 shows the window sill to be 600mm above floor level and 1200mm above the ground level. Any transparent fencing and screening up to a maximum height of 1.8 m that is permitted by the Residential Boundary Fences General Code (RBFGC) C8 in our view will not mitigate the loss of amenity due to noise and lack of visual privacy. The transparent nature of a fence combined with the required hedge will only provide a limited extent of privacy while the eye line from the centre of the pedestrian path above the maximum 1.8m planting will not limit an unobstructed view into the room approximately 1.2m above the floor level. The residents can manage this to some extent with curtains and blinds.

Sufficient space for street trees to grow to maturity (C29(c))

101.There is no definition of street trees or street. It seems clear that Browne Place is a street. It seems less clear that the public walkway to the south east of the subject site is a street. We assume that street trees are trees not on the subject site, but on a street, whatever that is, adjacent to the site. The original decision noted there would be no adverse impact on the potential for street trees on Browne Place, and implied there was sufficient space for the trees on the walkway to grow to maturity.[61] Ms Rana also noted that the width of the verge is considered adequate for mature street trees to grow, and that there are established trees within the adjoining public open space.[62]

[61] Exhibit T1 at page T88

[62] Exhibit R1 at [23] and [28]

102.The addition of a proposed new driveway and verge crossing to unit 2 will clearly have a significant impact on any future street trees here.

103.It may be that because C29 is concerned with not just streets, but also other front boundary setbacks such as to pathways, that street trees include the public walkway trees. But even if that is not the case, those trees clearly play an important role in the neighbourhood and landscape character and amenity of the area. For Ms Rana they were a significant factor in finding compliance with C29 on this boundary. But given the proximity of the trees to the development as it encroaches on the R29 restrictions, we think it is clear that the development may have an impact on those trees, perhaps a significant impact, and thereby prevent the street trees growing to maturity, or at least degrade the neighbourhood and landscape character and amenity of the area. In the assessment the conservator stated that no regulated tree will be impacted by the DA and several eucalypts are “alongside in the laneway, therefore not protected under the Act”.[63] We have some doubts about this. But whether they are protected or not, the development will clearly have an impact on them, and therefore the role they play in supporting compliance with C29.

Reasonable separation between adjoining developments (C30(b))

[63] Exhibit T1 at page T122

104.‘Development’ is broadly defined in section 7 of the Planning Act to mean a range of things including construction of work on or under the land, subdividing or consolidation of the land, and varying a lease. Adjoining developments therefore seems to mean these developments on adjoining pieces of land. Here there is only one piece of land.

105.Even if the two residences proposed are adjoining developments, the separation is 2056mm between them and this complies with R63 which permits 1m.

Reasonable privacy for dwellings on adjoining residential blocks (C30(c))

106.As discussed above, the development with the condition in relation to the upper windows will comply with R60 concerning privacy. In our view the dwellings on the northern and western side of the subject site will have reasonable privacy. We have also noted the conditions for planting of semi-mature trees on the northern and western borders, which will promote privacy for adjoining residents.

107.On this basis, in our view the encroachments will have limited impact on the privacy of dwellings on adjoining blocks, which will retain reasonable privacy.

Reasonable privacy for principal private open spaces on adjoining blocks (C30(d))

108.We take a similar view in relation to this requirement as we did for C30(c).

Reasonable solar access to dwellings on adjoining residential blocks and their associated principal private space (C30(e))

109.The development will have no impact on solar access for the property to the north, which Mr Hobbs owns. It will have some impact on the property to the west. The party joined provided shadow diagrams on the winter solstice in relation to the residence to the west (exhibit PJ1). These showed some shadow over this residence at 9.00am, though part of this was the result of the shed on the property to the west. There was some shadow on the garden but not the residence at 10am, a small amount on the garden by 12 noon of what looks to be about one metre, and none from then on.

110.In our view it is clear that the encroachment on the rule requirements for setback will still allow solar access to dwellings on adjoining residential blocks and their associated principal private space.

Summary in relation to setbacks

East boundary to Browne Place

111.The encroachment by the front porch of unit 1 of just under 1800 mm on the front setback to Browne Place is significant, not minor, from the rule requirement. This impinges on the valued features of the neighbourhood and landscape character. It also suggests that the development is too dense. Our concerns in this regard are amplified by our concerns about the additional driveway verge crossing, as discussed below at [145]-[152]. We think that a condition requiring removal of this encroachment would be necessary to ensure compliance with C29.

112.The smaller encroachments by the wall of unit 1 and the garage of unit 2 are minor and comply with C29.

Southwest boundary to the public walkway

113.The encroachment from R29 of the front setback to the public walkway is major. This impinges significantly on the valued features of the neighbourhood and landscape character. It also suggests that the development is too dense. It is likely that it does not provide reasonable amenity for residents and does not provide for the maintenance of the trees along the walkway which are an important factor in supporting any compliance with C29.

114.In our view, the proposal does not comply with C29 in relation to this boundary. We have given consideration as to whether this could be remedied by additional conditions providing for the significant reduction of the encroachment into the R29 requirements and protection and maintenance of the trees. But the problem is that the proposal is a major divergence from R29 and C29, and such conditions generally provide for minor changes to deal with minor divergences. The condition would have a major impact on the design of the residence, which does not seem appropriate. There are a range of ways in which R29 or C29 could be complied with. It is difficult to fashion a condition which would leave those options open for the party joined. We think that a condition which simply required compliance with R29 would be unfair, and one which simply required compliance with C29 would be very uncertain. In our opinion it is more appropriate for the party joined to be free to redesign the residence to comply with R29 or C29 in a way designed by him.

North boundary

115.We have concerns about the side encroachments. These are generally minor divergences from the rule requirement. It is unlikely that the boundary setbacks proposed of themselves have unreasonable negative impacts on the neighbouring properties. Mr Hobbs’ concerns are principally in relation to the height and size of unit 1, not the setback to his land.

116.The conditions about the windows facing north and planting on the boundaries will address this encroachment to some extent. As discussed at [92], we would adjust this condition so as not to require semi-mature planting outside window to the meals room. The applicant expressed some concern about those plantings, and we would impose a new condition which would require consultation about these plantings.

Surveillance

117.The MUHDC deals with surveillance in R47/C47. R47 sates:

This rule applies to building facades facing a public street or public open space.

Building facades have all of the following:

(a) at least one window to a habitable room that is not screened by a courtyard wall

(b) at least one door with roofed element such as a verandah or balcony.

118.C47 then provides that the buildings “achieve passive surveillance of all of the following: (a) adjoining streets (b) adjoining public open space”, which is the relevant requirement. There is no definition of passive surveillance.

119.The decision stated that the development complied with R47/C47. The respondent agreed that R47 was not complied with in relation to the public walkway on the southeast boundary. However, it was said that passive surveillance was achieved through the transparent fence and hedging proposed.[64]

[64] Respondent’s May submissions at [38]

120.Some passive surveillance could be achieved from the bedroom which looks onto the pathway, provided that it could be seen through the fence. There was a condition imposed in the decision which specified a transparent type of fence with a maximum height of 1800mm.[65] The revised diagram provided by the party joined specified a ‘chain wire mesh fence’.[66] The respondent suggested that a chain wire mesh fence is a temporary fence, not suitable for this location, and that the notation should provide for a permanent transparent type of fence.[67]

[65] Exhibit T1 at page T18, condition 1(a)

[66] Exhibit T1 at page T58.

[67] Exhibit R1 at [44]

121.The party joined indicated his position that the Colorbond fence was perfectly good and preferable in relation to the security of the property.[68] But the proposal does need some form of fence and the fence needs to comply with C3 of the RBFGC  and R47 or C47 of the MUHDC.

[68] Party joined submissions at page 2

122.In our view if the proposal proceeds the respondent’s condition should be imposed, which will ensure there is some level of surveillance from the bedroom and compliance with C47. As we have noted the ability for such surveillance reduces privacy from the bedroom. But R47(a) refers to a habitable room, the definition of which expressly includes a bedroom. Privacy issues can be managed in other ways.

Appropriate solar access to the development

123.There is an issue as to whether the development itself achieves the necessary solar access required by mandatory R57. This requires that the floor or internal wall of a daytime living area is exposed to not less than three hours of direct sunlight between 9am and 3pm on the winter solstice. The assessment stated that R57 was complied with.[69] It became apparent during the hearing that this was not correct and that the relevant solar access drawings which demonstrated that the rule was met were only prepared just prior to the hearing, and these drawings showed that the development did not comply unless a window was added to the north east wall of unit 2. It is not clear to the Tribunal why the development was approved given the mandatory rule was not met. The party joined indicated that these diagrams showed how the requirement could be met rather than that it was met.[70]

[69] Exhibit T1 at page T90

[70] Transcript of proceedings on 20 March 2020 at pages 71-73

124.The respondent suggested the following condition in the Tribunal’s decision:

The Applicant shall within 28 days of the date of the decision, submit revised floor plans, sections and other relevant diagrams demonstrating the floor or internal wall of the day time living area of unit 2 is exposed to not less than 3 hours of direct sunlight between the hours of 9am and 3pm on the winter solstice (21 June).

Note: the planning and land authority will not endorse and release the plans until the authority is satisfied that the drawings correctly demonstrate compliance with R57 of the MUHDC.

The Tribunal is of the view that this is an appropriate condition to impose.

125.The respondent made some other suggestion to improve the solar access of unit 2. As the proposal with the proposed condition will comply with R57 of the MUHDC the Tribunal does not think that these changes need to be imposed as a condition of development. But a condition could allow these changes to be made.

Principal private open space

126.Rule 61 requires each dwelling to have at least one area of principal private open space (PPOS) which complies with specified requirements. The respondent submitted that unit 1 complied.[71] We do not find that the PPOS meets the rule as the minimum dimension of 6m is not met as the isolated brick pier support reduces the dimension by 400mm, however, we find that C61 is met.

[71] Exhibit R1 at [61]

127.The respondent indicated that unit 2 did not comply with the rule as it did not receive the required solar access, but did comply with the relevant criteria.[72] We find that the PPOS meets the rule as there is no requirement in it for the specified solar access, as the PPOS is located north west of the dwelling (see R61(e)).

Overshadowing of adjacent properties

[72] Exhibit R1 at [63]

128.We have noted the proposed development complies with the Territory Plan in relation to its height and related matters. There is also an important requirement in R26/C26 of the MUIHDC which limits the amount by which a proposed development can cast shadows on adjacent residential blocs. As the respondent has pointed out,[73] this applies to proposed buildings on any northern boundary of an adjoining residential bloc; this is because its purpose is to ensure solar access to those adjoining blocks. The proposal is not on the northern boundary of any block, and therefore R26/C26 are not relevant.

[73] Respondent’s submissions of May 2020 at [41]

129.We have discussed above the overshadowing of the property on the western side of the proposal. There is no overshadowing of the property on the northern side of the proposed development, which is owned by the applicant.[74]

[74] See paragraph [109] above

130.Mr Hobbs argued that any overshadowing by the proposal is unacceptable.[75] But this is not what the Territory Plan requires, and at any rate is not practical. Indeed, the shadow diagrams, exhibit PJ1, show significant overshadowing by Mr Hobbs’ buildings of the subject site.

Trees

[75] Applicant’s submissions at page 15

131.The respondent suggested,[76] and the applicant agreed,[77] that the type of screen planting to be provided on the northern and western boundaries should be specified. We also agree. In light of the encroachment into the setback provided by the rule, and the importance of the screen planting in ensuring compliance with the criteria, if the Tribunal upholds the decision it would require the party joined to consult with their neighbours in relation to the nature of this planting, and to submit a record of that consultation with the details of the proposed planting.

[76] Exhibit R1 at [41]; applicant’s submissions at page 13

[77] Exhibit A1, attachment 3, at page 4

132.The respondent also proposed a condition that the boundary fences do not exceed forward of the building line, and the applicant also agreed with this.[78] The Tribunal has found that the RBFGC R1 and C8 are to be complied with as well as the site line requirements of the Parking and Vehicular Access General Code (Parking Code). The respondent also suggested that details should be provided of the fence between unit 1 and unit 2.[79] If the decision were to be upheld the Tribunal will adopt these suggestions and make appropriate conditions.

[78] Exhibit R1 at [43]; applicant’s submissions at page 13

[79] Exhibit R1 at [57]-[58]

133.The Tribunal has noted several times the mature trees beyond the south eastern boundary of the subject site next to the pathway. These are a significant factor if there is to be compliance with C29 in relation to this boundary. Therefore, if the Tribunal were to uphold the decision it would be important that these trees are protected during the building process.

134.We note that the advice in relation to the DA was that “no regulated tree will be impacted by this DA.”[80] As noted, we have concerns that this is not correct. But even if this is correct, we think that they need to be protected during the building process on the subject site.

[80] Exhibit T1 at page T122

135.If we were to approve the decision we would therefore impose a condition that the party joined protect the mature trees outside the southwestern boundary of the development next to the pathway from damage by the development and would make a condition to the approval that a tree management plan be submitted for approval by the relevant authority and the planning authority.

View

136.Much of the applicant’s complaint is that the development will mean the loss of his view. This complaint is formulated in a number of ways. But in order to uphold this complaint it is necessary to find some legal basis on which to reject the proposal on this basis. We consider the range of possibilities.

137.First, there is no protection of views in the Territory Plan. The respondent made this submission. The applicant could not point to any express protection of views in the Plan.

138.The applicant did rely on some provisions of the MUHDC which addressed related issues, but we have addressed these above. In particular, these limit the height of buildings, but as we have noted the development complies with these limits.

139.Of course, a view can be a benefit of land ownership; as in this case a view might be an important, perhaps even the most important, aspect of such ownership. But generally, the rights of a landowner do not extend to protecting that view, that is to preventing other landowners building on their land something which detracts from or indeed destroys the view. There is no such general right.[81] This is mainly because such a right would severely affect what other landowners could do with their property; indeed Mr Hobbs may not have been able to build his own house if the views of his neighbours were protected. Mr Hobbs could not point to anything which suggested there was a general right to a view.

[81] Aldred’s Case (1610) 9 Co Rep 57, 77 ER 816 at 58; Kent v Johnson (1973) 21 FLR 177, Smithers J at 58 (reversed on other grounds on appeal); Bathurst City Council v Saban (No. 2) 1986 LGRA 201 per Young J at 205-206

140.Of course, as always in the law, there are some exceptions. An action for nuisance may be taken in some cases,[82] but no such action is brought here; an agreement or covenant may limit an owners rights to restrict a view, but there is no such agreement or covenant here; the planning law for the area may protect views,[83] but as discussed this not the case here.

[82] Owen v O’Connor (1963) 63 SR (NSW) 1051

[83] Munro v Inner West Council [2020] NSWLEC 1240

141.There is no doubt that the view from his property is important to Mr Hobbs. But he has no legal right to prevent others from building on their property in compliance with the building restrictions. The Territory Plan, which is the focus of these proceedings, provides no such right.

Traffic and parking

142.The applicant raised issues concerning parking and traffic. Mr Hobbs referred to section 3.1.1 of the Parking Code which provides for objectives for residential zones including amenity, safety, efficiency and access. He noted that under the proposal there would be six driveways and two walkways in a small cul-de-sac. He suggested that this would give rise to traffic congestion, parking problems, dangerous situations and generally problems with regard to “amenity, safety, efficiency and access.”[84]

[84] Applicant’s submissions at pages 11-12

143.Mr Hobbs did not point to any requirement that the proposal did not comply with in the MUHDC in respect to parking or traffic issues, or the Parking Code. The respondent confirmed there was none. The development provides the required parking for residents. [85]

[85] Exhibit R1 at [65]-[67] and [69]

144.The development does however have two driveways, which we acknowledge can be seen as related to traffic and parking issues. The assessing office addressed the incorrect rule in the notice of decision, R69, and stated the development “complies-supported by TCCS”.[86] R69 refers to previously undeveloped blocks. The relevant provision is R70/C70 as this block has been previously developed. It is necessary to look at this.

Driveway verge crossings (R70/C70)

[86] Exhibit T1 at page T90

145.Driveway verge crossings in relation to developed blocks are dealt with in R70/C70 of the MUHDC and the Tribunal raised with the parties whether this was complied with in the proposal. R70 provides that no additional verge crossings are permitted. The proposal has an additional verge crossing in relation unit 2, and the respondent admitted that R70 was therefore not complied with.[87] C70 provides as follows:

[87] Respondent’s submissions in relation to the driveway verge crossings

C70

Additional driveway verge crossings may be allowed in one of the following circumstances:

a) where forward entry to roads carrying more than 3000 vehicles per day is desirable

b) where all of the following are achieved –

i) compatibility with the streetscape

ii) priority for pedestrians and cyclists

iii) retention of existing street tress [sic]

iv) protection of existing landscape features

v) public safety

c) where the block is a corner block.

146.This criteria provides three alternatives where additional driveway verge crossings may be allowed; (a) and (c) are not applicable as there was no evidence before the Tribunal that the road carries more than 3,000 vehicles per day, and in view of its location this seems very unlikely, and the block is not a corner block as there is only one street and the subject block is at the very end of the street. These provisions do suggest that it is only in exceptional circumstances that an additional driveway will be allowed. One is where there is very significant traffic flow on the street (C70(a)). This suggests that the additional driveway verge would be allowed to deal with such major traffic, including congestion and safety issues. Another is where there is a corner block, and therefore the streetscape of the street with the existing driveway verge will not generally be affected (C70(c)).

147.Part (b) is more general and requires all paragraphs (i) to (v) to be achieved. Ms Lana for the respondent did not address R70/C70 in her evidence. Neither the rule nor the criteria make reference to the TCCS. The respondent in its final submissions stated at paragraph [47] that the development complies with Part 3.1 of the Parking Code; it did not address R70. We consider the evaluation by the delegate with reference to the TCCS is not relevant and the criteria have not been addressed in the consideration. We think that this is primarily a planning matter rather than a technical matter.

148.The respondent in its further submissions on driveway verge crossings did consider C70. As to compatibility with the streetscape (C70(b)(i)) it was said that the cul-de-sac contains several driveways at various intervals. It was said that the additional driveway will not have a significant impact on the existing streetscape character. It notes that the existing streetscape does have driveways next to each other, and some have a vehicular crossing next to a pedestrian crossing.

149.We have major concerns that the C70 has not been met. C70(b)(i) refers to streetscape which is a defined term that includes “the visible components within a street including … driveway and street layout and surfaces…” The driveway layout for Browne Place is typical of much of Canberra dating back to the original suburbs of inner Canberra. Predominantly, the layout is characterised by driveways to adjacent blocks placed along every alternate property boundary so that single driveways to each block are adjacent with extensive lengths of verge without crossovers separating these driveways. The current driveway on the subject site follows this pattern. Apparently, no current block on the cul-de-sac has two driveways in any configuration. The proposal does not follow this existing pattern.

150.Further the block will have two large driveways which will dominate the streetscape. This domination flows from that fact that the frontage of the subject site to Browne Place is not large; the block gets much bigger towards the rear. The proposed driveway crossing will be quite significant. It seems clear that the two driveway crossings will therefore dominate and therefore significantly change that part of the streetscape. On the road, they will make up well over half the frontage to the subject site. It is true that there is already a pathway crossing nearby; but the change from one driveway and one pathway crossing to two large driveways to double garages and a new pathway crossing does not seem to us to involve the protection of landscape features. It is true as the respondent points out that the verge does not have any special landscape features. It is a natural grass area, and the revised plan shows a grass area. But even so, changing a significant part of the verge from grass area to driveway clearly changes an existing landscape feature.

151.One of our concerns is that if this development complies with C70(b) then most additions of a second driveway verge crossing on a dual or even single occupancy blocks will also comply. This will be the effect of giving a generous (that is to the owner) view of compatibility with the streetscape and protection of existing landscape features which the decision-maker did in this case. It appears that priority for pedestrians and cyclists will always be met. On this approach, unless an existing tree needs to be removed, the criteria will generally be met. We do not agree with this approach. If two driveways are generally acceptable, then this could be provided for by clear words. R70 and C70 do not do this. Rather they suggest that there should generally only be one driveway, and if two, that significant justification is needed. We think that there is no significant justification here.

152.In our view the provision of the additional driveway verge crossing in this proposal is not compatible with the streetscape and C70 has not been met.

Human rights

153.Mr Hobbs argued that the approval of the development would deprive him of his human rights, mainly rights of privacy, and not to have an interruption and obliteration of views, property devaluation by the development, the casting of shadows and increased traffic congestion.[88] We make a few comments about this argument.

[88] Applicant’s reply of March 202 page 4; applicant’s submissions pages 17-18

154.First there is a distinction between what a person might see as their ‘rights’ in a general, popular sense, and what are legal rights. Even in the popular sense rights are something everyone is entitled to. In order for Mr Hobbs to claim these as rights he must also accord them to everyone else. It is difficult to see how the rights Mr Hobbs talks about can be such general human rights which both he and the party joined and everyone else enjoy.

155.In this context though regard needs only be had to legal rights. In the ACT there are some key legal rights. The Human Rights Act lists a number of rights, but apart from the right to privacy, which we have discussed above at paragraphs [43]-[48], none of these rights claimed by Mr Hobbs is listed.

156.There is also a Human Rights Commission Act 2005 which establishes a Human Rights Commission to which complaints can be made in relation to a range of matters. Leaving aside the issue of discrimination, which we address below, none of the rights claimed by Mr Hobbs seem to be able to be the subject of complaint. At any rate the remedy under that Act is to complain to the Commission, and this is not such a complaint.

157.There are a number of international instruments which specify human rights.[89] Leaving aside the issues of privacy, discussed above, and discrimination, discussed below, none of these supports the existence of the rights claimed by Mr Hobbs.

Discrimination on the basis of age and elder abuse

[89] Universal Declaration of Human Rights 1948; International Covenant on Civil and Political Rights 1966; International Covenant on Economic, Social and Cultural Rights 1966

158.Mr Hobbs also makes the claim that as he is 71 and his wife is 67 that the development will result in discrimination on the basis of his age and elder abuse. In our view this is an inappropriate claim for Mr Hobbs to make and is without any basis.

159.It is true that the ACT Discrimination Act 1991 applies to discrimination on the ground of age, which can include because the person is an older person.[90] The Act protects against such discrimination, and relevantly provides that a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person’s age. There is no basis provided by Mr Hobbs for suggesting that he is being discriminated against, that is treated unfavourably, because of his age. A person can also indirectly discriminate against someone else if the person imposes, or proposes to impose, an unreasonable condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has one or more protected attributes. Again, there is no basis provided by Mr Hobbs for suggesting that he is being indirectly discriminated against because he is an older person by an unreasonable condition or requirement.  The party joined simply wishes to build a home for his family on land he has bought. There is nothing before the Tribunal which suggests in any way that the party joined’s wish to build a home, or the form of that home, is the result of, or has the effect of, discriminating directly or indirectly against Mr Hobbs because of his age.

[90]  There is also the Age Discrimination Act  1994 (Cth)

160.Further the Discrimination Act applies only in certain areas, none of which are relevant here. Further again, the Act provides a right to complain to the Human Right Commission; this is no such complaint.

161.Further, the development will in no way amount to abuse of Mr Hobbs. Mr Hobbs is clearly concerned about the development. He is entitled to complain about the development. But it is in our view inappropriate and without any foundation, and does him and his case no credit, to label the development elder abuse.

Other issues

162.The respondent has noted that the party joined’s revised documents have some mistakes, in particular that two different elevations are named elevation 1. This needs to be remedied and the Tribunal would impose a relevant condition if it approved the proposal.

Conclusion

163.There are therefore a number of minor issues with this proposal which can be remedied by amended or additional conditions in the decision. The following amendments and additions to the decision would deal with these:

Part A, point 1, paragraph (a) is amended by the addition of the word ‘permanent’ before ‘transparent’.

Part A, point 1, paragraph (c) is deleted and replaced by the following: ‘(c) the proposed type of screen planting to be provided to the northern and western boundaries of the subject site. All screen planting must be of semi-mature stock. But the screen planting of semi-mature stock should not occur outside the meals room on the northern boundary. The applicant should also provide a record of consultation with the northern and western properties about the type of the type of screen planting;’

Part A, point 1, is amended by the addition of the following subparagraphs:

‘(d)the boundary fences do not extend forward of the building line;

(e)details of the fence between unit 1 and unit 2;

(f)proposed measures to protect the mature trees outside the southwestern boundary of the development next to the pathway from damage by the development;

(g)mistakes in the plans, in particular that two different elevations are named elevation 1, should be remedied;

(h)plans consistent with the advice provided by the Transport Canberra and City Services and also with the Civil Works Plan in relation to the replacement of the existing path in the verge area;

(i)the applicant shall also submit revised floor plans, sections and other relevant diagrams demonstrating the floor or internal wall of the day time living area of unit 2 is exposed to not less than three hours of direct sunlight between the hours of 9am and 3pm on the winter solstice (21 June);

(j)the applicant may also make the following changes to unit 2 to ensure greater solar access, namely replace the roof of the alfresco area on the north western side of the living area with a transparent roof, extend the length of the sliding doors facing the PPOS, and provide for clearstory windows in the living area and modification of the roof component accordingly to accommodate clearstory windows.’

164.But we find that there are also several significant issues in relation to which the proposal does not comply with the Territory Plan. These are:

(a)the front porch on unit 1 does not comply with R29 or C29;

(b)the south eastern side of unit 2 does not comply with R29 or C29;

(c)the driveway verge crossing for unit 2 does not comply with R70 or C70.

165.The Tribunal has given serious consideration to whether these can be remedied by additional conditions. We would clearly prefer to add conditions to address these issues to the decision. . This seems possible in relation to the front porch, where a condition could require compliance with the R29 provision, or close to it.

166.But it is much more difficult in relation to the other two issues. In our view the proposal is a major divergence from R29 and C29, and R70 and C70, and such conditions generally provide for only minor changes to deal with minor divergences. The conditions would have a major impact on the design of the residence, which does not seem appropriate. In effect the conditions, and the Tribunal, would be redesigning unit 2, and aspects of unit 1. There are a range of ways in which R29 or C29, and R70 or C70 could be complied with. It is difficult to fashion a condition which would leave those options open for the party joined. We think that a condition which simply required compliance with R29 or R70 would be unfair, and one which simply required compliance with C29 or C70 would be very uncertain, and such a condition would seem at least inappropriate. It is more appropriate for the party joined to be free to redesign the residence to comply with R29 or C29 and R70 or C70 in a way which also meets his needs.

167.We therefore set aside the decision of the respondent to approve the development subject to conditions and decide to refuse the application.

168.We think that this is a harsh outcome for the party joined. In our view the respondent should have required the party joined to deal properly with the issues we have raised. It is clear that the party joined can make a further application. In our view the respondent should expedite the consideration of any further application by the party joined, and we have made an incidental order to this effect.

169.The Tribunal finds against Mr Hobbs in relation to most of his claims. In our view Mr Hobbs should consider whether he makes those claims in relation to any further application. We cannot prevent him doing so but note that he may be subject to having his application on these bases dismissed or struck out (section 32 of the ACAT Act) or a costs order made against him (section 48) if he does so.

……………………………….

Senior Member R Orr QC

For and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:

AT 93/2019

PARTIES, APPLICANT:

Peter Hobbs

PARTIES, RESPONDENT:

ACT Planning and Land Authority

PARTY JOINED:

Anthony Vartuli

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

Ms K Musgrove

COUNSEL APPEARING, PARTY JOINED

N/A

SOLICITORS FOR APPLICANT

N/A

SOLICITORS FOR RESPONDENT

ACT Government Solicitor

SOLICITORS FOR PARTY JOINED

N/A

TRIBUNAL MEMBERS:

Senior Member R Orr QC (Presiding)

Senior Member G Trickett

DATES OF HEARING:

20 March 2020