Hobbs v ACT Planning and Land Authority & Ors (Administrative Review)
[2023] ACAT 75
•1 December 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HOBBS v ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2023] ACAT 75
AT 58/2022
Catchwords: ADMINISTRATIVE REVIEW – planning and development – dual occupancy – surrendered ‘fluffy’ block – amended development proposal – plot ratio on surrendered block – principle private open space – garages – trees on unleased Territory Land – zone objectives – conditions of approval
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Planning and Development Act 2007 ss 54, 55, 119, Dictionary
Subordinate
Legislation cited: Planning and Development Regulation 2008 s 5
Territory Plan 2008 ss 3, 10, 13
Cases cited:4THD Planning and Design Pty Ltd v ACT Planning and Land Authority & Ors [2021] ACAT 59
Downer Community Association v ACT Planning and Land Authority & Anor [2007] ACTAAT 20
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Eldridge v ACT Planning and Land Authority [2020] ACAT 22
Glass v ACT Planning and Land Authority [2016] ACAT 96
Hipkins v ACT Planning and Land Authority & Ors [2022] ACAT 41
Javelin Projects Pty Ltd v ACT Planning and Land Authority & Anor [2017] ACAT 87
McGrath & Anor v ACT Planning and Land Authority & Anor [2018] ACAT 100
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85
Peraic & Anor v ACT Planning and Land Authority & Anor [2019] ACAT 118
Other
Documents cited: Building Code of Australia (2019), Volume 2
Australian Standard 2890.1.2004 Parking facilities – Part 1
Tribunal:Senior Member K Katavic
Senior Member G Trickett
Date of Orders: 1 December 2023
Date of Reasons for Decision: 1 December 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 58/2022
BETWEEN:
PETER HOBBS
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
ANTHONY VARTULI
First Party Joined
AND:
SAVERIA VARTULI
Second Party Joined
TRIBUNAL:Senior Member K Katavic
Senior Member G Trickett
DATE:1 December 2023
ORDER
The Tribunal orders that:
The decision under review is varied to include the following additional conditions of approval to be inserted as Conditions of Approval at paragraph 2:
(a)Revised plan with the verge crossing and the driveway in accordance with Civil Works Detail Plan C07 revision B (Exhibit PJ6).
(b)Revised plan demonstrating a slope instead of excavation in the Front Zone along the boundary with the driveway to Block 4.
(c)Revised Landscape Plan to identify different paving materials throughout the site.
(d)Revised plan demonstrating privacy between units 1 and 2.
(e)Provision of a lighting plan addressing Criterion 13 of the Crime Prevention Through Environmental Design General Code.
(f)Provision of a revised water reduction calculator that includes the correct roof area addressing Rule 1 of the Water Sensitive Urban Design General Code (WSUDGC) and a revised plan showing the inclusion of water tanks with the required capacity under the WSUDGC.
(g)Provision of stormwater detention measures in accordance with the WSUDGC.
………………………………
Senior Member K Katavic
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
The applicant, Mr Hobbs, finds himself residing next door to a block in Kambah in the ACT which is known as a ‘Fluffy Block’ (the Subject Site). Dual occupancy development is permitted on Fluffy Blocks, as they are surrendered land.[1] The parties joined (hereafter referred to as ‘party joined’)[2] propose developing the Subject Site by erecting two four-bedroom dwellings, one two-storey and one single-storey, on the block. The respondent granted approval for such a development. It is not the first time the development of the Subject Site has been before the tribunal. The approval of a previous iteration of the development was successfully challenged by the applicant. The applicant opposes the development and contends, for several reasons, that the decision to approve the development should be set aside.
The hearing and the evidence
[1] Territory Plan 2008 s 13.1, ‘surrendered residential block’
[2] As the parties joined both represent the same interest, they have been referred to singularly in this decision
The applicant relied upon his written submissions dated 26 September 2022 and 20 March 2023, and various other documents which he referred to as “Authorities”.[3] He did not rely upon the evidence of any witnesses.
[3] Exhibit A1 – ‘Applicant’s list of authorities’ dated 26 October 2022
The respondent relied upon its written submissions dated 14 and 21 October 2022, and the Witness Statements of Trent Varlow dated 14[4] and 19 October 2022.[5] Mr Varlow gave evidence at the hearing.
[4] Exhibit R2 – ‘Witness statement of Trent Varlow’ dated 14 October 2022
[5] Exhibit R3 – ‘Witness statement of Trent Varlow’ dated 19 October 2022
The party joined also relied on written submissions, undated, but filed on 20 October 2022 and 20 March 2023,[6] revised drawings,[7] and the following:
(a)Witness Statement of Paul Cohen dated 18 October 2022;[8]
(b)Witness Statement of Steve Casson dated 13 October 2022;[9] and
(c)Witness Statement of Andrew Hammond dated 16 October 2022.[10]
[6] Note, these documents were not assigned an exhibit number during the hearing
[7] See Exhibit PJ2 – ‘Landscape Plans’ dated 12 November 2022, Exhibit PJ4 – Drawings lodged on 10 November 2022, Exhibit PJ6 – ‘Amended drawings’ lodged 12 December 2022 (note, there are two documents labelled ‘Exhibit PJ6’), Exhibit PJ7 – ‘Revision 3 drawings A002-A401’ dated 22 February 2023, Exhibit PJ8 – ‘Revision 2 drawings A001, A402, A500’ dated 22 February 2023, Exhibit PJ9 – ‘Drawing LC101 Revision 6’ dated 8 December 2022, and Exhibit PJ10 – ‘Drawing C08 Revision B’ dated 21 October 2022
[8] Exhibit PJ5 – ‘Witness statement of Paul Cohen’ dated 18 October 2022 with attachments, see also Exhibit PJ5a – ‘Errata to witness statement of Paul Cohen’ dated 18 October 2022
[9] Exhibit PJ1 – ‘Witness statement of Steve Casson’ dated 13 October 2022 with attachments
[10] Exhibit PJ6 – ‘Report of Andrew Hammond’ dated 16 October 2022 (note, there are two documents labelled ‘Exhibit PJ6’)
Each of these witnesses gave evidence at the hearing.
The Tribunal has considered all the material relied upon by the parties and before it at the hearing.
The hearing in this matter has been less than straight forward. It was initially set down for two days. At the applicant’s request, the hearing was reduced to a single day without a site visit. The matter proceeded as listed on 2 November 2022, however, it was apparent that further hearing days were required. Almost half of the first hearing day was spent resolving an interim application brought by the applicant seeking to adjourn the hearing, and the Tribunal hearing from the parties in relation to the applicable version of the Territory Plan. The matter was adjourned for a further day of hearing. During the intervening period, the applicant made a further interim application seeking orders that the Tribunal conduct a site visit. The Tribunal refused the applicant’s request on the basis that, having seen photos and heard some of the evidence, a site visit was not necessary. In circumstances where the Tribunal did not consider a site visit was necessary, it would have only further delayed the completion of the hearing. The hearing did not conclude on the second day, with the applicant’s cross-examination of Mr Varlow being incomplete. The matter was adjourned to a third day, with the applicant repeating his request for a site visit during the intervening period. The Tribunal refused the request on the basis a ruling had already been made. The hearing did not conclude on the third day, with the applicant’s cross-examination of Mr Cohen being incomplete. The Tribunal listed the resumed hearing for a further three consecutive days. The hearing did not proceed as listed due to the applicant’s request for an adjournment, which was granted due to his personal circumstances. Instead, the matter was listed for a further single hearing day where the applicant advised he had reduced ‘pruned’ his remaining cross-examination and final submissions.
The Subject Site and the Development Application
The Subject Site is zoned RZ1 – Suburban Zone (RZ1) under the Territory Plan and is 903 m2. It is situated at the end of a cul-de-sac. It has a street frontage and one boundary to the south-east that interfaces with a pedestrian pathway, being unleased Territory Land. It shares boundaries with two other residential sites.
On 5 April 2022, DA202240009 (the DA) was lodged for assessment. It sought approval for the construction of two new dwellings, one single-storey and one two-storey, both with attached double garages and a new driveway.
The DA was assessed in the merit track. It was publicly notified and referred for entity advice. The respondent requested further information, which was supplied.
On 23 June 2022, the respondent approved, subject to conditions imposed pursuant to section 162(1)(b) of the Planning and Development Act 2007 (the Planning Act), the construction of two new dwellings with attached garages, new driveways, landscaping, and associated works (the Reviewable Decision). This is the Reviewable Decision before the Tribunal.
For reasons set out above, the Tribunal did not conduct a site visit of the Subject Site.
Issues for Consideration
Section 50 of the Planning Act prohibits the Territory, the Executive, and a Minister from doing any act or approving the doing of any act that is inconsistent with the territory plan. A development proposal in the merit track cannot be approved unless it is consistent with the relevant code.[11] “Relevant code” is defined to mean “a code that the relevant development table applies to the proposal”.[12] In this case, the relevant development table is the RZ1 – Suburban zone development table.[13] It states the relevant code, for the purposes of section 119(1)(a),[14] is the Residential Zone Development Code (RZDC).[15] By reason of the RZDC, other codes under the Territory Plan are enlivened for the purposes of assessing the development proposal, such as precinct codes, development codes, and general codes.[16] The Tribunal will consider these various codes in turn, where relevant. Section 119(2) of the Planning Act precludes a development application in the merit track from being approved if the approval is inconsistent with entity advice, subject to some exceptions.
[11] Planning Act s 119(1)(a)
[12] Planning Act Dictionary (definition of ‘relevant code’)
[13] Territory Plan 2008 s 3.1, RZ1 Suburban Zone
[14] See Territory Plan 2008, section 3.1, page 4
[15] Territory Plan 2008 s 3.2, Residential Zones Development Code
[16] See, for example, Territory Plan 2008 s 3.2, r 2
The provisions of the Planning Act apply to the Tribunal as it is conducting merits review of the decision and stands in the shoes of the respondent.[17] The Tribunal must:
(a)confirm the decision under review; or
(b)vary the decision under review; or
(c)set aside the decision under review and either substitute it with a different decision or remit the matter back to the respondent to consider in accordance with the reasons given by the Tribunal.[18]
[17] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589; Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 at [10] (Smithers J); see also, Glass v ACT Planning and Land Authority [2016] ACAT 96 at [18]; Downer Community Association and ACT Planning and Land Authority [2007] ACTAAT 20 at [5]; Eldridge v ACT Planning and Land Authority [2020] ACAT 22 at [21]; see especially ACT Civil and Administrative Tribunal Act 2008 s 68(2)
[18] ACT Civil and Administrative Tribunal Act 2008 s 68(3)
The applicant contended the development did not comply with various provisions of the Planning Act and the Territory Plan. In particular, the applicant submitted that where a rule and criterion existed, compliance with both the rule and corresponding criterion was required to achieve approval. The Tribunal disagrees. Where a rule is met, a development proposal is not required to also satisfy a corresponding criterion. If a rule is not met, and provided it is not a mandatory rule, a development proposal may be assessed against the applicable criterion and satisfy the criterion. Section 139(2)(f) of the Planning Act requires that:
[I]f the application is for approval of a development in the merit track—be accompanied by information or documents addressing the relevant rules and relevant criteria.
The introduction to the Multi-Unit Housing Development Code (MUHDC) relevantly states:
Proposals in the merit track and impact track must comply with each rule or satisfy its associated criterion, unless the rule is mandatory (i.e. it has no related criterion). Where a rule is fully met, no reference to the related criterion needs to be made. Where there is a departure from a rule, or where a criterion only applies, the onus is on the applicant [for the development application] to demonstrate that the relevant criterion is satisfied, through supporting drawings and/or written documentation.
Issues relevant to the Tribunal’s review are set out below.
Multi-Unit Housing Development Code (MUHDC):
R7 – plot ratio
The applicant contended that, due to the configuration of the development, the maximum plot ratio permitted was 35%. He submitted this was because the front façade of Unit 2 addressed the public laneway and not Browne Place. R7 is a mandatory rule.
It is common ground that the Subject Site is a surrendered residential block. The maximum plot ratio for dual occupancy development on a surrendered residential block is controlled by R7, which provides:
(a)where at least one dwelling does not directly front a public road from which vehicular access is permitted the maximum plot ratio is 35%; and
(b)in all other cases it is 50%.
Both the respondent and party joined submitted that Unit 2 “fronts” Browne Place by reason of its double garage directly facing Browne Place. The respondent submitted that the garage formed part of the dwelling.[19] The party joined submitted that Unit 2 can only be accessed by car from Browne Place, and can only be accessed on foot from Browne Place, as the fence adjacent to the pedestrian laneway did not permit access to Unit 2 from the laneway.[20]
[19] Respondent’s outline of submissions dated 14 October 2022 at [27]-[30]
[20] Exhibit PJ5, Table Five, pages 20-21 at [3]-[6]
The limitation on the maximum plot ratio arises where at least one dwelling does not directly “front” a public road. It does not call for the front façade, or the front entrance of a dwelling to “front” the public road.
The word “dwelling” is used twice in the rule but is not consistently italicised. It is not clear if this was a drafting oversight or intentional. Italicised words in the Territory Plan are defined terms. Where an italicised term is used, it must be given its defined meaning. For the purposes of R7, we have adopted the definition of ‘dwelling’ found at section 5 of the Planning and Development Regulation 2008 being that a ‘dwelling’ “means a class 1 building … and includes any ancillary parts of the building and any class 10a buildings associated with the building.”[21] A class 10a building is defined in the Building Code of Australia as “a non-habitable building including a private garage, carport, shed or the like.”[22]
[21] See Planning and Development Regulation 2008 s 5; see also, Territory Plan 2008 s 13.1, ‘dwelling’
[22] Building Code of Australia 2019, Volume 2, A6.10(1), page 32
We do not agree with the party joined’s submission that Unit 2 can only be accessed by foot from Browne Place, as the fence adjacent to the pedestrian laneway did not permit access to Unit 2 from the laneway. The drawings show that the fence to the pedestrian path (pedestrian laneway) does not extend forward of the building line, which is set back 6 m from the street front boundary. This enables ample space to approach the entry gate from the pedestrian laneway.[23]
[23] See Exhibit R4, Exhibit PJ2, Exhibit PJ6, Drawing A002
In this case, we agree with the submission of the respondent and the party joined. The garage of Unit 2 constitutes a part of the dwelling, and it fronts Browne Place.
R7 is met.
R16 – single storey
The applicant’s contention that R16 was not met depended upon the Tribunal’s finding in relation to the permissible maximum plot ratio. If a 35% plot ratio was to apply, then development is limited to a single storey.
As the Tribunal has found the maximum plot ratio applicable for this development is 50%, R16 is consequently met, and two-storey development is permissible.
R/C 26 – overshadowing
R26 is complex. It requires an understanding of the term ‘apparent sun angle’, survey drawing practice, and what the ‘zones’ on an individual block in the Territory Plan are. We are of the view that R26 is not applicable for the following reasons.
The applicant interpreted the rule with reference to the criterion and submitted that it lacked consistency with the desired character of the dwellings in Browne Place, as the existing dwellings in the street conform to solar envelopes and the development does not permit reasonable solar access to the neighbouring Block 6. He submitted that, when applying the calculations in the rule, the neighbouring Block 6 would have significant shadows from sunrise to midday. He also said that some of the shadows after 1:00pm did not appear on the shadow diagrams. We will address this in our consideration of R61 of the MUHDC.
Against this, Mr Varlow gave evidence that R/C26 was not applicable, as there is no adjoining residential block to the south, only the public pathway.
Mr Cohen said that, after midday, no adjoining properties are overshadowed by the proposed development.
The plans show that the north boundary of the subject site has a bearing of 88° 21’40”, which is less than two degrees from a direct north facing boundary. The boundary adjoining Block 6 has a bearing of 343° 19’40”. R26 refers to Table A4, which sets out apparent sun angles at noon on the winter solstice. In the table, the maximum angle of the line drawn perpendicular to the boundary is between north 40° to east or west 45°. The Tribunal finds that the aspect of the boundary is approximately 75° and that the adjoining boundary of Block 6 to the subject site is not a northern boundary to that block. Therefore, R26 does not apply. The short southern boundary to the subject site, with a bearing of 282° 9’ 50”, is a front boundary, and does not have an adjoining residential block. Therefore, R/C26 does not apply to the southern boundary.
R/C29 – front setbacks
R29 is met if a front boundary setback complies with the applicable measurement in Table 5 of the MUHDC. “Front boundary” is defined in the Territory Plan as any boundary of a block adjacent to a public road, public reserve, or public pedestrian way. According to Table 5, the applicable front boundary setback for this block is 6 m to the street frontage and 4 m to the public pedestrian pathway.
Based on the Site Plan,[24] all parts of the building to the street frontage are setback 6 m and all parts of the building to the pedestrian pathway are setback 4 m.[25]
[24] Tribunal documents, Document 7 – ‘Development Application – 202240009 – Amendment (S165C) and supporting documentation and stamped plans’ dated 13 July 2022, page T57
[25] Exhibit R2 at [39]
R29 is met.
R/C30 – side/rear setbacks
R30 is met if side and rear boundary setbacks for RZ1 comply with the applicable measurements in Table A6. According to Table A6, the side boundary to north for Unit 1 must be set back 3 m in the primary building zone and setback 3 m to the rear boundary.
The Site Plan shows Unit 1 setback 3 m from the side boundary to the north and both Units 1 and 2 setback 3 m to the rear boundary.[26] We accept Mr Varlow’s evidence in relation to the side and rear setbacks.[27]
[26] Tribunal documents, Document 7, page T57
[27] Exhibit R2 at [41]-[43]
R30 is met.
The applicant submitted that, despite R30 being met, C30 must also be complied with. The Tribunal disagrees for reasons already given above.
Compliance with C30 is not required in circumstances where the Tribunal is satisfied R30 is met.
R/C61 – Principle private open space (PPOS)
The applicant submitted that the subject block would be denied reasonable solar access to both the building and the private open space; and differ dramatically from the solar diagrams. He contended that the property north of the subject site curiously ceases to cast a shadow at 1:00pm, 2:00pm and 3:00pm on the winter solstice, and the shadow cast by Unit 1 terminates at the boundary at 12 noon. The applicant did not identify a rule that was relevant to this submission.
Mr Varlow considered that R61 was met for Unit 1 but was not met for Unit 2 as the PPOS was not large enough to meet the required size in Table A9. He said that C61 was met for Unit 2 because:
(a)it had a PPOS area proportionate to the size of the dwelling, with additional area that connects to the north of the Unit’s proposed PPOS;
(b)it provides an area for relaxation, dining, entertainment, and recreation which is directly accessible from the dwelling;
(c)it has reasonable privacy; and
(d)it achieves reasonable solar access.
Mr Cohen said that shadow diagrams are calculated by CAD, which accurately predicts shadowing based on design criteria. He said that he agreed with Mr Varlow that the PPOS is proportionate to the dwellings.
The Site Plan A001 shows a 6 m diameter circle outside of Unit 1 in the northwest corner of the subject site. It shows two similar circles outside of Unit 2, one to the northwest of the Unit and one to the west. All three circles are noted as “POS”. The circle to Unit 1 extends from both boundaries out to incorporate a brick column that supports the covered porch roof of Unit 1. The northern circle to Unit 2 extends slightly outside the subject site western boundary. The western circle is located off the living area and extends from the external walls to the west onwards, beyond the subject site boundary by approximately 400 mm. In our view, the PPOS minimum dimension of 6 metres for R61(b) is not met for these areas identified as “POS”. The northern area to Unit 2 is not directly accessible from a habitable room and, as such, is not PPOS as defined in the Territory Plan.
Mr Varlow agreed that the shadow diagrams for 1:00pm, 2:00pm and 3:00pm on drawings SH-01 and SH-02 did not depict any of the shadows along the northern boundary for all three times of the day as nominated.
During the hearing, the Tribunal drew the party’s attention to the shadow diagrams for the western boundaries at 2:00pm and 3:00pm, that showed there was no overshadowing by the fence to the PPOS of Unit 2. Mr Varlow agreed that accurate shadow diagrams would show that it was not until 1:00pm that approximately half of the PPOS outside of the living area to Unit 2 would receive direct sunlight, and that at 3:00pm, less than half of it received direct sunlight.
In assessing the shadows associated with the proposed PPOS adjacent to the family/meals area of Unit 2, the height of the proposed retaining wall and fence over was shown to be up to at least 2.8 metres above natural ground level (NGL). Mr Varlow said that he would require the fence to be no higher than 1.8 metres above NGL.
The party joined provided amended drawings which showed the relocation of the brick column that supports the covered porch roof of Unit 1 outside the designated 6 metre diameter circle. We are satisfied that, with that amendment, R61 is met for Unit 1.
The amended drawings also showed the floor level to Unit 2 is to be lowered, the patio level adjacent to the family/meals area also lowered, and the proposed new ground level west of the patio also lowered, resulting in a proposed new ground level at the fence line of 610.785 Australian datum height. This new ground level is now to be 435 mm above NGL. The highest point of the proposed retaining wall, which finished at the new ground level on the subject site, is now to be located at the top of the garden stairs adjacent to the master bedroom ensuite. This is proposed to have a height above NGL of 500 mm.
The boundary fence was proposed to be lowered to a height of 1.6 metres above the retaining wall. The height of the top of the fence at the patio is proposed to be 2.035 metres above NGL, extending to a height of 2.1 metres above NGL at the garden stairs. The Tribunal was told that the proposed new height of the fence was adopted so that the development met R60 of the MUHDC.
R60, in part, relates to overlooking of the PPOS of an adjacent block. Relevantly, R60 refers to a person with an eye height of 1.5 metres standing at any point on the extremity of an unscreened element (defined in the Territory Plan as unscreened windows, decks, balconies, and external stairs). Therefore, a person standing inside Unit 2, and/or on the patio or external stair, shall not have a direct line of site of a minimum distance of 12 metres to more than 50% of the minimum PPOS of Block 6.
The primary purpose for lowering the fence height to 1.6 metres was to decrease the extent of shadowing of the PPOS of Unit 2 so that C61 could be satisfied. The amended drawings now showed the shadows formed along both the northern and western boundaries inside the subject site.
The Tribunal agrees with Mr Varlow that parts (a), (b), (c), (d) and (e) of C61 were satisfied by the DA drawings. However, we do not agree that C61(f) was satisfied as the PPOS did not receive reasonable solar access. We are satisfied that C61 will now be met by the proposed amendments to Unit 2 as set out above. C61(e) will still be satisfied as the PPOS has reasonable privacy from Block 6.
The Tribunal finds R60 is met for Unit 1 and C61 is satisfied for Unit 2 based on the amendments and, as such, should be included by way of a condition.
R/C73 – internal driveways
The applicant submitted that R73(f) did not appear to be met. He also submitted that it appeared that the verge crossing will not satisfy the required distance between the closest edge of the driveway and the closest edge of the replacement public footpath.
Mr Varlow said that he considered all parts of R73 where met, however, he said that the wording of R73(f) was unclear and open to interpretation. He said that if the radius was to be taken on the driveway, because it is an angular change in direction, it is unlikely the driveway will meet R73(f). He then addressed C73 with respect to all parts. He said that C73 was satisfied.
Mr Cohen said that Element 7 in the MUHDC is intended for the control of apartment blocks, town house developments, and the like. He said that a measured approach was required in its application to dual occupancy developments, where it may have little or no relevance. He said that the engineering drawing C07 showed site lines to Figure 3.1 of Australian Standard 2890.1.2004.[28] We consider he may have been referring to Fig 3.3 of the Standard. Drawing C07 only depicts the northern side of the driveway with the required site line, and not the southern side, where the new footpath is located. The notional triangle formed by the site line is not dimensioned.
[28] Australian Standard 2890.1.2004 Parking facilities Part 1 – Off-street car parking, figure 3.1, page 31
The Site Plan A002[29] and the Civil Works Details Plan C07 revision A,[30] included in the Tribunal documents, show the verge crossing and driveway. The verge crossing is not relevant to R/C73. R/C73 is relevant to internal driveways.
[29] Tribunal documents, Document 7, page T57
[30] Tribunal documents, Document 19 – ‘Lodgement of Development Application 202240009 and supporting documents’ dated 5 April 2022, page T220
In response to Condition 3 of the Approval, the party joined provided an amended design to the verge crossing and the driveway, Civil Works Detail Plan C07 revision B.[31] In the revision column of the drawing it states that the drawing is a “revised option”. The verge crossing appears to have been moved only slightly away from the footpath, however, the northern side of the verge crossing has been adjusted so that there is no longer a change of direction to the driveway on the subject site. The same amended drawing also now shows the required sight lines at the junction of the verge crossing and the driveway, as in Figure 3.3 of Australian Standard 2890.1.2004,[32] however, they are not dimensioned.
[31] See Exhibit PJ6
[32] Australian Standard 2890.1.2004, figure 3.3, page 33
This amendment to the verge crossing and the driveway, shown on drawing C07 B, has not been adopted on the other plans. The landscape plan, no number, revision 5 in Exhibit PJ6, additionally shows proposed new trees which will obscure the required sight lines to the driveway in both driveway designs.
C73 is satisfied and, for completeness, drawing C07 revision B should be incorporated, and other relevant drawings amended accordingly.
R/C 79 – garages
R79 relevantly provides that the maximum total width of garage door openings and external width of carports facing a street complies with the following:
(a)for up to 3 dwellings, the lesser of the following
(i) 6 m; or
(ii) 50% of the total length of the building facade facing that street.
The Subject Site is adjacent to the end of the cul-de-sac, with the curve of the street front boundary commencing 6.7 m from the northern boundary, which is approximately in line with the front entry door at the northern side of the garage to Unit 1. The length of the curve for the remaining boundary is stated to be 12.5 m.
For Unit 1, the overall width of the façade is 11.07 m, and the garage door width is 4.81 m. Unit 2 is set parallel to the southwest front boundary. The double garage directly faces the street, which is the only part of the building façade that does. The southern corner of the garage to Unit 2 turns towards the street at a slight angle to the street curve. The double garage door is at a slight angle to the street as the curve of the cul-de-sac commences. For Unit 2, the width of the façade facing the street is 6.23 m, and the garage door width is 4.81 m. The total length of the building façades facing the street is 17.3 m, with 50% of this dimension being 8.65 m. Therefore, 6 m is the lesser of the two quantities set out in R79. The total width of garage door openings for the development is 9.62 m. This is 3.62 m greater than 6 m. The space between the dwellings at the location of their respective garages is measured as approximately 2.5 m.
R79 is not met because the design includes two double garages which together are greater than 6 m, however, C79 requires that garages and car parking structures are consistent with the desired character. Where the development does not meet a rule, it may satisfy a corresponding criterion to achieve compliance with the Territory Plan. In evaluating the evidence relied on to support satisfaction of the criterion, consideration may be given to the degree of divergence from the ‘minimum ideal’ requirements of the corresponding rule.[33]
[33] See Peraic & Anor v ACT Planning and Land Authority & Anor [2019] ACAT 118 at [81]-[82], quoting McGrath & Anor vACT Planning and Land Authority & Anor [2018] ACAT 100 at [16]‑[18] and Javelin Projects Pty Ltd v ACT Planning and Land Authority & Anor [2017] ACAT 87 at [73]
“Desired character” is defined in the Territory Plan to mean:
[T]he 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.[34]
[34] Territory Plan 2008 s 13.1, ‘desired character’ (emphasis added); see also, Territory Plan 2008 s 10.1, ‘Kambah Precinct Map and Code’; note, the Kambah Precinct Map and Code only includes a reference to ‘desired character’ for the Kambah Group Centre
“Streetscape” is defined in the Territory Plan to include:
[T]he visible components within a street (or part of a street) including the private land between facing buildings, including the form of buildings, treatment of setbacks, fencing, existing trees, landscaping, driveway and street layout and surfaces, utility services, and street furniture such as lighting, signs, barriers, and bus shelters.
The zone objectives for RZ1 are:
(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.[35]
[35] Territory Plan 2008 s 3.1, page 1
The applicant submitted that no other residences in Browne Place were configured with two double garages adjacent to each other, facing the street. He relied upon several pictures of other dwellings, comprising solely of single or double car accommodation.
For the purposes of R7, as set out above, both the respondent and party joined submitted that Unit 2 “fronts” Browne Place, by reason of its double garage directly facing Browne Place. For the purposes of R79, the party joined suggested Unit 2, instead of “directly facing Browne Place”, is “set at an angle to the property line”.[36]
[36] Transcript of proceedings dated 20 March 2023, page 9, line 46-page 10, line 5
The respondent relied upon Mr Varlow’s opinion that the garage and car parking structures are consistent with the desired character and the streetscape. He stated that both garages front the street.[37] Mr Varlow referred to the development comprising two dwellings, each with separate double garages fronting the street, which was a common residential pattern. He considered this analogous to separate residential blocks being developed each with double garages in close proximity. He considered this was not an uncommon pattern of garages in the ACT. He identified 4 and 6 Browne Place as having a similar configuration and appearance, however, during the hearing it became apparent that the garage/carport at 4 Browne Place has only a single garage door and not a double door as assessed by Mr Varlow.
[37] Exhibit R2 at [102]
Mr Cohen referred to the garage doors appearing to be balanced against the size or the length and the height of the front façade or the front elevation of the proposed development, and that this satisfied C79. He did not address the dimensions as set out above.
Mr Cohen for the party joined in his statement did not assess R/C79 other than to agree with Mr Varlow. When questioned by the applicant about R/C79, Mr Cohen said:
Criteria 79 says, “Garages and car‑parking structures are consistent with the desired character.” It doesn’t mention a comparison with garage – other garage doors. In relation to the proposed development, the garage doors to me appear to be balanced against the size or the length and the height of the front façade or the front elevation of the proposed development. So I’d be satisfied that criterion 79 is met.[38]
[38] Transcript of proceedings dated 20 March 2023, page 9, lines 24-29
He further added:
WITNESS COHEN: I appreciate that the width of the two garage doors exceeds the rule, but we’re talking about complying with the criteria. I would also make the point that, whilst Unit 1 has a front elevation, that’s parallel with the front property line. Unit 2 is set at an angle to the property line and therefore, in the view from the road, it reduces the actual appearance of the front garages. But in any event, I don’t believe that the two front garages are objectionable.
MR HOBBS: Mr Cohen, could you indicate then, from what you’ve just said, which garage does not directly face Browne Place?
WITNESS COHEN: I said that the garages – that garage 2 is set at an angle, but at the same [– but you said ‘does not directly face’]. Both garages directly face Browne Place.[39]
[39] Transcript of proceedings dated 20 March 2023, page 9, line 47-page 10, line 12
The evidence from all witnesses is that the two garages directly face Browne Place. We agree with this assessment. Mr Cohen does not believe that the two front garages are objectionable. He did not address the RZ1 zone objectives.
Unlike R79, C79 does not reference the garages “facing” the street. Rather, it speaks to consistency with “desired character”. The test is not whether they are objectionable.
Dual occupancy development is new to Browne Place. Block 52 Section 334 Kambah, at the start of Browne Place, is a corner block on Lascelles Circuit and Browne Place. The block has recently been developed as a dual occupancy, where one double garage faces Lascelles Circuit and one double garage faces Browne Place, each with their own driveways. Unlike the Subject Site, which is at the end of a cul-de-sac, opposite the development on Block 52 Section 334 is a park, which is zoned Urban Open Space, with no residential development, which complements the low-density character. There are no other dual occupancy developments in Browne Place.
The Tribunal acknowledges that the introduction of this development will slightly, but not significantly, increase the density of dwellings in Browne Place. The arrangement of garages and car accommodation in Browne Place reflects a historical and traditional pattern of development. We do not regard consistency with “desired character” to be conflated with ‘like for like’, or that change in a street or location equates to inconsistency with “desired character”. As the tribunal said in Hipkins v ACT Planning and Land Authority:
Development on dual occupancy surrendered blocks will always be new. Satisfying the criterion does not require replication and development on these blocks will invite a more modern approach to design and architectural styles. In some cases, a development with design outcomes such as this may be the first of its kind in a particular location, but may not be the last.[40]
[40] Hipkins v ACT Planning and Land Authority & Ors [2022] ACAT 41 at [99]
Although the tribunal made the above observation in relation to a different criterion, that criterion still spoke to respecting the streetscape. It is an observation equally applicable to consistency with desired character.
Further, as the tribunal also commented in Downer Community Association and ACT Planning & Land Authority & Anor, “[i]t does not follow from the fact that a development proposes an observable difference to the existing style of development that it fails to respect it.”[41]
[41] Downer Community Association and ACT Planning & Land Authority & Anor [2007] ACTAAT 20 at [17]
Of the RZ1 zone objectives, zone objective d) is most relevant in relation to the garage arrangement, particularly the way in which the garages and associated double doors appear in terms of siting and the nature of the resulting streetscape. The arrangement of these garages on the Subject Site are a change from the current experience in Browne Place. The angled nature of Unit 2’s garage means the garages do not present as a single façade of garages to the street. They will be visible, but Unit 2 will be less prominent as the block frontage curves. There remains a single verge crossing, which is testament to the valued features of RZ1.
Further, this is a surrendered ‘Fluffy Block’, which intentionally permits dual occupancy. With that comes the need for car accommodation for each dwelling. The RZ1 zone objectives apply to many residential areas across the ACT and are not peculiar to this location. Double garages are a feature across the whole of Canberra, including RZ1.
Mr Cohen referenced “balance” in his evidence and Mr Varlow regarded the proposed pattern to be common to RZ1 areas. We find the garages are consistent with “desired character”, in the context of the Subject Site:
(a)being at the end of a cul-de-sac;
(b)where its frontage is curved;
(c)both garages address the street with Unit 2’s garage angled; and
(d)there is separation between the garages.
The arrangement of the garages respects the curve of the street frontage. The Subject Site does not have flat, straight street frontage, which would be different and have a more arresting effect. The Subject Site is also attended with the peculiarity of two frontages, one to the street and one to the laneway. Unit 2 has been positioned in such a way that interfaces with the laneway, providing frontage to the laneway and surveillance. In that arrangement, the location of garaging for Unit 2 is limiting and, as proposed, does not present as inconsistent with desired character. We do not regard the garages as presenting as one continuous façade of garage doors based on these factors.
C79 is satisfied.
R 91 – tree protection
This is a mandatory rule. There is no applicable criterion. It requires the respondent to refer the development application to the Conservator of Flora and Fauna where the development “requires groundwork within the tree protection zone of a protected tree” and/or “is likely to cause damage to or removal of any protected trees.”
‘Protected tree’ is defined in section 8 of the Tree Protection Act 2005 (the Tree Protection Act) to mean a “registered tree” or a “regulated tree”. According to section 10 of the Tree Protection Act, a ‘regulated tree’ is one that is located on lease land within a tree management precinct.
In relation to R91, the applicant refers to six trees adjacent to the Subject Site along the south-eastern boundary. They are not located on the Subject Site. They are located on unleased Territory Land along the pedestrian pathway. There are no registered or regulated trees, as defined by the Tree Protection Act, on the Subject Site. Even the trees identified by the applicant do not fall within the definition of “regulated tree”, as they are on unleased Territory Land.
The applicant also referred the Tribunal to the Urban Forest Bill 2022. This Bill is not in force and, therefore, not a law the Tribunal can consider or apply.
R91 does not apply. Even if R91 does apply, all that is required is the referral of the DA to the Conservator. The DA was not referred to the Conservator as there are no trees on the Subject Site. Nonetheless, a tree management plan was submitted as part of the DA. Condition of Approval 3(g) of the Reviewable Decision requires the provision of a Landscape Management and Protection Plan (LMPP) to be submitted to TCCS prior to commencement and upon completion of the work.
The Tribunal heard evidence from Mr Casson about the Tree Management Plan he prepared and associated Tree Protection Measures he regarded would safeguard the trees on unleased Territory Land from harm.[42]
[42] Exhibit PJ1 at [7], annexures A, B
On the basis that R91 does not apply and the LMPP has been provided, the Tribunal considers that the issue regarding the protection of the trees on unleased Territory Land has been addressed by way of the condition referred to above and by reference to the LMPP.
Parking and Vehicular Access General Code (PVAGC)
Amenity and visitor parking
The applicant submitted that there may be traffic congestion and car parking problems regarding amenity, safety, efficiency, and access, as there are only four parking spaces provided on the subject site. He referred to clause 3.1.1 of the PVAGC – “Objectives for residential zones”, which we do not need to list here. He said that the current proposal does not satisfy the objectives. He also said that, amongst various issues, he said there will be spill-over to Browne Place and traffic congestion which may endanger safety of cyclists and pedestrians due to a lack of onsite parking.
Mr Varlow said that he considered the provision of a total of four spaces met the minimum number of car spaces prescribed by the PVAGC and that these were in a double garage for each dwelling.
Mr Cohen set out a detailed traffic analysis and referred to the PVAGC. He said that the development complied with the code and that visitor parking was not required as the PVAGC only required this where there were 4 or more dwellings.
The Tribunal agrees with the Respondent and the party joined that the parking requirements are met and that the level of development is commensurate with the street layout and use, and that consideration has been given to any safety issues for pedestrians and cyclists. No on-site visitor parking is required to be provided.
The Tribunal considers that the PVAGC does not properly set out the requirements for “Detached house” in clause 3.1.5 – “Schedule of parking provision rates for residential zones”. The “Detached house” parking provision rates is the sixth item in Schedule 1. It is preceded by “Community activity centre” which requires “4 spaces/100 sqm gross floor area”. The requirement for “Detached house” states “As per above, …”. We do not understand this is referring to the 4 spaces /100sqm of gross floor area of a “Community activity centre”, but rather the second item of the schedule, which sets out requirements for “Attached house”. This requires two parking spaces for each dwelling with three or more bedrooms. We have adopted this rate.
Other issues
The respondent identified several issues which it submitted the Tribunal should address by way of variation to the Reviewable Decision as further conditions of approval. The Tribunal agrees the following should be included by way of further conditions of approval:
(a)Provision of a Landscape Plan to identify different paving materials throughout the site.
(b)Demonstration of compliance with R/C59 of the MUHDC in respect of privacy between Units 1 and 2.
(c)Provision of a lighting plan addressing C13 of the Crime Prevention Through Environmental Design General Code.
(d)Provision of a revised water reduction calculator that includes the correct roof area addressing R1 of the Water Sensitive Urban Design General Code (WSUDGC), and a drawing showing the inclusion of water tanks with the required capacity under the WSUDGC.
(e)Provision of stormwater detention measures in accordance with the WSUDGC.
Further to the above, there is approximately 600 mm of excavation proposed along the front zone common boundary with Block 4, along the driveway of Block 4 (the applicant’s driveway). This is necessary to set the dwelling down and access the proposed side gate. The Tribunal proposes imposing a further condition of approval for the provision of a drawing demonstrating a slope instead of excavation along the boundary with the driveway to Block 4.
Inconsistency with RZ1 – zone objectives (a), (b) and (d).
The applicant contended the development was inconsistent with several RZ1 zone objectives. This is not an uncommon submission in planning and development matters before the tribunal. In 4THD Planning and Design Pty Ltd v ACT Planning and Land Authority & Ors, the tribunal observed:
It bears repeating the finding in Argos Pty Ltd v Corbell, that one purpose of the zone objectives is to “provide guidance in interpreting the rules and criteria found in the codes”. As the tribunal said in Javelin Projects v ACTPLA, the objectives provide an important yardstick on the degree of ‘stretching’ the interpretation of the rules and criteria in the code can bear when discretionary decisions are to be made. It seems to us that if the development had been assessed as code compliant, there will be a strong presumption that the zone objectives have themselves been met.[43]
[43] 4THD Planning and Design Pty Ltd v ACT Planning and Land Authority & Ors [2021] ACAT 59 at [156] (citations omitted); The Tribunal notes the decision under review in 4THD Planning and Design Pty Ltd v ACT Planning and Land Authority & Ors was a refusal to approve the proposed development
Any consideration of the zone objectives arises under section 120(a) of the Planning Act (amongst other considerations). For the reasons given above, the Tribunal has found the development complies with the codes. Consequently, that conclusion favours consistency with the RZ1 zone objectives for the purposes of the consideration called for under section 120(a). There is no stand-alone requirement for a development to comply with or be consistent with the zone objectives. All that is required under section 120(a) is consideration of them by the Tribunal, now standing in the shoes of the decision-maker. It should also be noted that RZ1 zone objectives apply to all blocks zoned as such, wherever they are located in the ACT. They are statements of the intended policy outcome to be achieved,[44] and codes must be consistent with each objective for a zone.[45] Thus the logic expressed in Argos and Javelin, cited above, is forceful.
[44] Planning Act s 54
[45] Planning Act s 55
To address the applicant’s submission in relation to particular objectives in the RZ1 zone objectives, the Tribunal considers as follows:
(a)Multi-unit housing is not precluded in RZ1 and the introduction of two detached dwellings on a single block is consistent with a low-density character, so too is the introduction of one two-storey dwelling on the site, which is low rise.
(b)The original pattern of subdivision with single dwelling housing remains in circumstances where the development comprises two low rise detached dwellings on the site.
(c)The valued features of the neighbourhood and character of the area are respected, without unreasonable negative impacts, through the use of a single verge crossing servicing both dwellings, landscaping, and garden beds, and again, low rise detached housing.
Conclusion and orders
For the reasons set out above the Tribunal does not consider there is any basis for the Reviewable Decision to be set aside, or, in other words, to refuse the development application. However, the Tribunal is satisfied it is appropriate to vary the decision under review to include additional conditions.
The decision under review is varied to include the following additional conditions of approval to be inserted as Conditions of Approval at paragraph 2:
(a)Revised plan with the verge crossing and the driveway in accordance with Civil Works Detail Plan C07 revision B (Exhibit PJ6).
(b)Revised plan demonstrating a slope instead of excavation in the Front Zone along the boundary with the driveway to Block 4.
(c)Revised Landscape Plan to identify different paving materials throughout the site.
(d)Revised plan demonstrating privacy between units 1 and 2.
(e)Provision of a lighting plan addressing Criterion 13 of the Crime Prevention Through Environmental Design General Code.
(f)Provision of a revised water reduction calculator that includes the correct roof area addressing Rule 1 of the Water Sensitive Urban Design General
Code (WSUDGC) and a revised plan showing the inclusion of water tanks with the required capacity under the WSUDGC.
(g)Provision of stormwater detention measures in accordance with the WSUDGC.
………………………………
Senior Member K Katavic
For and on behalf of the Tribunal
| Date(s) of hearing: | 2 and 17 November 2022, 15 December 2022 and 20 March 2023 |
| Applicant: | In person |
| Counsel for the Respondent: | A Costin |
| Solicitors for the Respondent: | ACT Government Solicitor |
| Counsel for the First and Second Parties Joined: | R Arthur (2 and 17 November 2022 and 15 December 2022) B Buckland (20 March 2023) |
| Solicitors for the First and Second Parties Joined: | O’Connor Harris |
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