Hope & Burns & Ors and Act Planning & Land Authority
[2008] ACTAAT 15
•15 May 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:HOPE & BURNS & ORS AND ACT PLANNING & LAND AUTHORITY & ORS [2008] ACTAAT 15 (15 MAY 2008)
AT08/3, 5, 6, 7, 11, 12 & 16
Catchwords: Land and planning – review of decision approving multi-unit development in an A10 area – whether development application meets requirements of Residential Design and Siting Code for Multi-Dwelling Developments – accuracy of plans – respect for existing streetscape – plot ratio and setbacks – private open space, traffic and parking – garbage arrangements and landscaping
Administrative Appeals Tribunal Act 1989, s 37
Land (Planning and Environment) Act 1991, ss 7, 8, 13, 230, 245
Nowicki v Martyn and Johnston (1996) 131 FLR 88
Tribunal:Mr M H Peedom, President
Ms S Tongue, Senior Member
Mr R Nichols, Member
Date:15 May 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT08/3,5,6,7,11, LAND AND PLANNING DIVISION ) 12 & 16
RE: ANDREW S HOPE &
SARAH M BURNS
Applicant in AT08/3
RE:JOELLE VANDERMENS-
BRUGGHE
Applicant in AT08/5
RE: SYED NASIR JAFRI &
FATIMA JAFRI
Applicant in AT08/6
RE: JOHN JEROME
GRIFFIN
Applicant in AT08/7
RE: WILLIAM &
CELESTE BARKER
Applicant in AT08/11
RE: HAROLD
WATKINSON
Applicant in AT08/12
RE: SUE & KRIS WELIN
Applicant in AT08/16
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
AND: FRANCIS J
MARSHALL
Party Joined in AT08/7
AND: INSPIRATIONAL
DEVELOPMENTS PTY
LTD
Party Joined
DECISION
Tribunal : Mr M H Peedom, President
Ms S Tongue, Senior Member
Mr R Nichols, Member
Date : 23 April 2008
Decision:
The decision under review is varied by:
deleting in Condition 1(a) the reference to “Landscape Sheet No. 4, dated 20/8/06”;
adding at the end of Condition 1(a) the words:
“as found in Annexure B of the Statement of Andrew Senger dated 7 April 2008 (Exhibit No. 6)”;
deleting Condition 2(a)(iii) and substituting the following:
“That the pergola located forward of the building line shall be set back 6m from the front boundary unless the Authority has determined that it cannot be built 6m from the front boundary without adversely affecting the regulated tree on the block, in which case it shall be:
a) set back a distance which does not adversely affect the regulated tree, being not less than 4 metres from the front boundary; or
b)not built at all.”;
deleting the second sentence to the Note to Condition 2(a)(v);
deleting Condition 2(a)(vii);
adding to Condition 2(a) as subparagraph (x) the words:
“a revised landscape plan showing trees approved by ACTEWAGL in substitution for the five Fraximus Raywoodi trees on the rear boundary of the subject land.”;
deleting dot points 1 and 2 from Condition 2(b)(iv) and adding:
“The third visitor car parking space is to be located within the front basement car park.”;
deleting Condition 2(b)(vi);
deleting Condition 2(b)(vii); and
deleting Condition 4 and substituting the following:
“that within 28 days from the date of this decision, or within such further time as may be approved in writing by the Planning and Land Authority, the applicant shall
lodge with the Planning and Land Authority for approval plans showing a plot ratio not exceeding 50%.”.
........................................
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT08/3,5,6,7,11,
LAND AND PLANNING DIVISION ) 12 & 16
RE: ANDREW S HOPE &
SARAH M BURNS
Applicant in AT08/3
RE:JOELLE VANDERMENS-
BRUGGHE
Applicant in AT08/5
RE: SYED NASIR JAFRI &
FATIMA JAFRI
Applicant in AT08/6
RE: JOHN JEROME
GRIFFIN
Applicant in AT08/7
RE: WILLIAM &
CELESTE BARKER
Applicant in AT08/11
RE: HAROLD
WATKINSON
Applicant in AT08/12
RE: SUE & KRIS WELIN
Applicant in AT08/16
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
AND: FRANCIS J
MARSHALL
Party Joined in AT08/7
AND: INSPIRATIONAL
DEVELOPMENTS PTY
LTD
Party Joined
REASONS FOR DECISION
15 May 2008 Mr M H Peedom, President
Ms S Tongue, Senior Member
Mr R Nichols, Member
Introduction
On 23 April 2008 the Tribunal gave a decision in relation to this matter which varied the decision under review. We now set out our written reasons for that decision.
2. Eleven objectors sought review of a decision of the ACT Planning and Land Authority (“the respondent” or “the authority”) to approve Development Application (“DA”) 200702957 (“the DA”) which sought approval for development (described below) on Blocks 14 and 15 Section 39 in the Division of Hughes at 9 and 11 Bisdee Street (“the subject land”). The DA was lodged with the respondent by Inspirational Developments Proprietary Limited who was joined as a party in the Tribunal proceedings (“the developer”).
3. The applicants are Andrew S Hope and Sarah M Burns, Joelle Vandermensbrugghe, Syed Nais Jafri and Fatima Jafri, John Griffin, William and Celeste Barker, Harold Watkinson and Sue and Kris Welin as well as Francis James Marshall who was joined as a party to Mr Griffin’s application (“the objectors”). All of the objectors are residents in the neighbourhood of the proposed development. Those most directly affected are Mr and Mrs Welin, who are the leaseholders of Block 13, and Mr and Mrs Jafri, who are the leaseholders of Block 32, which is located on Coxen Street to the north-east and rear of Block 15.
4. The DA sought approval for the following:
a) The consolidation of Crown leases over Blocks 14 and 15;
b) A lease variation to permit a minimum of two and maximum of nine dwellings on the site;
c) The demolition of the existing two single detached dwellings and outbuildings;
d) The erection of three separate two-storey buildings containing nine dwellings with basement car parking; and
e) Associated landscaping, paving and other site works.
5. The DA was lodged on 2 July 2007. It was publicly notified from 27 July to 21 August 2007 and 16 written submissions were received from objectors, including the applicants and Mr Marshall. The decision to approve the application was made pursuant to section 230 of the Land (Planning and Environment) Act 1991 (“the Land Act”) with conditions imposed pursuant to section 245. On 21 December 2007 the respondent conditionally approved the DA. The applicants, Mr Hope and Ms Burns, sought review of the decision by the Tribunal on 8 January 2008 and six other applicants subsequently lodged applications for review.
6. The subject land has an area of 1831.76 square metres with a frontage of 41.65 metres. There is a protected tree on the site which will remain and has been integrated into the proposed development. The two two-storey buildings at the front of the proposed development, which contain two units each, are separated by the protected tree and a building containing five units runs behind the two front buildings at the rear of the large block. In the neighbouring area there are detached residences to the north, west and east with the majority being single storey, although there are some two-storey dwellings such as one at Block 17. The existing dwelling at Block 15 has a roof conversion which creates an extra storey.
7. In the hearing before the Tribunal the objectors were self-represented with the exception of Mr Griffin who was represented by Mr Thipaya Prapai. Mr P Walker, of counsel, instructed by the ACT Government Solicitor, appeared for the respondent and Mr A Colishaw represented the developer.
Applicable Law and Policy
8. As this application was lodged prior to 31 March 2008 the 2002 Territory Plan (“the Plan”) applies.
9. The Plan is established by section 13 of the Land Act. Its framework is usefully described in Nowicki v Martyn and Johnston (1996) 131 FLR 88. The object of the Plan is described in section 7(1) of the Land Act as providing the people of the Territory with an “ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation”. Pursuant to section 7(2)(a), the Plan sets out planning principles and policies for giving effect to its object.
10. Part A of the Plan sets out general planning principles and policies and Part B contains specific objectives and policies for giving effect to the planning principles and policies set out in Part A. The Objectives are a formal statement of the planning aims sought by the Land Use Policy and the Controls are specific policy provisions identifying the purposes for which land may be used and planning criteria that apply to development proposals in the relevant land use policy area.
11. Section 8 of the Land Act requires the Tribunal not to approve any act inconsistent with the Plan. Clause 9.1(a) of Part A3 of the Plan provides that a DA cannot be approved if it is inconsistent with the applicable land use policy in Part B, that is, the B1 Residential Land Use policy (“Part B1”). Part A3 section 9.1 provides that “the relevant authority shall not approve a development or proposal for the use of land that would be inconsistent with a list of matters. A “relevant authority” includes the Tribunal and the use of the mandatory word “shall” makes it incumbent on the Tribunal to pay particular attention to the matters listed which include, inter alia:
(d)for proposals in a Residential Area, the relevant provisions of any Residential Code at Appendix III.
12. Appendix III.2 is the Residential Design and Siting Code for Multi-Dwelling Developments (“the Code”). The Objectives and Performance Criteria in the Code are set out below.
13. Part A3, section 9.2(b) provides that:
(t)he relevant authority shall, in relation to an application to undertake a development to a proposal to use land, carefully consider the following matters:
………..
(b)any relevant planning guidelines or interim guidelines contained in the Register of Planning Guidelines;
………
Part A3, section 9.3 requires careful consideration of:
(d) impacts on the amenity of surrounding land uses, including…privacy…;
(e) impacts on the visual amenity and landscape or streetscape of the area;
14. The development is located in anA10 Core Area. Part B1 Residential Land Use Policies contain A10 Residential Core Policies. A relevant objective of the A10 policy is: “to ensure development respects existing streetscapes and adjoining development...”. The A10 policy control (g) states that the maximum site density for residential development “shall not exceed a plot ratio of 0.5:1 (50%) except that for a proposal for dual or triple occupancy... the plot ratio shall not exceed 0.35:1 (35%).”
15. The Plan includes the following Objectives:
O1.1To provide an appropriate residential scale within a locality.
O3.1To site buildings to meet projected user requirements for privacy and daylighting.
O3.3To ensure scale, height and length of a building and walls relative to side and rear boundaries are of appropriate residential character.
O4.1To provide each dwelling with private open space that meets the reasonable recreational , service and storage needs of residents.
O5.1To provide sufficient and convenient parking for residents, visitors and service vehicles.
O7.2To limit overlooking of private open space and to enable residents to effectively control outlooks between rooms in adjacent dwellings.
O9.1To create a pleasant, safe and attractive living environment.
O9.2To blend new development into the streetscape and neighbourhood.
16. Performance Criteria 4.1 provides:
Private open space areas to be of dimensions to suit the projected required of the dwelling occupants and the accommodate both outdoor recreation needs as well as providing space.
17. Performance Measure D4.1 requires that:
The average area of private open space per dwelling is not less than 60% of the average area of the block per dwelling less 50 m2. The total required area of private open space on any multi-unit housing block is the average area of private open space per dwelling multiplied by the proposed number of dwellings on the block.
The issues and evidence
18. The Tribunal had before it the documents prepared by the respondent in accordance with section 37 of the Administrative Tribunals Act 1989 (“the T-Documents”). The Tribunal visited and inspected the subject land. It heard oral evidence from the objectors. The three witnesses who gave evidence on behalf of the developer were: Mr D’Ambrosio, a director of the developer, a builder and qualified but non-practising architect; Mr Colishaw, a developer; and Mr Andrew Curran, a traffic expert, who had been responsible for assessing the impact of the proposed development on traffic. Mr Andrew Senger and Mrs Ada Stekhoven appeared as a witness for the respondent.
19. In opposing the DA the objectors mainly relied on submissions, rather than factual or expert evidence. They expressed their unfamiliarity with the processes followed by the Tribunal and, on occasion, expressed their disappointment with the process followed. The Tribunal explained the process, including the principles of natural justice. In submissions to the Tribunal the objectors each concentrated on one of the main grounds of objection and the Tribunal appreciated their organisation of arguments.
The plans
20. An initial concern raised by one of the objectors, Mr Welin, was that the objectors were not fully informed about the nature of the approved DA. He said this was, in part, because the drawings produced by the developer did not comply with Australian standards and their labelling was misleading. The developer and the respondent conceded that some plans had not been correctly marked.
21. At the hearing the plans before the Tribunal were referred to as “Annexure B plans” (Annexure B to statement of Andrew Senger dated 7 April 2008 - Exhibit 6) and the “Construction Copy plans” (Exhibit 4 - plans attached to the statement of facts and contentions of the developer, dated 3 April 2008). The Annexure B plans were the “original plans” approved by the respondent. The objectors argued that they should be stamped “approved by the respondent” but the respondent argued that this cannot occur if they must be modified to satisfy conditions or are subject to appeal to the Tribunal.
22. The Construction Copy plans prepared by the developer reflect the changes required by the respondent as a consequence of the conditional approval. Mr D’Ambrosio gave detailed evidence of the changes he had made to the Annexure B plans in response to concerns of the objectors and the respondent. The changes included: an additional visitor car parking space, a water tank and obscure glass in upper windows. The Construction Copy plans had been provided to the objectors but Mr Welin said he did not understand their status when he received them and Mr Colishaw said he did not provide an explanation of them when he delivered them.
23. Mr Welin was concerned that if approval was given for the development the developer would not necessarily follow the approved plan. Mr Senger gave evidence that an official inspection is undertaken to ensure compliance with approved plans before certification is granted.
24. The evidence and argument focussed on the following substantive grounds.
Respect for Existing Streetscape
25. A main issue in relation to the subject DA was the impact of the proposed development on the existing streetscape. The objectors argued that there are predominantly single storey dwellings occupied by families in the area. They acknowledged that there are some two storey dwellings but argued that the proposed development has a monolithic character that is inappropriate to the area.
26. Mr Thipaya Prapai provided a three dimensional representation of the proposed development which he sought to have admitted into evidence. Mr Prapai is a freelance web designer who has studied engineering and graphics. He has over 20 years’ experience in the computer industry. He gave evidence that he had read and applied the plans for the proposed development in the T documents, including the external dimensions, and used reputable computer software to develop the representation. He had no access to the dimensions of other buildings in the area.
27. The representation had been provided to the Tribunal and the other parties a few days prior to the hearing but had been inaccessible to members of the Tribunal and some parties due to software accessibility issues. At the hearing the respondent and developer opposed its admission into evidence because it was, on its face, inaccurate due to its portrayal of only the new development as three dimensional with all other local buildings appearing using a different projection.
28. Mr Thipaya Prapai, on behalf of the objectors, tendered the graphic representation of the proposed development in support of the contention that the development did not support the existing streetscape. The Tribunal recognised that the preparer was qualified to undertake the production of the representation and noted his assistance in this regard. However, it decided that it could not admit it into evidence because it was a distorted image since it did not reflect the surrounding landscape with the same graphic projection as that of the proposed development. Since it was primarily being used for that purpose of assessing the impact of the development on the existing streetscape it had limited value. Further, the capacity of the other parties to test its veracity was limited in the absence of prior notice of the exact details of its production.
29. The objectors also submitted photographs of the streetscape, taken by Mr Thipaya Prapai (Exhibit 1) which were admitted as evidence of the single storey, one dwelling nature of the area. The Tribunal also observed the nature of the landscape during its site visit.
30. One of the objectors, Ms Vandermensbrugghe, submitted that a decision on respect for the existing streetscape is a subjective decision. She submitted that the decision should take into account the fact the boundary for A10 areas runs down the middle of Bisdee Street.
31. The developer referred to the street elevation drawing at sheet 15 in the Construction Copy plans. They submit that, viewed from the street, there will be 2 two-storey dwellings and the multi-unit development will not be apparent. It is only if the viewer is directly in front of the entrance that the rear building will be obvious.
32. The respondent contended that the development respected the existing streetscape and adjoining development. It said the development is contained within the building envelope and at no greater height than a two-storey building. At the site inspection Mr Senger drew the Tribunal’s attention to a similar building in an adjacent street, although it was only a single storey dwelling.
Plot ratio
33. The objectors, and particularly Mr Barker, argued that the development exceeded the allowable plot ratio. They referred to the original calculation by the respondent of the plot ratio that produced a calculation over 50% and argued that the area covering the bins should be included in the plot ratio calculation. This area is on the north-western end of the front building on the external wall of Unit 1 as shown on sheet 1 of the Construction Copy plans and also at sheet 11 (north-western elevation) of those plans.
34. Mrs Stekhoven gave evidence that she calculated the floor ratio by reference to the Annexure B plans which produced a ratio that exceeded 50%. When the basement was excluded from the calculation the ratio was still too high. She explained that she used a computerised device that involves tracing around the external walls on the plans. She said there can be a discrepancy of 5 to 10 percent in the calculation due mainly to human error.
35. The respondent submitted that the approval of the slightly higher plot ratio of 51.1% was ameliorated by the condition imposed at the time of approval which was that the basement floor level be lowered.
36. The developer gave evidence that the basement should not be included in the calculation of the plot ratio. Their sheet 1 of the Construction Copy plans identifies the plot ratio as 49.87%.
37. The Tribunal considers that a calculation of floor area based on plan dimensions would be more accurate than the tracing method used by Ms Stekhoven.
Setbacks
38. The developer and respondent gave evidence that setback requirements were met in every instance except for the side boundary between Block 11 and Block 13. The Annexure B and Construction Copy plans show that a driveway is on the boundary between Block 11 and Block 13 and the Blocks are to be separated by a 1.8 metre wall.
39. At the site inspection the Tribunal observed that the adjacent property has a drivestrip located immediately next to the fence line. The building on Block 13 is set back from the boundary.
40. Mr Welin gave evidence that the original paling fence proposed for the boundary had been upgraded to a solid masonry fence. He acknowledged that his current dwelling has its driveway adjoining the boundary and said that when he purchased his block two years ago he expected that any dual occupancy or multi unit development on his block would locate the driveway in the same space.
41. The respondent submitted that the requirement in the original decision that if the lessee of Block 13 prefers a different material (to masonry) the developer must agree to the change was unduly onerous and should be amended.
Private open space
42. The objectors, and particularly Mr Barker, argued that the development did not comply with Performance Measure D4.1 of the Territory Plan (set out above) because “the private open space requirement of 72.11 square metres per unit it reduced to as low as 57.61 square metres for over half the development.” They argued that the requirement is a minimum standard and has been reduced by 20%. Mr Barker submitted that the easement area, which runs along the rear of Blocks 14 and 15, should be excluded from the calculation of private open space. He referred, in particular, to the impact of the easement on the private open space of Unit 5 as shown on sheet 1 of the Construction Copy plans.
43. The developer referred to the private open space calculations for each unit which are listed on sheet 1 of the Construction Copy plans and range from 64.29 square metres (Unit 6) to 116.53 square metres (Unit 5).
Traffic and on-street parking
44. Several of the objectors, and especially Mr Watkinson, expressed concern about the volume of traffic that would be generated by the proposed development from unit occupants, visitors and service vehicles. Mr Marshall submitted that there would be a 30 to 50 percent increase in traffic on the street if the proposed development was approved. Mr Watkinson conducted a survey from his window on the corner of Conyer Street. He submitted that the wide verges and lack of pathways on Bisdee Street led to pedestrians and cyclists using the street. He was concerned about danger caused by the likely increase in street parking, especially given the blind “dog-leg” in the street. There was also concern about parking arrangements during construction of the development and the photographs (Exhibit 2) provided by Mr Thipaya Prapai show parking on construction sites in neighbouring suburbs.
45. The developer gave evidence of the additional visitor parking space relocated from the end of the driveway to the basement of the development resulting in the alteration of the dimensions of the basement.
46. Mr Curran supervised a traffic survey on Bisdee Street from 21 to 30 October 2007. He gave evidence that it is a very quiet street in the 85th percentile of traffic volume and well able to sustain the additional traffic generated by the proposed development. He said the basement traffic bays, which are 6.6 metres long, exceed the measurements required by Australian standards for disabled access and econovans, that are often used as service vehicles, would be able to park in the spaces. The Tribunal accepts the evidence of Mr Curran.
Garbage
47. Several of the objectors and especially Mr Marshall, expressed concern about the impact of the arrangements for garbage collection on other residents of Bisdee Street. These issues relate to the impact on the amenity of neighbours on collection day, the noise and the storage of the bins. The objectors provided the Tribunal with a photograph taken by Mr Thipaya Prapai representing the impact of 18 bins placed on the nature strip one day each fortnight when there is a collection from both bins (Photograph numbered 28 in Exhibit 1).
48. The Tribunal is aware that each Canberra household has two bins – one for garbage and one for recyclable material including newspapers, glass and plastic. In a nine unit development there are potentially 18 bins. The plans at sheet 11 on the Construction Copy drawings show the facilities provided for bin storage on the north-western end of the front block on the external wall of Unit 1. There is total space of 4.57 metres provided for yellow top bins and a total space of 3.84 metres provided for green top bins.
49. Mr D’Ambrosio referred to sheet 1 of the Construction Copy plans which shows a path from the bin storage area to the footpath and the designated area for the location of the bins for rubbish removal purposes. Mr Marshall submitted that the designated area did not provide for enough space between each bin. Mr Senger gave evidence that if there was a future problem with bin collection it would be possible to arrange for signposting in the street. Mr D’Ambrosio noted that the Development Control Code for Best Practice Waste Management permitted kerb side collection of wheelie bins for up to 10 dwellings.
Landscaping
50. There were several issues in relation to the landscaping proposed for the development. A landscape plan is contained in the Annexure B plans at sheet 4.
51. Mr Jafri was concerned about the suitability of the five Fraximus Raywoodi trees that the developer proposed to plant along the rear boundary. He said they can grow 12 metres high and would then interfere with telephone lines. If they have to be pruned they will no longer provide a screen and the privacy for his home, which is 10 metres from the boundary, will be curtailed.
52. The developer gave evidence that there are no balconies at the rear of the development and the setback from the rear boundary is 10 metres which is one metre more than the 9 metre setback required by the Code.
53. Ms Burns was concerned not only about the Fraximus Raywoodi but also other plant varieties listed on the landscape plan. In particular she referred to the 18 Robinia Mop Tops, which she said are listed as weeds in the ACT and the agapanthus, which are not currently designated as weeds in the ACT but are in some parts of Australia. Ms Burns provided information regarding the relevant plants. She drew attention to the predominant use of native plants elsewhere in gardens in the street and argued that the planting for the proposed development should be consistent. Ms Burns also submitted that a pump would be required to allow use of the underground water tank to water the plants.
54. Mr D’Ambrosio said in evidence that the plants proposed had been successfully used in other developments. He said he considered the landscaping proposed would meet, and even exceed, landscaping elsewhere in the street. Mr D’Ambrosio said the underground tank would not be used to water the plants. Mr Cowlishaw said the developer would be happy to replace the Fraximus Raywoodi with another lower growing screening tree and would also replace the Robinia Mop Tops with another plant.
Distrust issues
55. Some of the issues raised by the objectors before the Tribunal appeared to stem from a distrust of the process followed by the respondent. For example, the objectors alleged impropriety in the relationship between the developer and the respondent and a failure by the respondent to address all the objections. Some saw the ability of the developer to re-draw plans as an inappropriate “indulgence” allowed by the respondent. They were also critical of the timeframe for deciding on the DA and communicating the DA to objectors. They saw spelling mistakes in the respondent’s decision as evidence of haste and inattention to a matter of critical importance to them.
56. The respondent argued that the Tribunal’s task was to approach the decision afresh and not to revisit the process followed by the original decision-maker.
Other Issues
57. The development plans included a pergola located near the regulated tree to provide a focal point for the entry to the property. The location of the pergola must be balanced against the need to comply with the requirements for setback from the front boundary while not disturbing the root system of a regulated tree. The objectors and developer made no submissions in this regard but the respondent submitted that it be set back a distance that does not adversely affect the regulated tree, being not less than four metres from the front boundary or not built at all.
Consideration of the issues
58. The Tribunal understands that the objectors are concerned to ensure that there is appropriate development in their neighbourhood. Some have lived in the street for many years and all enjoy its amenity. One side of the street is part of the A10 area and one side is not. This is the first multi-unit development on the street although there have been dual occupancy developments and redevelopments of single dwellings that the objectors consider successful. The area is undergoing change. Because it is close to Woden some office-workers use the area for long-stay parking. Because it close to special and other schools and there is a nearby park and shops, school children use the street.
59. In these circumstances, it would be reasonable to expect that special care would have been taken to keep all the neighbours fully informed about the planning and process to be followed. While this is technically not one of the issues the Tribunal must consider in reaching its decision, the Tribunal is part of a dispute resolution process and has a role in improving primary decision-making. It notes that if the process is applied correctly and empathetically the focus can appropriately stay on the substantive issues.
60. To some extent the objectors’ concerns about the impact of the proposed development on the streetscape, the amount of private open space and the plot ratio relates to their perception of it as a monolithic structure dominating the two blocks and the neighbourhood.
61. In relation to the impact on the existing streetscape, the Tribunal was satisfied that the composite street elevation drawing at sheet 15 in the Construction Copy plans which was unchallenged, accurately provided a perspective on the development. The Tribunal accepts that from the street the effect will be two 2-storey buildings. When standing square on to the building it will be possible to see the rear building and approaching from either side the rear building will be evident. However it is spread over a large area and it is an A10 area which is designed to permit more intensive development.
62. The Tribunal considered all the evidence in relation to the plot ratio of the proposed development. Applying the Plan it is clear that the basement and covered bin area do not need to be included in the calculation of the plot ratio. On balance it is satisfied that the plot ratio is close to the requirement of 50% but, for certainty, this should be proved on plans presented to the respondent showing the detailed manual calculation of the plot ratio. The overall impression of the development, from a perusal of the plans, shows two buildings occupying approximately half of the land area of the two blocks with space around and between the buildings and adjacent to each unit.
63. The Tribunal considered the impact of the proposed development on the nearest objectors who gave evidence before the Tribunal – Mr Welin and Mr Jafri. The relevant Performance Measure requires that “shared driveways and car parks of other dwellings” be “set back a minimum of 1.5 metres from external block boundaries and windows to habitable rooms of dwellings”. Mr Welin’s concerns about the boundary appeared to have been satisfied by the building of a solid wall on the boundary. The driveway of the proposed development runs down the block and the noise impacts have been further reduced by the removal of the roller doors and intercom.
64. Mr Jafri’s privacy concerns have been weighed against three main considerations. First, there are no balconies on the wall of the proposed structure overlooking his block. The structure has been designed in a way to inhibit overlooking. Secondly, Mr Jafri led no evidence to justify a conclusion by the Tribunal that there would be overlooking or a privacy issue. For example, no plans of his living spaces or recreational areas were put into evidence before the Tribunal. Thirdly, and importantly, the structure complies with the requirements in the Objective, Performance Measure and Performance Criteria which are designed to respond to privacy concerns.
65. The Tribunal considered the possible increase in traffic generated by the development. It accepts that there will be some increase in traffic. It also has regard to the fact that the development is in an A10 area, albeit on the border. Such areas are located close to public transport routes. In this case it is located close to the Woden Town Centre and Canberra Hospital and pedestrian and bicycle routes.
66. On balance the Tribunal finds that the proposed development meets the requirements of the Plan. However, it varies the decision to meet concerns raised by the parties.
67. The Tribunal has regard to the need for the decision to accurately record the approved plans for the construction, as submitted by Mr Welin. It varies the decision to reflect this.
68. The Tribunal accepts that the proposed pergola at the front of the proposed development is a desirable feature but not if it affects the roots of the regulated tree or contravenes setback requirements from the front boundary. It varies the decision accordingly.
69. The Tribunal agrees the condition in the original decision that the side boundary fence between Block 11 and Block 13 be a 1.8 metre high masonry wall that is rendered in the same way as the front courtyard wall at the developer’s expense. However, it deletes the requirement that, if the lessee prefers a different material, the developer must accept the change.
70. The Tribunal notes that the entrance arrangements to the garages in the basement have been changed so there are no longer roller doors at the external entrances and there are now internal security arrangements for each garage. This means the decision is varied to remove the sliding doors to the basement entry. The Tribunal accepts the need to reduce noise caused by an intercom system and varies the decision under review by removing the condition that there be intercoms to the entrance to both basements.
71. The Tribunal accepts the concerns of the objectors about landscaping plans in relation to the height of the Fraximus Raywoodi trees. It varies the decision to allow the substitution and approval of appropriate planting.
72. The Tribunal notes that provision has been made for the storage of garbage bins at the side of Unit 1. The respondent imposed a condition that a pad be placed on the grass verge as a designated area for the bins to be placed on garbage collection night. The Tribunal considers that it is not normal practice in Canberra to require the construction of garbage pad on the grass verge and considers that it is not necessary in this case so it removes that condition.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NOS: AT08/3,5,6,7,11,12 & 16
APPLICANTS: ANDREW HOPE & SARAH BURNS; JOELLE VANDERMENSBRUGGHE; SYED JAFRI & FATIMA JAFRI; JOHN GRIFFIN; WILLIAM & CELESTE BARKER; HAROLD WATKINSON; SUE & KRIS WELIN
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTIES JOINED: FRANCIS MARSHALL; INSPIRATIONAL DEVELOPMENTS PTY LTD
COUNSEL APPEARING: APPLICANTS:
RESPONDENT: MR P WALKER
PARTIES JOINED:
SOLICITORS: APPLICANTS:
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTIES JOINED:
OTHER: APPLICANTS: SELVES; MR THIPAYA PRAPAI
(FOR MR GRIFFIN)
RESPONDENT:
PARTIES JOINED: SELF; MR A COLISHAW (FOR
INSPIRATIONAL DEVELOPMENTS PTY LTD)
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
MS S TONGUE, SENIOR MEMBER
MR R NICHOLS, MEMBER
DATE/S OF HEARING: 21-23 APRIL 2008 PLACE: CANBERRA
DATE OF DECISION: 15 MAY 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
1
0