IBBOTSON v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review)
[2015] ACAT 57
•24 August 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IBBOTSON v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2015] ACAT 57
AT 17 of 2015
Catchwords: ADMINISTRATIVE REVIEW – planning and development – development application - Lease and Development Conditions – CZ5 zone – compliance with codes
Legislation cited: ACT Civil and Administrative Appeals Tribunal Act 2008 s 68
Legislation Act 2001 s 150
Planning and Development Act 2007 ss 46, 50, 53, 55, 113, 115, 119, 120, 162, 407
Cases cited: Amarso v ACTPLA [2012] ACAT 9
AMC Projects v ACTPLA [2006] ACTAAT 13
Cvetanoski v Commissioner for Land and Planning [1999] ACTAAT 42
Scherl & ACT Planning and Land Authority [2011] ACAT 37
List of
Texts/Papers cited: Building an Integrated Transport Network: Parking dated June 2015
Gungahlin Precinct Code
Commercial Zones Development Code
Multi Unit Housing Development Code
Residential Zones Development CodeParking and Vehicular Access General Code
Justice and Community Safety Directorate: ACT Road Hierarchy
Tribunal: Ms E. Symons – Presidential Member
Mr R. Pegrum – Senior Member
Date of Orders: 24 August 2015
Date of Reasons for Decision: 24 August 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL AT 15/17
BETWEEN:
KATHLEEN IBBOTSON
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
NATIONAL CAPITAL INVESTMENTS PTY LTD
Party Joined
TRIBUNAL: Ms E. Symons – Presidential Member
Mr R. Pegrum – Senior Member
DATE:24 August 2015
ORDER
The Tribunal Orders that:
The decision under review is varied by imposing an additional condition of approval as follows:
(a) Within 28 days from the date of this decision, or within such further time as may be approved by the ACT Planning and Land Authority, the party joined/lessee shall lodge for approval a plan of landscape prepared by a qualified landscape architect for the area between the building and the property line on Donnelly Lane showing new plantings of shrubs and suitable advanced trees with types and sizes to screen the service zone and meet the intent of the Development Intentions Plan and Planning Control Plan 07/13 and 07/14.
………………………………..
Ms E. Symons – Presidential Member
for and on behalf of the Tribunal
REASONS FOR DECISION
Dr Kathleen Ibbotson (Dr Ibbotson or the applicant) has sought review of a decision by the ACT Planning and Land Authority (the respondent) under section 162 of the Planning and Development Act 2007 (the Planning Act) to approve, subject to conditions, a development application (DA 201324439) made by Heyward Lance Architecture (Heyward) on behalf of National Capital Investments Pty Ltd (the party joined) for the construction of “a four storey mixed use development comprising commercial use at ground level and 45 dwellings at upper levels; a basement car park and associated works” at Block 1 Section 68 Gungahlin (Anthony Rolfe Avenue) (the subject site).[1]
Summary of Tribunal decision
[1] T-Documents page 105
In summary, the Tribunal’s reasons for decision are as follows. On the application of Heyward for the approval of DA 201324439 the respondent sought and obtained further information in relation to parking and then considered and approved the DA subject to conditions (the decision).
The applicant challenges the decision made by the respondent and opposes the Tribunal confirming that decision. The applicant’s challenge at the hearing was limited to traffic and parking.
The Tribunal notes the traffic and parking issues raised by the applicant, however, considering sections 119 and 120 of the Planning Act, the Tribunal does not think that there is a basis for refusing the DA or setting it aside in whole or in part. The approval should however be subject to the further condition set out in these orders.
The Tribunal varies the decision of the respondent by adding the further condition set out in these orders. In the following paragraphs, the Tribunal has dealt only with the major issues that arose during the hearings and on which the Tribunal has based its decision.
The Decision of the Authority
The development application was lodged with the respondent on 25 June 2014. It was considered in the merit track under sections 119 to 122 of the Planning Act and no issue about this was raised before the Tribunal. The respondent sought and obtained entity advice from Emergency Services ACT, ActewAGL Water Division, ActewAGL Electrical Division and ActewAGL Gas Networks. By letter dated 26 February 2014, the party joined had given notice of the proposed development to about 25 nearby properties. The site plan and elevations of the building were delivered by letter drop to residents on Gungahlin Place north of the subject site, along Anthony Rolfe Avenue to the east and in Huyer Street immediately behind Donnelly Lane. Residents were invited to contact the developer within ten days with any comments but there is no record of any response to the invitation.[2]
[2] T-Documents pages 615-617
Public notification by the respondent of the development application commenced on 2 July 2014 and ended on 23 July 2014.
On 4 July 2014 the respondent requested further information pursuant to section 141 of the Planning Act from Heyward in order to address issues which are not relevant for this review.
On 25 September 2014, Heyward lodged the further information together with an addendum dated August 2014 to the original parking report from Northrop Consulting Engineers (Northrop) in response to a request from the Major Projects and Transport (MPAT) and further surveys of the site (parking for site).
More than 40 written representations were received by the respondent during the public notification period. The majority of these were brief with repeated references to existing “severe parking issues” and a “shortfall of parking spaces” in the proposed development.[3]
[3] T-Documents pages 111-113
Two detailed and illustrated challenges to the proposed development were submitted by Dr Kathleen Ibbotson and Mr Peter Ibbotson, who lived nearby, and by Mr Peter Weatherstone. The principal concern of Dr and Mr Ibbotson was the impact of the development, with a predicted 81 car shortfall in car parking spaces[4], on road safety and parking for residents in their neighbourhood. Other matters raised related to a ‘deeply flawed’ parking study; shadowing caused by the proposed building; noise and other potential impacts from ground floor restaurants and shops; effects on the amenity of the surrounding community during the construction phase; and concerns as to the communication of information about the proposed development.
[4] Dr and Mr Ibbotson’s Statement submitted in Rejection of Current proposal for DA 201324439 Part G, Summary page 27
In response to the public notifications and to the further information provided by Heyward, on 1 October 2014 the DA was referred to MPAT in the Environment Protection Directorate (EPD). On 16 October 2014 the respondent’s Development Assessment Branch requested further information from Heyward in relation to the proposed 75 off-site parking spaces and the inconsistencies between what was shown in the drawings and what was stated in the Northrop reports in relation to parking.
In response, in December 2014 Heyward lodged further information including a revised parking report from Northrop dated November 2014 (addendum 2.1) addressing the issues raised in the request together with a revised basement plan adding one additional parking space making a total of 65 parking spaces accommodated on site[5]. (The development application and the further information and addendum 2.1 are referred to in this decision as ‘the DA’.)
[5] T-Documents pages 265-285
On 4 December 2014, EPD - MPAT sought written advice in relation to the DA from EPD Transport. On 23 December 2014 EPD - MPAT emailed EPD Customer Services in relation to concerns about the Margrie Lane car park spaces relied on by the applicant being “not within 200 metres walking distance to the proposed development…the distance to the car park is 201 metres away from the boundary of the development”.
On 9 January 2015, EPD - MPAT emailed EPD Customer Services and stated - “Major Projects and Transport have reviewed the further information supplied for this DA in Gungahlin. This advice supersedes the advice sent on 23 December 2014. The DA is supported in principal (sic) provided that additional information is supplied specifying how the applicant will ensure that the visitor/commercial spaces in the basement will be available to the public…”
The DA was referred to the Major Project Review Group (MPRG) within EPD because “the proposal has received 44 representations.”[6] The accompanying referral brief stated under Issues identified for discussion - “The proposal is generally consistent with the applicable development codes especially with the Lease and Development Conditions for the block”.[7] The referral also stated that “the proposal can be approved with conditions. No other options are recommended…it is recommended that the MPRG support the conditional approval of the proposal”[8]
[6] T-Documents [page 254
[7] T-Documents page 255
[8] T-Documents page 257
On 30 January 2015, pursuant to section 162 of the Planning Act, the delegate of the respondent approved the proposed development subject to conditions.[9] Relevantly, the decision included the following statement- “The proponent submitted the results of further car parking studies along with revised car parking provision for MPAT approval. The revised details propose to provide 65 car parking spaces on site and 74 car parking spaces off-site (within 200 m from the block).[10]
The Tribunal Proceedings
[9] T-Documents pages 105-107
[10] T-Documents page 109
On 18 February 2015 the applicant applied to the ACT Civil and Administrative Tribunal (the Tribunal) for review of the decision (the reviewable decision). The application stated that “the main issue with this build is the 74 car parking spaces that are estimated to be required off-site”.[11]
[11] T-Documents page 13
On 13 March 2015 the Tribunal ordered that National Capital Investments Pty Ltd be joined as a party to the proceedings, made Directions in relation to each of the parties filing Statements of Facts and Contentions, Witness Statements and Authorities and set the matter down for hearing on 3, 4 and 5 June 2015.
The Hearing
Immediately prior to the hearing commencing on 3 June 2015 the Tribunal, the parties, the party joined and their representatives inspected the subject site and adjacent properties and part of the Gungahlin Town Centre.
The applicant represented herself at the hearing. Dr Jarvis of Counsel appeared for the respondent and was instructed by the ACT Government Solicitor. Mr Rick Farzan, sole Director of National Capital Investments Pty Ltd, appeared for the party joined.
The Tribunal had before it the documents provided by the Authority relevant to the decision under review (the T Documents) together with Statements of Facts and Contentions submitted by the parties and Witness Statements and other documents tendered in evidence during the hearing.
Evidence for the applicant was given by Dr Kathleen Ibbotson. Dr Ibbotson told the Tribunal that her:
technical qualifications are a PhD in engineering, first class honours degree in mechanical engineering and a degree in applied mathematics. My professional career has mainly focused on scientific management and analysis, although I did work for two years as a forensic engineer for the AFP. I do not actually believe that my technical qualifications give me any additional skills in urban planning than that of a lay person, but I do think that my experience in analysis of data combined with living in the area surrounding this proposed development have placed me in a good position to comment on it,…….[12]
[12] Transcript of Proceedings page 7, lines 39-44
The respondent called evidence from three officers of the Environment and Planning Directorate, all of whom had filed Witness Statements - Mr Ajith Buddhadasa who is a technical coordinator in the Planning Delivery Branch of the Planning and Land Authority and was the assessing officer of the DA; Ms Imogen Markus who is a planning policy officer in the Major Projects and Transport Branch; and Mr Timothy Wyatt who is a transport specialist within the Major Projects and Transport Branch.
Mr Rick Farzan gave evidence for National Capital Investments Pty Ltd (the party joined) and called evidence from Mr David Field, who is a civil engineer and a director of Northrop Consulting Engineers and who was co-author of the parking and traffic reports for the proposed development.
All witnesses were cross examined.
After hearing submissions from the parties the Tribunal reserved the decision.
Applicable law
Section 68 of the ACT Civil and Administrative Appeals Tribunal Act 2008 (the ACAT Act) provides that the Tribunal may exercise any function given by an Act to the entity for making the decision. The Tribunal has all the powers of the Authority in reviewing the decision to the extent that those powers are related to the making of the decision under review.
Section 50 of the Planning Act provides that a territory authority must not do any act, or approve the doing of an act, that is inconsistent with the Territory Plan. The Territory Plan is provided for under section 46 of the Planning Act.
Section 53 of the Act relevantly states:
(1) The objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone.
(2) ….
Section 55 states:
(1)A code (other than a general code or precinct code that is a concept plan) in the territory plan must contain either or both of the following:
(a) the detailed rules that apply to development proposals the code applies to;
(b) the criteria that apply to development proposals the code applies to, other than proposals in the code track.
(2)A code must be consistent with each objective for the zone to which the code relates.
(3)A code that sets out the requirements that apply to stated areas, or places, or states that it is a precinct code, is a precinct code.
(4)A code that sets out the requirements for types of development, or states that it is a development code, is a development code.
(5)A code that sets out requirements applicable to the Territory, the Executive, a Minister or a Territory authority is a general code.
(6)To remove any doubt, a general code may also contain—
(a)policies to be complied with; and
(b)rules and criteria applicable to development proposals the code applies to.
Division 7.2.3 Merit Track, specifically sections 119 and 120, set out the considerations applicable when deciding development approval in the merit track.
The decision before the Tribunal is a reviewable decision in accordance with section 407 of the Planning Act.
The Facts
The Tribunal adopts the facts in the respondent’s Statement of Facts and Contentions which are not in dispute, namely:
i.On 13 December 2007, the respondent approved Lease and Development Conditions (L&DCs) for block 1 section 68 Gungahlin in the ACT (the subject site)[13].
[13] T-Documents pages 218-240
ii.In March 2008, the L&DCs formed part of the “Auction Documentation” that comprised part of a sale agreement, under which the party joined purchased the subject block.
iii.On 25 June 2014, the party joined lodged Development Application (DA) 201324439 with the respondent.
iv.The development proposal in the DA was for a four storey mixed-use development on the subject site, comprising commercial use at the ground level, residential use at upper levels and a basement car park[14].
[14] T-Documents pages 550-701
v.The subject site is located in a CZ5 mixed use zone. The CZ5 development table prescribes the merit track for residential use and commercial uses such as shops and restaurants.
vi.On 3 December 2014, further information was lodged in support of the DA[15].
[15] T-Documents pages 265-285
vii.On 30 January 2015 the DA was approved subject to conditions by the respondent[16].
[16] T-Documents pages 105-128
viii.All information relating to DAs is routinely stored on a database maintained by the respondent, known as “Objective”. Referral entities such as EPD and RAMSD can access this database when considering referrals.
ix.The parking provision in the development proposal is as follows[17] -
[17] T-Documents pages 271, 284-5
a) 65 spaces are provided on site – 60 in basement, 5 at grade.
b) car parking for residential units (50 spaces) is provided in basement.
c) Visitors (12 spaces) - on site or within 200 m.
d) for commercial uses (77 spaces) – on site or within 200m.
e) Total off-site parking – 74 spaces.
f) The Gungahlin Precinct Map and Code (2014) reserves four sites for public parking, sections 226, 228, 229 and 232 Gungahlin.
g) Section 229, currently vacant, is about 170m from its nearest point to the nearest point on the boundary of the subject site.
h) There are existing free public car parks on section 228, 232 and 226.
i) The applicant disagrees with the respondent and the party joined on the calculation of the distance from section 228 to the subject site.
j) Public parking in Gungahlin Town Centre and adjacent areas is currently free.
k) When blocks reserved by the Plan for public parking are developed, ACTPLA policy is to require the same number of public spaces to be retained on the developed site, in addition to the parking required by the Parking and Vehicular Access General Code.
The applicant’s contentions
In her application for review, Dr Ibbotson advised that her family had bought their house in 2008 in Sarre Street, one of the streets bordering the proposed development. In that application she said “we appreciate that we live in a mixed use area and that these regions have the potential ability for sharing of public car parks” and that mixed use areas “have some potential for reducing provision through shared and consolidated parking”. However, in her opinion:
there have already been too many development applications approved without sufficient parking, with each development pointing to the same public car parks for their overflow needs…an additional 74 legal car parks are not going to be found in this region of Gungahlin. This development will affect the amenity, safety, efficiency, access and equity[18] of the residents and business owners in the area. This is contrary to the objectives for mixed use zones.[19]
[18] The CZ5 zone objectives
[19] T-Documents page 36
In her application, Dr Ibbotson re-stated her earlier concerns that there was “inadequate description of the shadowing caused by the proposed building” and that there was no information provided as to the impact of the proposed restaurants and shops on the surrounding community including noise generation, hours of operation and venue sizes. There were additional concerns during the construction phase as to hours of site operation, parking for tradesmen, requirements for closing of local streets and the effects of vibration from heavy machinery on existing buildings close to the subject site.[20]
[20] T-Documents pages 78-79
The applicant provided the Tribunal with an extensive dossier of material relating to the decision under review. The Tribunal recognises the considerable effort of the applicant in presenting her objections to approval of the DA. In her opening statement, the applicant said it was not her intention to stop the development but she did not want “70-odd extra cars in my neighbourhood”. The Tribunal reminded the applicant of her other concerns “for example shadowing et cetera”. The applicant then advised the Tribunal “I formally withdraw all of those other concerns”.[21]
[21] Transcript of Proceedings 3 June 2015 page 13 line 27
In addition to the contentions referred to in the previous paragraph the applicant also contended that:
a. The Margrie Lane carpark (section 228) should not be counted (in the required offsite car parking spaces) because it is over a 200 metre walk away and it should be reserved for the town centre usage and not for a proportionately tiny development that is located outside the town centre boundary…[22] and
b. The proposed development does not meet the Territory Plan in terms of its proposed on-site car parking provisions and it does not meet the intent of the lease and development conditions on the block, namely that “all residential and commercial carparking provisions, as calculated using the Parking and Vehicular Access General Code, are to be accommodated in a single or double underground carpark on-site.”[23]
The respondent’s contentions.
[22] Transcript of Proceedings 3 June 2015 page 11 lines 22-25
[23] Transcript of Proceedings 3 June 2015 page 11 lines 41-44
Dr Jarvis contended that the decision under review should be affirmed and the
application dismissed.[24]
[24] Respondent’s Statement of Facts and Contentions at [19]
He told the Tribunal that “the parking in this proposed development meets the intent of the lease and development conditions”[25] and that, other than for resident parking, the Parking and Vehicular Access General Code “permits a development of this kind to rely upon publicly available off-site parking” for commercial visitors. “The Parking and Vehicular Access General Code does however require that that parking be within 200 metres, and there is a dispute between the parties as to how that should be calculated”.[26]
The party joined’s contentions
[25] Transcript of Proceedings 3 June 2015 page 19 line 30
[26] Transcript of Proceedings 3 June 2015 page 13 lines 32-44
The party joined contended in its Statement of Facts and Contentions that the building was designed “to completely comply with the relevant Lease and Development Conditions (L&DCs), the building footprint as set out in the specific L&DCs, the Multi-Unit Housing Code and the Territory Plan, as well as the ACT Parking and Vehicular General Access Code”.[27]
[27] Party Joined Statement of Facts and Contentions at [2]
Before deciding on the specific uses for the commercial tenancies, the party joined had arranged for a parking study to be carried out and further car parking studies were undertaken during the assessment of the development application. Since the application for review was made, the party joined has made further changes which have increased the number of on-site car park spaces from the original 65 to 76, thereby reducing reliance on off-site car parks. The new proposed basement and ground floor car parking design was annexure B to the party joined’s Statement of Facts and Contentions.
Issues
The issues before the Tribunal therefore relate to compliance with relevant legislation, the Codes and the adequacy and location of car parking. They are:
a)Issue 1: Does the proposed development comply with the Gungahlin Precinct Map and Code?
b)Issue 2: Does the proposed development comply with the relevant development codes – the Commercial Zones Development Code; the Residential Zones Development Code and the Multi Unit Housing Development Code?
c)Issue 3: Does the proposed development comply with the Parking and Vehicular Access General Code?
d)Issue 4: Does the proposed development comply with the approved Lease and Development Conditions including the Planning Control Plan and Development Intentions Plan?[28]
e)Issue 5: Would development approval be consistent with sections 119 and 120 of the Planning Act?
Consideration of the issues
Issue 1 – The Gungahlin Precinct Map and Code
[28] T-Documents pages 239-240
Under section 115 of the Planning Act, where more than one type of code applies to a development and there is inconsistency between provisions, the order of precedence is Precinct Code, Development Code, and General Code.
The Gungahlin Precinct Map covers a large area bounded on the south by Gungahlin Drive and on the north by Horse Park Drive. The Gungahlin Town Centre is at the centre of the Precinct. The subject site is within a CZ5 mixed use commercial zone immediately to the north of the Town Centre across Anthony Rolfe Avenue. The CZ5 zone is some 1000 metres long and 70 metres deep and separates the Town Centre from the RZ3 urban residential zone in the northern part of Gungahlin.
Figure 3 in the Gungahlin Precinct Code describes Anthony Rolfe Avenue as a ‘major collector road’ with an on-road cycle lane and off-road shared paths. The Tribunal notes that the document ACT Road Hierarchy issued by the Justice and Community Safety Directorate states that the ‘classification of roads in the ACT is based on a formal road hierarchy’. ‘Major collector roads’ are described as roads that “collect and distribute traffic within residential, industrial and commercial areas. They form the link between the primary network and the roads within local areas and should carry only traffic originating or terminating in the area. The volume of traffic carried is constrained by environmental objectives - safety and traffic noise - rather than road geometry and reflects the limited area that they serve. Direct property access is still permissible but the level of traffic may dictate that access and egress arrangements should be such that vehicles can exit properties in a forward direction”.[29]
[29] Justice and Community Safety Directorate: ACT Road Hierarchy
The Tribunal notes that the role of Anthony Rolfe Avenue is to “carry only traffic originating or terminating in the area”. The Tribunal notes also the environmental objectives for a major collector road in relation to safety and traffic noise. The Tribunal notes the concerns of the applicant with regard to haphazard parking and incomplete pathways, pedestrian crossings and lighting along Anthony Rolfe Avenue, but such matters are urban infrastructure issues to be addressed by the appropriate authorities as the district and town centre develop.
Only three planning criteria in the Gungahlin Precinct Code apply to this mixed use commercial development area - C66 (noise generating uses); C67 (activities ancillary to residential use); and C68 (maximum 4 storeys subject to compatibility with desired character; reasonable solar access to dwellings on adjoining residential blocks). A noise management plan was submitted with the development application. The proposed development satisfies both of the other criteria.
For the reasons set out above, the Tribunal concludes that the proposed development is consistent with the Gungahlin Precinct Map and Code.
Issue 2 – Does the proposed development comply with the relevant development codes: the Commercial Zones Development Code; the Residential Zones Development Code and the Multi Unit Housing Development Code?
The Commercial Zones Development Code provides additional planning, design and environmental controls to support the objectives of the CZ5 mixed use zone. The Commercial Zones Development Code states that the Residential Zones Development Code and the Multi Unit Housing Development Code are also applicable to development in commercial zones.
Criterion C1 in the Commercial Zones Development Code requires that the development “meets the intent of any current relevant lease and development conditions”. The Multi Unit Housing Development Code contains a similar requirement at C4 - “the development meets the intent of any approved lease and development conditions”. The Tribunal will consider the interpretation of “intent…of lease and development conditions” as a separate issue.
Figure 9 in the Gungahlin Precinct Code shows four sites in the Town Centre reserved for public car parking, two of which, Section 228 (known as Margrie Lane) and Section 229 are on the south side of Anthony Rolfe Avenue and are visible from the subject site. The applicant has contended that parking by visitors in the car parks at Margrie Lane or Section 229 will not meet criterion C82 in the Multi Unit Housing Development Code and does not permit “safe and direct visitor entry” to the proposed development because it requires a visitor “to cross a busy street in Gungahlin without traffic lights and navigate this passage without a paved footpath”.[30] The respondent contends, and the Tribunal noted on the view, that Anthony Rolfe Avenue is a divided carriageway with a generous landscaped median strip and that there are several existing walkways across Anthony Rolfe Avenue, near the subject site and providing safe and easy access to the carparking on Section 228 and future 229.
[30] Fact #17 in the applicant’s Statement of Contentions
The Tribunal has reviewed building and site plans and has considered the requirements of the Multi Unit Housing Development Code for visitor parking.
The applicant did not call any expert evidence to support her contention that visitors parking in Margrie Lane will not have “safe and direct visitor entry” to the development. Mr David Field said in evidence “the Margrie Lane carpark is an open carpark which has a clear link from one side of the road to the other. For me there are (sic) good access, there is a good site distance and it is visible.” [31] The Tribunal accepts the evidence of Mr Field.
[31] Transcript of Proceedings 4 June 2015 at page 94, lines 35-37
The Tribunal finds, having considered the available evidence, that the proposed development satisfies criteria C82 and C83[32] for accessibility for visitors. Likewise the proposed development meets criterion C84[33] that car parking spaces on site and not in the basement do not dominate site landscaping. Criterion C85 provides that “reasonable provision is made for short stay parking for delivery trucks” and is also met.
[32] C83: Visitor parking is accessible to all visitors
[33] C84: Car parking spaces on the site (including garages but excluding basement car parking) achieves all of the following (a) do not dominate site landscaping (b) are consistent with the desired character
The Multi Unit Housing Development Code contains no other requirements relevant to the proposed development. The Residential Zones Development Code contains no requirements relevant to the proposed development.
The Tribunal concludes that the proposed development is consistent with the Commercial Zones Development Code; the Residential Zones Development Code and the Multi Unit Housing Development Code.
Issue 3 Does the proposed development comply with the Parking and Vehicular Access General Code.
Sections 1.3 and 1.4 of the Parking and Vehicular Access General Code state:
The code adopts a performance based approach and section 3 sets out, for each of the zones, objectives relating to the provision of parking which development proposals are required to meet. The relevant schedule in section 3 defines the minimum parking provision requirements for permitted development for each of the zones.
The scale of parking provision required is derived from a set of criteria relating to safety, economic efficiency, accessibility, commercial viability and social and environmental objectives. The parking provision rates take account of factors such as the availability of public parking and the potential for shared parking with neighbouring developments, accessibility of the location to public transport, and relevant transport, economic, social and environmental policies, such as travel demand management measures.
…
Parking generated by a development is generally required to be accommodated on site or in a location consistent with the criteria in section 2.
…
However the performance approach adopted in these codes provides the flexibility to enable a proposal to be supported where the proponent can demonstrate to the satisfaction of the Territory that the objectives can be met either by provision of a lesser on-site rate or by utilising spare capacity in publicly available on-street or off-site parking...
The utilisation of spare capacity in on-street or off-site parking areas is at the discretion of the Authority, having regard to, inter alia, the potential demand which may be generated by a particular proposal as well as the potential for nearby lessees to seek to expand their activities and lay claim to a proportion of the available capacity in publicly available on-street and off-street car parking areas.
Section 3.3.1 of the Code gives the following objectives for parking and vehicular access in the CZ5 mixed use zone:
a) Amenity
i) no regular overspill of parking occurs in neighbouring residential areas which detracts from the amenity of these areas
ii) the provision of parking does not detract from creating vibrant, interesting and lively centres
b) Safety
i) no traffic hazards are created by the provision of access and parking facilities for a development
ii) the safety of all users, especially pedestrians and cyclists, is considered
iii) the creation of community surveillance of car parking areas by people using neighbouring areas
c) Efficiency
i) the efficient use of existing and future public parking provision by the consideration of sharing of facilities, wherever possible
ii) commercial vehicles delivering or collecting goods are accommodated
d) Access
i) safe and efficient access to mixed use areas by all users including business, workers, residents, shoppers and visitors as well as by operational and commercial vehicles
e) Equity
i) the maintenance of an adequate supply of public parking for the level of development and activity approved in a mixed use area
f)Non-commercial use
i) the successful operation of non-commercial uses in mixed use areas, especially community uses which will require adequate set-down and pick-up facilities.
The applicant has argued that the safety of drivers and pedestrians is a critical issue in the context of parking and access. The applicant acknowledges that she lives in a mixed use area and that her house is in a CZ5 zone but she reminded the Tribunal that houses on the other side of her street are in a RZ3 residential zone and that “the proposed development is bordered by a RZ3 residential area”[34]. Further objectives for residential zones are given in Section 3.1.1 of the Parking and Vehicular Access General Code.
[34] Fact 122 in the applicant’s Statement of Facts
Dr Jarvis reminded the Tribunal that parking for residents of the proposed development was all contained within the site and that the theoretical number of visits to the ground floor businesses will not all occur at the same time.[35]
[35] Transcript of Proceedings 3 June 2015 at page 16 line 8
It is accepted by all parties that the proposed development meets the requirements for resident parking within the basement level.
The applicant nevertheless contends that the majority of the objectives in the Parking and Vehicular Access General Code for the CZ5 mixed use zone and the RZ3 residential area are not presently being met and that this situation will worsen if the proposed development proceeds. The applicant provided photographs of private cars parked in residential streets in the immediate vicinity of the subject site. The Tribunal walked along these streets and observed that many cars were parked carelessly and there appeared to be few vacant parking spots outside private houses.
At the centre of the objection to the proposed development is the vexing question of the ‘ownership’ of kerbside parking in residential areas and the need to allow access for service vehicles and garbage collection. Cross examined by Dr Jarvis, the applicant stated that one of the reasons she was there was “because my husband has trouble finding a car park”.[36]
[36] Transcript of Proceedings 4 June 2015 at page 121 line 15
In his opening statement, Mr Farzan reminded the Tribunal that “Dr Ibbotson has chosen to live in a CZ5 zone”.[37]
[37] Transcript of Proceedings 3 June 2015 at page 23 line 2
The applicant contends that parking spaces outside her own house “are often taken by employees of the businesses nearby on Anthony Rolfe”.[38] The applicant asks whether existing residents have a right “to park their cars somewhere in the vicinity of their homes”.[39] It is human nature, she says, to park “where it is convenient and generally where it is legal if possible”.[40] At the same time, the applicant asks if it is reasonable “to expect only two cars ever being used, or that garages aren’t used for any other purpose than car storage”. However, when cross examined by Mr Farzan, the applicant admitted that her house has a generous garage with room for three cars but that the space is used as a workshop and they park only one car in the garage and their other car in the street.[41]
[38] T-Documents page 52
[39] T-Documents page 58
[40] T-Documents page 97
[41] Transcript of Proceedings 4 June 2015 at page 132 line 20
Mr Timothy Wyatt gave evidence as to the targets, objectives and strategies of the ACT Government for transport and planning in Canberra. He referred to the document ACT Planning Strategy: Planning for a Sustainable City dated July 2012 which states at page 44 that:
parking in our town and group centres must be aimed at supporting businesses and be limited to shorter stays of up to three hours. In suburban residential areas, developments must provide sufficient parking to keep the amenity of residential areas. However, less parking will be needed in town and group centres and along rapid inter-town transit ways where there is good access to public transport.
The Tribunal was also referred to the most recent ACT Government policy document related to planning and transport Building an Integrated Transport Network: Parking dated June 2015. This document notes that the government:
…will pursue opportunities for more efficient use of parking assets across the week and different times of day (for example supporting retail during the day, restaurants at night and recreational activities on the weekend)[42]
…Ultimately it is up to the prospective residents to satisfy themselves that their housing provides the on-site parking they require.[43]
[42] Page 7
[43] Page 11
The Parking and Vehicular Access General Code has precise definitions[44] for short stay parking (“generally up to 4 (four) hours duration”) and long stay parking (“generally longer than 4 (four) hours duration”). Section 3.3.4 of the Parking and Vehicular Access General Code gives specific requirements for the location of long stay, short stay and operational parking in a commercial CZ5 mixed use zone elsewhere than in the city centre as follows - long stay parking: on-site or within 400m except for residential use where parking is to be on-site; short stay parking: on-site or within 200m; and visitor parking: on-site or within 200m.
[44] Section 1.5
A significant amount of time was taken up at the hearing in relation to how the distance of 200m is to be measured and whether, if one of the Margrie Lane carpark boundaries was within the 200m limit, the whole of the car park spaces in that car park should be counted.
When considering the measurement of distance the Tribunal noted that section 150 of the Legislation Act 2001 provides:
150. Measurement of distance
In applying an Act or statutory instrument, distance is to be measured in a straight line on a horizontal plane.
The applicant variously contended that distance should be measured by the walking distance from the development; that there was more than one convention according to Mr Wyatt’s evidence and according to the different expert opinions in the decision of Amarso v ACTPLA[45] (Amarso); and that, if defined as a straight line, it should be measured from the front door of a property and transcribe a circle from that point such that any carparks within that circle are deemed to be able to be considered and those outside would not be included.
[45] [2012] ACAT 9
In his Witness Statement[46] Mr Wyatt stated at paragraph 48 that: “.... in determining the application of the 200 metre provision. Conventional practice is that these distances to off-site car spaces has been measured block to block, straight line or concentrically from the site rather than strict walking distance.”
[46] exhibit R5
In relation to the applicant’s contention that distance should be measured by ‘walking distance’ the Tribunal noted that section 3.3.4 of the PVAGC, which referred to ‘locational requirements’, under City Centre long stay parking states “On-site or in publicly available carparks up to 1km distant” (Tribunal’s emphasis). Otherwise the section states ‘within 200m or 400m’. There is no reference to walking distance.
In Amarso, in which Dr Jarvis also appeared for the respondent Authority, a differently constituted tribunal considered the application of the 200m measurement. That tribunal noted this was an issue on which the expert opinions differed and did not decide the issue. In that case, Dr Jarvis had referred to the evidence of Mr Paul Isaks, a transport specialist in the Transport Planning and Strategy Section of the City Planning Division in the Environment and Sustainability Directorate of the ACT Government, that “there was a long standing convention or practice in the ACT to take account of the available spare capacity as long as the “crow flies” distance between the nearest boundary of the development and the car park boundary was less than the 200m specified in the Parking Code. In his view, weight should be given to the convention in the interests of administrative consistency.”[47] The Tribunal noted Mr Wyatt’s evidence that he “succeeded the responsibilities on behalf of the department and subsequently ACTPLA that were held by Mr Isaks.’[48]
[47] Amarso at [122]
[48] Transcript of Proceedings page 220 lines 4-5
Dr Jarvis told the Tribunal, as in Amarso, that weight should be given to the convention in the interests of administrative consistency.
Notwithstanding the definition of ‘measurement of distance’ in the Legislation Act, the applicant was critical of the lack of definition of where the straight line starts. The applicant was also critical of the respondent failing to take appropriate action since Amarso was decided in 2012 to define this measurement in the Parking and Vehicular Access General Code or in the Territory Plan, given that the definition was crucial to some developments.
The Tribunal concurs with Dr Jarvis that, in the interests of administrative consistency, the measurement of distance, in this case 200m, should adopt the convention referred to by Mr Wyatt above. Notwithstanding the applicant’s criticism, the applicant did not call any expert evidence which might have assisted the Tribunal to determine this issue.
The Tribunal finds, in applying the convention, measuring either in a straight line or concentrically, that a part of the Margrie Lane carpark is within the 200m distance and that, therefore, the car parking spaces in that carpark are able to be included by the respondent as available off site carparking.
The Tribunal notes that the Margrie Lane car park is currently being reconfigured and extended north towards Anthony Rolfe Avenue with an increase in capacity of approximately 74 car spaces. Northrop Consulting Engineers has advised that none of the additional car parking associated with the adjacent commercial development is relying on the Margrie Lane car park. Northrop has reported that extension of the car park will include pram ramps on Anthony Rolfe Avenue and that there will be footpaths on the north verge of Anthony Rolfe Avenue. Northrop also noted “restaurant peak demand will be outside of the peak shop demand thus assisting with efficient use of parking”[49].
[49]Parking Study: Block 1 Section 68 Gungahlin ACT May 2015 pages 7 and 9
The Tribunal has previously noted that resident demand for car parking in the proposed development has been met within the boundaries of the subject site and the several parking studies undertaken on behalf of the party joined have determined that there are adequate numbers of parking spaces available for short stay and long stay parking for visitors to the site. The Tribunal concludes that the proposed development complies with the Parking and Vehicular Access General Code.
Issue 4 – Does the proposed development comply with the approved Lease and Development Conditions including the Planning Control Plan and Development Intentions Plan?[50]
[50] Approved Lease and Development conditions dated 5 March 2007 are at T- Documents 217 – 240
The issue of compliance with the L&DCs was at the heart of the applicant’s case. The lease and development conditions for the subject site are a relevant consideration because they are referred to in the Commercial Zones Development Code and the Multi Unit Housing Development Code.
The applicant contends that “the lease and development conditions, even the intent of the lease and development conditions, should take precedence over the Parking and Vehicular Access General Code”.[51] She further contends that the lease and development conditions were a higher imperative than meeting the provisions of any of the precinct, development or general codes.[52]
[51] Transcript of Proceedings 3 June 2015 at page 29 line 1
[52] Contentions 8 and 9 in the applicant’s Statement of Contentions
The respondent contended[53] that in the “site specific” L&DCs for the subject site, the object and intent is expressed in specific provisions at the beginning of that part of the L&DCs, namely “Development Intentions Plan” and “Planning Objectives.” The development intentions plan[54] shows that the intent of the L&DCs was not necessarily to have all car parking in basements, because it depicts some car parking at ground level.
[53] Respondent’s Statement of Facts and Contentions at [29], [34]
[54] Tribunal documents page 240
The respondent referred the Tribunal to the decision of the predecessor of this tribunal, the ACT Administrative Appeals Tribunal, in Cvetanoski v Commissioner for Land and Planning[55] in which that tribunal stated at [9]:
The applicant’s argument relies on applying rules of statutory interpretation to the words of Appendix II.1 as if it were subordinate legislation. This poses a difficulty in that the Plan has not been drafted as a statutory instrument. It has been drafted by planners. The Plan’s introduction states that its structure has been devised to meet a number of objectives which include “to be readily available to the ACT Community” and “to be as simple to use as possible.” The rules of statutory interpretation cannot readily be applied to it.
[55] [1999] ACTAAT 42 [9-10]
The ‘Lease and Development Conditions’ in the present matter is also a planning instrument and it is not to be construed in a legalistic manner. The Tribunal’s approach is to have regard to the planning policy it reflects. The Tribunal refers to and adopts an observation by a differently constituted tribunal in AMC Projects v ACTPLA[56]: “We observe, however that many of the features of the proposed development which give rise to the objections raised by the objectors are the natural consequence of the policies introduced to permit more intensive development in residential core areas.”
[56] [2006] ACTAAT 13, [26]
Mr Ajith Buddhadasa did not accept the applicant’s contentions as to the interpretation of the lease and development conditions. In his statement[57], Mr Buddhadasa said that - “meeting the intent of the lease and development conditions and the requirements of the Territory Plan including the Parking and Vehicular Access General Code was both important and necessary”.[58] In his opinion, the intent of the lease and development conditions for the subject site in relation to car parking was given under the heading ‘Planning Objectives’ as to “minimise the impact of car accommodation when viewed from [the] public and private domain”.
[57] Exhibit R3
[58] Exhibit R3 paragraph 24
He further stated that the - “Section under the heading ‘Planning principles’ and subsequent sections in the L&Ds outline some qualitative and quantitative measures to be used to realise the intents mentioned under the planning objectives. In that L&Ds suggest providing underground car parking so that the visual impacts from car parking areas can be minimised therefore the above intent can be met.”[59]
[59] Exhibit R3 Paragraph 24
It was Mr Buddhadasa’s contention that this interpretation is supported by the Development Intentions Plan which formed part of the lease and development conditions and shows a possible built-form outcome with basement parking for residents and a small number of cars parked behind the building and screened by landscaping.[60] He opined - “Therefore it is evident from the L&Ds that the L&Ds does not require or to provide all the carparking generated by this development (as per PVAGC parking provision rates) in an underground carpark.”[61]
[60] Exhibit R3 paragraph 24
[61] Exhibit R3 paragraph 24
Mr Buddhadasa also did not accept contention 18 in the applicant’s Statement of Facts and Contentions that “cars being accommodated on the street will be visible all the time…will not create an attractive urban precinct…will not contribute to making the area a desirable place to live”. In Mr Buddhadasa’s opinion, on-street car parking is “a part of urban streetscape character” and it was not the intention of the lease and development conditions to forbid visitor parking on the street.[62]
[62] Exhibit R3 paragraph 30
In relation to the applicant’s contention 20 Mr Buddhadasa said -
“26. Site specific contentions in the L&Ds are the measures mentioned in L&Ds to meet the objectives of the L&Ds. However these measures are not the only measures which are capable of meeting the objectives in the L&Ds. That is the reason for the applicable development codes to have provisions enabling a development to depart from the L&Ds provided the development meets the intent of the L&Ds."
Mr Buddhadasa had formed the view that[63] “the fundamental difference in the applicant’s understanding of the proposal and the planning and land authority’s determination lies in how the proposal is consistent with the intent of the lease and development conditions”. The applicant’s view is that as mentioned in the L&Ds the development must accommodate all the parking numbers required for the development in an underground car park within the block. Contrary to the applicant’s view, the planning and land authority adopted a view that the intent of the lease and development conditions is to minimise visual impacts from parking located at grade. To minimize the visual impacts from at grade parking, the L&Ds suggest having an underground car park but the L&Ds does (sic) not mandate all the parking required for the development to be accommodated within the block or in the basement car park. The development complies with the lease and development conditions by providing a basement car park.”
[63] Exhibit R3 paragraph 40
The Tribunal has considered the contentions and submissions of all parties as to the lease and development conditions and the ‘intent’ of the lease and development conditions and has concluded that the Commercial Zones Development Code and the Multi Unit Housing Development Code allow for departure from the lease and development conditions provided that the development meets the intent of the lease and development conditions.
The Tribunal accepted Mr Buddhadasa’s evidence. It was not successfully challenged. It was both credible and compelling. The Tribunal is satisfied that this development complies with the L&DCs by providing a basement car park.
The Tribunal is not satisfied that the L&DCs mandate that all parking required for the development be within the block or in the basement. The Tribunal finds that the site specific L&DCs are measures to meet the objectives in the L&DCs but, are not the only objectives. It is necessary to consider also the Planning Objectives, Planning Principles and the Development Intentions Plan.
The subject site is located in a CZ5 mixed use zone. The CZ5 development table prescribes the merit track for assessment of a development application. For a development application in the merit track, the applicant has the option to comply with either the rules or the criteria in the relevant development codes, except where a rule is mandatory. The relevant codes in this instance are the Commercial Zones Development Code and the Multi Unit Housing Development Code. As noted above, both the Commercial Zones Development Code (at Criterion 1) and the Multi Unit Housing Development Code (at Criterion 4) provide for a development to depart from the L&DCs where the development meets the intent of the L&DCs. In order to meet the intent of the L&DCs, the development is not required to comply with the other detailed clauses in the L&DCs that refer to car parking and accommodation.[64] If that were not so, these other clauses would be mandatory in effect and would operate in the same way as R1 and R4. This would defeat the purpose of C1 and C4.[65]
[64] Respondent’s Statement of Facts and Contentions [35]
[65] Respondent’s Statement of Facts and Contentions [36]
As Mr Buddhadasa opined in his Witness Statement[66]: “Otherwise the whole L&Ds will become mandatory and there will not be any relevance of Criterion 1 of the CZDC or Criterion 4 of the MUHDC.”
[66] Ajith Buddhadasa’s Witness Statement at [26]
The Tribunal finds that the development proposal for parking meets the objective for car accommodation because almost all car accommodation provided on the site is located in a basement car park where its visual impact is minimal. In this regard the Tribunal notes that the planning objectives refer to car accommodation and not car parking numbers.
For these reasons the Tribunal finds that the proposed development meets the intent of the lease and development conditions and is not inconsistent with the relevant codes and objectives of the Territory Plan.
The Tribunal is satisfied that the “requirements” are of the PVAGC and the “use and area of commercial tenancies” refers to the PVAGC which requires only residential parking to be on-site and in the basement; it does not require all commercial parking to be on site. The Tribunal is also satisfied that the “Development Intentions Plan”[67] contemplates some visitor parking that is not in the basement.
Issue 5 – Would development approval be consistent with section 119 and section 120 of the Planning Act?
[67] T documents at page 240
Sections 119 and 120 of the Planning Act provide for the assessment of development applications in the merit track:
119 Merit track—when development approval must not be given
(1) Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with—
(a) the relevant code; and
(b)if the proposed development relates to land comprised in a rural lease—any land management agreement for the land; and
(c) if the proposed development will affect a registered tree or declared site—the advice of the conservator of flora and fauna in relation to the proposal.
Note 1 An application cannot be approved if it is inconsistent with the territory plan (see s 50) or the National Capital Plan (see Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), s 11).
Note 2 Relevant code—see the dictionary.
(2) Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under section 148 (Some development applications to be referred) unless the person deciding the application is satisfied that—
(a) the following have been considered:
(i) any applicable guidelines;
(ii) any realistic alternative to the proposed development, or relevant aspects of it; and
(b) the decision is consistent with the objects of the territory plan.
(3) To remove any doubt, if a proposed development will affect a registered tree or declared site—
(a) the person deciding the development application for the proposed development must not approve the application unless the approval is consistent with the advice of the conservator of flora and fauna in relation to the proposal; and
(b) subsection (2) does not apply in relation to the conservator’s advice.
120Merit track—considerations when deciding development approval
In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:
(a) the objectives for the zone in which the development is proposed to take place;
(b) the suitability of the land where the development is proposed to take place for a development of the kind proposed;
(c) if an environmental significance opinion is in force for the development proposal—the environmental significance opinion;
Note Environmental significance opinion—see s 138AA. Environmental significance opinions expire 18 months after they are notified (see s 138AD).
(d) each representation received by the authority in relation to the application that has not been withdrawn;
(e) if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications)—the entity’s advice;
Note Advice on an application is given in accordance with section 149 if the advice is given by an entity not later than 15 working days (or shorter prescribed period) after the day the application is given to the entity. If the entity gives no response, the entity is taken to have given advice that supported the application (see s 150).
(f) if the proposed development relates to land that is public land—the public land management plan for the land;
(g) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
The Tribunal has considered whether the proposed development complies with the requirements of section 119 of the Planning Act.
s 119 (1)(a) – consistent with the relevant code - as noted above[68], the Tribunal considers that the proposed development is consistent with the Gungahlin Precinct Map and Code, the Commercial Zones Development Code, the Residential Zones Development Code and the Multi Unit Housing Development Code. The proposed development also complies with the requirements of the Parking and Vehicular Access General Code.
s 119 (1)(b) – land management agreement – not applicable.
s 119 (1)(c) – advice of the Conservator of Flora and Fauna – the proposed development will not affect a registered tree or a declared site.
s 119 (2) – advice given by an entity - The Authority sought and obtained entity advice from Emergency Services ACT (ESA), ActewAGL Water Division, ActewAGL Electrical Division and ActewAGL Gas Networks. Emergency Services ACT advised they had no objections to the proposal. The Authority also sought entity advice from the Territory and Municipal Services Directorate (TAMSD), and the Environment Protection Authority (EPA). Neither TAMSD nor the Environment Protection Agency provided advice within the time prescribed in section 149(2) of the Planning Act and it was therefore considered that they each supported the proposal in principle under section 150 of the Planning Act.
s 119 (2)(a) (i) - (applicable guidelines) – there are no applicable guidelines.
s 119 (2)(a) (ii) – (any realistic alternative) – not applicable.
s 119 (2)(b) – (objects of the territory plan) - The object of the Territory Plan is broadly stated in section 48 of the Planning Act as to ensure that, in a manner not inconsistent with the National Capital Plan, “the planning and development of the ACT provide the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation”. The Tribunal is satisfied that the proposed development is not inconsistent with this object.
[68] At [47], [55] and [79]
Section 120 of the Planning Act requires the decision maker to consider the zone objectives, the suitability of the land, representations, entity advice, plan of management and probable environment impacts. This section does not impose any obligation to make a decision that is consistent with the listed matters; rather this section is intended to assist the decision maker in reaching a balance between sometimes competing objectives. The Tribunal has considered whether the proposed development complies with the matters in section 120 of the Planning Act as follows:
s 120 (a) - (zone objectives) - The subject site is in the CZ5 Mixed Use Zone. The objectives for the CZ5 zone are as follows (with the Tribunal’s underlining):
a)Encourage higher density residential development in locations with convenient access to transport corridors, and commercial and employment centres
b)Create an efficient and sustainable urban environment and provide for a diversity of living, working and recreation opportunities
c)Maintain and enhance environmental amenity and undertake development using best practice environmentally sustainable development principles
d)Encourage a standard of urban design that is consistent with selected major avenues, approach routes and other strategically located areas
e)Encourage activities particularly at street frontage level that contribute to an active public realm.
In Scherl & ACT Planning and Land Authority[69] Dr Jarvis appeared before a differently constituted tribunal for the respondent authority and submitted:
[69] [2011] ACAT 37 [116-123]
118. …that compliance with the relevant code should be taken to establish that a proposal is consistent with the zone objectives, except perhaps in some exceptional circumstance. This flows from the statutory framework provided by ss 53(1) and 55(2) of the Act. Section 53 states:
The objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable development tables and code to zone.
119. Section 55(2) states:
A code must be consistent with each objective for the zone to which the code relates.
120.The respondent also notes the terms of the Introduction to the MUHD Code which states:
Codes provide additional planning, design and environmental controls to support zone objectives and assessable use in the development tables.
That tribunal accepted the argument that a proposal that meets the code will ordinarily be consistent with zone objectives.
The Tribunal has already found that the DA complies with the relevant codes. The Tribunal has considered these objectives in the present matter and is satisfied that the proposed development is not inconsistent with the objectives for the CZ5 zone.
s 120 (b) – suitability of the land - the Tribunal is satisfied that the land is suitable for the proposed development.
s 120 (c) – representations – the Tribunal has considered the representations received by the respondent in relation to the development application. The issues raised by the applicant before the Tribunal are found in some of these representations. The Tribunal has considered these representations in relation to the requirements in section 119 of the Planning Act, and more generally under section 120, and is not satisfied that they provide a basis for refusing the development application.
s 120 (d) – entity advice - as noted previously, the proposed development is not inconsistent with advice given by an entity to which the application was referred in accordance with the Planning Act.
s 120 (e) – plan of management - not applicable.
s 120 (f) – probable impact – the Tribunal considers that there are no probable environmental impacts from the proposed development.
Landscape Plan
It was apparent to the Tribunal that the Landscape Plan[70] approved in the DA would need changing in view of the redesign of the carpark spaces. The Tribunal noted that the area of the proposed development was reasonably sterile. The following exchange took place [71]:
[70] T documents page 267
[71] Transcript of Proceedings 5 June 2015 page 268
Tribunal:...believe that some of the success of this scheme from a larger public point of view might depend upon the appearance of the building and the appearance of the health, size, scale type, whatever of the trees, and there’s no reference to that, whereas a plan of landscape prepared by let’s say a landscape architect would allay some of my fears.
....
Mr Farzan:I understand.
....
Dr Jarvis:Can I make an observation. It would be open to the Tribunal having raised the matter and heard Mr Farzan to add into the list of things that are required as ---
Mr Farzan: As conditions
Dr Jarvis further drawings to be required as a condition so the tribunal could in the list on page 16 add a requirement to provide a revised landscape plan.
....
Mr Farzan:I would be very open to that.....
Accordingly, the Tribunal will include, as a condition, the requirement that the party joined provide a revised plan of landscape prepared by a qualified landscape architect.
Other matters
Although not relevant to the determination of the DA under the Planning Act and the Tribunal’s review, the Tribunal has noted the various issues raised by the applicant concerning the respondent’s internal processes. In particular, the applicant cross examined Mr Buddhadasa[72] about the respondent’s process of assessing the L&DCs in the following exchange:
Applicant: So was it you who was required to make the decision as to whether the proposal met the intent of the lease and development conditions on the block?
Mr Buddhadasa: Yes
Applicant: You just by yourself?
Mr Buddhadasa: No, with the advice from other – my managers and the (indistinct) .Applicant:So I understood that I got, via objective, all the documents that were relevant in the case, but I didn’t get any documents that discussed the various aspects of the lease and development conditions and how they were assessed?
Mr Buddhadasa: These are normally – we discuss all the form by face to face conversations. That is how it’s happening all the time.
[72] Transcript of Proceedings 5 June 2015 page 191
In response to questions from the Tribunal Mr Buddhadasa confirmed that when he had not heard back from TAMS when entity advice had been sought from them he had telephoned someone in TAMS to progress the application but was unable to recall if he had recorded or made a note of the date, the details of the discussion, the outcome and the name of the person with whom he had spoken. In fact, Mr Buddhadasa said[73] ‘most of the time you don’t (make a record of the conversation). We just (discuss) these issues over the phone.’
[73] Transcript of Proceedings 5 June 2016, page 201
The applicant also cross examined Mr Wyatt[74]about the lack of any detail in the documentation provided to her which identified what documents had been considered by the respondent’s Environment and Planning Directorate’s Major Projects and Transport Branch when it considered the original proposal and when it considered and supported the revised DA proposal.
[74] Transcript of Proceedings 5 June 2015 page 227, 228,
In the following exchange between the applicant and Mr Wyatt, he acknowledged the MTAT failure to set out administratively the relevant documentation:
Mr Wyatt:I don’t assess people’s objections, if you like to development, but I do assess the parking code, and my team does assess the objectives and whether the objectives are being met as part of that assessment, and I would acknowledge perhaps administratively that you haven’t seen transparent acknowledgement of that probably in the material that has been provided, but certainly that judgment has been applied to the decisions that have been made[75].
The applicant: I haven’t seen evidence of that, and Ms Markus said she hadn’t been to the site. She acknowledged, and yourself has acknowledged, you haven’t read any of the representations against the development, but my understanding is that it is your area of responsibility to have it assessed it against the Parking and Vehicular Access General Code, and as well as the rules in the code there are a reference to assessing it against future lessees’ demand on the car parking, and also a reference to assessing the objectives, and I don’t see that all three of those things have been done?
Mr Wyatt:Well, we apply judgment collectively when we assess those things. I can accept that administratively you may not see that all documented, but certainly that forms part of the judgment that we’re actually making, and I guess I would add to that is that neither Ms Markus nor myself have any approving authority. We provide technical advice to the development assessment teams, hence why we are not then called upon to actually make a judgment on representations or objections from the community.
[75] Transcript of Proceedings 5 June 2015, page 228, lines 12-18, 27-33
The Tribunal is concerned about the lack of rigour applied to record keeping by the assessor and by the MPAT. The Tribunal also endorses the applicant’s comments about the perfunctory references to the Lease and Development Conditions and to the Codes in the decision. The 44 people who made representations were entitled to receive a decision which transparently set out the documents and evidence the respondent had considered in assessing the DA and in reaching a decision.
Conclusion
For the reasons set out above, the Tribunal therefore varies the decision under review by imposing an additional condition of approval requiring the party joined to lodge a landscape plan prepared by a qualified landscape architect.
Other matters raised by the respondent administratively with the party joined, namely improvements to the parking layout for visitors or tenants behind the building and keyed access to basement parking for tenants of the ground floor commercial units as well as the party joined’s latest parking proposal[76] increasing the onsite parking to 76 spaces and his discussions with TAMS[77] in relation to indented parallel parking along Gungahlin Place between Anthony Rolfe Avenue and Sarre Street will need to be pursued administratively by the party joined.
[76] At Annexure B to the Party Joined’s Statement of Facts and Contentions
[77] At Annexure C to the Party Joined’s Statement of Facts and Contentions
………………………………..
Ms E.Symons – Presidential Member
for and on behalf of the TribunalHEARING DETAILS
FILE NUMBER: | AT 15/17 |
PARTIES, APPLICANT: | DR KATHLEEN IBBOTSON |
PARTIES, RESPONDENT: PARTY JOINED: | ACT PLANNING AND LAND AUTHORITY NATIONAL CAPITAL INVESTMENTS PTY LD |
COUNSEL APPEARING, APPLICANT | SELF-RESPRESENTED |
| COUNSEL APPEARING, RESPONDENT COUNSEL APPEARING, PARTY JOINED | DR D JARVIS SELF-REPRESENTED |
SOLICITORS FOR APPLICANT | SELF-REPRESENTED |
| SOLICITORS FOR RESPONDENT SOLICITORS FOR PARTY JOINED | ACT GOVERNMENT SOLICITOR SELF-REPRESENTED |
TRIBUNAL MEMBERS: | MS E SYMONS MR R PEGRUM |
DATES OF HEARING: | 3, 4, 5 JUNE 2015 |
2
2
3