Javelin Projects v ACT Planning and Land Authority
[2017] ACAT 87
•27 October 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
JAVELIN PROJECTS PTY LTD v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2017] ACAT 87
AT 8/2017
Catchwords: ADMINISTRATIVE REVIEW – planning and development – RZ1 zone – meaning of ‘single dwelling block’ – Multi Unit Housing Development Code – whether application should be approved having regard to matters listed in section 120 of the Planning and Development Act 2007
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 68
Planning and Development Act 2007 ss 53, 55, 113, 115, 119, 120, 121, 139, 162
Territory Plan
Subordinate
Legislation cited: Multi-Unit Housing Development Code
Building Code of Australia
Cases cited: Argos Pty Ltd v Corbell (2012) 7 ACTLR 15
Baptist Community Services v ACT Planning and Land Authority [2015] ACTCA 3
Deakin Residents Association v ACT Planning and Land Authority [2015] ACAT 37
Noah's Ark Resources Centre Inc v ACT Planning and Land Authority [2017] ACAT 44
Tribunal: Senior Member Prof T Foley (Presiding)
Senior Member G Trickett
Date of Orders: 27 October 2017
Date of Reasons for Decision: 27 October 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 8/2017
BETWEEN:
JAVELIN PROJECTS PTY LTD
Applicant
AND:ACT PLANNING AND LAND AUTHORITY
Respondent
AND:FRIENDS OF HAWKER VILLAGE
Party Joined
TRIBUNAL: Senior Member Prof T Foley (Presiding)
Senior Member G Trickett
DATE:27 October 2017
ORDER
The Tribunal orders that:
1.The decision under review to refuse the proposal lodged for DA201630177, as now amended, is confirmed.
………………………………..
Senior Member Prof T Foley
Delivered for and on behalf of the Tribunal
REASONS FOR DECISION
1.Javelin Projects Pty Ltd (the applicant) has sought review of a decision of the ACT Planning and Land Authority (the respondent) to refuse DA 201630177 pursuant to section 113(2) of the Planning and Development Act 2007 (the Planning Act). Friends of Hawker Village Incorporated (the party joined) was joined to the proceeding by order of 6 March 2017.
2.Jurisdiction to review the respondent’s decision is conferred on the Tribunal by section 162 of the Planning Act which is an authorising law for the purposes of section 9 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). The review is an application for review by the ACT Civil and Administrative Tribunal pursuant to section 68 of the ACAT Act.
3.In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the members who heard the application.
The hearing
4.The matter was heard on 1 and 2 June and 10 and 14 July 2017. The Tribunal and the parties conducted a view on the morning of 1 June of the site and conducted a short tour of the surrounding area on foot and by car. The Tribunal had before it the documents provide by the respondent on which its decision was based (the T documents), the submissions and statements of facts and contentions of the parties. The applicant was represented by Mr P Walker SC. The respondent was represented by Mr C Erskine SC. The party joined was self-represented by Mrs R Coughlan assisted by Mrs Gingle.
5.The parties made submissions and responded to questions of the Tribunal.
6.At the conclusion of the hearing the Tribunal reserved the decision under review and indicated it would provide written reasons. These are those reasons.
Background
7.The applicant is the lessee of Block 42 Section 45 Scullin (the site) which is a 979m2 residential block at 150 Belconnen Way, Scullin in an RZ1 Residential Suburban zone. The site currently contains two dwellings, one single dwelling and one flat unit both contained within a single storey building constructed in 1970. As such it is not a ‘single dwelling block’ as defined in the Territory Plan. On 5 September 2016 the applicant lodged a development application DA 201630177 for the demolition of existing structures, the construction of six two-storey units and garages and associated works, and to vary the lease to permit a maximum of six dwellings.[1]
[1] T359-510
8.DA 201630177 was publicly notified from 26 September to 20 October 2016.[2] Four representations were received during the notification period including one from the party joined.[3]
[2] T341-350
[3] T145-154 (party joined); T192-194; T195; T196-197
9.The respondent refused the application on 13 January 2017. In its notice of decision, the application was refused under section 119 of the Planning Act as it was inconsistent with “the relevant code, being the Multi Unit Housing Development Code; and the advice given by an entity, the entity being the Conservator of Flora and Fauna”; and under section 120 because it “did not meet the zone objectives of RZ1-Suburban Zone (RZI), in particular, objectives (a), (b), (d) and (g).”[4]
[4] T22-31
10.On 9 February 2017 the applicant applied to the ACAT for review of the reviewable decision.
11.The applicant submitted an amended plan set to the respondent on 19 April 2017 prior to the hearing which included the construction of six units comprising one building at the front of the site with four two-storey units and one building to the rear with two single-storey units, all with basement car parking and associated works.
12.The applicant filed with the Tribunal during the course of the hearing a further series of amended plans with various additional amendments. The first set dated 22 June 2017 included amendments to the visitor parking; increasing the depth of the northern courtyards to units 1, 2, 5, and 6 relocating the buildings and adjusting the lower floor level footprints of all the units; the addition of courtyard walls to the front zone, and amendments to the driveway.[5] The second set dated 13 July 2017 included further amendments specifically to provide for two options for setbacks to each side boundary.[6]
The relevant law
[5] Exhibit A3
[6] Exhibits A7 and A8
13.The development application sits in the merit track for the purpose of assessment. The provisions of Division 7.2.3 of Chapter 7 of the Planning Act apply to such applications.
14.Relevant provisions of Division 7.2.3 are sections 119 and 120:
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.
120 Merit 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.
15.Relevantly, section 119(1) provides development approval must not be given for a development application in the merit track unless it is consistent with the relevant code. ‘Relevant code’ is defined in the dictionary to the Act as “a code that the relevant development table applies to the proposal.” 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.[7]
[7] Section 115 of the Planning and Development Act 2007
16.The primary relevant code for this application is the Multi Unit Housing Development Code (the MUHDC). The MUHDC makes the following provision in its introduction:
Proposals in the merit track and impact track must comply with each rule or satisfy its associated criterion, unless the rule is mandatory (i.e. it has no related criterion). Where a rule is fully met, no reference to the related criterion needs to be made. Where there is a departure from a rule, or where a criterion only applies, the onus is on the applicant to demonstrate that the relevant criterion is satisfied, through supporting drawings and/or written documentation.
17.Also relevantly, section 120(1) provides that in deciding a development application in the merit track the decision-maker must consider (a) the objectives for the zone in which the development is proposed to take place, (b) the suitability of the land, and (g) the probable impact of the proposed development.
18.The relevant zone is RZ1, the objectives of which are:
RZ1 – Suburban zone
Zone objectives
a) Provide for the establishment and maintenance of residential areas where the housing is low rise and predominantly single dwelling and low density in character
b) Protect the character of established single dwelling housing areas by limiting the extent of change that can occur particularly with regard to the original pattern of subdivision and the density of dwellings
c) Provide for a wide range of affordable and sustainable housing choices that meet changing household and community needs
d) Ensure development respects valued features of the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties
e) Provide opportunities for home based employment consistent with residential amenity
f) Provide for a limited range of small-scale facilities to meet local needs consistent with residential amenity
g) Promote good solar access
h) Promote energy efficiency and conservationi) Promote sustainable water use
19.The proper approach for the Tribunal to take in applying section 120 is as determined by the ACT Court of Appeal in Baptist Community Services v ACT Planning and Land Authority (Baptist Community Services).[8]
[8] [2015] ACTCA 3
20.Also relevantly, section 139 of the Planning Act provides that the applicant bears the evidentiary burden to show compliance with the applicable code criteria:
139 Form of development applications
(1) This section applies to an application for development approval.
(2) The application must—
......
(e) if the application is for approval of a development in the merit track—be accompanied by information or documents addressing the relevant rules and relevant criteria.
The applicant’s evidence
21.John Easthope, landscape architect, gave evidence on behalf of the applicant as to what he saw as the key planning features of the suburb of Scullin. He based his evidence on “walking in every street” of the suburb and carrying out a visual assessment and identifying consistent features.[9] He had particular regard to the RZ1 blocks in Scullin that appear to be similar RZ1 multi-unit blocks to the subject site. He identified 12 such sites and plotted these on a map of the area.[10] He carried out an assessment of the density of residential housing in the area of Scullin using a “dwelling numbers = density” approach;[11] and provided a visualisation of the facade of the proposed development.[12] He was cross-examined as to the adequacy of the proposed Principal Private Open Space (PPOS) for each of the six units which he said was adequate for all units. It was his view that the relevant area and dimensions specified in table A9 under R61/C61 of the MUHDC was now “out of date” as the shadow diagrams filed show “reasonable solar access”. David Shearer who gave his occupation as development feasibility planner also gave evidence to the effect that the amended development proposal (based on plans of 19 April 2017) was consistent with RZ1 zone objective (c) in that it provided a wide range of affordable and sustainable housing choices. Zone objective (c) however was not in issue in the matter and this evidence was of limited value.
The respondent’s evidence
[9] Statement of John Easthope dated 27 April 2017 at 3.1-3.8
[10] Statement of John Easthope dated 27 April 2017 at 3.4 and Annexure B
[11] Statement of John Easthope dated 27 April 2017 at 4.1-4.9
[12] Statement of John Easthope dated 27 April 2017 annexure C
22.The respondent’s residential team manager in its merit assessment section, Rumana Jamaly, gave evidence. Her evidence consisted initially of her statement of 18 May 2017 with respect to her assessment of the development application in terms of the revised plans 19 April 2017.[13] This was amended and supplemented in her oral evidence to have regard to the amended plans filed 13 July 2017. She identified issues the respondent had with the development application in terms of traffic volume, rule 30 of the MUHDC compliance, the ‘bulk and scale’ of the development, the status of the site as ‘a single dwelling block’, and its effect on the area’s RZ1 Zone objectives (a), (b) and (g) compliance.
[13] Statement of Rumana Jamaly dated 18 May 2017
23.Ms Jamaly was cross examined about a number of these issues.
24.She was asked to explain whether her statement that the site “is not technically a single dwelling block as per the definition of the Territory Plan” coloured her assessment of the proposal.[14] She denied that it had. She said she had not used single dwelling block criteria in assessing the proposal but had taken that criteria into account when comparing what was possible on the site in terms of single or multi-unit development. She said she did this because it helped with the question of ‘desired character’ when making an assessment as to whether the subject proposal would have been allowed on the site if the single dwelling block criteria had applied. Her conclusion was that it would not have been allowed and as a consequence the development as proposed would impact on the neighbourhood desired character.
[14] Statement of Rumana Jamaly dated 18 May 2017 at [13]
25.She was asked to explain the relevance of ‘character’ with respect to the proposal’s non-compliance with zone objective (b) given that no reference was made to it in the reasons for decision refusing the application.[15] Her evidence was that the character of this area of Scullin was characterised by features such as, being able to see open views from most backyards in the neighbourhood, and being able to see from the street perspective landscaping and outbuildings on the housing blocks which make the built development less prominent. She said the bulk and scale of the proposed development meant it lacked these features. She was asked questions as to the respondent’s practice in assessing developments which had been assessed as compliant under the relevant codes pursuant to section 119. Her evidence was that such proposals also needed to be assessed against the considerations such as were relevant under section 120, specifically the zone objectives under section 120(a), the suitability requirement under section 120(b), and the probable impact under section 120(g). The consequence was that a code compliant proposal could be rejected on this further assessment.
The party joined’s evidence
[15] Notice of decision dated 13 January 2017, T12-32 at page 14
26.The party joined did not call evidence.
The matters at issue
27.During the course of the hearing the applicant filed a series of amended plans as detailed in paragraphs 11-12 above with a view to addressing issues raised by the parties and the Tribunal. As a consequence of those revisions the matters at issue for the decision of the Tribunal were narrowed as the hearing progressed and are now confined to:
(a)compliance with R/30 and R/C 61 of the MUHDC; and
(b)compliance with the objectives of the RZ1 Zone under section 120(a), and the matters to be considered under sections 120(b) and 120(g).
28.We will review the evidence and submissions for each of these matters in turn before providing our decision.
Compliance with the rules and criteria of the MUHDC
Issue 1: R/C30
29.R/C30 is concerned with side and rear boundary setback siting. The requisite setbacks at issue for this site are the side setbacks on the western and eastern boundaries.
30.Setback is a defined term:
Setback means the minimum horizontal distance between a building wall … and the relevant block boundary.
31.Rule 30 provides:
Side and rear boundary setbacks comply with the following:
a) in RZ1 and RZ2 - Table A6
b) in RZ3, RZ4, RZ5 and commercial zones - Table A7
c) in all other zones – the relevant zone development code
32.Table A6 is the relevant table and stipulates a minimum side and rear setback within all building zones of three metres for the lower floor level, external wall, unscreened elements and basement.
33.There was no dispute between the parties that both the original and the amended plans of 19 April 2017 and 22 June 2017 did not comply with the requirements of R30. At issue is whether the development provided for in the amended plan options complied with C30, most specifically C30(a).
34.C30 provides:
Buildings and other structures are sited to achieve all of the following:
(a) consistency with the desired character
(b) reasonable separation between adjoining developments
(c) reasonable privacy for dwellings on adjoining residential blocks
(d) reasonable privacy for principal private open space on adjoining residential blocks
(e) reasonable solar access to dwellings on adjoining residential blocks and their associated principal private open space.
35.It is noteworthy that the setback requirements apply to basement as well as above ground areas. Each of the units in the proposed development has basement garage accommodation.[16]
[16] Applicant’s final plan for approval – 22 June 2017, exhibit A3 drawing A002 amendment H
36.‘Basement’ is a defined term:
Basement means a space within a building where the floor level of the space is predominantly below datum ground level and where the finished floor level of the level immediately above the space is less than 1.0 metre above datum ground level.
37.The original plans to which the notice of decision 13 January 2017 referred provided for a basement parking configuration with a setback of three metres on the western side and four metres on the eastern side with the circulation driveway unroofed.[17] These setback spaces complied with the spatial requirements in table A6, however the walls at the upper level encroached into the setback space. In revised plans of 19 April 2017 the applicant sought to address this encroachment by the windows at this level being replaced by frosted glass.
[17] The 13 January 2017 development application drawing A001 amendment C T483
38.The 22 June 2017 plans reconfigured the basement garages and roofed over the driveway up to the end of the entry ramp principally to provide north facing PPOS to units 1, 2, 5 and 6 above the basement roof.[18] The indirect consequence was that basement walls extended up to the eastern side boundary and approximately 1.5 metres from the western boundary. The proposal therefore did not comply with the spatial requirements of table A6 and so was not rule compliant. The C30 criteria then came into play.
[18] Exhibit A3 drawing A002 amendment H
39.Ms Jamaly’s evidence was that this amended proposal was also inconsistent with C30, as it lacked consistency with the desired character of the area as required by C30(a).[19] Desired character is a defined term:
Desired character means the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code.
[19] Statement of Rumana Jamaly dated 18 May 2017 at [30]
40.During the hearing the Tribunal drew the party’s attention to the design of the landscaping for the development where the basement garage roof and walls extended above the natural ground level (NGL) and that soil was proposed to be built up to address this and that such soil was to be retained by walls along the boundaries. The effect of this was that the 1.8 metre high side boundary fencing proposed to surround the site was generally located above the boundary retaining walls and as a consequence would extend up to a height of approximately 2.6 metres on the western side and 2.4 metres on the eastern side at their highest points relative to the natural ground level in the adjacent properties.
41.Ms Jamaly when questioned by the Tribunal said that the height of the fencing as a result of this build up and its impact on side setbacks reinforced the inconsistency with C30(a).
42.On the 4th day of the hearing the applicant produced two new amended plans (those dated 13 July 2017) designed to address this issue – namely the failure to meet the three metre setbacks, and the effect of the increased height of the boundary fences consequent on the retaining wall soil build up.[20]
[20] Option 1 exhibit A7 and option 2 exhibit A8
43.Both options appeared to satisfactorily address the setback issue on the western boundary. Option 1[21] retained the extent of the garage roof to the eastern boundary, however proposed to slope the roof with a 1:50 fall toward the boundary to minimise the extent of the retaining wall to the garage above natural ground level at the boundary. Option 2[22] reduced the extent of the garage roof back three metres from the boundary on the eastern side with the driveway retaining wall maintained along the boundary so that about half the width of the driveway at this location was unroofed. However, the option 2 drawings were incomplete as they appeared to show walls in the basement across the driveway. However the intent of this solution was clear to the Tribunal.
The applicant’s contentions with respect to compliance with R/C30
[21] Exhibit A7
[22] Exhibit A8
44.The applicant says that both options 1 and 2 of the 13 July 2017 plans address the western boundary setback by angling the basement wall to comply with the three metre setback and lowered the finished ground level along that boundary to the natural ground level.
45.The solution the applicant provided in option 1 for the eastern basement wall is to reduce the basement driveway area so as to be also compliant with the three metre side boundary setback provided for in R30 table A6. This option altered the slope the roof with a 1:50 fall toward the boundary to reduce the height of the retaining wall to the garage above NGL at the boundary. The applicant contends this is compliant with R30 at the eastern boundary.
46.Option 1 is the applicant's preferred option as it retains the greater space available for community common area above the garage at ground floor level.
47.The solution the applicant provided in option 2 for the eastern boundary reduces the extent of the garage roof back three metres from the boundary with the driveway retaining wall maintained along the boundary so that about half the width of the driveway at this location is unroofed. This has the effect of reducing the area of communal space on the cantilevered deck over the ramp to the basement parking at ground floor level.[23] The applicant contends this makes the development compliant with the three metre side boundary setback in R30 table A6 on the eastern boundary.
[23] A8 drawing L502.1
48.The applicant says the amended plans, in particular option 2, now satisfy the issue with respect to R30 and so the criteria do not enter into play.[24]
The respondent’s contentions with respect to compliance with R/C30
[24] Option 2 Exhibit A8
49.The respondent’s position remains that the proposed development does not meet all the requirements of C30.[25] The respondent makes the point in its submissions that “every time a change is made to deal with a particular rule or criterion, it seemed to lead to a new problem elsewhere” (paragraph 2). In the respondent’s view this is the case with the applicant's attempt to achieve R30 compliance. In order to enlarge the basement area to permit adequate car parking and movement the footprint of the building expands with the consequent encroachment into the side setbacks at the basement level.
[25] Witness statement of Rumana Jamaly 18 May 2017 at [30]
50.The respondent says in the light of the amended plans of 13 July 2017 in both option 1 and option 2 it now has no issue with the side setback on the western boundary. It accepts these are in fact R30 compliant. It is satisfied that the reduced floor area in the basement carpark as a consequence still allows sufficient turning circle access so as to not create a further ‘knock-on’ problem.[26] But the respondent says option 1 still does not comply with the rule setback requirements from the eastern boundary and when the criteria is applied it remains inconsistent with the ‘desired character’ requirement of C30(a).
[26] As shown in drawing DA04 in the earlier amended plan in exhibit A3
51.The respondent says the design solution provided for in option 2 also remains non-compliant with C30(a) for the eastern boundary.[27] The respondent says that given the use of ‘desired character’ in the criterion it necessarily references the RZ1 zone objectives. The respondent concedes this is not a reference “at large as it is in section 120(a). [Rather it]…is confined in two ways.” [28] Firstly, the ambit of C30 is that ‘buildings and other structures are sited to achieve...consistency with desired character’.[29] Secondly, the desired character requires consistency in terms specifically of “siting, building bulk and scale, and the nature of the resulting streetscape.”[30] In her oral evidence Ms Jamaly explained the approach the respondent adopted and the Tribunal should adopt. This was to take account of the effect of any encroachments into boundary setbacks on the overall streetscape and not just confine its attention to the effect of that encroachment on the boundary space itself.
[27] Respondent’s outline of submissions at [6]
[28] Respondent’s outline of submissions at [7]
[29] Respondent’s outline of submissions at [9]
[30] Respondent’s outline of submissions at [8]-[11]
52.The respondent says the RZ1 zone objectives came into consideration in this confined sense when assessing the siting of the proposal in the various plan versions. It says that in each of these versions in order to facilitate a basement car park the development intrudes significantly into the side setbacks. The respondent says given the extent of this intrusion the proposal is inconsistent with the siting and the building bulk and scale contemplated by zone objectives (a) and (b).[31] The respondent says it is open to the Tribunal to further conclude that the siting and building bulk and scale of the development is inconsistent with that contemplated by objective (d).[32] The respondent’s contention is that the proposed building intrudes into the side boundary setback because it is a building larger than the site allows, and is of a design whose ‘siting, bulk and scale’, and ‘streetscape’ impacts are beyond what the zone objectives contemplate.[33]
[31] Respondent’s outline of submissions at [14]-[15]
[32] Respondent’s outline of submissions at [16]
[33] Respondent’s outline of submissions at [18]-[20]
53.The respondent's view with respect to the option 2 solution specifically remained inconclusive because in Ms Jamaly’s words “there appears to be errors in the Site Plans, [on the eastern boundary, and as a consequence we] cannot comment on consistency with the criteria.”[34] The respondent says while this option appears to address the side setback issue by reducing the extent of the roof over the basement it appears to leave the carpark roof unsupported, ostensibly rendering the carpark access unusable, though this clearly is not the intention. Ms Jamaly was cross examined at some length as to the basis of these concerns. She said that if the engineering solution to support the basement roof overhang involved, for instance, the construction of a beam that intruded into the side setback exclusion area, then further amended plans would need to be provided illustrating this and these would need to be approved. The issue for the respondent remains that such amendment may once again have other ‘knock-on’ effects and that these would need to be addressed. She conceded that if the Tribunal was to approve development on the site “based on approved plans” these could be assessed on their merits.
The party joined’s contentions with respect to compliance with R/C30
[34] Witness statement of Rumana Jamaly 18 May 2017, updated attachment D at 3.23
54.The party joined did not raise specific contentions with respect to whether the proposed development meets the requirements of C30. However, it was clear from its overall submissions that it did not consider that the development to be R/C30 compliant in a number of respects. With respect to the C30(a) requirement the party joined submitted that basement parking in itself would not be permitted for single dwelling blocks in RZ1 because of the significant impact the necessary driveway has on the streetscape. But for an anomaly it considered the site to be a ‘single dwelling block’ and as such similar restrictions should apply to this development.[35]
Issue 2: R/C61
[35] Party Joined’s closing statement at [10] citing the ‘Standing Committee on Planning, Inquiry into Draft Variation 306’ at [73]
55.The MUHDC sets out certain requirements with respect to PPOS. Each of the units in the proposed development has areas of enclosed private open space (POS).
56.‘Private open space’ is a defined term:
Private open space means an outdoor area within a block useable for outdoor activities, and may include balconies, terraces and decks, but does not include any area required to be provided for the parking of motor vehicles and any common driveways and common vehicle manoeuvring areas. Up to 25 per cent of any part of private open space may be roofed over, except that a balcony may be entirely roofed over.
57.‘Principal private open space’ is a subset of such space with an additional feature:
Principal private open space means private open space that is directly accessible from a habitable room other than a bedroom
58.R61 provides with respect to such space:
Each dwelling has at least one area of principal private open space that complies with all of the following:
a) located on the site
b) has minimum area and dimensions specified in table A9
c) is screened from adjoining public streets and public open space
d) is directly accessible from, and adjacent to, a habitable room other than a bedroom
e) is not located to the south, south-east or south-west of the dwelling, unless it achieves one or more of the following -
i)not less than 3 hours of direct sunlight onto 50% of the minimum required area between the hours of 9am and 3pm on the winter solstice (21 June)
ii)located at an upper floor level and overlooks a public street or public open space.
59.There was no dispute that both the original and each of the amended plans do not comply with the requirements of R61 for all of the units.
60.At issue is whether the development provided for in the amended plans of 22 June 2017 (exhibit 3) instead complies with the requirements of C61 for those units.
61.C61 provides:
Principal private open space for each dwelling achieves all [emphasis added] of the following:
a) an area proportionate to the size of the dwellingb) an extension of the function of the dwelling for relaxation, dining, entertainment, recreation
c) directly accessible from the dwelling
d) service functions such as clothes drying and mechanical services
e) reasonable privacyf) reasonable solar access.
The applicant’s contentions with respect to compliance with C61
62.The applicant identified that the PPOS for each unit was as provided for in drawing L504.1 filed during the hearing.[36] The PPOS for unit 3 was located to the north, northwest and west of the unit, and the PPOS for unit 4 was located to the north, northeast and east of the unit. There was no issue with the adequacy of the PPOS provided for units 3 and 4. The Tribunal was told that the PPOS to be included to satisfy C61 for each of units 1, 2, 5 and 6 was located in separate locations to both the north and the south of and for each unit.
[36] Part of exhibit A3 (the amended plans of 13.7.17 do not alter the configuration of PPOS so exhibit 3 is referred to here)
63.The applicant relied on the evidence of Mr Easthope who stated (with reference to units 1, 2, 5 and 6) that the “courtyard arrangement provides more than reasonable amenity due to the opportunity to use either the north facing or the south [areas] depending on the time of year.”[37] In his oral evidence Mr Easthope considered that for a two bedroom unit a 6x6 metre designated area as required with regard to R61(b) in table 9 of the MUHDC was ‘out of date’ and that the adequacy of solar access was now what was important. His view was that such solar access was acceptable for units 1, 2, 5 and 6, as these units would receive good summer sunlight.
[37] Statement of John Easthope dated 29 May 2017 at 7(d)
64.The applicant further submitted that in assessing the adequacy of the area of PPOS provided to the north of each of those four units as to solar access the Single Dwelling Housing Development Code (SDHDC) ‘Table 8: Principal Private Open Space’ should be used as an alternative guide given the size of the units in this development. In that table a dwelling up to 105sqm is stated to require a minimum complying area of PPOS of 28sqm with a minimum dimension of four metres. The units in this development have similar dimensions.
65.The applicant submitted that the area of each raised planter box in the northern courtyards should be included in the consideration of the adequacy of the proportionate area for the purposes of C61(a).
The respondent’s contentions with respect to compliance with C61
66.The respondent’s position is that the proposed development as amended in the plans of 13 July 2017 now meets the requirements of C61 as regards PPOS for all units.
67.The respondent’s witness gave evidence that the authority has previously allowed accumulation of PPOS in separate areas when approving developments. Her evidence was that separate smaller areas than the area stated in table A9 have been determined to constitute adequate PPOS when combined to achieve a total area proportionate to the size of the dwelling for the purposes of meeting C61(a).
68.The respondent contended this approach was consistent with the different wording in the preliminary statement in R61 and C61, where the rule speaks of “at least one area... [having the] minimum area and dimensions specified”, while the criterion in C61(a) speaks of “an area proportionate...” The respondent was satisfied that each of the other C61 criteria were met for all units in the development.
The party joined’s contentions with respect to compliance with C61
69.The party joined’s position was that the development proposed in the amended plans in exhibit 3 do not meet all the requirements of C61.
70.Its contention is that when applying C61 the criteria provided there should be read in the light of the area and dimensional requirements of the rule, namely those specified in table A9. Against this guide the party joined submits that the PPOS for units 1, 2, 5 and 6 are significantly under-sized as each falls well short of the 36sqm prescribed in that table. The party joined further contends that the PPOS for units 1, 2, 5 and 6 also have minimal and inadequate separation from the bedrooms of units 3 and 4.
71.The party joined urged the Tribunal to reject the applicant’s suggested use of the SDHDC as a proxy. The party joined says by definition the SDHDC contemplates dwellings with no near neighbours that would be likely to compromise the usability of PPOS activities and that this situation is clearly not the case here given the development has six dwellings.
Tribunal’s conclusions on compliance with the rules and criteria of the MUHDC
72.In terms of its overall consideration the Tribunal is guided by the following principles. The requirement under section 139 of the Planning Act and the introduction to the MUHDC[38] make clear that the development proponent is to provide supporting evidence and documents to demonstrate that the proposed development satisfies the applicable rule or criterion. That is to say the primary onus rests with the applicant.
[38] See paragraphs 16 and 20 respectively above
73.Where terms such as ‘proportionate’ and ‘reasonable’ are used in criteria, the Tribunal consider it useful to consider the ‘minimum ideal’ as set out in the related rule as a useful guide. Whilst clearly ‘something less’ than the rule requirements may be approved, the degree of divergence from the rule requirement is a matter that will help guide the Tribunal in its consideration of the evidence provided in support of satisfying criterion.
74.The decision in Deakin Residents Association[39] (albeit dealing with the R/C36 relationship) provides some assistance in this regard in interpreting the interplay of a rule/criterion combination:
There was some consideration in the hearing as to the relationship between R 36 and C 36. Mr Thwaites in his statement for Deakin Residents suggested that the rules and criteria are intended to be associated in their application, and that for elements where both a rule and criterion apply, the rule is the point of departure for assessment, with a requirement for any departure from that rule to be justified by reference to the criterion. The Tribunal thinks there is some merit in this approach. Context is an important tool in statutory interpretation and the requirements in C 36 should be informed by the terms of R 36. In effect C 36 allows a lesser separation than 4 metres but requires this to be justified. Both R 36 and C 36 implement a particular purpose and policy, and this purpose and policy should inform the interpretation of C 36.[40] (emphasis added)
Compliance with R/C30
[39] Deakin Residents Association v ACT Planning and Land Authority [2015] ACAT 37 (Deakin Residents Association)
[40] At [35]
75.The R30 code compliance issue with the development arises principally because of the effect of the provision of underground parking. While basement garages are becoming less uncommon in RZ1 zones, the walk around the area on the first day of the hearing showed they were all but absent in the area immediate to the site. The need for sufficient parking space for six residents plus two visitor spots together with an entry ramp has using the party joined’s words meant that the discretion allowed under the relevant criteria needs to be ‘stretched’.
76.The issue in applying the criteria to what now appears in exhibits A7 and A8 is whether buildings on the development are sited to achieve consistency with the desired character requirement of C30(a).
77.In a somewhat circuitous way with the zone objectives ‘desired character’ refers to siting, specifically the development’s ‘building bulk and scale’ and ‘the nature of the resulting streetscape’. Streetscape is a defined term:
Streetscape includes the visible components within a street (or part of a street) including the private land between facing buildings, including the form of buildings, treatment of setbacks, fencing, existing trees, landscaping, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.
78.The reference to desired character brings the zone objectives into play in the manner expressed by Burns J in Argos[41] at [67] and approved in Baptist Community Services at [62], namely “to provide guidance in interpreting” C30(a). The Tribunal also draws guidance from the matching rule in a way suggested in Deakin Residents Association.
[41] Argos Pty Ltd v Corbell (2012) 7 ACTLR 15
79.The respondent’s view has been that the proposal is neither fully R30 nor C30 compliant despite a succession of amended plans.[42] However it did not dispute that the solution provided for in option 2 as per exhibit A8 does provide the necessary side setbacks on the western boundary so as to be rule compliant, and potentially on the eastern boundary save its concern that the eastern corner of garage roof appears unsupported on current plans.[43]
[42] Witness statement of Rumana Jamaly 18 May 2017 at [30]
[43] Witness statement of Rumana Jamaly 18 May 2017, updated attachment D at 3.23
80.In our view in neither of the options offered is the building setback rule compliant. ‘Building’ is a defined term and includes “a structure attached to the building”. Each of the two options provides for a retaining wall for the driveway on the eastern side which is clearly “attached to the building” and falls within the boundary setback area. Nonetheless the Tribunal’s decision is that the proposed development as detailed in option 2 does meet the requirements of C30. It is approved on this basis conditional that the structure supporting the garage roof is constructed in such a way that it does not encroach into the side setback on the eastern boundary. Appropriate plans need to be provided for approval.
Compliance with C61
81.The set of revised drawings in exhibit 3 were designed to address the adequacy of PPOS for units 1, 2, 5 and 6. This was achieved by reducing the depth of the family room to each unit and adjusting the location and design of units 3 and 4. The family rooms to units 1, 2, 5, and 6 now each measure four metres wide by 3.24 metres deep, a nominal area each of 13sqm.
82.Each PPOS on the northern side of these four units is enclosed by courtyard walls to the east and west. An elongated raised masonry planter box is located to the north of each area. The primary function of the raised planter boxes, as shown by the various landscape plans,[44] is to provide a landscaping detail in an area which is above the basement garage concrete roof by planting a tree in each of the four boxes. We were informed that these four trees are required plantings for the development to comply with the C40 of the code. Drawing L502.1[45] shows the planting detail with the four metre diameter tree in the centre of the box and shrubs and ground cover to the full extent of the raised plater box. The planter boxes are described as being constructed of blockwork with a height of 900mm on the side facing towards the northern courtyard of each unit and have an approximate overall size of 1.4 metres wide and 3.1 metres long.[46]
[44] Exhibit A3 drawings L501.1, 502.1, 503.1
[45] In exhibit A3
[46] Exhibit A3 drawing L502.1
83.Drawing L504.1[47] shows the width of PPOS in two courtyards on the northern side (units 1 and 6) to be 4.275 metres, and in the other two (units 2 and 5) to be 4.25 metres. However, these dimensions do not take into account the thickness of the courtyard walls. To arrive at dimensions which do make such allowances the Tribunal adopts the width of each courtyard as 4.1 metres based on the internal width of each family room which is four metres, the structural thickness of the party walls shown as 250mm and the courtyard masonry walls being 200mm.[48] The L504.1 drawing shows the length of each courtyard as 6.49 metres which is inclusive of the planter box overall width of 1.4 metres. Making these adjustments the Tribunal has determined that the minimum dimension to these northern courtyards is 4.1 metres (4 + .25 + .25 - .20 - .20) and that the length is 5.1 metres (6.49 - 1.4).
[47] In exhibit A3
[48] Exhibit A3 drawing A102
84.We determine on these calculations that the area of the courtyards for each of the units 1, 2, 5 and 6 is approximately 21 sqm. The area of the raised planter box is 4.35sqm (inclusive of the four enclosing masonry walls). The recessed gate alcove adjacent to the raised planter box is approximately one metre wide resulting in an area of 1.4 sqm.
85.Each of units 1, 2, 5, and 6 also has courtyards to the southern side substantially enclosed by masonry walls. The applicant contends that the direct access to these courtyards is from the kitchen of each unit, however this direct access is only by walking down and across what is described on L503.1 as a “450mm high timber seat-box.” The courtyards are not dimensioned on the plans however the Tribunal has determined from the scaled drawings that each courtyard, not including the courtyard wall thicknesses of 200mm and the raised timber seat, extends 2.75 metres out from the front wall of the unit and each has a width calculated at 2.9 metre (unit 1), 2.6 metres (unit 2), 3.2 metres (unit 5) and 2.9 metres (unit 6) respectively.
86.We conclude that the minimum dimension to these courtyards is 2.75 metre, 2.6 metres, 2.75 metres and 2.75 metres respectively. We conclude that the area of each southern courtyard, not including the walls and raised seat, is approximately 8sqm (unit 1), 7.2sqm (unit 2), 8.8sqm (unit 5) and 8sqm (unit 6) respectively.
87.In summary on our calculations, the following units have PPOS which is less than as calculated in the applicant's plans and which is divided into two distinct areas:
(a)Unit 1, 21 sqm + 8sqm.
(b)Unit 2, 21 sqm + 7.2sqm.
(c)Unit 5, 21sqm + 8.8sqm.
(d)Unit 6, 21 sqm + 8sqm.
88.The Tribunal has used these dimensions and the location of each area of PPOS to assess the development against the six parts (a) to (f) of the C61 criteria.
C61(a)an area proportionate to the size of the dwelling
89.While R61 overall refers to at least one area, C61(a) refers to an area. We do not agree with the respondent’s approach that to satisfy C61(a) a number of smaller and separate areas may be combined to total a combined area sufficient to satisfy C61(a). In our view ‘an area’ is singular. The Cambridge Dictionary defines the word ‘area’ (measure) as “the size of a flat surface calculated by multiplying its length by its width.” In the same sense the definition, in part, of private open space is of “an outdoor area within a block useable for outdoor activities, and may include balconies, terraces and decks.”
90.For the purposes of ‘an area proportionate’ we determine that the larger single area in the northern courtyard to each of units 1, 2, 5 and 6 is to be the sole area to be assessed in order to satisfy C61(a) .
91.The definitions as set out in the paragraph above give some guidance to the Tribunal that the space is to have the character of being unhindered, open and clear and therefore could not include the area of the raised planter box.
92.Consistently with the method of measurement for R38(b)(i) we are also satisfied that the small area formed by the gate alcove is not to be included in the PPOS calculation of the PPOS area for these units.
93.The reference in R61(b) to the dimensions set out in table A9 provides guidance as to what might constitute an appropriate proportionate area for the purposes of C61(a). The rule can guide the application of the discretionary criterion. The proposed 4.1 metre width of each courtyard is significantly less than the six metres set out in table A9. The area of 21sqm of each courtyard is significantly less than the 36sqm set out in table A9.
94.Even if the 4.35sqm of the raised planter box and the 1.4sqm of the gate alcove are added into the calculation this would result in a space that is still only approximately 75% of the minimum for rule compliance. We are not satisfied that the area proposed provides a comparable proportionate area.
95.We do not agree with the submission made by the applicant that table 8 in the SDHDC is to be the preferred guide. Using table A9 as such a guide the PPOS minimum dimension is five metres and the area is 28sqm for a one bedroom dwelling. Even those smaller proportionate requirements are not satisfied in this development.
96.We have therefore determined that C61(a) has not been satisfied.
97.Since all criteria must be satisfied it is not necessary to decide on the remaining parts. However, for guidance we express our conclusions as to the other parts of C61.
C61(b) an extension of the function of the dwelling for relaxation, dining, entertainment, recreation
98.The family space is the only living space to each unit and is adjacent to the northern courtyard of each of units 1, 2, 5 and 6. Drawing A102[49] shows each family space is now four metres wide by 3.24 metres deep with the stair from the basement garage extending up to the corner of the room necessitating some of the room to be needed for circulation.
[49] Exhibit A3
99.As indicated the proposal in exhibit A3 reduced the size of the family spaces specifically to address the PPOS inadequacy. Internal space was reduced to meet external space requirements. However, other than the detail section on L503.1[50] (which depicts figures in the courtyards) the applicant did not provide any evidence to persuade the Tribunal that the subjective terms of C61(b) to provided the requisite extension of function are satisfied. We consider that as each family room is to some degree restricted in size, the size and minimum dimension of the courtyards gain a greater importance with respect to fulfilling those purposes of “relaxation, dining, entertainment and recreation.”
[50] Exhibit A3
100.We have not been persuaded that C61(b) is satisfied.
C61(c) directly accessible from the dwelling
101.The applicant has contended that the front courtyards to the south of units 1, 2, 5 and 6, which face towards Belconnen Way, are directly accessible from the kitchen of each unit through full-width bi-folding glazed doors and as such should form part of the PPOS of these units for the purposes of satisfying C61(c). We were informed that access to these courtyards is provided by stepping down from a timber seat-box.
102.This design of such an arrangement would not currently meet the requirements of the Building Code of Australia (BCA) for ‘Safe Movement and Access’ with respect to the maximum riser. As an alternative if the proposal was approved and a condition that the access be compliant with the BCA was included there would most likely be a requirement of steps down into the courtyard from the seat-box with at least three treads. The steps would most likely extend a minimum 750mm into each courtyard, and so further reduce to some degree the functionality of the space for PPOS purposes. We are therefore not satisfied this area of PPOS can reasonably satisfy the requirements of C61(c) without such a condition.
C61(d) service functions such as clothes drying and mechanical services
103.We determine that C61(d) is satisfied for the northern courtyards. We determine that the function of clothes drying is not met by the southern courtyards. We refer to reasons set out for C61(f) reasonable solar access at paragraphs 109-115.
C61(e) reasonable privacy
104.R61(e) requires the relevant PPOS to be screened from adjoining public streets and public open space. We consider that the privacy required to satisfy C61(e) is privacy from Belconnen Way. There are two issues with the adequacy of this privacy.
105.The northern courtyards satisfy C61(e) as they are not adjacent to public spaces or the street. The southern courtyards as shown on L503.1 are mostly enclosed by masonry walls to a height of 1200mm with timber verticals up to a height of 1500mm. However the courtyards each have a gap in that enclosing wall. The gap is adjacent to the entry of the adjoining unit and is of a sufficient size to compromise the privacy from the street.
106.The courtyard walls are to perform the function of screening and are by definition a wall. ‘Screen wall’ is a defined term and means “a wall at least 1.8 metres high and visually opaque.”
107.If the courtyards are to satisfy C61(e) approval would require a condition that the walls were raised to 1.8 metres high, visually opaque and the existing gap in the wall enclosed by a gate.
108.We determine that C61(e) is satisfied for the northern courtyards. We determine that C61(e) could be satisfied for the southern courtyards with a condition that the walls were 1.8 metres high, visually opaque and the existing gap in the wall enclosed by a gate.
C61(f) reasonable solar access
109.The applicant contends that the southern courtyards have good solar access in summer and therefore satisfy the C61(f) requirement. In contrast the evidence of Ms Jamaly was that the southern courtyards had no solar access on June 21.
110.As a guide the related rule, R61(e), specifies quantitative requirements that the area of PPOS not be located to the south, south-east or south-west of the dwelling, unless it achieves one of two purposes, relevantly here – “not less than 3 hours of direct sunlight onto 50% of the minimum required area between the hours of 9am and 3pm on the winter solstice (21 June).”
111.R61 makes this quantitative assessment for the southern facing spaces and stipulates minimum reasonable solar access, of not less than three hours of direct sunlight onto 18sqm (50% of the required area of 36 smq in table 9) of the PPOS identified between 9am and 3pm.
112.The applicant provided shadow diagrams which showed that other than a very narrow streak of light at 9am for unit 6, and at 3pm for unit 1 no direct sunlight fell on the southern courtyards on the winter solstice.[51]
[51] Exhibit A3, pages 24 and 27 respectively
113.We determine that C61(f) is not satisfied for the southern courtyards.
114.As stated above we are not persuaded by the applicant’s contention that an accumulation of areas may be included for the purposes of satisfying C61(a). If we are wrong in this then we do not accept that the specific purposes of each criterion in C61 can be separated out and met in only some of the areas designated as providing PPOS. In our view, the requirement would need to be satisfied in each area for an accumulation of areas to be considered. The southern courtyards do not have the requisite reasonable solar access. We agree with the respondent’s contention that the southern courtyards require reasonable privacy even though the northern courtyards already provided this.
115.We conclude that the area of the southern courtyards cannot be included in the assessment as they do not satisfy C61(f).
116.Having regard to C61 being an all-encompassing set of criteria and that we have determined that not all parts have been satisfied we determine that C61 is not satisfied for units 1, 2, 5 and 6.
Compliance with the objectives of the RZ1 Zone and with section 120
117.The requirement for consistency with the relevant code in section 119(1)(a) does not in itself guarantee development approval. The requirements of section 120 that certain considerations must be considered when deciding development approval also come into play. The gateway required for a right of review in section 121(2) has been satisfied by a code compliance refusal as per Noah's Ark Resources Centre Inc v ACT Planning and Land Authority [2017] ACAT 44 (Noah’s Ark). Therefore the Tribunal has authority to conduct a broad merit review which includes consideration of the section 120 factors.[52] It was common ground between the parties that the Tribunal when conducting such a review has discretion to refuse a development under section 120 which is otherwise code compliant.[53]
[52] Noah’s Ark at [230]
[53] Applicant’s submissions at [33]; respondent’s statement of facts and contentions at [15]
118.Relevantly, section 120(a), (b) and (g) provide:
(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;
…
(g)the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
119.The relevant RZ1 zone objectives which pursuant to section 120(1) must be considered are in summary:
(a)Objective (a) – to provide for the establishment and maintenance housing that is “low rise and predominantly single dwelling and low density in character”.
(b)Objective (b) – to protect “the character of existing single dwelling housing areas by limiting the extent of change that can occur”.
(c)Objective (d) – to ensure that development respects “valued features of the neighbourhood and landscape character of the area.”
120.The proper application of section 120 was considered in depth by the ACT Court of Appeal in Baptist Community Services.[54] As regards its interrelationship with section 119, Baptist Community Services saw section 120 “as giving a discretion to approve or reject a proposal that is code-compliant (and therefore not required to be rejected under section 119), such discretion being exercisable only after consideration of the matters set out in paragraphs 120(a) to (f) (to the extent that they are relevant to a particular proposal).”[55]
[54] The relevant zone objectives for RZ1 changed substantially from those dealt with in Baptist Community Services to those now in force on 5 July 2013
[55] at [59]
121.The manner in which this two-step process was to be implemented was not made clear however this submission of the respondent provides guidance as to the approach it takes:
[The process] seems to be this. The codes set out detailed requirements, and in most cases compliance with those will be enough to result in a development that conforms with the objectives for the zone and other matters in s120. However, no code can be so comprehensive that it deals with every imaginable situation. Hence, there is an opportunity in s120 to step back and reflect on whether the code has achieved an outcome consistent with the wider policy objectives for the area.[56]
[56] Respondent’s outline of submissions at [20]
122.In that reflective process the use to be made of the zone objectives is curtailed in particular ways. The applicant’s submissions made the point strongly that the consideration of the zone objectives as mandated by section 120(a) is not that these objectives be used as additional development assessment tools (in the same way the development codes are detailed tools) but in the way, as stated by Burns J in Argos, that “the objectives are not intended to operate as criteria against which proposals, or constituent parts of a proposal, are to be checked. Rather they are intended to provide guidance in interpreting the rules and criteria found in the codes.” In the applicant's view what that decision means is that “the Objectives are not the means by which developments are assessed. If that is so, it means that their use is exceptional.”[57]
[57] Applicant’s submissions at [19]
123.However, the objectives clearly have an independent section 120 purpose. Baptist Community Services[58] confirms that the zone objectives do have other roles than simply providing code interpretation guidance. The role identified in the words of section 120 is that they are a “consideration” the decision-maker “must consider in deciding development approvals.” The applicant says nonetheless this consideration is not as “a defacto form of development assessment tool.”[59]
[58] At [34]
[59] Applicant’s submissions at [4]
124.The interpretation of the Planning Act provisions endorsed in Baptist Community Services provide assistance as to the scope of the role for the zone objectives in section 120.
125.Sections 53 and 55 of the Act provide:
Section 53
Objects for Zones
(1) The objects for a zone set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone.
(2) Each objective for a zone must be consistent with the statement of strategic directions.
Section 55
Codes in territory plan
(1) A code (other than a General Code or Precinct Code this 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.
126.In Baptist Community Services the court said[60] “we are satisfied that s53(1) does not mean that the zone objectives set out the policy outcomes to be achieved by applying the code to a particular development proposal.” We take this to mean the objectives are to be applied to the zone more broadly for the purposes of achieving those policy outcomes. In our view this interpretation is reinforced by section 55(2).
Applicant’s view on section 120
[60] At [48]
127.The applicant says that refusal under section 120 (a) will in most instances be exceptional.[61]
[61] Applicant’s submissions at [38]-[39]
128.Specifically, the applicant says this development is not inconsistent with the RZ1 objectives.[62]
[62] Applicant’s submissions at [42]
129.The applicant submits that in giving consideration to the zone objectives under section 120(a) the Tribunal should reach the view that this single development does not on its own change the character of the local area covered by the zone so as to offend objectives (a), (b) and (d).[63]
[63] Applicant’s submissions at [30]-[32]
130.The applicant submits that as regards objective (b) that while this development does affect the character of the area it does not do so in a way as to change that character.[64]
[64] Applicant’s submissions at [48]-[49]
131.The applicant submits that the development does not offend objective (d). In the applicant's view the development is not required to replicate the valued features and character of the area, but simply to respect those values in its scale form and site development.[65]
Respondent’s view on section 120
[65] Applicant’s submissions at [53]
132.The respondent contends that the proposal is not consistent with zone objectives (a), (b) and (d). Ms Jamaly's statement only refers to (b) and (d) but it was clear from her evidence that it is the respondent's view that the development is inconsistent with each of the three objectives.[66]
[66] Witness statement of Rumana Jamaly 18 May 2017 at [57]
133.In her statement she highlights inconsistency relating to the introduction of substantial development in the rear yard, of basement car parking, of the extensive hard paved areas, of very limited space being made available for landscaping, of the three-fold increase in site density, and of increased traffic generation, all as evidence that the proposal does not qualify the development as “limiting the extent of change” of character as envisaged by (b).[67] Nor in her view is the scale and nature of the development consistent with zone objective (d).[68] The respondent submits it is relevant to consider that while the site is not a single dwelling block as defined in the Territory Plan because of what it sees as an anomaly[69] it sits within an extensive RZ1 zone that spans most of Scullin which remains “almost entirely unchanged in its pattern of development from when Scullin was launched in the late 1960s.”[70]
[67] Witness statement of Rumana Jamaly 18 May 2017 at [64]-[70]
[68] Witness statement of Rumana Jamaly 18 May 2017 at [76]
[69] Witness statement of Rumana Jamaly 18 May 2017 at [21]
[70] Respondent’s statement of facts and contentions at [41]
134.More specifically, the respondent submits that zone objective (a) relevantly seeks the maintenance of residential areas that are “low rise and predominantly single dwelling and low density in character” which “aptly describes” the existing RZ1 Scullin character.[71] The respondent's submission is that the proposed development would adversely affect that character by introducing a development “noticeably different in character and scale.”[72]
[71] Respondent’s statement of facts and contentions at [46]-[47]
[72] Respondent’s statement of facts and contentions at [48]
135.The respondent submits that zone objective (b) seeks to protect that character by “limiting the extent of change” with respect to the original pattern of subdivision and density. The respondent says the extent of the change resulting from a completely different development into the original pattern of predominantly single storey dwellings set on large blocks with generous landscaping is beyond a limit which protects that character.[73]
[73] Respondent’s statement of facts and contentions at [50]-[51]
136.The respondent contends that zone objective (d) in seeking to ensure respect for the “valued features of the neighbourhood and landscape character of the area” and in ensuring development that “does not have unreasonable negative impacts on neighbouring properties” this objective is clearly focused on the specific site, and not merely the “zone as a whole”. In its view there is no development even remotely like that proposed on the site in RZ1 areas in Scullin.[74]
[74] Respondent’s statement of facts and contentions at [52]-[53]
137.As regards the other subsections of section 120 the respondent contends that the proposal is also not consistent with section 120(b), (g) and (e).[75]
[75] Witness statement of Rumana Jamaly 18 May 2017 at [79], [80] and [84]
138.The respondent submits that with respect to section 120(b)’s requirement to consider “suitability of the land... for a development of the kind proposed” the proposal is unsuitable for the site and that the Tribunal should have regard to the likely impact on the amenity of surrounding neighbours.[76]
[76] Respondent’s statement of facts and contentions at [62]
139.The respondent submits with respect to section 120(g)’s requirement to consider “probable impact of the proposed development” that the proposal seeks to introduce such a level of densification on the site as would have an unacceptable impact on the nearby area.[77]
[77] Respondent’s statement of facts and contentions at [67]
140.The respondent submits with respect to section 120(e)’s requirement to consider ‘entity advice’ that although the Conservator ultimately supported the removal of a regulated tree so as not to trigger section 119(2), that advice still suggested the room for landscaping was inadequate and that this was a matter the Tribunal is required to consider.[78]
Party Joined’s view on section 120
[78] Respondent’s statement of facts and contentions at [69]-[70]
141.The party joined submitted the development proposal should be rejected pursuant to section 120 as it fails to meet the zone objectives, “the clear intent [of which] is to permit a very limited amount of change in RZ1” areas.[79] It considered that the proposal went well beyond that limit.
Tribunal’s conclusions of section 120
Interplay between section 119 and section 120
[79] Party Joined’s closing statement at [19]
142.In the main, the submissions on section 120 were focused on the zone objectives and whether the development was consistent with the RZ1 objectives, specifically (a), (b) and (d). We accept the applicant’s submissions that these objectives do not form a further defacto form of development assessment tool, either supplementing or supplanting the code. The zone objectives play a significant role in assessing code compliance itself under section 119. It bears repeating that one purpose of the zone objectives is to “provide guidance in interpreting the rules and criteria found in the codes.”[80] As we have said, we agree with the party joined’s submission that the objectives provide an important yardstick in this interpretive process on the degree of ‘stretching’ the interpretation of the rules and criteria in the code can bear when discretionary decisions are to be made. It seems to us that if a development has been assessed as code compliance in this way there will be a strong presumption that the zone objectives have themselves been met.
Scope of a section 120 inquiry
[80] Argos at [67]
143.If a development proposal is not code-compliant, then it is mandatory under section 119 that it be rejected. If a development is code-compliant, section 120 confers a discretion (limited by an explicit requirement) to ‘consider’ a number of considerations relevantly here the zone objectives, the suitability of the site and the development’s probable impact. If the development is found to be inconsistent with any of these considerations that in itself provides a basis for its discretionary rejection. But there is not an obligation, explicit or implicit, to refuse approval. The proposal can be found inconsistent with a zone objective, or be found unsuitable, or can be found to have a detrimental impact and still be approved provided proper consideration is given. This is made clear in Baptist Community Services.
144.In our view the applicable zone objective issues can be satisfied by code compliance assessment. Protecting the low density character, limiting changes to that character and ensuring that development respects the features of that character are each achieved (or not achieved) through code compliance. Similarly, the other relevant section 120 matters of suitability of the site for the development and the probable impact of that development are equally addressed by the code. We have found in our assessment that the proposal is not code compliant.
145.It is significant that the proposal remains code non-compliant in spite of five plan variations. The proposal remains too large for the site, hence the PPOS has to be squeezed for four of the six units to a degree that is does not meet the requisite criteria. The proposal is of such width that on current plans (without the condition we say should be added) the side setbacks intrude beyond the discretionary allowances under the criteria. This indicates it is a development which does not achieve the development intentions as aspired to in the objectives and as quantified in the code. This indicates a development in its current form which is unsuitable for the site. These are matters more appropriately confined to section 119 assessment than to section 120 considerations. The respondent in its submissions cited in Baptist Community Services[81] makes clear it would be in an exceptional case that a single development would offend a zone objective and so bring section 120 into play. We agree with that submission. The development fails to meet the requirements at the section 119 level and we have rejected it on that basis.
[81] Baptist Community Services v ACTPLA [2015] ACTCA 3 cited at [68]
146.The Tribunal’s decision is that development proposal as submitted in amended plans of 22 June 2017 with the further amendments of the plans of 13 July 2017 should be refused.
Decision
147.The Tribunal confirms the decision under review to refuse the proposal lodged for DA201630177 as amended.
………………………………..
Senior Member Prof T Foley
Delivered for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER:
AT 8/2017
PARTIES, APPLICANT:
Javelin Projects Pty Ltd
PARTIES, RESPONDENT:
ACT Planning and Land Authority
PARTY JOINED
Friends of Hawker Village
COUNSEL APPEARING, APPLICANT
Mr P Walker SC
COUNSEL APPEARING, RESPONDENT
Mr C Erskine SC
COUNSEL APPEARING PARTY JOINED
N/A
SOLICITORS FOR APPLICANT
Howes Kaye Halpin
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
SOLICITORS PARTY JOINED
N/A
TRIBUNAL MEMBERS:
Senior Member Prof T Foley (Presiding), Senior Member G Trickett
DATES OF HEARING:
1, 2 June 2017, 10, 14 July 2017
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