Johnson and Xu & Act Planning and Land Authority and Ors (Administrative Review)

Case •

[2012] ACAT 53

•

13 August 2012

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

JOHNSON AND XU & ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2012] ACAT 53

AT 12/06

Catchwords:             ADMINISTRATIVE REVIEW - PLANNING AND DEVELOPMENT - development application approved out of time – deemed refusal of development application – status of development application deemed refused – objective (b) of RZ2 suburban core zone – neighbourhood characteristics – meaning of scale, form and site development – mixed character of neighbourhood – dominant character of neighbourhood – tree management plan – mains water consumption – stormwater quality and quantity – traffic generation – parking – solar access – hedge screening – direct sunlight – private open space – when or means and – adequate external clothes drying facilities

List of legislation:    Planning and Development Act 2007 ss. 50, 53, 119, 120, 156, 162, 163 and 171

ACT Civil and Administrative Tribunal Act 2008

ss. 12 and 68



List of Regulations:  ACT Civil and Administrative Tribunal (Transitional
Provisions) Regulation 2009 (ACT), regulation 30

Planning and Development (Draft Variation Number 306) Consultation Notice 2011 ( N12011-273)

Territory Plan

Access and Mobility General Code

Crime Prevention Through Environmental Design General Code

Multi Unit Housing Development Code

RZ2 – Suburban Core Zone

Parking and Vehicular Access General Code

Residential Boundary Fences General Code

Waterways Water Sensitive Urban Design General Code

List of Cases:            Bonansea and Commissioner for Land and Planning


[2001] ACTAAT 4


Canberra Cruises and Tours v Minister of Urban Services

(1999) ACTAAT 14

Coty (England) Pty Ltd v Sydney City Council
(1957) 2 LGRA 117
Drake-v-Minister for Immigration and Ethnic Affairs
[1979] AATA 179
Drake v Minister for Immigration and Ethnic Affairs
(1979) 24 ALR 577

Glenella Estate v Mackay RC (2010) QPEC 132

Golden Paradise v Kogarah MC (1997) NSWLEC 164

Lewiac v Gold Coast C C (1996) 2 Qd R 266

Mal Nichols v Cardinia SC (2011) VCAT 2146

Mason v ACTPLA [2009] ACAT 7

Minister for Aboriginal Affairs v Peko-Wallsend Ltd
[1985-1986] 162 CLR 24

Rudder v ACTPLA [2010] ACAT 24

Security Projects v Hollingsworth (1975) 62 LGRA

Super Studio-v-Waverley [2004] NSWLEC 91

Yu Feng v Maroochy S C (2000) 1 Qd R 306

Tribunal:                  Mr A. O’Neil, Senior Member
  Mr A. Davey, Senior Member

Date of Orders:  13 August 2012

Date of Reasons for Decision:       13 August 2012

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL AND ADMINISTRATIVE TRIBUNAL )          NO:  AT 12/6

RE:     PETER JOHNSON & TINA XU

Applicant

AND:  ACT PLANNING AND
LAND AUTHORITY

Respondent

AND:  ZHI HUANG &
MOLLIE ZENG

Party Joined (1)

AND:  VENITA JERVIS & 
JOHN JERVIS

Party Joined (2)

AND:  IAN R MATHEWS

Party Joined (3)

AND:  NAN WANG

Party Joined (4)

AND:  DAN
DONG DING
  & ZIBIN NIU

Party Joined (5)

AND:  LINDA JANE   FISHER

Party Joined (6)

AND:  RUPERT &MICHELLE     GRAYSTON
           Party Joined (7)

AND:  ANNE & BRUCE MACAFEE

Party Joined (8)

AND:  ADRIENNE   NICHOLSON

Party Joined (9)

AND:  PG & FM DIXON

Party Joined (10)

AND:  DAVID MILJENKO
MILIN

Party Joined (11)

AND:  JAMES MICHAEL WARING

Party Joined (12)

AND:  GILLIAN FERGUSON

Party Joined (13)

TRIBUNAL:            Mr A. O’Neil, Senior Member
  Mr A. Davey, Senior Member

DATE:  13 August 2012

ORDER

The Tribunal orders that the decision under review be confirmed subject to the following variations:

That conditions A1 and A2 be deleted and the following conditions be substituted:

A1The development application is approved on condition that the development be constructed in accordance with the following plans:

Site Plan   A01 Revision D (Exhibit PJ4)

Basement Carpark Plan              A02 Revision D (Exhibit PJ4)

Ground Floor Plan  A03 Revision D (Exhibit PJ4)

Ground Floor Area   A03A Revision C (Exhibit PJ4)

First Floor Plan  A04 Revision D (Exhibit PJ4)

First Floor Area  A03A Revision C (Exhibit PJ4)

Elevations  A05 Revision D (Exhibit PJ4)

Site Section  A06 Revision D (Exhibit PJ4)

Landscape Plan  LA01 Revision D (Exhibit PJ4)

Streetscape Elevations                A10 Revision B (Exhibit PJ4)

Demolition and Landscape         TMP-01 Revision D (Exhibit PJ4)

Management Plan, Tree

Survey, Sediment and Erosion

Tree Management 01

Excavation Tree Management     TMP-02 Revision D (Exhibit PJ4)

Plan 2

Ground Floor Plan – Tree           TMP-03 Revision D (Exhibit PJ4)

Management Plan 3, site access

and construction Zones

Ground Floor Plan – Tree           TMP-04 Revision D (Exhibit PJ4)

Management 4, Tree 2, 4, 5

& 8 Management

Driveway Profile (option 2) as MM SK03 dated 20/4/2012 & MM SK03b

7 May 2012 annexed to email to Lingam Jatheendran from Graeme

Shoobridge dated 7/5/2012  (Exhibit R3 in proceedings AT12/6)

Ground & First Floor Plan:         A03A Revision C

Area Analysis

Stormwater Management Plans

(Exhibits PJ7 & PJ15 in proceedings

AT 12/6).

A2(a)That plan A10 Revision B (Exhibit PJ4) “Streetscape Elevations” and any other relevant plans set out above be amended to show the changed heights of Units 1, 2 & 3.

A2(b)That any amendment to the Stormwater Management Plans (Exhibits PJ7 & PJ15) be approved by the Authority.

A2(c)That any hedge be planted not less than 300mm inside any boundary of the subject land.”

………………………………..

Mr A. O’Neil, Senior Member

For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

  1. Dr Xu and Mr Johnson (“the applicants”) have sought review by the ACT Civil and Administrative Tribunal (“the Tribunal”) of a decision made on 22 December 2011 by the ACT Planning and Land Authority (“the Authority”). The decision under s.162(1)(b) of the Planning and Development Act 2007 (“the Act”) was to approve, with conditions, Development Application No 20108595 (“the original DA”) lodged on 2 September 2010. The original DA sought to consolidate Blocks 27 and 28, Section 13, Division of Garran (“the subject land”) and to vary the resulting Crown lease to permit a maximum of 15 dwellings, to demolish the two existing dwellings, and to construct on the subject land 15  dwellings including basement car parking, landscaping and associated works. Subsequently, the original DA was amended to reduce the number of dwellings to 12. Other amendments were also made during the assessment process and the original DA finally became DA20108595D (“the DA”).  That part of the approval dealing with the consolidation of the leases and the demolition of the existing houses is not in dispute.  In relation to the issue of the new lease, the dispute focussed only on the maximum number of units permitted to be built.

  2. The subject land is flanked by Stone Place, Robson Street and Gay Place and comprises adjacent rectangular blocks, presently numbered 8 and 10 Robson Street, Garran, on each of which is built a single storey detached dwelling and outbuildings. If consolidated, the area of the resulting block would be 2045m2. The amended development proposal consists of 12 units in 3 blocks, one block of 3 units is parallel to Stone Place, a second block of 3 units is parallel to Gay Place and the third block of 6 units is situated between the other blocks parallel to Robson Street.

  3. A single driveway from the basement would exit the block to the south, entering Robson Street at a point opposite an adjacent oval and approximately between Stone Place and Gay Place. There is no formed footpath on the verge in front of the proposed development on Robson Street.

  4. Dr Xu and Mr Johnson were entitled to seek review of the decision made by ACTPLA under s162 of the Act, having made representations under section 156 of the Act. Mr DM Milin and Mr JM Waring are the lessees of the subject land and are the 11th and 12th parties joined (“the developers”). The remaining parties joined live close to the subject land and also made representations under section 156 of the ACT.

The Hearing

  1. The matter was heard on 7, 8, 9 and 10 May 2012 and 12 June 2012. The Tribunal had before it the documents (“the T Docs”) relevant to the decision under review. It also had before it Statements of Facts and Contentions submitted by the parties and revised plans tendered by the developers (Exhibit PJ4). These plans are referred to as the “Revision D plans” and were prepared by the developers’ architect Mr T Milin and are intended to incorporate the conditions imposed by the Authority as part of its approval of DA201018595D.

  2. The developers were represented by Mr P Walker of counsel. The applicants and the remaining parties joined, except Ms Fisher, were represented by
    Mr R Arthur of counsel.  The Authority was represented by Mr S Whybrow of counsel. Ms Fisher did not appear and was not represented.

  3. Mr Arthur called the following witnesses: Dr Xu, one of the applicants, and
    Ms Wang, Ms Nicholson and Mr Jervis who are all parties joined.  He also called four expert witnesses Mr Goodyer, a planner, Mr Graham, a traffic engineer, Dr Martens, a civil engineer and Mr Mann, an arborist. Witness statements were tendered by all of the witnesses. The remaining parties joined were not called as witnesses but their Statements of Facts and Contentions and witness statements were tendered in evidence.

  4. Oral evidence on behalf of the Authority was given by Ms Jamaly, Technical Coordinator, Merit Assessment South, of the Authority, as an expert witness. Mr Jatheendran a senior traffic and civil engineer with Territory and Municipal Services Directorate, gave expert evidence. Both experts’ witness statements were tendered. Ms Park who carried out the assessment of the development proposal for the Authority also gave evidence.

  5. Expert evidence on behalf of the developers was given by Mr Streatfield, a planner, Mr Shoobridge, a traffic and civil engineer, and Mr Scholtens, an arborist. Mr T Milin, the architect for the proposed development, gave oral evidence about a number of aspects of the proposal and provided several revised plans during the hearing. Mr Beer, an architect who prepares three dimensional computer generated images, gave evidence in relation to Exhibit PJ16.  Statements of evidence were tendered by these witnesses. The Statement of Facts and Contentions of the developers was tendered but they were not called to give evidence.

  6. At the suggestion of the parties the witnesses with a common expertise gave their oral evidence together.

  7. The Tribunal inspected the site of the proposed development and took note of the general character of the neighbourhood and the surrounding developments.

The Legislation

  1. The following sections of the Act are those principally dealt with in the reasons for decision.

    50Effect of territory plan

    The Territory, the Executive, a Minister or a territory authority must not do any act, or approve the doing of an act, that is inconsistent with the territory plan.

    Note 1The Territory, or a territory authority, is prevented from doing anything inconsistent with the national capital plan.

    Note 2The Territory, the Executive, a Minister or a territory authority are also prevented from doing anything inconsistent with some draft variations of the territory plan (see s 65 and s 72).

    53Objectives for zones

    (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)Each objective for a zone must be consistent with the statement of strategic directions.

    119Merit 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 1An 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 2Relevant 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 division 7.3.3 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)each representation received by the authority in relation to the application that has not been withdrawn;

    (d)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;

    NoteAdvice 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).

    (e)if the proposed development relates to land that is public land—the plan of management for the land;

    (f)the probable impact of the proposed development, including the    nature, extent and significance of probable environmental impacts.

    162Deciding development applications

    (1)The planning and land authority or, for a development application that the Minister decides to consider under division 7.3.5 (Ministerial call-in power for development applications), the Minister, must—

    (a)approve a development application; or

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

    (c)refuse a development application.

    Note 1For provisions about conditions, see s 165.  Also, a development application to vary a lease granted as a concessional lease by surrender and regrant of the lease as a market value lease is subject to a condition (see s 262).

    Note 2Notice of a decision under s (1) must be given under div 7.3.8.

    Note 3If a development application has been referred to an entity under division 7.3.3, the notice of the decision under this section must include information about any comment by the referral entity and whether the authority has followed the entity’s advice (see s 172).

    Note 4The criteria for a decision on an application to vary a lease granted as a concessional lease are in div 9.4.2.

    Note 5An applicant and, in some cases, other people may have a right to apply for review of a decision under s (1) (see ch 13 and sch 1).  However, the right to apply for legal review of a decision by the Minister is time-limited (see s 410).

    (2)However, the planning and land authority or Minister must refuse a development application to which division 9.4.2 (Varying concessional leases to remove concessional status) applies if the Minister decides under section 261 that considering the application is not in the public interest.

    (3)The planning and land authority or Minister must take action under subsection (1) in relation to a development application not later than the end of the prescribed time period for the application.

    (4)To remove any doubt, the time for deciding a development application is not affected by—

    (a)the referral of the application to the Minister by the planning and land authority under section 158; or

    (b)the referral of the application back to the authority by the Minister under section 159.

    (5)If the planning and land authority approves a development application that relates to a regulated tree, the authority may, under this section—

    (a)if a tree management plan is already in force for the tree—approve an amendment of, or replacement for, the tree management plan; or

    (b)in any other case—approve a tree management plan for the tree.

    (6)In this section:

    prescribed time period, for a development application, means—

    (a)the period set out in part 7.2 (Assessment tracks for development applications) for deciding an application for a development proposal in the assessment track that applies to the proposal; or

    (b)if the period mentioned in paragraph (a) is extended under division 7.3.7—the period mentioned in paragraph (a) plus each extension that applies to the application under division 7.3.7.

    NoteThe time for deciding a development application is 20 working days for a development proposal in the code track (see s 118), 30 or 45 working days for a development proposal in the merit track (see s 122) or different periods for a development proposal in the impact track (see s 131).

    163Power to approve etc development applications deemed refused

    (1)This section applies if—

    (a)a development application has been made; and

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

    (c)neither the planning and land authority nor the Minister has decided the application under section 162.

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

    (3)To remove any doubt, if neither the planning and land authority nor the Minister has decided an application under section 162, the authority is taken to have decided to refuse the application under the ACT Civil and Administrative Tribunal Act 2008, section 12 (When no action taken to be decision).

    NoteBecause a decision of the ACAT on review is taken to have been a decision of the original decision-maker, the planning and land authority or Minister will not be able to approve an application if the ACAT has decided an application for review of the deemed refusal (see ACT Civil and Administrative Tribunal Act 2008, s 69).

    171Notice of refusal of application

    (1)If a development application is refused under section 162 (1) (c) (Deciding development applications), the planning and land authority must give written notice of the refusal to—

    (a)the applicant; and

    (b)each person who made a representation under section 156 about the application.

    (2)However, to remove any doubt, the planning and land authority need not give notice of a decision deemed under the ACT Civil and Administrative Tribunal Act 2008, section 12 (When no action taken to be decision) to have been made to refuse a development application.

    (3)A notice under subsection (1) must set out the reasons for the decision.

    NoteIf the notice is given to a person who may apply to the ACAT for review of the decision to which it relates, the notice must be a reviewable decision notice (see s 408 (2)).

Draft Variation 306

  1. It is not in dispute that in late May 2011 ACTPLA issued Planning and Development (Draft Variation Number 306) Consultation Notice 2011 (“DV306”), being ( N12011-273), which  set out possible changes to several codes in the Territory Plan including the Multi Unit Housing Development Code (“the MUHD Code”) . Section 65 of the Act provides that nothing can be done during a defined period which is inconsistent with the proposed variation to the Territory Plan. The interim effect of the variation may be exempted by the terms of the variation itself. The crucial change in the MUHD Code for the parties is the reduction in the maximum number of dwellings on a block the size of the subject land to five. However, DV306 also said that this limitation would only apply to “development applications lodged on or after 3 June 2011”.  The Authority has now issued a “Public Availability Notice “(NI2012-124) another step in the variation process, but there has been no material change to the “grandfathering” provisions set out above.

Outline of applicants’ Contentions

  1. Mr Arthur presented six arguments why the DA should be refused. These are described in broad terms and will be set out in detail as required later.

  2. Firstly, he said that the DA must comply with the requirements of DV306 because when it came into effect on 3 June 2011 the original DA lodged on
    2 September 2010 had ceased to exist. It had been deemed refused because the Authority had not made a decision within the time mandated under section 162 of the Act. Thus it could not be said on 3 June 2010 there was an existing DA that was protected by the “grandfathering” provisions of DV306.

  3. Secondly, Mr Arthur proposed that the email of 2 June 2011 (T474) from Ida Schuurmans-Stekhover of the Authority to Tomi Milins saying “ I have been instructed to refuse this development application “ amounted to a refusal of the DA under the Act.

  4. Thirdly, Mr Arthur said that even if the original DA had not ceased to exist the principle in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 (Coty) and subsequent cases should be applied so that the requirements of DV306 would limit the development to five units.

  5. Fourthly, he considered that a decision to approve a DA is discretionary and the factors to be taken into account are determined by the subject-matter and scope and purpose of the legislation.  He relied on Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1985-1986] 162 CLR 24 (“Peko Wallsend”). Mr Arthur said these factors included whether the DA was consistent with the Territory Plan, the circumstances at the time of the decision and whether they are different to the circumstances at the time of the deemed refusal, fairness to the developer, the interests of affected persons in stability and certainty and ensuing orderly development.

  6. Fifthly, he said that the development did not comply with objective (b) of the Residential RZ2: Suburban Core Zone which required the development to address the existing neighbourhood characteristics in scale, form and site development.

  7. Finally, he took issue with a number of specific rules, criteria and provisions contained in the Residential Zones- Multi Unit Housing Development Code (“the MUHD Code”) and a number of general codes which he said the proposed development did not comply with.

Developer’s Contentions

  1. In dealing with Mr Arthur’s first argument Mr Walker said that, when the time stipulated for deciding a development application under section162 of the Act had expired, the “deemed refusal” of the application was for limited purposes only. He argued that section 163(3) clarified that that the failure to make a decision within time was to be treated as a refusal of the application for development approval only so as to permit an application to the Tribunal under section 12 of the ACT Civil and Administrative Tribunal Act 2008 (“the ACAT Act”) for a review of that “refusal”.

  2. He contended that there was no change of status of the DA. It had not ceased to exist but remained an application that had not been finalised.  He also said that, as it had been lodged prior to 3 June 2011 it was specifically not affected by DV306.

  3. Mr Walker responded to Mr Arthur’s second argument by saying that the email of 2 June 2011 should not be seen as a refusal of the DA.  The evidence did not support this interpretation.

  4. Mr Walker argued that DV306 expressly said that it was not to be applied to development applications made prior to 3 June 2011.  This was the case with the DA.   He went on to say that because the terms of DV306 protected the DA, the principle in Coty had no application.  However if it did apply, the weight to be given to it was negligible because there was no major conflict in use between the proposed development and that permitted by DV306.

  5. Mr Walker said that there were no grounds to apply the principle in Peko Wallsend and consider the subject matter, scope and purpose of the Act to determine the factors relevant to making the decision to approve the DA. The Act specifically sets out in sections 50, 119 and 120 those matters which must be considered and also when approval cannot be given. This, he said is not a case where the discretion is unconfined.

  6. In dealing with Mr Arthur’s fifth contention that Objective (b) of the RZ2 was not met, Mr Walker said that the development dealt with the characteristics of scale, form and site development in a manner which met objective (b).

  7. Finally the issue of compliance with the MUHD Code and other general codes would be dealt with in detail later, but that the rules and if necessary the criteria had been met by the Revision D plans.  If further issues arose, conditions could be imposed to ensure compliance.

The Authority’s Contentions

  1. Mr Whybrow endorsed the arguments advanced by Mr Walker. He said that the rules were objective and quantitative measures and Mr Arthur’s approach would result in uncertainty, subjectivity and higher costs. He also said the Authority had carefully examined the proposed development and the approval, subject to extensive conditions, complied with the Act and the Territory Plan.

Discussion of the Issues before the Tribunal

  1. The Tribunal intends to discuss these issues and it’s conclusions in the order set out in the applicants’ contentions. 

“Deemed refusal” – status of DA after 3 June 2010

  1. It is not in dispute that the DA was not finalised within the time required by section 162 of the Act, nor was it finalised on 3 June 2010 when parts of DV306 came into effect. Mr Arthur said when the time for the decision expired the DA ceased to exist. It was not revived until the decision of 22 December 2011 and thus the protection given by DV306 did not apply to the DA.

  2. Neither Mr Arthur nor Mr Walker took issue with the right of the Authority to approve the DA with conditions despite the earlier failure to do so within time.

  3. Mr Walker said that section 163(3) of the Act simply clarified the right of an applicant for development to seek review by the Tribunal if a decision is not made within time. It is not a refusal “on the merits” under section 162(2) and the Act does not treat this “default” refusal in the same way. In the case of a refusal “on the merits” section 171(1) of the Act requires a notice of decision, including a statement of reasons, to be given to the applicant for the DA and every person who had made a representation under section 156 of the Act. Section 171(2) expressly provides that no such notice is required for a “default” refusal.

  4. Mr Walker said that the DA had not ceased to exist but it had the status of an application that had not been decided. During the period following the expiry of the time prescribed the Authority and the developers had continued to negotiate about the various unresolved issues in the DA. Mr Arthur did not point to any particular provision of the Act to support his submission that the DA had ceased to exist.

  5. The Tribunal is persuaded by Mr Walker’s argument and accepts that after the expiry of the prescribed period the status of the DA did not change for the purposes of the Act and that DV306 did not limit the DA to five units.

Refusal of the DA by the email of 2 June 2011

  1. The words of the email (T474) suggest at best that an instruction to refuse the DA had been given. It was not clear who had given the instruction, if it had been given and whether that person had the authority to issue such an instruction.  

  2. David Milin’s reply of 3 June 2011 (T473-4) asks for more time. An extension is given the next day together with 4 pages of concerns to be addressed (T469-473). Ada Park’s evidence is that the email was not a refusal. She said the DA was still under assessment. A refusal would have been formally drafted and sent to Ms Jamaly for signature. Notices under section 171(1) of the Act would have been prepared to be sent to the applicant for the DA and all persons who made representations. None of this was done. On the evidence the Tribunal finds that the e-mail of 2 June 2011 was not a refusal but perhaps more likely a warning to the developer that the Authority was growing impatient with the delay.

DV 306 and the principle in Coty

  1. Mr Arthur argued that the Tribunal should apply the Coty principle that where there was a proposed variation to a planning scheme a court “ should avoid as far as possible giving a judgment….which would render more difficult the ultimate decision as to the form a scheme should take” (p.125).  In Coty the legislation required the court to “have regard to the circumstances of the case and the public interest” (p.123) which Hardy J said “opened up a wide field of enquiry” (p124).  In Coty the proposed variation would limit the land to residential when the company sought to expand it’s industrial premises and demolish three houses.  In administrative decision making, government policy including planning policy, is a relevant consideration:  Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Canberra Cruises and Tours v Minister of Urban Services (1999) ACTAAT 14.

  2. Subsequently Coty developed into a general principle that it is permissible to take into account a proposed planning scheme that is not finalised:  Yu Feng v Maroochy S C (2000) 1 Qd R 306 and also Lewiac v Gold Coast C C (1996) 2 Qd R 266. However in Security Projects v Hollingsworth (1975) 62 LGRA 319 the Queensland Full Court (at p.321) said that Coty” does not lay down a hard and fast rule about withholding consent to a  development which is contrary to the provisions of a draft planning scheme”.

  3. In Lewiac, the Queensland Court of Appeal indicated that the Coty principle is not always decisive and generally is applicable to major conflicts.  It gave the example of a high rise residential development in a low rise area.  In Glenella Estate v Mackay RC (2010) QPEC 132, Robin QC DCJ refused an application that would have resulted in a good quality agricultural land being subdivided and used for medium density residential purposes. He did not apply the Coty principle because there was no draft planning scheme sufficiently advanced, but he applied similar reasoning to reach effectively the same result. In Golden Paradise v Kogarah MC (1997) NSWLEC 164, Sheahan J found no error of law when a Senior Assessor approved land for use as a brothel which was then permissible with consent, although a draft variation prohibiting brothels was before the Minister for approval. The Senior Assessor had considered the draft variation but had given greater weight to other factors. In Mal Nichols v Cardinia SC (2011) VCAT 2146, approval was sought but refused to develop an eighty seat licensed restaurant in conjunction with an existing vineyard. A restaurant was permitted with consent under the current land use provisions. An amendment which had been developed over a long period and would have transitioned the land to urban residential use was before the Minister. VCAT upheld the Council’s decision on the basis it would have resulted in a large restaurant in a suburban neighbourhood for a lengthy future period.

  4. The question for the Tribunal is whether DV 306 should be applied to this DA.  The answer given by Mr Walker is that it should not, because the DA was lodged before 3 June 2011 and it was the clearly expressed intention of DV 306 that it was not to apply to applications received prior to that date.  The Tribunal believes that this answer is the correct one.

  5. But if it is not the correct answer, and Coty should be applied to this DA, what weight should be given to the relevant matters?  The Coty principle is not necessarily decisive and it is not a hard and fast rule.  One relevant consideration is the likelihood that the DV306 will become law. The Tribunal believes this is satisfied as the process is at an advanced stage. Another matter to be considered is the degree of conflict between the proposed change and that permitted by the existing use.  One example would be a high-rise building in a low rise area, others would include a business or restaurant intruding into a residential precinct.  Coty itself was a proposed industrial extension in a residential space and Glenella concerned agricultural land becoming medium density residential. These examples are major changes to the use of land in a locality.

  6. In the present case the issue is the number of units in the development, not a change in the nature of the use. The locality will remain residential under the DA if approved, although more dense than permitted by DV 306.  The approval of the DA will not alter the whole character of the area. The locality also has denser development relatively close by in addition to the local shopping centre, which is one of the reasons the subject land is zoned RZ2.  In these circumstances if Coty is to be applied the Tribunal finds that 12 units on the subject land is not incongruous and does not alter the character of the locality to the extent that the approval should be refused or the development limited to five residential units.

Peko Wallsend and the discretion to approve the DA

  1. The Tribunal has difficulty with Mr Arthur’s suggestion that there is a need to apply Peko Wallsend and examine the subject matter and the scope and purpose of the Act to determine the relevant factors when considering whether or not to approve a development under section 162 of the Act. Section 50 of the Act compels the decision maker to act consistently with the Territory Plan. Section 119 of the Act forbids development approval being given in a number of prescribed circumstances. Section 120 of the Act sets out six matters for consideration including the zone objectives which add another several. These, together with the various codes, mean that the relevant factors are spelled out in considerable detail. The Tribunal does not accept the argument that this is an open discretion. The discretion in section 162 of the Act is not unconfined.

RZ2 – Suburban Core Zone – Objective (b)

  1. Objectives (a), (c), (d), (e) and (f) are not in dispute between the parties.

  2. Objective (b) states:

    “Ensure that the development addresses the street and the existing neighbourhood characteristics in scale, form and site development”.

    There was no disagreement that the development addresses the street and meets that part of the objective.  However there is substantial disagreement as to whether the development addresses the neighbourhood characteristics in scale, form and site development.

  3. Mr Goodyer said that the dominant characteristic of the neighbourhood of Garran is detached single-storey dwelling houses.  This is recognised in the 2004 Garran Neighbourhood Plan.  He accepted that RZ2 permits multi-unit development and said that five units on the subject land would be appropriate.  He equated scale with bulk and compared the six units proposed to face Robson Street with a typical dwelling house in the immediate vicinity and found the scale to be excessive.  He did not object to the two blocks of three units each proposed to face Stone Place and Gay Place.  The form of the existing neighbourhood, he said, is the predominance of single dwelling houses.  The form of the proposed development, with the projection of the upper levels of Units 4-9 forward of the ground floor, does not address the existing form of development in the neighbourhood.  He said that the term “site development” requires all elements of the proposed development on the subject land to be compared to the existing development of the neighbourhood.  It is not surprising that Mr Goodyer concluded that the proposed development does not meet the second part of objective (b). 

  4. Mr Streatfield noted that in RZ1 – Suburban Zone, a development must” respect and contribute to the neighbourhood and landscape character of the residential areas”.  Objective (b) of RZ2 shows an acceptance that density may increase with multi-unit developments and, unlike the RZ1 zone, is not required to “respect and contribute” to the low density nature of the existing neighbourhood.  With regard to scale he said that in Boothy and Mackaness Places there were examples of higher density development of up to three stories.  He saw form in terms of the architectural elements of the existing buildings and found those present in different ways in the proposed development. “Site development”, he said, is made up of such elements as height restrictions, plot ratios, set backs and landscaping.  Mr Streatfield considered that the proposed development was in keeping with objective (b).

  5. Ms Jamaly considered the existing neighbourhood to be of a mixed character with a variety of buildings including single dwellings, dual occupancies and multi-unit blocks of one and two stories.  She observed that the pre-school and child-care centre are close by on Robson Street and that the proposed development is not far from Garran Shopping Centre and thus is consistent with the higher density development in the R2 zone.  The scale or bulk of the development would be broken up using a variety of methods.  It is in three buildings with spatial separation, different colours, roof forms and materials used. The ground and first floors have staggered set backs from the front boundary.  She believed objective (b) to be met by the development.

  6. The phrase “dominant characteristic” does not appear in objective (b) but in the Garran Neighbourhood Plan.  It is not particularly helpful to say that the dominant characteristic of Garran is low density single story family dwellings because, as Mr Streatfield observed, most Canberra suburbs can be similarly described.  The Tribunal notes that there is medium density housing in Boothby and Mackaness Places off Robson Street. Within sight from the subject land, there are a number of medium density housing developments in Gilmore Crescent, Hopegood Place and Eldrige Crescent.  These are part of the neighbourhood as much as single storey houses.  Mr Walker pointed out that objective (b) speaks in the plural, that is, of “neighbourhood characteristics” that should be addressed.

  7. Annexure A to Exhibit PJ16 was a three dimensional impression of how the completed development might appear from across Robson Street.  The impression was similar to an image taken by a camera.  In his evidence Mr Beer explained that his notional “camera” was set several metres above ground level and some distance beyond Robson Street.  In this sense, the image was not helpful as it gave an incorrect impression of the development.  It was useful however in the way it demonstrated the use of different materials, colours, roof lines, spatial separation and set backs for ground and first floors. It was also helpful in showing the variety in horizontal and vertical elements in the proposal. 

  8. It is the Tribunal’s conclusion that the neighbourhood is a mixture of building types and uses and the proposed development would be constructed using architectural forms and materials similar to those of the existing neighbourhood buildings.  Although larger than its neighbours, its scale or bulk would be broken up by a series of devices so as to reduce its visual impact, and the development of the site would be similar and relevant to the elements of the neighbourhood.  In short, the Tribunal finds that the proposed development addresses the existing neighbourhood characteristics in scale, form and site development.

Introduction - MUHD Code

  1. The MUHD Code states in its introduction (page 1, paragraph 4, dot point 2) that proposals in the merit track must meet either the rule or the criterion  If the proposal meets the rule there is no necessity to look further because compliance with the rule means compliance with the criterion.  The introduction to the MUHD Code goes on to say that where a development proposal satisfies the criteria it satisfies the intent of the element.  Put simply, as a general principle, compliance with the rule results in compliance with each criterion, intent and element. Mr Arthur also pointed to the requirement set out in the introduction to the MUHD Code that the onus is on the applicant for the development to demonstrate that the proposed development satisfies the criteria. 

Height not to exceed 2 storeys - Rule 13 MUHD Code

  1. All three expert planning witnesses agreed that the proposed development did not exceed two storeys and complied with Rule 13.  Mr Goodyer made the point that if the basement of the building were raised by 50mm, it would cease to be a basement as defined in the Territory Plan.

Buildings must be within building envelope - Rule 14 MUHD Code

  1. The Revision C and D plans were accepted by the planning experts as compliant with Rule 14 prescribing the building envelope. However during the hearing the developers proposed increasing the height of Unit 1 by 500mm and that of Unit 2 by 250mm while reducing the height of Unit 3 by 100mm. The purpose was to minimise root damage to Tree 2 (LAO1 Revision D plans – Exhibit PJ4) close to unit 1.  Mr Arthur queried whether this amendment, set out in drawing TMP –O4 (Exhibit PJ11), would still permit the proposed development to fit within the building envelope.  Mr T Milin produced a plan he had drawn (Exhibit A9) showing the revised elevations from Stone Place.  These elevations showed, he said, that even with the increased height of Units 1 and 2 they were still within the building envelope and complied with Rule 14.   The Tribunal accepts Mr Milin’s evidence.

Plot ratio not to exceed 50% - Rule 15 MUHD Code

  1. All three expert planning witnesses agreed that the revision C plans complied with Rule 15 and that the plot ratio did not exceed 50%.  The Revision D plans (Exhibit PJ4) are similarly compliant.

Crime Prevention Through Environmental Design General Code – Applied by Criterion 35 MUHD Code

  1. Mr Streatfield said that there was no requirement imposed by the Crime Prevention Through Environmental Design General Code (applied by criterion 35 of the MUHD Code) to install a security door for vehicle access to the basement carpark.  However the developers included a door as set out in drawing A02 of the Revision D plans.  He said the basement car park met the requirement of the General Code with or without a door.

Access and Mobility General Code – Applied by Criterion 36 MUHD Code

  1. The applicants contended that the DA did not satisfy the requirements of the Access and Mobility General Code, and submitted a report from Mr P Adamson, an architect and expert, on access issues which identified a number of areas of non compliance. The developers asked Mr Eric Martin, another access expert to consider Mr Adamson’s views. As a result of Mr Martin’s comments,
    Mr T Milin produced the updated Revision D plans for the development which he said addressed all of these issues. Mr Eric Martin then confirmed that in his opinion the Revision D plans complied with the Code. In his opening submission, Mr Arthur accepted that the access and mobility aspects of the proposal were now satisfactory. When the levels of units 1-3 were adjusted during the course of the hearing in response to tree management issues, the developers provided a further statement from Mr Eric Martin confirming that the plans still complied with the Access and Mobility General Code. The applicants did not dispute this statement. Although Mr Adamson and Mr Martin provided expert opinions they were not required to give oral evidence.

Traffic Generation – Criterion 37 MUHD Code

  1. The persons who made representations under section 156 of the Act, including the applicants and the Parties Joined, have concerns about parking and traffic in the vicinity of Robson Street, Stone Place and Gay Place, but these problems already exist and have not been caused by the proposed development which meets parking requirements. Additional traffic generated by vehicle movements to and from the development is within the road design capacity of Robson Street, as all three traffic experts accept, thus the requirements of Criterion 37 are met.

Trees – Rule 40 MUHD Code

  1. The applicants contended there were many deficiencies in the proposed tree management plan for the proposed development, mainly relating to likely impact on protected trees from excavation of the basement, canopy protection, and lack of integration of landscaping with tree protection, and thus that the development did not comply with Rule 40 of the MUHD Code:

6.2 Trees

R40

This rule applies to a development that has one or more of the following characteristics:

a) requires groundwork within the tree protection zone of a protected tree
b) is likely to cause damage to or removal of any protected trees
The authority shall refer the development application to the Conservator of Flora and Fauna.
Notes:
1. Under the Planning and Development Regulation 2008 a development application for a declared site under the Tree Protection Act 2005, must be referred to the Conservator of Flora and Fauna.
2. The authority will consider any advice from the Conservator of Flora and Fauna before determining the application in accordance with the Planning and Development Act 2007.
3. Protected tree and declared site are defined under the Tree Protection Act 2005.

This is a mandatory requirement.

There is no applicable criterion.

  1. The Tribunal heard evidence from Mr Alan Mann for the applicants, and
    Mr Paul Scholtens for the developers. It became evident that a revision of the tree management plan might overcome the concerns outlined in Mr Mann's original witness statement commenting on the development. Mr Milin prepared a revised tree management plan (Exhibit PJ11- TMP 01, 02, 03 and 04) which incorporated changes to the basement excavations, a revised stormwater management plan, post and beam construction in places and adjustment to the levels of units 1-3. All parties indicated that the revised tree management plan was satisfactory, including the Authority who had obtained confirmation from the Conservator.

    Mains Water Consumption – Rule 46 MUHD Code

  2. Rule 46 provides as follows:

6.7 Water Sensitive Urban Design – Mains Water Consumption

Note: Refer to the Water Ways: Water Sensitive Urban Design General Code for more information on Water Sensitive Urban Design

R46

Evidence is provided that shows the development achieves a minimum 40% reduction in mains water consumption compared to an equivalent development constructed in 2003 using the ACTPLA on-line assessment tool or another tool as included in the Water Ways: Water Sensitive Urban Design General Code. The 40% target is met without any reliance on landscaping measures to reduce consumption.
This requirement does not apply for extensions with an increase in the combined roof area, driveway, car manoeuvring areas and car parking areas of less than 25% of the original area.

This is a mandatory requirement. There is no applicable criterion.

  1. In relation to Rule 46, Dr Martins’ response to the revised storm water plan was that the proposed development achieved a 41% reduction in mains water consumption, thus complying with the Rule, but the date of the calculations was in 2004, several years prior to the current proposal for the DA. Mr Shoobridge made a calculation using the Revision D plans in April 2012 which showed a mains water reduction of 41% (Annexure C to Exhibit PJ17). Mr Shoobridge’s data showed the number of bedrooms as 23 which is the number of bedrooms shown only in the Revision D plans. The Tribunal accepts Mr Shoobridge’s calculations and finds Rule 46 has been met.

Stormwater Quality and Quantity – Rules/Criteria 47 and 49 MUHD Code

  1. These Rules and Criteria provide:

6.8 Water Sensitive Urban Design – Stormwater Quality and Quantity

Note: Refer to the Water Ways: Water Sensitive Urban Design General Code for more information on Water Sensitive Urban Design
R47
All sites of size greater than 2,000m2 need to provide evidence of stormwater storage greater than or equal to the volume of 1.4kL per 100m2 of impervious area and release over a period of 1 to 3 days. 50% of the volume of rainwater tanks connected to at least the toilet and all external taps may be regarded as contributing towards this requirement.
This requirement does not apply for extensions with an increase in the combined roof area, driveway, car manoeuvring areas and car parking areas of less than 25% of the original area.

C47

Evidence is provided that demonstrates that for all sites of size greater than 2,000m2, a reduction of 1-in-3 month stormwater peak run off flow to pre-development levels with release of captured flow over a period of 1 to 3 days can be achieved.

This requirement does not apply for extensions with an increase in the combined roof area, driveway, car manoeuvring areas and car parking areas of less than 25% of the original area.
6.8 cont.

R49

All sites of size greater than 2,000m2 and subject to redevelopment need to ensure that the capacity of the existing pipe (minor) stormwater connection to the site is not exceeded in the 1-in-10 year storm event.

All sites of size greater than 2,000m2 and subject to redevelopment need to ensure that the capacity of the existing overland (major) stormwater system to the site is not exceeded in the 1-in-100 year storm event.

For estate and multiple block developments larger than 5000 m2, retardation of stormwater to meet the above requirements are to be met at the estate scale rather than by measures on individual blocks.

 C49
Evidence is provided by a suitably qualified person that shows that for all sites of size greater than 2,000m2 and subject to redevelopment.
EITHER
a reduction of 1-in-5 year and 1-in-100 year
stormwater peak run off flow to pre-development levels. See WaterWays General Code for more detail.
OR
That the capacity of the downstream piped stormwater system to its outlet with an open channel is not exceeded in the 1-in-10 year storm event.
For estate and multiple block developments larger than 5000 m2, retardation of stormwater to meet the above requirements are to be met at the estate scale unless it can be demonstrated that this is less feasible than measures on individual blocks.

  1. The Tribunal heard evidence on the stormwater and related issues from
    Dr Martens for the applicants and Mr Shoobridge for the developers. As earlier discussed stormwater management was inter-related with tree management, with revisions of both the tree management plan and the stormwater management plan submitted during the course of the hearing.

  2. In relation to Rules 47 and 49, the expert witnesses were not able to resolve all the issues in detail during the course of the hearing. Dr Martens conceded that the revised stormwater plan was conceptually workable, though he also made the point this was not yet verified with model data. Mr Shoobridge stated that absolute compliance with Rules 47 and 49 should be verified at the final design stage.  He indicated on his preliminary storm water management plan (Exhibit PJ7) that the arrangement set out in that plan would be expected to satisfy Rules 47 and 49 of the MUHD Code.  This involved an on-site detention (OSD) tank of 17,206 litres which was not disputed.  Although Dr Martens and Mr Shoobridge were in agreement that a 13,000 litre on-site stormwater retention tank was the correct size, Ms Park said that she had been told that 14,400 litres might be preferable.  The Tribunal prefers the direct evidence of the experts and accepts that the volume of the OSR tank should be 13,000 litres.

  3. Both Dr Martens and Mr Shoobridge said that the reduction of the stormwater gross pollutant export load set out in the Waterways Water Sensitive Urban Design General Code had not been met and suggested that this was a deficiency that should be addressed.  This General Code applies the reduction targets to developments on areas of land larger than 2,000 m2 such as that proposed. 
    Rule 48 of the MUHD Code requires only that these reduction targets to be met for sites larger than 5,000 m2.  The MUHD Code states that the general codes are subject to it, so the pollution reduction targets are therefore not applicable to the development proposal.

  4. Some debate arose between Dr Martens and Mr Shoobridge as to whether a charged stormwater system or an uncharged system was preferable.  Both systems are acceptable to deal with stormwater management but a charged system   requires greater maintenance.  Mr Milin in Exhibit PJ10 and
    Mr Shoobridge in Exhibit PJ7A provided freehand diagrams showing the layout of such systems.  The Tribunal does not need to make a decision on this matter as either system or a combination can allow Rules 47and 49 to be met.

  5. The Authority indicated that all the relevant agencies had confirmed the revised stormwater plan was satisfactory. Based on all the evidence and the plans in Exhibits PJ7 and PJ15 the Tribunal considers that Rules 47 and 49 are met.

Vehicle Access – Rule 72 MUHD Code

  1. Initially the profile of the driveway and ramp of the basement car park was a ground of objection by the applicants in that it did not meet Rule 72.  However following discussion among the experts and its redesign, the applicants accepted that it was compliant with Rule 72.  The relevant redesign is set out in drawings MM5K03 and MM5K03b, both being referred to as option 2, which form part of Exhibit R3.  The Tribunal accepts that the driveway and ramp will meet the requirements of Rule 72 provided they are constructed in accordance with drawings MM5K03 and MM5K03b.

Parking – Rule 81 and Parking and Vehicular Access General Code

  1. There is no dispute that the requirements of Rules (a) to (d) are complied with. However Mr Graham also suggested that the safety of pedestrians using the verge would be enhanced by the presence of mirrors placed on each side of the driveway at the boundary.  Although he accepted that Rule 81 (e) was met he said the sightlines would be improved by this measure.  Mr Shoobridge strongly disagreed.  He did not think it was necessary because of the low speed of exiting vehicles.  None of the experts pointed to a rule requiring mirrors, but a number of criteria dealing with Vehicle Access and Parking, for example C76, C81 and C84, deal with safe vehicle movement for pedestrians, reducing access traffic hazards and ensuring the safety of pedestrians.  The Tribunal suggests consideration be given to installing suitable mirrors as suggested by
    Mr Graham.

  2. Mr Graham said that the security door to the basement car park “…..would require swipe cards or an intercom for a tradesman or visitors to gain access then the vehicle would need to reverse out” if the occupier was not answering.  This, he said, was contrary to Clause 2.3.2 (b) of the Parking and Vehicular Access General Code which requires ingress and egress to and from the site to be made in a forward direction.

  3. However that requirement is limited to vehicles “… having a regular requirement to enter the site” [Clause 2.3.2 (b)], for example, residents.  In the Tribunal’s view the fact that a visitor or tradesman might need to reverse out is not inconsistent with this General Code.

Solar Access – Rule 86 MUHD Code

  1. Rule 86 is a mandatory rule which requires “a minimum of 3 hours of direct sunlight onto the floor or internal wall of the main daytime living area of the dwelling between the hours of 9.00 am and 3.00 pm on 30 June (winter solstice).” There was no dispute that units other than unit 11 received sufficient sunlight.

  2. Mr Goodyer said in his first witness statement (Exhibit A1) that sunlight is received to the living room windows of Unit 11 from 11am to 2.30pm – a period of three hours and 30 minutes.  A summary by Denleb Design at Attachment C of Mr Goodyer’s first witness statement shows that sunlight strikes the main window of the living/dining areas of Unit 11 between 11am and 11.30am. By 2.30pm only a tiny amount of sunlight strikes the window.  This exceeds the three hour requirement of Rule 86.

  1. Mr Goodyer does not believe the Rule has been complied with because the amount of sunlight striking the windows for three hours is less than 50% of the window area.  In his opinion 50% is the amount of sunlight required to provide a reasonable level of amenity in terms of warmth and natural light. A larger amount of sunlight may well provide more warmth and greater amenity, but Rule 86 is expressed in clear and precise quantitative terms.  There is no role for an opinion.  The Tribunal believes Rule 86 must be applied as it is expressed and therefore finds the Rule is satisfied.  Ms Jamaly suggested that the amenity of Units 10 and 11 could be further improved by a skylight into each dining area. The Tribunal commends this suggestion to the developers.

  2. Mr Streatfield indicated that the kitchen window receives sunlight for at least three hours.  Mr Goodyer preferred the shadow analysis of Deneb Design which does not support Mr Streatfield’s view.  However as sufficient sunlight is received in the living/dining room windows to satisfy the Rule it is not necessary to determine whether three hours of sunlight penetrate the kitchen windows.  It does, however, add to the amenity of Unit 11.

  3. Rule 86 is expressed in terms of direct sunlight “onto the floor or internal wall of the main daytime living area”.  The expert witnesses interpret this to mean sunlight on the windows of these areas.  The Tribunal accepts this as a correct interpretation of the Rule.

Private Open Space (POS) – Rule 89 Criterion 89 MUHD Code

  1. Mr Goodyer considered that the original development proposal did not comply with Rule 89.  However in his opinion the amended Revision C plan shows that each unit now meets the Rule, as do the Revision D plans.

  2. In the evidence before the Tribunal it was not clear whether the hedge protecting the privacy of Unit 3 would be inside or outside the black mesh barrier shown on Plan LA01 Revision D (Exhibit PJ4).  Mr Arthur pointed out that if outside it would at the point the barrier meets the boundary be in breach of criteria in the Residential Boundary Fences General Code which require the hedge to be “located wholly within the property boundary when grown”.  However, if the hedge is inside the mesh it would reduce the available POS. The POS for Unit 3 is an irregular shape of 54.6 square metres but any change at the point where the mesh meets the boundary would result in the 6x6 metre minimum dimensions not being achieved and Rule 89(b) not being met.

  3. However in the Tribunal’s view a minor change in the position of the mesh barrier to allow the hedge to remain outside the POS and within the boundary of the subject land would have minimal effect on the amenity of the occupants and would comply with Criterion 89.

  4. Other possibilities are for the hedge to be planted parallel to the Stone Place boundary but partially inside and partially outside the mesh or to plant the hedge wholly inside the mesh. In either case, Rule 89(b) and the Residential Boundary Fences General Code would be complied with.

Private Open Space (POS) – Rule 90(a) Criterion 90 MUHD Code

  1. None of the parties suggested there was an approved estate development plan.  As Units 1, 2, 3, and 10 are shown to be forward of the building line, they do not comply with Rule 90(b) and, therefore, require consideration of Criterion 90.  The focus of Criterion 90 is on the POS for relaxation, dining, entertainment, recreation, passive surveillance and generally maximum year round use.  The development is to be pleasantly landscaped with retention of substantial trees.  The outlook to the south is over open space and trees.  In other directions there is an abundance of mature trees and well-maintained gardens.  The height of the subject land will permit passive surveillance in both directions.  The fencing and hedge screening of the POS is intended to ensure privacy while allowing a degree of surveillance. 

  1. Rule 90(a) requires the POS to be screened from public view and the question in this case is whether a hedge is an acceptable screen.  Mr Goodyer gave little weight to the use of hedges as screening devices.  The Land and Environment Court of NSW is similarly unenthusiastic about hedges as, in the Court’s view,” the need for continued maintenance, good climatic conditions and good luck” were impediments to hedges as screening devices: Super Studio-v-Waverley [2004] NSWLEC 91. Mr Streatfield supported the use of hedging as a screening device. Mr Arthur also said that the decision of the ACTAAT in Bonansea and Commissioner for Land and Planning [2001] ACTAAT 4 had expressed doubt about the use of landscaping to hide an unacceptable building development. The Tribunal notes that the landscape screening in Bonansea was intended to screen a continuous line of building of 73 metres which was 5.5 metres high. It is not surprising that the AAT thought that landscaping was not an acceptable solution.  The hedge required in this development proposal is on a more modest scale.  The Tribunal does not think that luck is a major a factor in the development of an effective hedge.  An owner/occupier of a unit has a degree of self-interest in ensuring that the hedge is well maintained, as does an owners’ corporation which would usually employ a contract gardener for maintenance purposes.  Provided the plants are suitable for the climate and effective watering systems are in place then the Tribunal accepts that the hedge proposed by the developers will screen the POS from public view.  Canberra has many healthy hedges as the hedge at 1 Stone Place demonstrates. 

    Private Open Space (POS) – Rule 90(c) MUHD Code

  2. Rule 90(c) is in two parts, and on a plain reading of the Rule compliance is required of either R90(c)(i) or R90(c)(ii), but not both. All of the expert planning witnesses agreed that all units in the proposed development comply with Rule 90(c)(i).  Mr Goodyer however pointed out that in his view “satisfaction of Rule 90(c)(i) does not meet the underlying objective” of providing with the POS with sufficient sunlight.

  3. Mr Arthur argued that to achieve the degree of sunlight penetration to the POS that is necessary to give maximum solar access, the word “or” between the two parts of Rule 90(c) must be read as “and”.  This argument was made in Mason v ACTPLA [2009] ACAT 7, and on appeal in Rudder v ACTPLA [2010] ACAT 24, and rejected on both occasions. It is useful to repeat what Brennan J (as he then was) said in Drake-v-Minister for Immigration and Ethnic Affairs [1979] AATA 179: “Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitariness which is incompatable with commonly accepted notions of justice”.  In Rudder, the Tribunal examined those situations where the courts had been prepared to read “or” as “and” but concluded that Rule 90(c) was not one of those situations.  The Tribunal adopts the reasoning in Rudder and finds that Rule 90(c) is complied with by the proposed development. 

Private Open Space (POS) – Rule 90(d) and Criterion 90 MUHD Code

  1. In order to minimise damage to the root system of Tree No.5 on Plan TMP - 04 Revision 4 the developers proposed to provide a timber deck and landing in the POS of Unit 3 with a post and beam construction.  This solution for the protection of tree No.5 resulted in non-compliance with Rule 90(d) which requires the POS to be “at ground level with direct ground level access from a main daytime living area of the dwelling”.  It is the Tribunal’s opinion that use of a timber deck to form part of the POS with level access to the main daytime living area of Unit 3 does not compromise the amenity of the POS.  The Tribunal finds that Unit 3 with the amendment provided in Plan TMP - 04 Revision D (Exhibit PJ4) complies with Criterion 90. 

Adequate External Clothes Drying Facilities – Criterion 95, Rule 97 and

Criterion 97 of MUHD Code

  1. Mr Goodyer considered that, as the clothes drying areas for Units 2 and 3 were shared and not adjacent to the units, they did not comply with Criterion 95 which requires that such a facility be “coordinated and complementary to the overall building design”.  The area is close to the units and is shared. It is not in any sense added on or has the appearance of an afterthought. These areas are not inconsistent with Criterion 95 which the Tribunal considers is satisfied.

  2. Mr Goodyer was unhappy with a number of matters concerning Rule 97.  The drying area for Units 2 and 3 would be visible from Units 4 and 5.  This area would also be shaded between 9 am and 3 pm in mid-winter.  Additionally it is partially under Tree No.4 which would potentially result in fallen leaves and branches marking clothes.  It may be that “public” in Rule 97(b) includes the occupants of Units 4 and 5.  If that is so the Rule is not met.  However Criterion 97 does not require the external clothes drying facilities to be ideal or perfect but merely “adequate”.  The Tribunal finds that the clothes drying facilities are adequate and compliant with Criterion 97.

Sections 119 and 120 of the Act

  1. Section 119 sets out that approval must not be given in a number of situations where the development proposal is in the merit track. These situations have been considered and the Tribunal believes that there is no impediment to approving the proposal.

  2. Section 120 requires six matters to be considered by the decision-maker. The objectives of the relevant zone RZ2 – Suburban Core Zone have been considered in detail where the parties have been in dispute as has been the suitability of the subject land for the proposed development. Each representation made in October 2010 and August 2011 is set out in the T-docs and has been considered. Much of the argument before the Tribunal has been about the concerns of the representators and these have been taken into account by the Tribunal. The final three matters have also been considered by the Tribunal in so far as they are relevant and some discussion of these matters is set out above.

Conclusion

  1. Having regard to the evidence and the submissions put to it the Tribunal concludes that there is no basis on which the DA should not be approved, subject to conditions. In each area of concern the Tribunal finds that where any rules have not been met, the proposed development complies with the relevant criteria or will do so if the conditions proposed are implemented. Consequently the Tribunal will make orders pursuant to section 68(3) of the ACAT Act varying the decision of the Authority by amending the conditions attached to the DA in accordance with the reasons given in the preceding paragraphs.

    ………………………………..

    Mr A. O’Neil, Senior Member

    For and on behalf of the Tribunal

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A



FILE NUMBER:

PARTIES, APPLICANT:

PARTIES, RESPONDENT:

COUNSEL APPEARING, APPLICANT

COUNSEL APPEARING, RESPONDENT

SOLICITORS FOR APPLICANT

SOLICITORS FOR RESPONDENT

TRIBUNAL MEMBERS:

DATES OF HEARING:

PLACE OF HEARING:

PART B

RECOMMENDATION:

FULL REPORT ( )       CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS:

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Cases Cited

5

Statutory Material Cited

0

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41
Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39
Super Studio v Waverley Council [2004] NSWLEC 91