Keith Savvas v Commissioner for Land and Planning
[2002] ACTSC 121
KEITH SAVVAS v COMMISSIONER FOR LAND AND PLANNING AND OTHERS [2002] ACTSC 121 (6 December 2002)
CATCHWORDS
BUILDING AND CONSTRUCTION - town planning – Land (Planning and Environment) Act 1991 – appeal from Administrative Appeals Tribunal affirming decision taken to have been made to refuse development application – proposed construction of second residence on land in Old Red Hill precinct – need for consistency with Territory Plan and Heritage Places Register – requirements to conserve heritage significance of the precinct - intensity of development - relevance of proposed subdivision under Unit Titles Act 1970 – whether approval would involve change in subdivision pattern – whether development would adversely affect streetscape – whether areas under low portions of ceiling should be included in gross floor area.
Land, Planning and Environment Act 1991, ss 7(3), 8, 54, 230(2), 230(3), s 231(1)(a)(i)
Territory Plan, cl 2.2 of Pt A3, par 13.4 of Pt A2, Pt D, Pt B(1)
Heritage Places Register, Appendix V
Unit Titles Act 1970
Rice v Henley (1914) 19 CLR 19
Ian Turner Partners (NSW) Pty Ltd v Lane Cove Municipal Council (1985) 57 LGRA 224
Edgar v Department of Environment, Land and Planning [1993] ACTAAT 59
North Canberra Community Council and Moraska-Ahearn v Commissioner for Land and Planning [2000] ACTAAT 6
Mercredits Ltd v Commonwealth of Australia (1975) 35 LGRA 65
Golden Fleece Petroleum Ltd v Rockdale Municipal Council (1984) 52 LGRA 202
Wilson v Commissioner for Land & Planning & Ors [2001] ACTAAT 26 (28 September 2001)
APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
No. SCA 103 of 2001
Judge: Crispin ACJ
Supreme Court of the ACT
Date: 6 December 2002
IN THE SUPREME COURT OF THE )
) No. SCA 103 of 2001
AUSTRALIAN CAPITAL TERRITORY )
APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:KEITH SAVVAS
Appellant
AND:THE COMMISSIONER FOR LAND AND PLANNING
First Respondent
NATIONAL TRUST OF AUSTRALIA (ACT)
Second Respondent
B and L THEARLE
Third Respondent
ANNE FORREST
Fourth Respondent
D L THEARLE
Fifth Respondent
M McINTOSH
Sixth Respondent
B and A HOWARTH
Seventh Respondent
OLD RED HILL PRESERVATION GROUP INC
Eighth Respondent
E LAURIE
Ninth Respondent
DR and MRS G J HARVEY
Tenth Respondent
P and G BIRD
Eleventh Respondent
A WILES
Twelfth Respondent
E and R DIGWEED
Thirteenth Respondent
ORDER
Judge: Crispin ACJ
Date: 6 December 2002
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
This is an appeal from a decision of the Administrative Appeals Tribunal affirming a decision taken to have been made by the first respondent to refuse approval of a development application relating to the proposed construction of a further residence on land described as block 11, section 4, division of Red Hill (“the block”). The first respondent failed to make a decision in relation to the application before the expiration of the prescribed period and, accordingly, was taken to have refused to approve the application by virtue of s 230(2) of the Land, Planning and Environment Act 1991 (“the Act”). The first respondent also refused to exercise the discretion provided by s 230(3) to approve the application notwithstanding the expiration of the prescribed period.
The block is located at the corner of Monaro Crescent and Flinders Way, Red Hill and consists of some 3,833 square metres of land with frontages of approximately 95 metres to Monaro Crescent and approximately 35 metres to Flinders Way. It is adjoined on the other sides by a block containing a single residence and a block containing the Embassy of the Holy See. It has a spacious garden with mature trees and shrubs and a relatively new photinia hedge planted along the boundary lines adjacent to the streets. An existing two storey residence is located towards the rear of the block and a tennis court is located between that residence and Flinders Way. The proposed development involved the removal of the tennis court and the erection of a two storey detached house substantially on its site together with the provision of a new driveway and associated landscaping. It was also proposed that the block would be subdivided pursuant to the Unit Titles Act 1970.
The proposal was opposed by the second respondent and by the third to thirteenth respondents inclusive who were all objectors.
Section 8 of the Act effectively prohibits the approval of any development application that would be inconsistent with the Territory Plan. Section 7(3) provides that the Territory Plan may incorporate a Heritage Places Register and s 54 provides that the Register must include, inter alia, a statement of the heritage significance of each identified heritage place and specify requirements for the conservation of that heritage significance, including requirements for the conservation of features identified as intrinsic to that heritage significance. It was common ground that the Heritage Places Register should, therefore, be taken to have been incorporated into the Territory Plan and that the development application could not have been approved if inconsistent with any requirements of the Register that had been properly specified pursuant to s 54.
In its reasons for decision, the Tribunal observed that the Legislative Assembly had passed a motion on 28 June 2000 recommending that the Executive direct the ACT Planning Authority to review the Territory Plan in order to provide for a development intensity of no more than one dwelling on any block in the Red Hill housing precinct. The Executive subsequently gave such a direction and the Planning and Land Management Group (“PALM”) duly undertook the proposed review. A report concerning the review was tabled in the Legislative Assembly on 30 November 2000. On 14 February 2001 the Legislative Assembly passed a further motion recommending that the Executive direct the ACT Planning Authority to implement policies providing for the contemplated development intensity of not more than one dwelling per block in the Red Hill housing precinct. The executive subsequently gave a direction to that effect and the policies were reflected in a draft Territory Plan variation released by PALM for public comment in July 2001. During the proceedings before the Tribunal it was argued that the policy reflected in the report of the review and/or the draft variation should be accepted as planning guidelines which the Tribunal was obliged to take into account by virtue of cl 2.2 of Pt A3 of the Territory Plan. The Tribunal rejected this contention and its decision to do so was not challenged on appeal. It is therefore unnecessary for me to consider this issue further.
The Tribunal adverted to the principle stated in par 13.4 of Pt A2 of the Territory Plan that places of heritage significance “will be protected in accordance with the requirements for their conservation set out in the Heritage Places Register”. It then quoted the following passage from the Heritage Places Register, Appendix V to the Territory Plan, concerning the heritage significance of the Red Hill housing precinct (place no 52):
The Red Hill housing precinct clearly demonstrates the philosophy of Garden City planning which underpinned the early planning of Canberra by the Federal Capital Advisory Committee (FCAC) and the Department of the Interior. Red Hill represents the grandest of development of a garden suburb within the ACT through its spacious and highly landscaped subdivision, intended for public sale to the higher socio-economic groups. In conjunction with the other garden city precincts, it demonstrates the early Canberra philosophy of segregating different socio-economic groups between regions and suburbs of the ACT, a planning approach that has been discontinued in favour of creating a more integrated socio-economic community.
The outline of the major streets within the precinct appeared on Walter Burley Griffin’s official plan of Canberra, prepared in 1918. The actual subdivision was planned in 1924 by Sir John Sulman, Chair of the FCAC and the first blocks were sold in December 1924.
The subdivision of Red Hill provided larger block sizes than in any other area of Canberra. The large block sizes facilitated the development of a semi rural landscape, including provision for domestic livestock and orchards, to supplement the limited availability of fresh produce at the time. Little evidence of this semi rural use remains. The spacious blocks have precipitated the construction of substantial homes and diplomatic missions within park-like settings, reflecting a variety of architectural styles and complemented by extensive private landscaping.
The overall landscape of Red Hill is significant and highly valued by the community for its distinctively high ratio of garden areas to buildings and the mix of mature deciduous and evergreen trees, many of which date from the 1930s.
. . .
The Precinct includes the existing and former residences of a range of people prominent in public life at a national and local level. The prestigious character of the area has led to the establishment of diplomatic missions and enhanced its attraction as a tourist destination.
The Tribunal noted that the features identified as intrinsic to the heritage significance of the precinct included the presence of the largest residential blocks and private gardens “in early Canberra”. Specific Requirement (ii)(b) for Place no 52 was in the following terms:
The overall planning layout of the Precinct is an integral part of its significance and its components, including streets, verges, and the subdivision pattern consisting of large block sizes with a high ratio of landscaped area to built form, shall be conserved.
The requirements for building had included Specific Requirement (iii)(a) that:
The siting, density, building mass, form, materials, colour and details of new buildings, external alterations and additions shall contribute to the retention or enhancement of the overall character of the precinct as described in the statement of significance.
The issue of development intensity had been dealt with in Specific Requirement (V) that:
Not more than two dwellings shall be permitted on any block. Except for sub division under the Unit Titles Act 1970, existing blocks shall not be further sub divided or consolidated.
When originally developed the precinct had contained 46 blocks but later subdivision had led to it containing 73 blocks with an average size of 5148 m2. The average size of blocks in section 4 of the precinct was 7244 m2. The Tribunal found that, despite this process of subdivision, the large size of the blocks remained one of the precinct’s significant features.
Strong opposition to the appellant’s application was expressed by the Heritage Council, whose comments must be taken into account in the determination of any development application by virtue of s 231(1)(a)(i) of the Act. The Heritage Council’s comments included the following:
The existing block is already a subdivision of a formerly larger block. The existing block is 3833 sq m and the proposed new block will be less than half this size. While these areas may appear generous compared to other areas in Canberra, the proposed new block will be the smallest in Red Hill Housing Precinct.
The Red Hill Housing Precinct is significant for having the largest residential blocks and private gardens in early Canberra. It is this fact, in combination with the mature landscaping on private properties that distinguishes Red Hill housing precinct. The proposal to subdivide the property and construct a new dwelling is completely at odds with the precinct’s culturally significant values and contradicts the intention of the conservation policy above which is to conserve and protect the heritage significance of the place by restricting development to low density on existing blocks to ensure existing level and quality of landscape remains.
. . .
Approving unit title subdivision of this block will set a precedent for a new wave of subdivision applications that will ultimately lead to the loss of Red Hill Housing Precinct’s heritage significance and a consequent loss of a significant part of Canberra’s heritage.
Mr Martin, an architect who gave evidence on behalf of the National Trust of Australia (ACT), pointed out that the block had already been subdivided and that the proposed development would result in three houses on an area of land originally planned to accommodate one house and would effectively result in the creation of two blocks each smaller in size than any other in the precinct. He said that the comparatively close proximity of the existing and proposed houses would be inconsistent with the apparently spacious landscaped areas that separated other houses in the precinct and the fact that the development was intended to occur on a corner block where it would be clearly visible from two streets would increase the visual impact of this inconsistency.
After discussing the relevant issues, the Tribunal expressed its conclusions in the following succinct passage:
There is, in my opinion, ample evidence in this case that the overall planning layout of the precinct would not be conserved by the alteration of the subdivision pattern proposed by the development application; that the objective of the B1 Residential Land Use Policies of the Territory Plan to ensure protection of significant street scapes would not be achieved and that the GFA (growth floor area) limitation would be exceeded by approval of the development application. There is also, in my view, little persuasive evidence to support contrary conclusions. Accordingly, I conclude that the decision taken to have been made by the respondent should be affirmed.
These conclusions were challenged on a number of grounds.
The first ground was as follows:
The Tribunal erred in law by deciding that the proposed construction of a second dwelling on the Appellant’s block constituted:
(i)Subdivision of the block; or
(ii)Alteration of the size of the block; and therefore
(iii)Alteration of the pattern of block sizes in the Red Hill Precinct.
Mr Flint, who appeared for the appellant, argued that the Heritage Places Register expressly contemplated that two dwellings might be permitted on any block in the precinct and that there might be subdivision under the Unit Titles Act. Hence, neither proposal was inherently inconsistent with the Register. Furthermore, the first respondent had not been required to determine whether any application for subdivision should be approved and approval of the development application would not, of itself, have effected such a subdivision or otherwise resulted in any reduction of the size of the block. Hence, if the Tribunal had been intending to imply that approval of the development application would have directly affected the subdivision pattern of the precinct, then it had plainly fallen into error. Alternatively, if the Tribunal had been intending to refer to the mere appearance of a subdivision then any assumption that this provided some ground for refusing the application would also have involved an error of law since the relevant provisions of the Heritage Places Register were concerned with actual subdivisions rather than matters of mere appearance or impression and neither of the apparent portions of the ostensibly divided land would have satisfied the definition of a “block” in the Territory Plan.
In answer to these contentions, Mr Erskine, who appeared for the first respondent, submitted that the Tribunal had plainly been aware of the fact that any subdivision would be effected by approvals under that Unit Titles Act and not by the approval of the development application. That was evident from the statement in the reasons for judgment that “[i]f subdivided as proposed by the development application, would result in two unit title blocks . . .”. The development application had included as a description of the appellant’s proposal the words, “proposed new residence and unit title subdivision”, and it was, therefore, entirely understandable that the Tribunal had referred to the intended subdivision as having been “proposed by the development application”. He argued that the Tribunal has been entitled to take into account the fact that the intended subdivision was a constituent element of the overall proposal.
I accept this submission. The statement which the appellant made in the development application indicated that the construction of the new residence and the subdivision under the Unit Titles Act were clearly intended to be two elements of what seems to have been essentially a single proposal and there was no reason for the Tribunal to have turned a Nelsonian eye to the other element merely because the appellant would have been required to seek subdivision approval from another body. A piecemeal approach of that nature could conceivably permit a series of decisions each of which might be unexceptionable if considered in isolation but the combined effect of which might produce a situation quite contrary to the public interest.
Furthermore, it is apparent that the requirements imposed by the Heritage Places Register are intended to ensure that the appearance of the area retains the desirable features therein described. As the Tribunal observed, the applicants accepted that the visual effect of the development application would be of a subdivision of the block comprising two houses on separate parcels of land and that was, in any event, a prospect which, in my opinion, the Tribunal would have been entitled to take into account.
The second ground of appeal was as follows:
In deciding the development proposal had an unacceptable ratio of landscape space to built form the Tribunal erred by:
(i)Incorrectly excluding impervious or hardstand areas as landscape spaces;
(ii)Incorrectly stating the test to be the ratio of “gardens” to buildings; and
(iii)Applying an incorrect definition of “gross floor area”.
Whilst I have read the Tribunal’s decision carefully, I can see no reason to conclude that it acted upon any assumption that impervious or hardstand areas should be excluded from the concept of landscape spaces. It is true that the reasons for the Tribunal’s decision include the phrase, “the additional hard surfaces proposed and consequent loss of landscaping”, but this phrase was used in describing an opinion that had been expressed by Mr Brown rather than in stating the Tribunal’s own opinion.
Nor is there any reason to suppose that the Tribunal incorrectly posited a test based upon the ratio of gardens to buildings. The Tribunal was plainly required to approach the matter by considering whether the proposed development would be substantially consistent with the significant features of the precinct identified in the Heritage Places Register, having regard to the overall description of the area and its desirable characteristics. As mentioned earlier, the description included a statement that:
The overall landscape of Red Hill is significant and highly valued by the community for its distinctively high ratio of garden area to buildings and the mix of mature deciduous and evergreen trees . . .
Having regard to this description, the Tribunal was obviously entitled to also take into account the ratio of garden areas to buildings and there is nothing in the Tribunal’s reasons to suggest the application of an incorrect test.
It is true that the Heritage Places Register also refers more generally to landscaped areas but, even in this context, the Tribunal would have been entitled to take into account the fact that whilst “impervious or hardstand” areas might form part of the landscape they are qualitatively different from other aspects of the landscape such as trees, lawns and shrubs. Hence, whilst the construction of a concrete or paved driveway would undoubtedly form part of the landscape, it might nonetheless have an adverse effect on the overall appearance of the landscape as described in the Heritage Places Register.
Extensive submissions were made concerning the Tribunal’s finding that the proposed development would have resulted in a gross floor area exceeding the maximum permitted for the block in question. The prominence given to this issue seemed somewhat incongruous since the total permissible area would have been exceeded only by about 3 per cent, the appellant would have been free to submit a modified application if successful on the other issues and, conversely, the objections of the respondents reflected substantial opposition to the construction of any additional residence rather than mere quibbles about whether the residence proposed might be marginally too large. Nonetheless, the appellant was plainly entitled to challenge the Tribunal’s findings on this issue.
As the Tribunal observed, the restriction imposed by the Heritage Places Register for Place No 52 is in the following terms:
The maximum permissible gross floor area for development on any block shall be determined by the following formula:
y = 350 + 15x/200
Where:
y = the maximum permissible gross floor area for development on a block;
and x = the area of the block in square metres.
Where existing development of a block exceeds the maximum permissible gross floor area as specified above, rebuilding up to the existing gross floor area may be permitted provided it does not involve the establishment of an additional dwelling.
A proposed alteration to an existing building that would cause the maximum permissible gross floor area specified above to be exceeded in a minor manner may be permitted provided it does not involve the establishment of an additional dwelling or reduce the landscape setting for any development on the block.
It was accepted by the parties that the maximum permissible gross floor area for the block in question was 637.5 square metres. The Tribunal found that, “according to the calculation made by the respondent, the GFA of the existing house and the proposed new house would be 656.57 m2 or 665.3 m2, depending upon which of two calculations of GFA of the proposed new house provided by the applicant was accepted”. Any evidence given as to the bases of these calculations was not reproduced in the appeal book and the divergency was left unexplained. However, Mr Flint made it clear that the appellant did not seek to challenge the accuracy of the calculations. The relevant ground of appeal raised two issues; namely, whether the gross floor area should have been calculated by reference to both the existing and proposed residences and, if so, whether the whole of the upper level of the existing residence should have been included. It was common ground that if the appellant failed on both of these issues, the Tribunal’s conclusion that the permissible gross floor area would have been exceeded could not be impugned.
The first of these issues may be readily resolved. I am unable to accept Mr Flint’s argument that the term “development” is used in the relevant portion of the Heritage Places Register to refer to the development under consideration and not to the overall size of the buildings erected on the block. In my opinion, the phrase “maximum permissible floor area for development on any block” must be taken to refer to the total gross floor area of all of the buildings that may be constructed on any such block. The restriction is plainly intended to ensure that overall development is limited by reference to the size of the block and that policy would be effectively circumvented if it were to be construed as applying only to each successive development application so that new buildings could be progressively constructed or existing buildings could be progressively extended without regard for the aggregate area ultimately involved.
The second of these issues involved the contention that term “gross floor area” should be construed as referring only to areas of floor that could be walked upon or that were “usable”. The upper storey of the existing residence had ceilings which sloped down from a considerable height in the area beneath the ridge capping to low external walls. In the proceedings before the Tribunal, the appellant had relied upon calculations that excluded areas of the second storey where the ceiling was less than 2.1m in height. He had relied upon evidence from Mr Dowling, an architect, to the effect that the Building Code of Australia did not include a space under a ceiling of less than that height as a habitable space and that, in medium density developments with which he had been involved previously, attic areas had not been included in calculations of gross floor area by departmental officers. The Tribunal rejected the submission, observing, inter alia, that the definition in the Heritage Places Register did not appear to recognise any such exception.
Mr Flint argued that in doing so it had fallen into error. If the existing residence had had vertical walls extending to the full height of the other storey, the building would have had greater bulk and a visually larger appearance. Hence, he submitted, it would not be inconsistent with the overall policy reflected in the Heritage Places Register to adopt a liberal interpretation of the concept of gross floor area that would exclude portions of the floor constructed beneath sloping ceilings. The word “floor” normally referred to that part of the floor that was capable of being walked upon. See Rice v Henley (1914) 19 CLR 19; and Ian Turner Partners (NSW) Pty Ltd v Lane Cove Municipal Council (1985) 57 LGRA 224. Whilst the evidence did not reveal the precise height of the ceiling at any given point, the plans included in the appeal book suggested that there were areas of the floor on which adults of normal height may have been unable to stand. He submitted that the height of 2.1 metres proposed by Mr Dowling by reference to the Building Code of Australia was a reasonable standard by which to judge whether the floor below was capable of being walked upon or was otherwise usable, especially if one allowed some margin for light fittings, ceiling fans and the like.
He also argued that a floor must be bounded by walls (see Edgar v Department of Environment, Land and Planning [1993] ACTAAT 59) and maintained that this meant vertical or upright structures (see North Canberra Community Council and Moraska-Ahearn v Commissioner for Land and Planning [2000] ACTAAT 6). Since the upper story of the existing residence had been bounded partially by walls and partially by roof, this criterion had not been satisfied.
Mr Erskine responded that there was no reason to confine floor areas to spaces capable of being walked on. He pointed out that many rooms contain furniture or storage cabinets and even if the objects were located under areas of the ceiling too low to permit people to walk without stooping, these areas were nonetheless usable. Furthermore, even if the concept of “floor” were to be restricted to structures capable of being walked on, a ceiling height of 2.1 metres was excessive. He also submitted that this argument had not been raised before the Tribunal and, in any event, there had been no evidence that any areas that could not have been walked upon by a person of normal height would have been sufficiently large to have brought the development within the gross floor area requirement. Hence, it could not be said that the Tribunal had fallen into any error capable of impugning the decision.
Mr Walker supported these submissions. He also argued that the definition of gross floor area contained in Pt D of the Territory Plan did not suggest that areas should be excluded on any such basis. That definition provides that “gross floor area” means “the sum of the areas of all floors of the building measured from the external faces of the exterior walls, or from the centre lines of walls separating the building from any other building, excluding an area used solely for roof top fix, mechanical plant and/or basement car parking”. Mr Walker submitted that the generality of this definition was in accordance with the ordinary meaning of the word “floor” as “the area of a building on which people tread or the under surface of the interior of a room”. See Mercredits Ltd v Commonwealth of Australia (1975) 35 LGRA 65 at 66.
I accept Mr Walker’s submission. In my opinion, there is no justification for reading down the definition of “gross floor area” in Pt D of the Territory Plan in the manner suggested by Mr Flint. There is nothing in that definition to suggest that areas may be excluded from consideration by reason of the low height of the ceilings above them or restrictions on use thereby created. Furthermore, it would be difficult to justify even the implication of a qualification to the effect that only “usable” space may be included when the definition requires that the area be calculated by reference to the exterior surfaces of the exterior walls and significant parts of the area so calculated would consist of space occupied by the walls themselves.
I am also unable to accept Mr Flint’s submission that only floor space bounded by vertical walls can be taken into account. Such a submission would involve the consequence that a chalet type residence with no vertical walls should be regarded as having no gross floor area. On the contrary, as Cripps J said in Golden Fleece Petroleum Ltd v Rockdale Municipal Council (1984) 52 LGRA 202 at 206, an area need not be bounded by walls and a ceiling to constitute floor space. Hence, as his Honour observed both in that case and in the subsequent case of Ian Turner Partners (NSW) Pty Ltd v Lane Cove Municipal Council (supra), a balcony protruding beyond the external walls may constitute part of the floor space of the building.
In my opinion, what is involved in the concept of a floor is the horizontal surface at the base of each storey in a building including, of course, mezzanine floors or attics. Any such areas must be included in the calculation carried out by reference to the definition in the Territory Plan and the mere fact that people may be unable to walk on some areas by reason of low ceilings does not, of itself, warrant a conclusion that the relevant surface is not a floor. Conversely, there may be some flat areas upon which people could walk which should not be regarded as a floor. One common example is that of an area of planks laid upon horizontal beams above a ceiling to enable a householder or repairers to gain access to the underside of the roof or electrical fittings contained within the roof cavity.
I accept that there may sometimes be a fine line to be drawn between something which must be regarded as part of the gross floor area of a building and something falling outside that description. For example, it may be difficult to distinguish between a ground floor balcony forming part of a building and an adjacent area of raised courtyard or between the floor of an attic used for storage and other areas under the roofline used for storage purposes. However, the present case did not require the resolution of any issues of this kind and I can see no reason to find that the Tribunal may have fallen into error by determining that the combined gross floor area of the existing and proposed residences would have exceeded the permissible maximum for the block.
The third ground of appeal was as follows:
In deciding the development application did not appropriately conserve the streetscape or street pattern or was inconsistent with it, the Tribunal erred in law by
(i)Applying the objectives of the Territory Plan as requirements to be met by the appellant;
(ii)Applying an incorrect test, namely whether there was substantial alteration to the street scape;
(iii)Incorrectly determining the set back distances applicable to the development by reference to the surrounding premises rather than the terms of the Territory Plan.
The last of these propositions was not pressed in argument.
However Mr Flint did argue that the Tribunal had fallen into error in treating objectives of the residential land use policies relating to streetscapes as if they were mandatory requirements and in failing to balance them against other and perhaps competing objectives of the Territory Plan. As previously mentioned, s8 of the Act prevents the approval of any development that would be inconsistent with the Territory Plan and it was therefore incumbent upon the Tribunal to take into account the objectives stated in Pt B(1) of that Plan which included ensuring the protection of significant streetscapes. As the Tribunal suggested in the earlier case of Wilson v Commissioner for Land & Planning & Ors [2001] ACTAAT 26 (28 September 2001), a proposed development may be conducive to some objectives but inimical to others and it may be necessary to weigh the competing considerations involved, having regard to the principles and policies identified as relevant in the Territory Plan. In the present case, however, there is nothing in the Tribunal’s decision to suggest that the objective of conserving the streetscape had been treated as an absolute requirement or that the Tribunal had been unaware of the need to balance competing considerations. Indeed, as Mr Erskine pointed out, the argument advanced in support of this ground did not extend to identifying any other objective which the Tribunal was alleged to have overlooked or failed to have taken into account.
I am also unable to accept the submission that the Tribunal applied an incorrect test by asking, in effect, whether the proposed development would have involved any substantial alteration to the streetscape. It is clear from an overall reading of the judgment that the Tribunal had formed the opinion that the streetscape would not merely be substantially altered but altered in a manner that would be substantially detrimental to its overall appearance and inimical to the heritage significance of the precinct. This was an entirely relevant consideration.
The fourth ground was as follows:
In holding that the development application failed to preserve the overall planning of the precinct the Tribunal erred in law by:
(i)Incorrectly referring to the planning layout of the immediate surrounding environment rather than that of the Red Hill Precinct;
(ii)Incorrectly calculating a ratio of landscape to built form.
The contention that the Tribunal had fallen into error by referring to the planning layout of the immediate surrounding environment rather than that of the Red Hill precinct was not supported by any detailed argument and I am again unable to discern any error in the Tribunal’s approach in relation to this issue.
The contention that the Tribunal had incorrectly calculated a ratio of landscape to built form seemed to be substantially dependent upon the contentions that the ratio of gardens to buildings was not a relevant consideration and that the Tribunal had failed to take into account other aspects of the landscaped areas. For the reasons given earlier, I am unable to accept these contentions.
Mr Flint also argued that compliance with gross floor area requirements would ordinarily meet the requirement of such a ratio. I accept that this might often be the case but do not accept that the mere fact that a proposed development would not exceed the gross floor area requirements should be taken to relieve the relevant decision maker of the need to consider the ratio of landscape space to built form. Different considerations might well arise. To take but one obvious example, a building involving one floor of 400 square metres would obviously reduce the surrounding landscape space by twice the area of a building involving two floors, each of 200 square metres.
In any event, I am unable to see any basis upon which it could be contended that the Tribunal fell into appealable error in relation to any such issue.
The final ground of appeal which involved contentions of bias or a reasonable apprehension of bias was expressly abandoned.
I am not satisfied that any error in approach has been demonstrated. On the contrary, I am satisfied that the decision was the only one reasonably open in the light of the Act, the Territory Plan and the Heritage Places Register. The appeal must be dismissed.
I will hear counsel as to costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Crispin.
Associate:
Date: 6 December 2002
Counsel for the appellant: M Flint
Solicitor for the appellant: Bradley Allen
Counsel for the first respondent: C Erskine
Solicitor for the first respondent: ACT Government Solicitor
Counsel for the 2nd, 3rd, 5th respondents: P Walker
Solicitor for the 2nd, 3rd, 5th respondents: Minter Ellison
Date of hearing: 25 November 2002
Date of judgment: 6 December 2002
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