Kimball and Act Planning and Land Authority and Anor

[2006] ACTAAT 33

AUSTRALIAN CAPITAL TERRITORY

ADMINISTRATIVE APPEALS TRIBUNAL

CITATION:KIMBALL AND ACT PLANNING & LAND AUTHORITY & ANOR [2006] ACTAAT 33 (16 NOVEMBER 2006)

AT06/56

Catchwords:  Land and planning – residential development – block of unusual shape - residential land use policies – design and siting code for multi-dwelling development – setback to front boundary – overshadowing.

Tribunal:Ms P O’Neil, Senior Member

Dr E McKenzie, Senior Member

Dr D McMichael, Senior Member

Date:16 November 2006

AUSTRALIAN CAPITAL TERRITORY                   )
ADMINISTRATIVE APPEALS TRIBUNAL )          NO:     AT06/56
LAND AND PLANNING DIVISION  )

RE:      MARCIA KIMBALL
  & JOHN KIMBALL
Applicant

AND:   ACT PLANNING AND
  LAND AUTHORITY
Respondent

AND:   WILLIAM J

LUBBOCK & GAIL M

LUBBOCK

Party Joined

DECISION

Tribunal  :          Ms P O’Neil, Senior Member
  Dr E McKenzie, Senior Member
  Dr D McMichael, Senior Member

Date  :          16 November 2006

Decision  :

The decision under review is set aside and substituted with a decision that approval of the development application is refused.

………………………….
  Senior Member

AUSTRALIAN CAPITAL TERRITORY                   )
ADMINISTRATIVE APPEALS TRIBUNAL )          NO:     AT06/56
LAND AND PLANNING DIVISION  )

RE:      MARCIA KIMBALL
  & JOHN KIMBALL
Applicant

AND:   ACT PLANNING AND
  LAND AUTHORITY
Respondent

AND:   WILLIAM J

LUBBOCK & GAIL M

LUBBOCK

Party Joined

REASONS FOR DECISION

16 November 2006  Ms P O’Neil, Senior Member
  Dr E McKenzie, Senior Member
  Dr D McMichael, Senior Member

Marcia and John Kimball (“the applicants”) live at 29 Mueller Street (Block 3 Section 54) Yarralumla.  They applied for review of a decision of the ACT Planning and Land Authority (“the respondent”) to approve a dual occupancy development at 12 Bentham Street (Block 2 Section 54) Yarralumla.  William and Gail Lubbock (“the party joined”) are the lessees of Block 2 Section 54 and Mr Lubbock is the development applicant.  Blocks 2 and 3 of Section 54 are adjoining roughly triangular blocks that together form the north-east corner of Section 54 at the intersection of Bentham and Mueller Streets.  Block 2 lies on the north-west side of the common boundary with Block 3.  The common boundary runs generally north-east to south-west.  

2.  The development approved with conditions after re-consideration by the respondent allows the demolition of the existing dwelling on Block 2, the erection of two 2-storey attached dwellings with basement car parking, associated landscaping and a variation to the Crown lease to permit not less than one and not more than two dwellings. Both Blocks 2 and 3 are located in an area covered by the ‘Area A10: Residential Core’ policies in the Territory Plan. Block 2 is 890 square metres so that the proposed development of 426.8 sq m will result in a plot ratio of about 0.45, which is less than the maximum plot ratio of 0.5 allowed in A10 areas.

Residential Land Use Policies

3.  The A10 policies apply to delineated areas, designated as Residential Core Areas, within a number of Canberra suburbs, including Yarralumla.  They allow a greater density of development in those areas than in existing low density residential areas but not to the extent allowed in B11 and B12 areas in North Canberra.  The Residential Core Areas typically consist of those areas within approximately 300 metres of group or town centres or 200 metres from identified local centres. B11 and B12 areas provide opportunities for significantly increased dwelling densities in residential areas with immediate proximity to transport corridors, commercial areas and employment centres.  The differences between the three densities of residential development are illustrated by three different residential design and siting codes found in Appendix III to the Plan.  In A10 areas, the applicable code is Appendix III.2: Residential Design and Siting Code for Multi-dwelling Developments (“the Code”).

Design and Siting Code

4.  The Code contains a number of objectives and related performance criteria and performance measures. The Code states that an approval may not be granted to a proposal which is inconsistent with the objectives and performance criteria stated in a relevant performance control.  The performance measures are considered to satisfy the objectives and relevant performance criteria in most cases so that normally no further evidence of performance is required.  However, proposals which do not meet performance measures may still be considered in terms of whether they meet the relevant objectives and performance criteria.

5.  Evidence to the Tribunal focussed on whether the requirements of the Code were satisfied.  The applicant relied upon a report and oral evidence of Mr Peter Overton, a qualified architect for twenty-four years.  Mr Overton prepared a computer 3-D model, CAD drawings and shadow diagrams to illustrate aspects of the proposed development particularly in its relationship to the applicants’ dwelling.  Ms Rumana Masud Jamaly who holds qualifications in architecture and urban planning also gave oral evidence.  She is a senior officer employed by the respondent and was the original decision-maker.

6. A number of aspects of the proposed development were non-compliant with the relevant performance measures, and this was recognised by all parties. However, the weight given by the applicants to these non-compliances differed from that given to them by the respondent. Collectively, they were considered by the applicants as evidence that the proposed development was simply too large for the block. The Tribunal considers that some, taken alone, are of minor significance. These include those relating to the location of the driveway access, the intrusion into the building envelope, and the likelihood of over-viewing of the applicants’ private open space from the bedroom windows of the western unit. Some matters however, in particular the proposed front setbacks and the likelihood of overshadowing, are not minor.

Setback to Front Boundary

7.  The performance controls in the Code are:

Objective

O2.1To provide attractive streetscapes which reinforce the functions of the street and enhance the amenity of dwellings.

Performance Criteria

P2.1The setback from the street frontage to be appropriate to the streetscape character, the efficient use of the site and the amenity of residents.

Performance Measures

D2.1    Minimum setback of buildings from street front boundary

All street frontages:               lower floor level            6 metres

upper floor level         7.5 metres

8.  The respondent imposed as a condition of approval that two fin walls at the rear of the proposed development on Block 2 be moved so as to be located a minimum of 3 metres and 6 metres from the common boundary with Block 3.  To accommodate this condition, the building was proposed to be moved forward towards the street.  This meant a reduction in the front setback to 5 metres, as opposed to the front setback originally proposed, which was 6 metres at both lower and upper levels.  Front courtyard walls were approved no closer than 3 metres from the boundary.  This would only affect the proposed eastern residential unit, which is located forward of the western residential unit, the latter being set back 9 metres from the front boundary with a 6 metre courtyard in front.  The differing setbacks are a design response to the triangular shape of the block.

9.  It can be seen that the eastern unit of the development as originally proposed had a setback 1.5 metres less at upper floor level than the relevant performance measure, although in this respect it followed the pattern of developments opposite it and beside it in Bentham Street.  Both of these are two storey multi-dwelling developments where setbacks of 6 metres at both lower and upper floor levels have been allowed, although one also has fin walls and courtyard walls forward of the building line.  The effect of the respondent’s decision would be to allow a setback of 5 metres at both floor levels for the eastern residential unit, a lessening by 1 metre at lower floor level and 2.5 metres at upper floor level from the performance measures in the Code.   It would also allow the building line of part of the development to be located closer to the street than any other nearby residential developments.

10.  That in order to comply with the Code’s rear setback performance measures, the front setback of the eastern unit had to be reduced to the extent proposed, tends to lend weight to the applicants’ contention that the proposal represents an over-development of the site.  The test to be applied is set out in paragraph 4 above, that is, whether the performance criteria and objectives for buildings in relation to front boundaries are met. 

11.  The respondent claimed that the reduced setback was acceptable because it would occur over only about half of the total length of the proposed building, and that on average the setback would comply with the performance measures.  While articulation is a recognised design approach influencing the appearance of a building from the street, the performance controls here require that consideration be given to the effect on the streetscape of that part of the building that would not meet the setbacks in the performance measures.

12.  The respondent also considered the reduced front boundary setbacks by reference to the relevant performance criteria in the Code.  In relation to streetscape, the respondent drew attention to the two nearby multi-dwelling developments that had setbacks of 6 metres at both lower and upper floor levels, which were referred to as ‘precedents’ for lesser setbacks.  Attention was also drawn to lesser setbacks of commercial buildings in the shopping centre further along Bentham Street across the intersection with Novar Street.  As for the latter, we do not accept that the front setbacks of commercial buildings provide an appropriate or relevant comparison, particularly having regard to the objective that requires consideration of the ‘functions’ of the street.  The functions of the street in the context of residential development are different from those in a commercial area.  As for the comparison with nearby residential developments, the street setback of the eastern unit in this case is proposed to be less at both lower and upper floor levels than those of adjacent developments or any other residential development in the immediate vicinity to which our attention was drawn. We observe that allowing increasing encroachments into front boundary setbacks with successive developments will, over time, risk rendering the performance controls meaningless in so far as they affect streetscape. 

13.  The respondent also relied on the criterion’s reference to the efficient use of the site and the amenity of residents to justify these departures.  Since it is located in an A10 area, placing two residential units on this block would appear to be an efficient use of the site.  As for the amenity of residents, we note that moving the residential units forward toward the street will reduce the areas of the north-facing courtyards of both proposed units.  That cannot be said to enhance the amenity of the residents.

14.  The evidence does not support a finding that the relevant objective of the Code - to provide attractive streetscapes which reinforce the functions of the street and enhance the amenity of dwellings – is met if the eastern unit is allowed to be set back from the front boundary by only 5 metres at both lower and upper floor levels.   We find that the performance measures and objectives for buildings in relation to front boundaries are not satisfied.

Overshadowing

15.  The performance controls dealing with sunlight and shadow are as follows:

Objectives

O3.1To site buildings to meet projected user requirements for privacy and daylighting.

O3.2To site and design buildings to promote energy efficiency and access to sunshine.

O3.3To ensure scale, height and length of a building and walls relative to side and rear boundaries are of appropriate residential character.

Performance Criteria

P3.1The privacy of dwellings and private outdoor spaces to be protected.

P3.2Dwellings to be sited to enable their northern facades to receive adequate sunshine in winter.

P3.3Dwellings to be sited to ensure good sunlight access to their main private open space.

P3.4Buildings to be sited to minimise overshadowing of northern facades of adjacent dwellings and private outdoor spaces.

Performance Measures

D3.1Minimum Setbacks from Side and Rear Boundaries

(Note that where there is any conflict between setback requirements for a particular wall, the larger setback dimension applies)
except

as provided for under D3.2 Allowable Encroachments and D3.3 Building to the Boundary,

or
as shown on an implementation plan, a group development scheme or development conditions included in a lease or an agreement collateral to a lease, minimum setbacks from side and rear boundaries as follows:

A. Lower floor level (LFL)  Setback

all buildings:  3 metres

B. Upper floor level (UFL)

a) Blank walls, windows with sill heights over 1.7m or with obscure glazing, screen walls:
- up to 12m behind UFL building line         3 metres
           - over 12m behind UFL building line          6 metres

b) Other walls, outer faces of unscreened decks, balconies and external stairs:
           - up to 12m behind UFL building line         6 metres
           - over 12m behind UFL building line          9 metres

16.  The digital images prepared and explained by Mr Overton were accepted by all parties as the most accurate of those available.  They show mid-winter morning shadows progressively extending on to the principal area of private open space of the Lubbock’s home on Block 3, reaching the wall of the centrally placed family room by 1.00pm.  Theirs is a modern home aligned to face north and benefit from winter sun.  It has glass doors and windows facing north connecting with north-facing courtyards.  The shadow cast by the proposed development would penetrate through the glass into the living areas of the home as the mid-winter afternoon progressed.  The respondent conceded that at 3.00pm on 21 June, which it described as “the worst case scenario”, the northern façade would be almost completely overshadowed.  Digital images showed overshadowing of the applicants’ private open space and the north-facing wall of their home in the afternoon of 31 May so that the extensive overshadowing would be present for at least six weeks in mid-winter but would lessen incrementally as the days became longer.

17.  In its reasons for the original decision, the respondent took into account that it had required the proposed development to meet the setback from the rear boundary which would have the effect of reducing the extent of overshadowing.  However in giving oral evidence, Ms Jamaly was unable to say precisely what this reduction would be. Having examined the shadow diagrams, we do not believe it would be particularly significant.  The respondent also took into account that the existing approximately 2 metre high brick wall on the common boundary throws afternoon shade in winter.  Because of the angle of the wall relative to that of the house, the shadow cast by the wall in mid-winter does not penetrate deeply into the private open space or near to the façade of the living areas of the house.  We do not think that the existence of the wall justifies permitting additional shadow to the extent proposed.  The different effects of the two shadows are clear from the shadow diagrams.  The shadow that would be cast by the proposed development is much more intrusive. The respondent further pointed out that there is another north-facing area available for the Kimball’s use located to the north-east of the main area, which would be less affected by the shadow.  However it is clearly not the main private open space of the dwelling and even it will be partly in shadow later on mid-winter days. 

18.  Reliance was placed by the respondent on the fact that the A10 policies were intended to provide opportunities for greater density of development, with the inevitable consequence of a different level of amenity for residents of A10 areas than for residents of less densely developed suburban residential areas.  However, the applicants’ approach was that regard should also be had to policies promoting high quality residential design and energy efficiency and conservation.  It seems to us futile to encourage residential design that maximises the advantages of sunlight and daylight, if other developments are subsequently allowed that cause significant overshadowing in winter to appropriately designed residences. The question is, how much is too much?  The respondent considered the proposed level of overshadowing acceptable in the circumstances and that the proposed building had been sited to minimise overshadowing of northern façades of the adjacent dwelling in winter.  We do not.  We find that the scale and siting of the proposed development does not minimise the overshadowing of the northern facades of the adjacent dwelling and its private open space. 

Conclusion

19.  Having regard to the residential land use policies in the Plan and having found that the performance controls in the Code are not satisfied in respect of the setback to the street and the overshadowing to the rear, we find that approval of the proposed development would be inconsistent with the Plan. 

20.  In doing so, we note that a similarly sized development on a more conventionally shaped block might not have faced the same difficulty in complying with the requirements of the Code. The Guidelines for Multi-unit Development including Dual Occupancies in Residential Areas (PPN 6) formerly provided guidance in relation to dual occupancy developments.  They recognised that the shape of a block may have an impact on its suitability for a dual occupancy proposal.  Paragraph 3 read:

3.0Dual Occupancy Development

Resident blocks vary considerably in size from suburb to suburb and within suburbs.  In order to provide adequately for two dwellings on a block which previously had a single dwelling, associated private open space, privacy, vehicle access and parking, it is generally considered impractical to develop a second dwelling on a block having an area less than 800m².  However, in some cases a 800m² block may not be suitable to accommodate a second dwelling because of its unusual shape, its exposed boundaries, its topography, etc.  The size of the block alone is not sufficient reason to approve a second dwelling. 

21.  These Guidelines no longer apply having been removed from the Register of the Planning Guidelines and not replaced, other than by control (b) of the A10 policy which limits dual occupancies to blocks greater than 800 m² in area.

22.  There appear to be now no specific references in the Plan encouraging special consideration of unusually shaped blocks.  We do not say that Block 2 is unsuitable for dual occupancy.  A smaller development might well be acceptable on it, but we think that careful consideration needs to be given to ensuring that multi-dwelling development on unusually shaped smaller blocks meets all of the requirements of the Territory Plan.

FORM 33

PUBLICATION DETAILS

TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________

PART A  FILE NO:      AT06/56

APPLICANT:  MARCIA KIMBALL & JOHN KIMBALL

RESPONDENT:                   ACT PLANNING & LAND AUTHORITY

PARTY JOINED:                 WILLIAM J LUBBOCK & GAIL M LUBBOCK

COUNSEL APPEARING:    APPLICANT:

RESPONDENT:       MR D MOSSOP

PARTY JOINED:     

SOLICITORS:  APPLICANT:

RESPONDENT:       ACT GOVERNMENT
  SOLICITOR

PARTY JOINED:      

OTHER:APPLICANT: MR T TROBE

RESPONDENT:       

PARTY JOINED:     SELVES

TRIBUNAL MEMBER/S:   MS P O’NEIL, SENIOR MEMBER
  DR E MCKENZIE, SENIOR MEMBER
  DR D MCMICHAEL, SENIOR MEMBER

DATE/S OF HEARING:      31 OCTOBER &  PLACE: CANBERRA

1 NOVEMBER 2006

DATE OF DECISION:        16 NOVEMBER 2006  PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( )               CASE NOTE ( )        UNREPORTED DECISION (X)
COMMENTS: