Kimball and Act Planning & Land Authority

[2007] ACTAAT 28

AUSTRALIAN CAPITAL TERRITORY

ADMINISTRATIVE APPEALS TRIBUNAL

CITATION:KIMBALL AND ACT PLANNING & LAND AUTHORITY & ANOR [2007] ACTAAT 28 (24 DECEMBER 2007)

AT07/46

Catchwords:   Land and planning – dual occupancy development in A10 area – issues of overshadowing, bulk and scale – compliance with performance measures – consideration of AMCORD

Land (Planning and Environment) Act 1991, ss 8, 230

Legislation Act 2001, ss 138-142

Kimball and ACT Planning & Land Authority & Anor [2006] ACTAAT 33 (16 November 2006)

Mihailidis and ACT Planning & Land Authority [2005] ACTAAT 21 (8 September 2005)

Nowicki v Martyn & Anor (1996) 131 FLR 88

Tribunal:Ms P O’Neil, Senior Member

Dr E McKenzie, Senior Member

Date:24 December 2007

AUSTRALIAN CAPITAL TERRITORY                   )
ADMINISTRATIVE APPEALS TRIBUNAL )          NO:     AT07/46
LAND AND PLANNING DIVISION  )

RE:      JOHN & MARCIA

KIMBALL

Applicants

AND:   ACT PLANNING &

LAND AUTHORITY

Respondent

AND:   WILLIAM & GAIL

LUBBOCK

Party Joined

DECISION

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

Date  :          24 December 2007

Decision  :          The decision under review is affirmed.

……………………………
  Senior Member

AUSTRALIAN CAPITAL TERRITORY                   )
ADMINISTRATIVE APPEALS TRIBUNAL )          NO:     AT07/46
LAND AND PLANNING DIVISION  )

RE:      JOHN & MARCIA

KIMBALL

Applicants

AND:   ACT PLANNING &

LAND AUTHORITY

Respondent

AND:   WILLIAM & GAIL

LUBBOCK

Party Joined

REASONS FOR DECISION

24 December 2007  Ms P O’Neil, Senior Member
  Dr E McKenzie, Senior Member

The decision under review

Marcia and John Kimball (“the applicants”) have applied for review of a decision of the ACT Planning and Land Authority (“the respondent” and “the Authority”) to approve a dual occupancy development on the adjacent block, 12 Bentham Street (Block 2 Section 54) Yarralumla (“the subject block”). William and Gail Lubbock (“the party joined”) are the lessees of the subject block and Mr Lubbock is the development applicant.

2. The application for this development proposal was lodged with the Authority on 22 May 2007. The decision, dated 7 August 2007, outside the statutory time period, was made pursuant to sections 230(2) and 230(3) of the Land (Planning and Environment) Act 1991 (“the Land Act”) which permits the relevant authority to approve an application after the expiration of the prescribed period until the Tribunal has finally dealt with an application for review of the “deemed refusal” or until 6 months has elapsed from the date of lodgement.

3.  In 2006, the applicants successfully appealed to the Tribunal against a previous decision (Kimball and ACT Planning & Land Authority & Anor [2006] ACTAAT 33 (16 November 2006)) to approve a dual-occupancy development on the subject block. In the previous matter, the Tribunal found that because the development failed to satisfy the performance measures for buildings in relation to front boundaries it did not meet the objective set out in the Residential Design and Siting Code for Multi-Dwelling Development (“the Code”) “to provide attractive streetscapes which reinforce the functions of the street and enhance the amenity of dwellings”. On the basis of the evidence provided, the Tribunal also found that the overshadowing to the rear was unacceptable.

The proposal

4.  The applicants’ block and the subject block are adjoining roughly triangular blocks that together form the north-east corner of Section 54 at the intersection of Bentham and Mueller Streets. The subject block lies on the north-west of the common boundary with the applicants’ block. The common boundary runs generally north-east to south-west. Both blocks are located in an area covered by the ‘Area A10: Residential Core’ Policies in the Territory Plan (“the Plan”). The proposal seeks approval for the demolition of an existing dwelling on Block 2 Section 54, Yarralumla, and the erection of two 2-storey attached dwellings with basement parking together with associated landscaping, paving and other site works. The gross floor area of the proposed development is 410 square metres. On the subject block of 889.8 square metres, the plot ratio is about 46%, less than the maximum plot ratio of 50% allowed in A10 areas.

The Plan

5. The relevant parts of the Plan are the Residential Land Use Policies, the Area Specific Land Use Policies for A10 Residential Core Areas and the Residential Design and Siting Code for Multi-Dwelling Development – Appendix III.2. The effect of section 8 of the Land Act is that a development application cannot be approved if it is found to be inconsistent with the Plan. The Yarralumla Neighbourhood Plan which applies in this case is on the Register of Planning Guidelines and is therefore a document that must be carefully considered.

The evidence

6.  Evidence for the applicants was heard from Mr Peter Overton, a qualified architect with many years’ experience.  His evidence dealt principally with the shadow that would be cast by the proposed development onto the applicants’ house and private open space in mid-winter.  He illustrated his evidence with images prepared using a computer program designed for the purpose.  Those images are accepted by all parties as accurate.  They show shadow from the proposed development advancing over the open space in front of the family room as the day progresses so that the space is substantially shaded by mid-afternoon.  That shadow penetrates part of the glass doors and windows of the family room for several hours in mid-winter. 

7.  The applicants also submitted into evidence an image designed to illustrate the appearance of the proposed development when viewed from part of the applicants’ private open space, but we did not find that useful as it was not an accurate representation of the proposed development.  It was the wrong colour (strong pink rather than off-white), two separate units set back different distances tended to appear as one building, the trees and other vegetation were obscured and none of the windows or articulation evident in the drawings of the proposed development were shown. 

8.  The plans do show that there would be a two-storey  wall over 10 metres in length facing the western end of the applicants’ house.  However the proposed building does meet performance measures for boundary setbacks, the wall height and building envelope in the Territory Plan for a building in an A10 area.

9.  The applicants did not give evidence as to their use of the private open space or the possible effect of the development upon them.  Nevertheless their objection focuses upon the area adjoining the kitchen/family room as their main concern.  There are other areas of north-facing open space available, in particular the area outside of the formal lounge/dining areas of the house.  There is no barrier between the two spaces which are contiguous.  Mr Overton’s diagrams show that living/dining open space would not be affected by shadow from the proposed development until well into the afternoon, and then only to a very limited extent.

10.  Mr Lubbock, a builder who had himself designed the proposed development, gave evidence explaining the design.  He had prepared shadow diagrams as part of the development proposal which were accepted as sufficiently accurate for their purpose.

11.  Evidence for the party joined was also heard from Mr Roger Pegrum, an architect with extensive experience in the public and private sectors as well as academic experience.  His was the third analysis of the shadowing effect of the proposed development.  Although prepared using a different computer program from that of Mr Overton, there was agreement between them as to the outcome.  Mr Pegrum drew attention to self-shadowing of the kitchen/family room open space by the two-storey element of the applicants’ house.  It is situated to the east of that open space.  The shadow diagrams show that in mid-winter, self-shadow is cast by the two-storey element onto that open space so that it is partially shaded by the house and garden walls for several hours in the morning.  Mr Pegrum considered that, particularly having regard to the open space near the dining/living room, there was generous access to sunlight and daylight and that the applicants’ own building design contributed at least equally to the overshadowing of the kitchen/family room space.

12.  In relation to the shape of the block, Mr Pegrum saw the triangular shape of the subject block as offering a design opportunity, which had been grasped, to place the proposed building to the west of the subject land and thus remove it from the immediate proximity of the applicants’ house, leaving open half of its aspect to the north and the sun.  He did not claim, however, that the proposed design was optimal. 

13.  Mr Andrew Senger, who made the decision, gave evidence for the respondent.  He is a senior development assessment officer with the Authority with 21 years of town planning experience in the ACT.  Mr Senger identified very minor encroachments into front setback requirements and, in relation to side boundary setbacks, minor encroachments of 300mm by bathrooms into the space under the eaves.  In his view these minor encroachments had no adverse impacts upon the applicants.  Rather, he considered that the side boundary encroachments were beneficial in enhancing the appearance of the building when viewed from the applicants’ house.

14.  In relation to shadowing of private open space, Mr Senger pointed out that in addition to the two previously mentioned open spaces in front of the kitchen/family room and the lounge/dining room, there is a balcony area above the latter which might meet the definition of private open space, but there is no evidence as to its current use.  The open space adjoining the lounge/dining area is larger than that adjoining the kitchen/family area and receives sun throughout most of the day, apart from some self-shadow cast by courtyard walls.  Mr Senger also had regard to the fact that no part of the proposed development would lie to the north and east of the lounge/dining area and that even part of the open pace adjoining the kitchen/family area would have an uninterrupted outlook to the north-east.  This was confirmed at the sight inspection.

15.  In reaching his decision to approve the development, Mr Senger said that he had regard to the fact that the proposed development substantially met all relevant performance measures.  He considered that there was adequate access to sunlight and daylight, noting the combined contiguous area of private open space and the uninterrupted aspect to the north and east from much of it.  Mr Senger’s evidence referred to the Australian Model Code for Residential Development, which we discuss below.

The Australian Model Code for Residential Development (AMCORD)

16.  In the matter of overshadowing, reliance was placed by the respondent in documentary and oral evidence upon two relevant standards set out in the AMCORD.  One requires north-facing living areas of neighbouring dwellings to receive not less than 3 hours of sunlight between 9.00am and 5.00pm on 21 June, and the other requires access to sunlight on adjacent private open space areas is not reduced to less than 2 hours between 9.00am and 3.00pm 21 on June. 

17.  These standards, the first of which will be referred to informally as the “three hour rule”, appear to have been adopted over the years as a “rules of thumb” by the respondent when issues of sunlight and overshadowing are considered.  They are used in an attempt to quantify in some way the Code’s requirement to “minimise” overshadowing of adjacent developments. Nevertheless, during the hearing an architect appearing as an expert witness stated that he did not use the document and the location of a copy of AMCORD for the use of the Tribunal proved to be somewhat of a challenge. The “three hour rule” has been referred to in Tribunal decisions dating from 1997, although not without question, as for example, in Mihailidis and ACT Planning & Land Authority [2005] ACTAAT 21 (8 September 2005) in which the Tribunal states in paragraph 42:

While the experts in the field may be aware of such a criteria(sic), a lay person could simply not work that out from the Territory Plan. The Tribunal considers that the Planning Authority should publicly document its policy.

18.  The Tribunal notes that AMCORD was published in 1995, some twelve years ago. The “three hour rule” in that document was subsequently included in ACT planning documents PPN4 and PPN6, both now superseded. While it is identified, for example in the Introduction to Appendix III.2, as having influenced the Code, the “three hour rule” has not been incorporated into Appendix III.2, the Code which applies in this matter, despite revisions of Appendix III.2 having occurred.  However, a similar standard is found in Appendix III.3, the Urban Housing Code, which deals with certain specific areas of higher density development, and in the Apartment Guidelines.  We think it could be argued that the decision of the Legislature to not include the quantitative measures from AMCORD in Appendix III.2, while including them in Appendix III.3 and also in the Apartment Guidelines, indicates that a somewhat different standard is to be applied in multi-dwelling developments from that applying to more dense residential development.

19. The Tribunal notes also that since 1995, environmental issues to do with sustainable development, conservation of energy and maximisation of solar access have assumed increasing importance in relation to design and planning. The adoption of the “three hour rule” from AMCORD could possibly be considered inadequate or out of date for medium density housing. However we accept it has been considered by the Legislature since then in Variation 200 and not rejected. Despite the absence of some quantitative standard of solar access appropriate to current environmental thinking having being incorporated into Appendix lll.2, the Tribunal questions the continued use of the AMCORD standards when assessing overshadowing in medium-density developments. AMCORD is not on the Register of Planning Guidelines, which clause 8.1 of Part A3 of the Plan requires be taken into account in considering development proposals. It is therefore of limited relevance to the consideration of overshadowing in this matter. We do note, however, the submission that regard may be had to it as background material of the kind referred to in sections 138-142 of the Legislation Act 2001.

Block Shape

20.  A similar difficulty arises with respect to the shape of the block.  The applicant argued that the shape of the block is unusual and that this should be taken into account when applying the performance measures in the Code.  Attention was drawn to an undated comment by the CEO of the Authority, Mr Neil Savery, reported in ‘The Canberra Times’.  It reads in part “… too many units were being proposed in unsuitable areas …. or inappropriate blocks”.

21.  As the Tribunal noted in its earlier decision in relation to development on this block, PPN 6 specifically stated that unusual shaped blocks may be unsuitable to accommodate two dwellings.  PPN 6 has been removed from the Register of Planning Guidelines and not replaced so that there appears to be now no specific references in the Plan encouraging special consideration of unusually shaped blocks. 

22.  This block of 889.8m² is not only generally triangular, but also includes at its south-west extremity an additional small rectangular portion of land.  The party joined said that triangular blocks were not unusual in Canberra or at least in the A10 area of Yarralumla.  Whether or not that is so, we are left with the situation, as with quantitative measures for solar access, where the Plan is now silent in respect of block shape for medium density developments.   

Submissions

23.  Submissions were received from all parties.  The applicants submitted that, since the evidence showed that the extent of overshadowing was not significantly different from the earlier proposed development and perhaps even greater, the Tribunal should reject the development application on that ground.  AMCORD, it was said, was being selectively used to justify an otherwise unacceptable degree of overshadowing.  The applicants argued that the shape of the block was a relevant consideration and that the bulk and scale, particularly of the rear wall, of the proposed development was in breach of the performance controls in the Code and would have an unacceptable impact on them.

24.  The other parties submitted that this proposed development differed from the earlier proposal in important ways.  In particular, it has a lesser plot ratio – 46% as opposed to 48% - does not intrude into the front setback so as to have a detrimental effect on the streetscape, and substantially meets all performance measures.

25.  In relation to performance controls, the Plan states:

The Code is in the form of a series of “Performance Controls” consisting of statements of “objectives” and “performance criteria” together with associated “performance measures”.  An approval may not be granted to a proposal, which is inconsistent with the objectives and performance criteria stated in a relevant Performance Control.  However, 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.  Proposals, which do not meet the performance measures, may still be considered in terms of whether they meet the relevant objectives and performance criteria.

26.  Accordingly, it was submitted, the Tribunal’s task in this case differs from the earlier occasion where there had been significant departures from the performance measures. In contrast, since the performance measures are effectively met in this development proposal, the objectives and performance criteria in relation to side and rear boundaries could be considered satisfied without further inquiry.  Even if they were further considered, the use of words “minimise” and “significant” in the phrases “to minimise overshadowing” and “no significant loss of amenity” indicated that some detriment to a neighbouring dwelling could be allowed within an area designated by the Plan for multi-dwelling development.

27.  On the issue of private open space the respondent pointed to the additional evidence showing the contribution of self-shadowing in mid-winter mornings to the private open space outside the kitchen/family area.  Further, it was submitted that there was no basis to quarantine the open space outside the kitchen/family area from the area outside of the dining area, with which it is contiguous, when applying the performance controls.  In this regard we note that the applicants did not give any evidence nor make submissions to the contrary.

Conclusion

28.  We have some sympathy for the applicants in this case.  It is clear that they take pride in their home and wish to protect their amenity to the maximum extent.  On the other hand, it is located in an A10 area and some consequences can be expected to flow from that fact.  The Yarralumla Neighbourhood Plan, which covers it, assumes greater density and more substantial buildings as part of the future character of the A10 Residential Core Area of Yarralumla.  The Yarralumla Neighbourhood Plan is on the Register of Planning Guidelines and is therefore a document that we must carefully consider.

29.  As discussed above, we question continued reliance upon the two AMCORD standards  when assessing medium-density developments but accept the evidence that both have been are met.  In the absence of countervailing evidence or submission from the applicants we see no ground on which we should restrict consideration of the overshadowing of northern facades and private open space to only part of the applicants’ dwelling.  Disregarding AMCORD but having considered all of the evidence as to the amount of sunlight available to the north-facing living areas and private open space in winter, we find that performance criteria P3.4 and the related performance controls are met.

30.  There is little support in the Plan for consideration of block shape.  We do note that the proposed development conforms to the building envelope requirements of the Plan, including building height.  The bulk and scale of the part of the proposal that would be visible from the applicants’ house, while greater than they would wish, is nevertheless within the bounds applicable in A10 areas.  The plot ratio has been further reduced to 46%, as opposed to the earlier proposal’s 48% and a maximum allowable of 50% in an A10 area.  We find that the performance criteria P3.5 and the related performance controls are satisfied.

31.  In Nowicki v Martyn & Anor (1996) 131 FLR 88 at 100 Miles CJ observed that, where a development application satisfies all of the relevant performance measures, the Territory Plan requires that there be something about the relevant circumstances surrounding the development application in question which takes it out of the category of most cases to justify withholding approval of a development application which would otherwise generally or normally be granted upon satisfaction of the relevant performance measures. This, he said, is only a matter of fairness to an applicant for approval of a development application. It also assists in creating greater certainty and consistency of decision-making in the planning approval process. It is not disputed that this proposal does not meet the performance measures absolutely and there are some very minor encroachments into setbacks. However, these have no adverse planning effect. We are not satisfied on the evidence that grounds have been made out to justify refusing approval.

FORM 33

PUBLICATION DETAILS

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

PART A  FILE NO:      AT07/46

APPLICANT:  JOHN & MARCIA KIMBALL

RESPONDENT:                   ACT PLANNING & LAND AUTHORITY

PARTY JOINED:                 WILLIAM & GAIL LUBBOCK

COUNSEL APPEARING:    APPLICANT:

RESPONDENT:       DR D JARVIS

PARTY JOINED:     MR C ERSKINE

SOLICITORS:  APPLICANT:

RESPONDENT:       ACT GOVERNMENT SOLICITOR

PARTY JOINED:     MOULIS LEGAL

OTHER:APPLICANT: MR T TROBE

RESPONDENT:       

PARTY JOINED:     

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

DATE/S OF HEARING:      19-21 NOVEMBER 2007      PLACE: CANBERRA

DATE OF DECISION:        24 DECEMBER 2007            PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( )               CASE NOTE ( )        UNREPORTED DECISION (X)

COMMENT: