Kingston and Barton Residents Group Inc v ACT Planning and Land Authority; Parker v ACT Planning and Land Authority (Administrative Review)
[2024] ACAT 64
•27 August 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
KINGSTON AND BARTON RESIDENTS GROUP INC v ACT PLANNING AND LAND AUTHORITY; PARKER & ORS v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2024] ACAT 64
AT 3/2023
AT 5/2023
Catchwords: ADMINISTRATIVE REVIEW – review of a decision to approve development application – decision previously reconsidered by the decision-maker pursuant to section 68(c)(ii) of the ACT Civil and Administrative Tribunal Act 2008 – development consolidating two blocks in RZ2 zone – consideration of plot ratio, number of storeys, desired character, and streetscape – solar access and view of neighbouring blocks affected – characteristics of development required to respect heritage character of the area – consideration by decision-maker under section 120 of the Planning and Development Act 2007 – endorsement of development application by relevant bodies – condition proposed by the lessee – decision varied to include condition
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Heritage Act 2004
Planning and Development Act 2007 ss 50, 119, 120, 148, div 7.3.10
Subordinate
Legislation cited: Commercial Zones Development Code
Inner North Precinct Code
Kingston Map and Precinct Code
Multi Unit Housing Development Code
Parking and Vehicular Access General Code
Territory Plan 2008
Cases Cited:Aldred’s Case [1572] EngR 478; (1610) 9 Co Rep 57, 77 ER 816
Bathurst City Council v Saban (No. 2) 1986 LGRA 201
Downer Community Association and ACT Planning and Land Authority [2007] ACTAAT 20
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Edgar v Department of Environment, Land and Planning [1993] ACTAAT 59
Eldridge v ACT Planning and Land Authority [2020] ACAT 22
Glass v ACT Planning and Land Authority [2016] ACAT 96
Hipkins v ACT Planning and Land Authority & Ors [2022] ACAT 41
Kent v Johnson (1973) 21 FLR 177
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85
Tribunal:Senior Member K Katavic
Senior Member G Tomlins
Date of Orders: 27 August 2024
Date of Reasons for Decision: 27 August 2024
Date of Publication: 3 September 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 3/2023
BETWEEN:
KINGSTON AND BARTON RESIDENTS GROUP INC
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
NG GILES PTY LTD ACN 632 075 588
Party Joined
TRIBUNAL:Senior Member K Katavic
Senior Member G Tomlins
DATE:27 August 2024
ORDER
The Tribunal orders that:
The decision under review is varied to include the following condition:
(a)The approval does not take effect until the applicant/lessee has submitted to the Authority for endorsement amended plans and drawings showing:
(i)level 3 with a setback of 8.382 m from the boundary with Block 14 Section 22 Kingston as shown in Exhibit PJ10 before the Tribunal; and
(ii)the screens shown at page 1090 of Exhibit A raised from an eye line of 1.7 metres high and be impervious.
………………………………..
Senior Member K Katavic
For and on behalf of the Tribunal
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 5/2023
BETWEEN:
MICHAEL PARKER
First Applicant
RITA PARKER
Second Applicant
ROGER T. UREN
Third Applicant
SHERI YAN UREN
Fourth Applicant
JUDY SKECZEK
Fifth Applicant
ANTON LESHINSKAS
Sixth Applicant
GILLIAN BIRD
Seventh Applicant
HENRY ERGAS
Eighth Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
NG GILES PTY LTD ACN 632 075 588
Party Joined
TRIBUNAL:Senior Member K Katavic
Senior Member G Tomlins
DATE:27 August 2024
ORDER
The Tribunal orders that:
The decision under review is varied to include the following condition:
(a)The approval does not take effect until the applicant/lessee has submitted to the Authority for endorsement amended plans and drawings showing:
(i) level 3 with a setback of 8.382 m from the boundary with Block 14 Section 22 Kingston as shown in Exhibit PJ10 before the Tribunal; and
(ii) the screens shown at page 1090 of Exhibit A raised from an eye line of 1.7 metres high and be impervious.
………………………………..
Senior Member K Katavic
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
Kingston is one of the oldest suburbs in the ACT. On 2 December 2022, the ACT Planning and Land Authority (the respondent) approved, subject to conditions, the development of Blocks 13 and 22, Section 22 Kingston[1] (the Subject Site) (the reviewable decision). The proposed development comprises a four-storey commercial building, with basement car parking and associated works, adjacent to a residential apartment complex – known as ‘Holford’ – and the site of the heritage listed building housing the Kingston Post Office.
[1] Although separate sites, this decision will refer collectively to the blocks as the Subject Site
Residents from Holford[2] (Holford Residents) and the Kingston Barton Residents’ Group Incorporated[3] (KBRG) sought review of the respondent’s decision in the Tribunal on the basis that it variously failed to comply with the Planning and Development Act 2007 (the Planning Act) and the Territory Plan 2008 (the Territory Plan). Although the Holford Residents and KBRG’s positions were aligned and there were some similarities, they argued the development should be refused for different reasons.[4] The party joined is the Crown Lessee of the Subject Site.
The hearing and the evidence
[2] The applicants in AT 5/2023
[3] The applicant in AT 3/2023
[4] In these reasons, common issues raised by the applicants will be considered together and any differing issues will be dealt with individually
The KBRG was represented at the hearing by Mr Richard Johnston. The KBRG relied upon the following:
(a)Exhibit A1 – Witness Statement of Nicholas James Swain dated 31 August 2022.
(b)Exhibit A2 – Witness Statement of Michael Parker dated 9 March 2023.
(c)Exhibit A3 – Witness Statement of Richard Johnston dated 13 March 2023.
(d)Exhibit A8 – Witness Statement of Graeme Shoobridge (excluding paragraphs 24-29) dated 10 March 2023.
The Holford Residents were represented by Mr Michael Parker and Dr Rita Parker. They relied upon the following:
(a)Exhibit A4 – Witness Statement of Anton Laschinkas dated 13 March 2023.
(b)Exhibit A5 – Witness Statement of Brian Binning dated 7 March 2023.
(c)Exhibit A6 – Witness Statement of Heather Jones dated 5 March 2023.
(d)Exhibit A7 – Attachment 5 to the Holford applicants’ submission.
The respondent relied upon the following:
(a)Exhibit A – Tribunal documents filed 2 February 2023.
(b)Exhibit R1 – Bundle of email correspondence dated 17 April 2023 to 28 April 2023 involving people working within Transport Canberra City Services.
(c)Exhibit R2 – Crown lease for Block 50 Section 19 Kingston.
(d)Exhibit R3 – Witness statement of Matthew Davis.
(e)Exhibit R4 – Witness statement of Richard Davies.
(f)Exhibit R5 – Email exchanges with TCCS (comments on tree removal).
The party joined relied upon the following:
(a)Exhibit PJ1 – Witness Statement of Michael Giese dated 6 April 2023.
(b)Exhibit PJ2 – Solar studies in relation to the Holford building dated April 2023.
(c)Exhibit PJ3 – Solar studies in relation to Oakleaves development dated April 2023.
(d)Exhibit PJ4 – Witness statement and attachments for Christopher Coath dated 6 April 2023.
(e)Exhibit PJ5 – Trans traffic survey for parking occupancy for parking within 200 metres as at 23 March 2023.
(f)Exhibit PJ6 – Trans traffic survey for parking occupancy for parking within 400 metres as at 23 March 2023.
(g)Exhibit PJ7 – Witness statement of Richard Nash dated 6 April 2023 and annexure.
(h)Exhibit PJ8 – Witness statement of Eric Martin dated 9 April 2023.
(i)Exhibit PJ9 – Witness statement of Petrus van der Walt dated 6 April 2023.
(j)Exhibit PJ10 – Set of plans showing level 3 reduction in block 13.
(k)Exhibit PJ11 – Block 14 Section 22 Kingston, Shadow Studies, Sheet 02 DA-402 REV 01.
The following witnesses gave oral evidence before the Tribunal at the hearing:
(a)Nicholas Swain.
(b)Richard Johnston.
(c)Michael Giese.
(d)Graeme Shoobridge.
(e)Christopher Coath.
(f)Richard Nash.
(g)Eric Martin.
(h)Petrus van der Walt.
(i)Nethmei Senarath.
(j)Matthew Davis.
The Tribunal has considered all the evidence and submissions of the parties in preparation of its reasons.
Issues for consideration
The Holford Residents and KBRG both contend the reviewable decision should be set aside and substituted with a refusal on the basis that the development does not comply with various provisions of the Planning Act and the Territory Plan. These issues are set out below.
The Tribunal, when conducting merits review of the decision, stands in the shoes of the respondent[5] and must:
(a)confirm;
(b)vary; or
(c)set aside the decision under review and either substitute it with a different decision or remit the matter back to the respondent to consider in accordance with the reasons given by the Tribunal.[6]
[5] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589; Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 at [10] (Smithers J); see also, Glass v ACT Planning and Land Authority [2016] ACAT 96 at [18], quoting Downer Community Association and ACT Planning and Land Authority [2007] ACTAAT 20 at [4]-[5]; Eldridge v ACT Planning and Land Authority [2020] ACAT 22 at [38]; see especially ACT Civil and Administrative Tribunal Act 2008 s 68(2)
[6] ACT Civil and Administrative Tribunal Act 2008 s 68(3)
Section 50 of the Planning Act prohibits the Territory, the Executive, and a Minister from doing any act, or approving the doing of any act, that is inconsistent with the Territory Plan. On review, this also applies to the Tribunal. A development proposal in the merit track cannot be approved unless it is consistent with the relevant code[7] and section 119(2) of the Planning Act precludes a development application in the merit track from being approved if the approval is inconsistent with entity advice, subject to some exceptions.
The Subject Site and the development application
[7] Planning Act s 119(1)(a)
The Subject Site has a combined site area of 1,981 m2 and is located in a CZ2 – Business Zone (CZ2) under the Territory Plan. It is surrounded by sites zoned RZ5 – High Density Residential (RZ5), CZ2, and unleased Territory Land to the rear currently used as a carpark and laneway. It is located within the Kingston Shops Precinct.
The respondent previously approved development on the Subject Site,[8] which notably referenced consolidation of Blocks 13 and 22. The KBRG and others applied for a review of this approval citing, amongst other things, an inconsistency with the applicable codes consequential upon the consolidation. The respondent conceded and by consent the Tribunal made orders pursuant to section 68(3)(c)(ii) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) remitting the matter to the respondent for reconsideration according to law.
[8] Exhibit A, pages 179-194
The respondent conducted a reconsideration, and on 2 December 2022, a different delegate of the respondent made the reviewable decision now before the Tribunal.
The applicants contended that the reviewable decision was invalid as the respondent had not followed the reconsideration process set out in division 7.3.10 of the Planning Act. The ‘reconsideration’ governed by division 7.3.10 of the Planning Act is a reconsideration requested by an applicant for development approval. It is not the reconsideration contemplated by section 68(3)(c)(ii) of the ACAT Act, which is not governed by division 7.3.10. We do not accept the applicants’ argument in this regard. The respondent conducted a reconsideration in accordance with the orders made by the Tribunal pursuant to section 68(3)(c)(ii) of the ACAT Act and it was not required by reason of those orders to conduct a reconsideration under division 7.3.10. That is a specific legislative purpose and not the reconsideration under the ACAT Act.
Desired character
Consideration of ‘desired character’ is relevant to several aspects of the Tribunal’s review and the issues raised in these proceedings. It was traversed specifically in the context of plot ratio and the number of storeys proposed. The Tribunal sets out its findings in relation to ‘desired character’ below and then specifically in relation to each compliance issue raised.
‘Desired character’ is defined in the Territory Plan as follows:
Desired character means the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code.[9]
[9] Territory Plan 2008 s 13.1; part B, (definition of ‘desired character’)
‘Streetscape’ is defined in the Territory Plan as follows:
Streetscape includes the visible components within a street (or part of a street) including the private land between facing buildings, including the form of buildings, treatment of setbacks, fencing, existing trees, landscaping, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.[10]
[10] Territory Plan 2008 s 13.1; part B, (definition of ‘streetscape’)
The relevant zone objectives are the CZ2 objectives.
The Kingston Precinct Map and Code (KPMC) contains a statement of desired character for the Kingston Group Centre, the area marked as RC3 on the Kingston Precinct Map. The Subject Site is located within RC3. In relation to desired character for RC3, the KPMC states as follows:
In addition to the character noted in the relevant zone objectives, the desired character of the Kingston group centre has:
· good pedestrian connections to and within the centre
· fine grain, attractive shop-fronts facing the street
· commercial developments that encourage activity in Highgate lane and other laneways
· development that respects the heritage character of the centre.[11]
[11] KPMC, page 10
Mr Nick Swain, the Secretary and Immediate Past President of the Canberra & District Historical Society, Vice President of the Federation of Australian Historical Societies, member of the National Trust of Australia (ACT Branch), and committee member of the Kingston and Barton Residents Group Inc, gave evidence that the heritage character of the Kingston Group Centre comprises the combination of:
Low, human scale buildings of one or two storeys
Narrow (fine grained) shopfronts
Pale coloured facades
Generous awnings
Wide pavements and landscaping in front of the shops[12]
[12] Exhibit A1 at [14]
In his opinion, any development that respects the heritage character of the Kingston Group Centre needs to be consistent with those features. He maintained that the development proposal does not respect the character of the Kingston Group Centre and does not satisfy criteria 45 and 46 of the Commercial Zones Development Code because it is not low scale, the colour is not pale, there are no awnings, and the plans do not include wide pavement and landscaping.[13]
[13] Exhibit A1 at [14.1]
Mr Eric Martin, the principle of Eric Martin and associates, gave evidence that the development is not within the Kingston shops area that is nominated for inclusion on the ACT Heritage Register and under the Heritage Act 2004 it has no impact on the heritage values of the site. He added that it has a minor impact on the character of the Kingston Group Centre, which is mostly two storeys.[14] Under cross examination, Mr Martin indicated his view that the building would have only a minor impact on the heritage values of the heritage listed post office site. He did not consider that the four-storey development permitted in Highgate Lane as per the KPMC would have adverse impacts because it was largely screened, but considered that the six-storey development permitted in the code in section 21 would be disastrous.[15] He considered that Mr Swain’s criteria were reasonable for the Kingston shops nominated area and the Jardine Commercial and Banking Row nominated area but were less relevant to the area of the Kingston Group Centre beyond the heritage nominated sites.[16]
[14] Exhibit PJ8 at [15]
[15] Transcript of proceedings, page 315, lines 3-4
[16] Exhibit PJ8 at [16]
Mr Martin pointed out that:
Under the ACT Heritage Act the only developments that are required to respect the heritage values are developments within the heritage listed or nominated sites. … The heritage controls, being limited to the specific site, do not consider the best urban design outcomes. There needs to be better planning controls for sites adjacent to and nearby heritage places to ensure the best urban design outcomes.[17]
[17] Exhibit PJ8 at [18]
Several examples of modern buildings adjacent to heritage buildings were proffered.[18] All were subject to different zoning policies to those applying on the Subject Site. The Acton, Sydney, and Melbourne buildings given as examples were subject to different planning systems and were in centres many times larger than Kingston. No evidence was given about the planning requirements which they were subject to and there was no indication whether any were subject to a requirement to respect the heritage character of the area. As a result, only limited conclusions can be drawn from such examples. Mr Martin was not convinced that the relationship to the heritage buildings on Northbourne Ave was acceptable.[19]
[18] Exhibit PJ9 at [28(h)] and transcript of proceedings, page 490, lines 5-18
[19] Transcript of proceedings, page 297, lines 34-39
In response to a question from counsel for the party joined relating to whether a building needed to mimic a heritage building in order to respect it, he indicated that his view was that it needed to:
reflect the basic principles of the character or the design and can be quite a modern building in the sense, but scale and other factors of design are part of the character of what I would consider the character of the Kingston area.[20]
[20] Transcript of proceedings, page 294, lines 28-32
In response to a question concerning whether a development could conflict with a heritage design and still respect it he indicated that it would be possible to have “a simple response that is in contrast to it, but not necessarily conflict with it.”[21]
[21] Transcript of proceedings, page 295, lines 6-7
In response to a question from Mr Johnston relating to the sorts of controls that would be appropriate for sites adjacent to and nearby heritage places Mr Martin suggested:
The controls can vary[;] … it can be a matter of physical scale, it can be a matter of viewsheds, it can be a matter of design within those sorts of precincts.[22]
[22] Transcript of proceedings, page 298, lines 9-18
In attempting to determine the characteristics a development requires in order to respect the heritage character of the centre as part of desired character, we take it to mean that the development regards, but not necessarily copies or mimics, the heritage qualities and attributes, the heritage look and feel of the centre. It can be a different but simple design that acts as a backdrop to the heritage building, or it can echo elements of the design or the character of the heritage building or area.
In a similar vein, the tribunal has previously said:
Opinions as to design preferences and outcomes will invariably differ. Development on dual occupancy surrendered blocks will always be new. Satisfying the criterion does not require replication and development on these blocks will invite a more modern approach to design and architectural styles. In some cases, a development with design outcomes such as this may be the first of its kind in a particular location, but may not be the last. The renewal of surrendered sites and C56A requires balance, but also recognises the contribution different architectural styles makes to the vibrant fabric of residential areas.[23]
[23] Hipkins v ACT Planning and Land Authority & Ors [2022] ACAT 41 at [99]
Although the above comment was made in the context of a particular criterion of the Multi Unit Housing Development Code in relation to dual occupancy development on a ‘Mr Fluffy’ block, the sentiment may similarly be applied to this development in relation to the statement of desired character and heritage considerations, such that sympathy but not replication is called for; modernisation is to be expected; balance is integral and opinions will differ as to design preferences and styles.
We consider that the development proposal employs a contextual design that attempts to respond to the immediate environment of the post office and to reinforce the character of the street. Some influences in the design have been adopted from the adjacent building and the adjacent area. It shows respect in the use of brickwork at the ground floor level adjacent to the post office, parapet levels similar to those of the post office, and a step back in the design which is similar to that of the post office.
In terms of Mr Swain's criteria, a transition occurs at the post office. The verge treatment on Giles St comprises pavement and grass with some landscaping, rather than pavement and landscaping that is the approach on Jardine St. The proposal for the Subject Site matches the verge treatment in front of the post office on Giles St. The front setback matches that of the post office. The post office does not have awnings nor are awnings proposed for the Subject Site. Rule 27 of the KPMC, which is mandatory, does not require awnings on this section of Giles St.[24] The colour palette proposed for the development relates to that of the post office rather than to the pale colours suggested by Mr Swain. The brick construction of the post office is also reflected in part of the proposed development closest to the post office. The consistency of step backs and parapet heights have already been mentioned. The fine-grained shop fronts are hinted at by the partitioning of the glass facade which also reflects the facade of the existing building closest to the post office which is proposed to be demolished. The scale of the façade is not significantly different from that of the larger shops in the centre.
[24] KPMC at figure 3 – Pedestrian connections and active frontages and 4.10 – Awnings
It is against these findings we consider the development achieves consistency with desired character.
Kingston Precinct Map and Code
C18: Plot ratio
The KPMC and Commercial Zone Development Code (CZDC) both control plot ratio in relation to the development. However, in accordance with the hierarchy of applicable codes, where more than one code applies and an inconsistency arises, the precinct code prevails, in this instance, over the development code. Therefore, the Tribunal must review the development against criterion 18 of the KPMC.
Criterion 18 of the KPMC provides that:
Plot ratio achieves consistency with desired character.
As we have found the development to be consistent with the desired character for reasons expressed above, we find the development satisfies criterion 18.
R/C20: Solar access to adjoining blocks
The requirements for solar access are stated at rule 20 and criterion 20 of the Kingston Precinct Code.
Rule 20 states that:
Development retains a minimum 3 hours solar access to the main daytime living areas and private open space of dwellings on adjacent blocks between the hours of 9:00 AM and 3:00 PM on the winter solstice (21 June).
Criterion 20 states that:
Development retains reasonable solar access to dwellings on adjoining blocks and their associated private open space.
The criterion specifies neither the number of hours of solar access, nor the time of day during which the access is to be provided, nor which parts of dwellings are to be considered, nor does it refer to the winter solstice. Consequently, a more generalised assessment is required.
Building orientation is also a consideration. Even a free-standing building facing north would have some windows which only receive morning sun because they face east, or only receive afternoon sun because they face west, or receive very little sun because they face south.
The residential buildings adjacent to the proposed development face just to the east of north-east onto Howitt Street and their backs face west of south-west. Units 1 and 2 of the Holford are an exception and will be discussed later. The result of this orientation is that units 3, 4, 5, and 6 generally receive only about one hour of sunshine to the rear on the winter solstice according to the analysis of Mr Giese.[25] The shadow analysis of the original proposal indicates that units 5 and 6 would be partly impacted by overshadowing at 2:45pm on the winter solstice, unit 3 would be partially impacted, and units 4 and 5 significantly impacted by overshadowing at 3:00pm. The shadow analysis tendered with the proposal for the set back of the top floor of the proposed building, however, shows that none of the units would be impacted at 2:45pm on the winter solstice and at 3:00pm there would be overshadowing of parts of the open space of units 4, 5, and 6 but the windows of the units would not be overshadowed.[26] The situation is somewhat worse in September, with overshadowing of the units the carrying between 2:30pm and 2:45pm but is better in March and December with no overshadowing at 3:00pm.
[25] Exhibit PJ1, annexure E
[26] Exhibit PJ11
Unit 2 of the Holford development, which has frontages to both Hewitt and Giles St, is not affected by overshadowing. Unit 1, which has a frontage to Giles St, is not impacted at 3:00pm on the winter solstice and is partly impacted in September. Its private open spaces facing Giles St are not impacted.
Given the above considerations and, in particular, that all units receive at least three hours solar access from the east or north and there is only a marginal impact on the retention of solar access at the winter solstice, the Tribunal finds that the requirements of criterion 20 are satisfied for the Holford apartments.
The consideration of the Oakleaves apartment is more complex. The greatest extent of overshadowing from the proposed building occurs at the winter solstice which is considered below. No loss of solar access between 9:00am and 3:00pm occurs at the autumn equinox or the summer solstice. At the September equinox, units 1 and 7 are impacted after 2:00pm but both receive sunlight from the east and north during the morning.
Units 7, 8, 9, and 10 currently receive no solar access to their rear private open space at the winter solstice, receive one hour of solar access at the spring equinox, and no solar access at the summer solstice. Their rear courtyards are, as the site inspection demonstrated, also shaded by large evergreen trees, which are protected. Although they may be pruned, there is not a significant retention of solar access issue for these units. The object of criterion 20 is not to improve the solar access but retain it reasonably.
On the winter solstice, the shadow diagrams produced by Mr Giese indicate that the rear courtyard of unit 1 would be overshadowed for between two and three hours in the afternoon up until 3:00pm, a potential reduction of about 50% if there were no other circumstances. Similarly, the impact on unit 2 would be a loss of about two hours; the impact on unit 3 would be one to two hours and the impact on unit 4 would be up to an hour.
Criterion 20, however, refers to the reasonable retention of solar access rather than increasing or reducing overshadowing. As the inspection revealed and as is shown on aerial photography, the rear of units 1, 2, 3, and 4 is overshadowed by substantial trees and consequently the overshadowing by the proposed building in this location would have a minimal, if any, effect in terms of actual loss of solar access. The party joined argued that the impact of the trees must be taken into account[27] but the various shadow diagrams produced for the party joined did not take into account the overshadowing of street trees in Hewitt and Giles St. Mr Johnston contended that trees are not normally taken into account in planning in these sorts of assessments.[28] This approach tends to be a pragmatic one.
[27] Transcript of proceedings, page 491, lines 39-40
[28] Transcript of proceedings, page 501, line 13
Street and other trees are often in abundance, their impact is often marginal and the calculation of the shadows that they cast at different times is difficult, more so in the case of deciduous trees. This situation is considered to be different. The overshadowing by the trees is extensive and almost total in respect to the rear of the units being considered. If the trees were ignored, a theoretical outcome would arise which is totally removed from reality especially given the criterion calls for a retention of reasonable solar access. The baseline for these units in terms of solar access is already low. The trees are protected, and no evidence was provided that they are other than in a healthy state and will continue to provide shade for many years. Consequently, we conclude that while there is overshadowing of the rear of units 1, 2, 3, and 4, there is little diminution in solar access.
We conclude that the development retains reasonable solar access to dwellings on adjoining blocks and their associated private open space. Criterion 20 is satisfied.
R32: Parking study
R32 is a mandatory rule and requires certain matters to be endorsed by a nominated agency. Relevantly, a parking study requires endorsement by Transport Planning.
The KBRG contended no parking study had been endorsed and no meaningful assessment of parking against the Parking and Vehicular Access General Code had been carried out. The KBRG noted that rule 32 appeared to have been addressed, inappropriately they said, by imposing a condition regarding the provision of a desktop review of parking utilisation within 400m of the site based on aerial images.
Cardno prepared a Traffic Impact Assessment dated 8 September 2021[29] (the Cardno Report) which was submitted as part of the development application. It included an assessment of parking requirements.[30]
[29] Exhibit A, page 1131
[30] Exhibit A, pages 1146-1148
The development application was referred for entity advice and, on 3 November 2021, Transport Canberra City Services (TCCS) provided advice that conditionally supported the development with the inclusion of conditions, in particular the requirement to provide the desktop study referred to above.[31]
[31] Exhibit A, page 790
The KBRG criticised the Cardno Report and the imposition of a condition as inadequate. The adequacy of parking is considered later in these reasons.
All that is required by rule 32 is endorsement. The advice provided by TCCS may be construed as that endorsement. For completeness, a further parking assessment was carried out. The party joined relied upon a report dated 6 April 2023 prepared by Mr Christopher Coath, a traffic engineer and transport planner, which included a further parking study.[32]
[32] Exhibit PJ4
Ms Nethmei Senarath, Assistant Director, transport assessment and modelling, at TCCS, gave evidence before the Tribunal that the condition imposed by TCCS and endorsement of a parking study had been satisfied. She referred to Mr Coath’s parking study. She said she was responsible for examining the parking study and it was endorsed.[33] We are satisfied she was relevantly authorised to do so.
[33] Transcript of proceedings, page 410, lines 2-18
To the extent there was any doubt regarding TCCS endorsement of the Cardno Report regarding the parking study for the purposes of meeting rule 32, that is put beyond doubt by the subsequent endorsement expressed by Ms Senarath on behalf of TCCS in relation to Mr Coath’s parking study.
Rule 32 is met.
Commercial Zones Development Code
R/C45: Number of storeys
Rule 45 in the CZDC relates to height and states that:
The maximum number of storeys is 2.
Criterion 45 states:
Buildings comply with all of the following:
a) compatible with the desired character
b) are appropriate to the scale and function of the use
c) minimise detrimental impacts, including overshadowing and excessive scale.[34]
[34] CZDC, page 21
There was considerable debate about this criterion. The development exceeds two storeys and therefore is to be assessed against criterion 45.
The applicants considered that the development should be restricted to two stories in accordance with the rule and is otherwise inconsistent with desired character. A development need not comply with a rule if it can instead satisfy a corresponding criterion. The Tribunal has already made findings about compatibility with desired character and finds that criterion 45(a) is satisfied.
Mr Johnston argued that a four-storey development was 100% in excess of that permitted by the rule and not consistent with the heritage values of the area.
In contrast, the planning experts relied upon by the respondent and the party joined considered that the height was acceptable. Mr Davies in his submission suggested that it was at the upper end of where he may be comfortable approving.[35]
[35] Exhibit R4 – 19 April 2023 at [39]
Mr van der Walt considered that the rule was the lowest common denominator[36] and “as long as you can perform well against the criteria, the ultimate answer can be quite different from what the rule says.”[37]
[36] Transcript of proceedings, page 354, lines 33-34
[37] Transcript of proceedings, page 354, lines 45-46
The party joined relied upon Morozow v ACT Planning and Land Authority & Ors,[38] where a development of up to seven storeys had been approved in an area where there is also a two-storey height restriction under rule 45.[39] It was a large site in a Leisure and Accommodation Zone.
[38] [2017] ACAT 79
[39] Transcript of proceedings, page 493, lines 1-4
Mr Giese, the architect for the proposal, produced a context plan[40] and site analysis map[41] which show 15 storey towers, three and four storey residential buildings, and the six storey mixed use Atria development, all within the landscape of the Kingston skyline. The towers have been there for many years and are relics of past policies. The buildings of significant height which are within, or adjacent to, the group centre are the three and four story residential units on Giles St and the Atria complex, which are more recent developments.
[40] Exhibit A, page 1070
[41] Exhibit A, page 1071
The proposed height of the building, excluding the services, is about 1.4 metres higher than the peak of the roof of the Somerset building which is about 30 metres across the road. That relationship is considered acceptable.
The proposed building has a side set back of over six metres to the post office. Mr Martin commented that it is certainly a scale which is higher than the post office and therefore has a minor impact in terms of respecting the post office size. The setback provides the opportunity for the post office to install a landscape screen between it and the proposed building.
The Subject Site is in the area of the KPMC which does not include a policy on building height for the subject block. Consequently, control on building height is provided by the CZDC.
A four-storey building would sit below the tree canopy and not protrude so as to identify as a major centre.
The residential area adjacent to the Subject Site falls into the area RC1 of the KPMC. It is subject to rule 1, which states that the maximum number of stories is three. Criterion 1 states that buildings are predominantly three storeys, with a maximum height of four storeys only where it is not the dominant feature of a street frontage.[42] In other words, it contemplates buildings like the Somerset and Holford developments with a mix of three and four storey construction.
[42] KPMC, page 9
The envisaged future character of the residential area is slightly higher than the existing development. More often, transitions are introduced to reduce the impacts of buildings in one zone on buildings in another zone. We consider this is achieved through the setback of the development and the stepping back of the third level, discussed further in these reasons.
The CZDC applies to a wide range of centres and zones in locations ranging from the outskirts to the centre of Canberra. Kingston Group Centre is located closer to the centre of Canberra than many of the other group centres and is already more intensively developed and surrounded by higher density housing than many other centres. It could reasonably be expected that development in Kingston Group Centre could include developments that were somewhat higher and more intensive than developments in other areas. Having regard to the considerations above, we find that a four-storey development satisfies criterion 45(b).
The applicants contended criterion 45(c) of the CZDC requires buildings to minimise detrimental impacts, including overshadowing and excessive scale. The Holford residents in particular raised significant concerns about being overlooked from a four-storey building, pointing out that their western decks were their principal private open space and that the living rooms faced these decks. They had worked to develop a green screen between their balcony and the existing two‑storey development on the current site. A four-storey development would affect their outlook and sky access. When they made those comments, they were concerned that the proposal had no set back from the boundary.[43]
[43] Exhibit A, pages 576-577
Detrimental impacts are not defined in the Territory Plan. The Holford Residents contended this included privacy, overlooking, and excessive scale. They also considered their outlook and sky access would be detrimentally impacted. The latter concepts of outlook and sky access are tantamount to preserving a view, which are not planning considerations.
There was no agreement on how the interface between zones should be considered.
The Subject Site is zoned CZ2. It sits adjacent to an RZ5 zone. The Tribunal is required to consider the development code applicable to the zone in which development is proposed. There are many instances across the ACT where different zones abut each other and different rules and criteria apply in respect of each. Criterion 45(c) does not specify an interface with any particular zone. Consideration of criterion 45(c) exclusively by reference to the residential characteristics of the adjacent site would detract from the criterion applying generally to different interfacing zones.
Mr van der Walt considered that any interface requirements would be stated in the plan.[44] He referred to the fact that Inner North Precinct Code explicitly referenced interface requirements[45] but was not able to immediately remember references in zone objectives.[46] We do not regard referencing the Inner North Precinct Code as helpful where it applies specifically to a dedicated area with various other rule and criteria differences.
[44] Transcript of proceedings, page 335, line 46
[45] Transcript of proceedings, page 335, line 30
[46] Transcript of proceedings, page 336, lines 17-18
There are height controls contained in the KPMC, however none of those address the area in which the Subject Site is located. If such a control is to be applied or intended in the manner the applicants contend, it might be found in the KPMC. However, it is not and therefore we must consider the proposed four storeys against criterion 45. However, we agree the reference to ‘detrimental impacts’ in criterion 45(c) is not exhaustive and is open to considering such matters as raised by the Holford Residents.
Mr van der Walt gave evidence that here are no controls applying to the proposal which are explicitly related to privacy concerns. While not expressly stated in respect of criterion 45(c), we regard the issue of privacy relevant to considering detrimental impacts. It is true there are no specific controls that deal with the ‘detrimental impacts’ as characterized by the Holford Residents.
It is important to consider privacy and overlooking opportunity as potential detrimental impacts. Mr Davis considered that there is a need for a transition:
I'm actually sort of partially surprised there is no setback, or mandatory setback, to the residential to give that transition. Noting that it isn't there, I think taking on a 4 metre setback, … it's quite sufficient.[47]
…
currently, in this Territory Plan, there are no real provisions for transitioning.[48]
[47] Transcript of proceedings, page 453, lines 2-5
[48] Transcript of proceedings, page 461, lines 19-20
The fact that the development incorporates a four-metre setback when a zero setback is all that is required is an indication that interface or transition requirements have been acknowledged and incorporated by the party joined in order to address potential detrimental impacts.
Further, Mr van der Walt and Mr Davis both considered that the screens facing the Holford could be raised to provide enhanced protection from overlooking of the residential areas from the proposed building. Mr van der Walt suggested that the Multi Unit Housing Development Code, though not having direct relevance to the site, does provide some useful insight. That code provides protection from eye lines up to a height of 1.5 metres.[49] We are of the view that the screens shown at page 1090 of Exhibit A should be raised to protect the adjacent residential developments from an eye line of 1.7 metres high to further minimise overlooking.
[49] Multi Unit Housing Development Code, r 60, page 35
In response to the applicants concerns that the screens were 20% transparent, the party joined suggested that they could be made totally opaque. This is considered appropriate. In an open plan office, occupancy rates can potentially be high with direct access to the windows.
Consequently, we consider that any overlooking and privacy issues are detrimental impacts and both have been minimised by the use of visually impervious screens raised in accordance with the amended proposed in addition to the four-metre setback provided.
In relation to whether outlook and sky access should be regarded as detrimental impacts requiring minimisation, these essentially amount to preserving a view. Neither the Planning Act nor the Territory Plan recognise a right to a view or contain specific protections in relation to preserving outlook and sky access.
In Edgar v Department of Environment, Land and Planning,[50] the Tribunal recognised that views enjoyed from a site are regarded as part of the amenity of that site. However, the Tribunal concluded that it is not so significant a loss of amenity to justify refusal. There is no common law right to a view,[51] outlook, or sky access. It said:
It is, of course, well accepted that there is no legal right to a view, and that has been expressed in a number of cases. But it does not follow from the proposition that a person is not entitled, as a matter of law, to prevent a neighbour from building in such a way as to interfere with that person's views that the views from a block are to be disregarded for the purpose of considering the amenity of that block.[52]
[50] [1993] ACTAAT 59
[51] Aldred’s Case [1572] EngR 478; (1610) 9 Co Rep 57, 77 ER 816 at 58; Kent v Johnson (1973) 21 FLR 177, Smithers J at 58 (reversed on other grounds on appeal); Bathurst City Council v Saban (No. 2) 1986 LGRA 201 per Young J at 205-206
[52] [1993] ACTAAT 59 at [32]
In Hobbs v ACT Planning and Land Authority & nor,[53] the Tribunal observed that:
Of course, a view can be a benefit of land ownership; as in this case a view might be an important, perhaps even the most important, aspect of such ownership. But generally, the rights of a landowner do not extend to protecting that view, that is to preventing other landowners building on their land something which detracts from or indeed destroys the view. There is no such general right. This is mainly because such a right would severely affect what other landowners could do with their property.
[53] [2020] ACAT 58 at [139]
While they may relate to amenity, we do not regard outlook and sky access as detrimental impacts contemplated in criterion 45(c) requiring minimisation in circumstances where the building is well within the building envelope, solar access and privacy/overlooking have been satisfactorily addressed specifically under a specified rule or criterion, and there is no inconsistency with any identifiable provision of the Territory Plan in relation to loss of views, outlook and sky access.
On the final day of the hearing, the party joined submitted a proposal to address the impact of the eastern edge of the building on the adjacent residential developments.[54] The proposal involved stepping back the upper floor of the development by four metres. The party joined indicated that if the Tribunal was satisfied, the step back could be imposed as an acceptable condition.[55]
[54] Exhibit PJ10
[55] Transcript of proceedings, page 403, line 36
The applicants did not support the proposed reduction for several reasons including that the design change affected more than the applicant for the proposal, they would need to consult with others in their association,[56] that the building should be reduced to nine metres in height, and the change made an ugly building look uglier.[57]
[56] Transcript of proceedings, page 394, lines 14-16
[57] Transcript of proceedings, page 395, lines 9, 12
The diagram labelled “Level 03 Reduction in the Boundary Detail” demonstrates two issues. First, a person with an eye height of 1.6 metres standing on the balcony of the first floor of the residential apartments would have 46.8 degrees of their view occupied by landscaping or building and hence would have access to about half of the total view, which includes the view of the sky. Any overlooking or privacy concerns are further minimised. Secondly, and perhaps more importantly, it indicates that this is a slightly better situation than would be the case had a two-storey development been proposed on the adjacent site with zero set back. In such a situation, the development would comply with rule 45 and the issues raised in relation to criterion 45 could not have been raised.
Further, the step back at the third storey level achieves the appearance of a three‑storey building in the immediate vicinity of the residential units. This is an appropriate balance where the two-storey limit is not a mandatory rule under the CZDC and accompanied by a criterion which may permit more than two storeys.
The Tribunal considers that the proposed setting back of the upper floor is an acceptable adjustment to the building to mitigate impacts under criterion 45 and will impose such a condition.
Criterion 45 is satisfied with the inclusion of the condition referred to above.
R62-R65: TCCS endorsement
The KBRG contended that several mandatory rules requiring endorsement from relevant entities had not been provided or was inadequate. These related to goods loading and unloading, construction waste, and post-occupancy waste management. The relevant entity for each rule is TCCS.
Endorsement is all that is required for the purposes of meeting R62-R65.
On 3 November 2021, TCCS provided its advice to the respondent and supported the development application with conditions.[58] The Tribunal accepts this is the relevant endorsement for the purposes of R62-R65. These rules are met.
C21: Traffic
[58] Exhibit A, pages 788-792
Criterion 21 deals with traffic. Criterion 21 is satisfied if the existing road network can accommodate the amount of traffic that is likely to be generated by the development.
Mr Shoobridge, on behalf of the KBRG gave evidence regarding traffic impact and Mr Coath gave evidence on behalf of the party joined. Mr Shoobridge challenged Mr Coath’s report and opinion on the basis that it did not adequately address future traffic loads and the performance of nearby intersections.
Having considered the witness statements and oral evidence given by the experts, the Tribunal considers Mr Coath’s analysis of the traffic impact was sufficiently detailed and thorough such that criterion 21 is satisfied. His analysis of the surrounding intersections found that the development would not increase demand on those intersections and thus not affect their level of service. He further considered that any impact to the level of service of those intersections in the future would not be wholly attributable to the development. On the other hand, Mr Shoobridge did not conduct any traffic surveys, but preferred the Canberra Strategic Model to assess future traffic volumes. In terms of the volume of traffic being affected by short- and long-term traffic predominantly searching for parking, Mr Coath opined that this traffic would be dispersed across varying directions and have a minimal impact. We accept that any such impact can be adequately accommodated by the existing network and not have a detrimental impact.
Criterion 21 is satisfied.
Parking and Vehicular Access General Code
Off-site parking
We accept that under the Parking and Vehicular Access General Code (PVAGC), development proposals may rely on off-site parking to accommodate the required number of car spaces as per the applicable schedule of parking rates. We further accept that for commercial zones, long stay parking can be provided within 400 m of the site and within 200 m for short stay parking.
In the present instance, the development relies upon the availability of public parking in the site known as ‘Atria’ on Eyre Street. This is located within 200 m of the subject site. The Atria Crown Lease expressly requires continuous provision of public parking.
The PVAGC requirements for the development mean a total of 136 spaces, including five accessible spaces. This was based on Mr Coath’s application of the PVAGC. There are 99 spaces provided onsite with 38 spaces left to utilise offsite parking.[59]
[59] T215, page 45
Mr Coath conducted a parking study and found there to be sufficient supply, demand and vacancies within both 200 m and 400 m of the development. It relied upon the availability of public parking in Atria. Mr Coath was of the opinion that even if the number of spaces was reduced to 168 (as suggested by the KBRG), and the public parking became paid or time-limited, the parking supply would still be adequate based on his study and findings. There is no present suggestion the requirement for Atria to provide public parking will change.
The Tribunal is satisfied the parking supply is adequate and therefore satisfies the requirements of the PVAGC.
Considerations under section 120 of the Planning Act
Various issues were raised by the applicants under section 120 of the Planning Act. The Tribunal notes that all that is required by section 120 is ‘consideration’ by the decision-maker. This approach has been confirmed in various previous decisions.
Section 120(d) requires consideration of representations. We agree with the respondent that approving a development against a weight of dissenting representations does not automatically infer those representations have not been considered. We are satisfied the representations were considered by the respondent and in extensive fashion.[60]
[60] T98-101
It was contended that there was failure to consider entity advice in accordance with section 120(f). The Tribunal accepts and agrees with the respondent’s submission in relation to the advice provided by the Conservator. Importantly, the tree of concern is not located on leased land.[61] It is located on unleased land which TCCS is responsible for. It is therefore not a regulated tree. There was no requirement to refer the development proposal to the Conservator for advice under the Territory Plan nor was the Conservator a prescribed entity under section 148 of the Planning Act.
[61] Exhibit A, page 1359
Section 120(h) calls for consideration of probable impacts. ‘Probable impacts’ is not defined. We accept that the amenity issues raised by the Holford Residents may fall within the ambit of ‘probable impacts. These were all the subject of extensive consideration by the respondent.[62] The Tribunal has also considered those issues above.
Conclusion
[62] Exhibit A, pages 98-101
For the reasons and findings set out above, the Tribunal is satisfied the development complies with the Planning Act and Territory Plan subject to the condition described above.
Orders
The decision under review is varied to include the following condition:
(a)The approval does not take effect until the applicant/lessee has submitted to the Authority for endorsement amended plans and drawings showing:
(i) Level 3 with a setback of 8.382 m from the boundary with Block 14 Section 22 Kingston as shown in Exhibit PJ10 before the Tribunal; and
(ii) The screens shown at page 1090 of Exhibit A raised from an eye line of 1.7 metres high and be impervious.
………………………………..
Senior Member K Katavic
For and on behalf of the Tribunal
| Dates of hearing: | 26, 27, 28 April 2023, 13 June 2023 |
| Applicant in AT 3/2023: | Mr R Johnston, on behalf of the KBRG |
| Applicant in AT 5/2023: | Dr R Parker and Mr M Parker, authorised representatives |
| Counsel for the Respondent: | Mr M Hassall |
| Solicitors for the Respondent: | ACT Government Solicitor |
| Counsel for the Party Joined: | Mr B Buckland |
| Solicitors for the Party Joined: | MV Law |
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