Land Architecture Australia and Act Planning & Land Authority
[2008] ACTAAT 33
•18 December 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:LAND ARCHITECTURE AUSTRALIA AND ACT PLANNING & LAND AUTHORITY & ORS [2008] ACTAAT 33 (18 DECEMBER 2008)
AT08/61
Catchwords: Land and planning – appeal against refusal of approval of multi-unit residential building in Fraser – requirements of the Territory Plan relating to development conditions – whether proposed development compatible with adjacent development – density of development – appropriateness of boundary setbacks and adequacy of private open space – impact of proposed development on traffic in adjacent street.
Land (Planning and Environment) Act 1991, ss 7, 8, 13, 222, 230, 231, 245
Land (Planning and Environment) Regulation 1992, s 37
Planning and Development Act 2007,
Tree Protection Act 2005, s 82
AMC Projects Pty Ltd and ACT Planning & Land Authority & Ors [2006] ACTAAT 13 (2 May 2006)
City of Unley v Claude Neon (1983) LGRA 65
Freeman & Evans and ACT Planning & Land Authority [2006] ACTAAT 20 (16 June 2006)
Mison v Randwick Council [1991] 23 NSWLR 734
Nowicki v Martyn and Johnston (1996) 131 FLR 88
Pashalidis and ACT Planning & Land Authority [2004] ACTAAT 21 (24 May 2004)
Stoddart & Ors and ACT Planning & Land Authority & Anor [2007] ACTAAT 27 (21 December 2007)
Strategic Developments Pty Ltd and Minister for Urban Services[1999] ACTAAT 10 (6 May 1999)
Whitfield and ACT Planning & Land Authority & Ors [2008] ACTAAT 5 (28 February 2008)
Winn v Director of National Parks and Wildlife [2001] NSWCA 17
Tribunal: Ms S Tongue, Senior Member
Dr E McKenzie, Senior Member
Date: 18 December 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/61
LAND AND PLANNING DIVISION )
RE: LAND ARCHITECTURE
AUSTRALIA
ApplicantAND: ACT PLANNING AND
LAND AUTHORITY
RespondentAND: ANTHONY HOBBS
ANTHONY KRONE
DAVID & JANE MARTIN
EVAN & MARY BRETT
GARY JOHNSTON
Parties Joined
DECISION
Tribunal : Ms S Tongue, Senior Member
Dr E McKenzie, Senior Member
Date : 18 December 2008
Decision :The decision under review is set aside and substituted with the
following decision:
The development application is refused.
…………………………….
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/61
LAND AND PLANNING DIVISION )
RE: LAND ARCHITECTURE
AUSTRALIA
ApplicantAND: ACT PLANNING AND
LAND AUTHORITY
RespondentAND: ANTHONY HOBBS
ANTHONY KRONE
DAVID & JANE MARTIN
EVAN & MARY BRETT
GARY JOHNSTON
Parties Joined
REASONS FOR DECISION
18 December 2008 Ms S Tongue, Senior Member
Dr E McKenzie, Senior Member
Land Architecture Australia Pty Ltd (“the applicant”)has sought review of a decision of the ACT Planning and Land Authority (“the respondent” or “the authority”) to refuse approval of a Development Application (No. 200800855) (“DA”). Approval was sought to construct a multi-unit development on Block 1 Section 19 in the Division of Fraser at the street address of 25 Nott Street (“the subject land”).
2. The applicant lodged the DA with the respondent on 28 March 2008 pursuant to section 230 of the Land (Planning and Environment) Act 1991 (“the Land Act”). (The Land Act was repealed by the Planning and Development Act 2007 with effect from 31 March 2008). Objections to the development were received from thirty-two residents of the area. Pursuant to sections 222 and 230(2) of the Land Act and the Land (Planning and Environment) Regulation 1992 (now repealed) the prescribed time for a decision was 45 working days (section 37) and, since a decision was not made before the expiration of that prescribed period, the application was taken to have been refused. The refusal of the application is deemed to have occurred on 2 June 2008 (“the original decision”). The application for review by the Tribunal was lodged on 11 July 2008. The Tribunal granted an extension of time for lodgement.
3. The applicant is the current lessee of the subject land. In the hearing before the Tribunal the applicant was represented by Mr D Mossop instructed by Dibbs Abbott Stillman, lawyers. Dr D Jarvis, instructed by the ACT Government Solicitor, appeared for the respondent.
4. Messrs Anthony Hobbs and Gary Johnston, Dr Anthony Krone, Mr and Mrs EA and MJ Brett, and Mr and Mrs David and Jane Martin were joined as parties who oppose the proposed development (“the parties joined”). They were self-represented at the hearing. Mr Hobbs is the current lessee of Block 10 Section 19 in the suburb of Fraser, and resides at 20 Nott Street, across the road from the subject land. Dr Krone is the current lessee of Block 2 Section 19 in the suburb of Fraser, and resides at 23 Nott Street which adjoins the subject land on the western boundary. Mr Johnston is the current lessee of Block 32 Section 19 in the suburb of Fraser, and resides at 45 Daley Street which adjoins the rear of the subject land at the north-eastern side. Mr and Mrs Martin are the current lessees of Block 1 Section 18 in the suburb of Fraser, and reside at 43 Daley Street which does not directly abut the subject land but is immediately adjacent and removed by the public pathway. Mr and Mrs Brett are the current lessees of Block 7 Section 19 in the suburb of Fraser and reside at 14 Nott Street. Mr and Mrs Martin were represented at the hearing by Mr Ewers who is the lessee of Block 10 Section 18 in the suburb of Fraser which has the street address of 27 Nott Street and therefore immediately adjoins the subject land on the eastern boundary being only removed by the public pathway. The parties joined and Mr Ewers (“the objectors”) thus live immediately adjacent or in the immediate vicinity of the subject land.
Applicable Law and Policy
5. As this application was lodged on 28 March 2008 and the new Territory Plan commenced on 31 March 2008, the 2002 Territory Plan (“the Plan”) applies.
6. The Plan is established by section 13 of the Land Act. Its framework is usefully described in Nowicki v Martyn and Johnston (1996) 131 FLR 88 (“Nowicki”). The object of the Plan is described in section 7(1) of the Act as providing the people of the Territory with an “ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation”. Pursuant to section 7(2)(a) the Plan sets out planning principles and policies for giving effect to its object. When it considers whether to approve an application pursuant to section 230 a Territory authority must not make a decision inconsistent with the Plan.
Part A of the Plan sets out general planning principles and policies and Part B contains specific objectives and policies for giving effect to the planning principles and policies set out in Part A. The objectives are a formal statement of the planning aims sought by the land use policy and the controls are specific policy provisions identifying the purposes for which land may be used and planning criteria that apply to development proposals in the relevant land use policy area.
8. Section 8 of the Land Act requires the Tribunal not to approve any act inconsistent with the Plan. Clause 9.1(a) of Part A3 of the Plan provides that a DA cannot be approved if it is inconsistent with the applicable land use policy in Part B which is the B1 Residential Land Use Policies (‘Part B1’). Part A3 section 9.1 provides that:
the relevant authority shall not approve a development or proposal for the use of land that would be inconsistent with “a list of matters”.
9. A “relevant authority” includes the Tribunal and the use of the mandatory word “shall” makes it incumbent on the Tribunal to pay particular attention to the matters listed which include, inter alia:
(d)for proposals in a Residential Area, the relevant provisions of any Residential Code at Appendix III.
10. Appendix III.2 is the Residential Design and Siting Code for Multi-Dwelling Developments (“the Code”).
The subject land is located in an A10 Core Area and the A10 Residential Core Policies, which are Area Specific Policies, are also in Part B1. The Objectives of the A10 policies are:
•To ensure development respects existing streetscapes and adjoining development, or contributes to the desired future suburban character of the area as defined by an approved master plan.
•To retain a moderate level of flexibility to accommodate a wider variety of additional housing close to facilities and services to meet changing community needs and preferences.
•To assist in creating a more sustainable pattern of urban settlement by providing for more housing to be developed close to identified commercial centres.
12. The controls for A10 policies state:
a) Multi-unit housing…….. may be approved in circumstances specified below.
……….
c)…….…multi-unit housing redevelopment on standard blocks shall not be approved on blocks with an area less than 1400m2.
……….
f)Attics and basements may be permitted in addition to 2 storeys. However, on a standard block, ramps to basement car parking forward of the building line shall generally not be approved unless the block has a public road frontage greater than 30 metres.
g)The maximum site density for residential redevelopment on a standard block or block resulting from consolidation of standard blocks shall depend on provisions in the relevant residential code at Appendix III (eg, setbacks from boundaries, building envelope controls, private open space requirements, etc) and shall not exceed a plot ratio of 0.5:1 (50%) ……..
13. A “standard block” is a term defined in the Plan as “a block with an area greater than 500m2 that was originally leased or used for the purpose of single dwelling housing”.
14. As was explained in Nowicki (p 28):
(T)he Code itself is divided into objectives, performance criteria and performance measures. Performance measures are stated in the introduction to the Code to be sufficient to satisfy the objectives and relevant performance criteria (presumably of the Code only) in most cases, and (that) normally an applicant does not have to provide evidence beyond compliance with the performance measures. Compliance with performance measures will be ‘normally considered to meet the objectives and performance criteria’ relevant to those performance measures.
However, a failure to meet performance measures is not necessarily fatal if the objectives and criteria are met. That is, if a DA does not meet the performance measures it could still meet the objectives and criteria.
15. Part A3 of the Plan, section 9.2 provides that:
(t)he relevant authority shall, in relation to an application to undertake a development to a proposal to use land, carefully consider the following matters:
………
b)any relevant planning guidelines or interim guideline contained in the Register of Planning Guidelines;
16. Part A3, section 9.3 requires careful consideration by the Tribunal of:
d) impacts on the amenity of surrounding land uses…….…;
e) impacts on the visual amenity and landscape or streetscape of the area;
Section 245(3) of the Land Act gives the Tribunal the power to require that the approval given by the authority for the development does not take effect unless a specified approval is revoked, amended or given and also gives the Tribunal the power to impose a condition that a specified controlled activity be conducted to the satisfaction of a specified body.
18. The Land Act section 231(5) provides:
The relevant authority may make a decision under section 230 that is inconsistent with the advice of the conservator under the Tree Protection Act 2005, section 82 in relation to a regulated tree only if the authority is satisfied, having regard to the broader strategic objectives of the territory plan, that all reasonable development options and design solutions have been considered to avoid or minimise the need to damage the tree or undertake prohibited groundwork.
19. The Tree Protection Act 2005 section 82 provides:
(1)This section applies if the conservator is satisfied, on reasonable grounds, that a development involves, or is likely to involve, an activity that would or may—
(a) damage a protected tree; or
(b) be prohibited groundwork in—
(i) the protection zone for a protected tree; or
(ii) a declared site.
(2)The conservator may give the planning and land authority written advice in accordance with section 83 about the development.
Preliminary issue
20. The DA was lodged on the last working day on which the 2002 Territory Plan applied to original applications. The Tribunal was told that the application would not be approved under the 2008 Territory Plan. The Tribunal did not test the veracity of this claim and has not had regard to this information as it cannot influence its application of the 2002 Plan to the facts before it.
Description of the Proposed Development
21. The subject land has an area of 1428 square metres with a narrow frontage to Nott Street of 13.5 metres. The block fans out so that the rear boundary is 52.34 metres with a western boundary of 54.96 metres and eastern boundary of 42.2 metres. A public pathway runs along the eastern boundary of the block separating the block from the neighbour, Mr Ewers. The subject land block falls diagonally approximately 6.6 metres from Nott Street to the rear.
The proposed development consists of 8 units comprising four two bedroom units and four one bedroom units. The proposed building has two storeys of living spaces and a basement car park which is excavated and takes advantage of the slope of the land. It is proposed that there be four units on each of the two storeys above ground with each having a balcony with a glass balustrade and/or some screening to comply with the requirements in relation to overlooking (see below). The proposed building has a hipped, concrete tiled roof.
23. There are two car parking spaces allocated to each two bedroom unit and one to each one bedroom unit. Access to the carpark is via a driveway down the western boundary (along the fence line adjacent to Dr Krone’s property at 23 Nott Street). There are two proposed visitor parking spaces in the basement. All of the units have north facing decks and the private open spaces and communal open spaces face north. There would be pleasant views to the north, particularly from the balconies on the proposed upper level.
24. A narrow easement runs along the rear east-west fence line of the property to which ACTEW requires access.
There is a protected tree on the subject land near the eastern boundary. The developers also propose to take advantage of the borrowed landscape. It is also proposed that there will be extensive planting of small trees and shrubs inside the property boundary.
The issues, including evidence and findings
The Tribunal had before it the documents prepared by the applicant, respondent and parties joined. The Tribunal visited and inspected the subject land and heard oral evidence. The applicant’s witnesses were: Mr Paul Cohen, a planner; Mr Andrew Curran, a traffic expert; and Mr Eddie Gonzalez, an architect. The respondent’s witness was Ms Rachel Dang, an ACTPLA assessment officer. The parties joined gave evidence and also called Mr Edward Streatfeild who is a planner, builder and former ACTPLA assessment officer. All witnesses are qualified experts in their respective fields. During the course of the hearing thirty-one documents were admitted into evidence.
The evidence before the Tribunal shows that plans prepared in March 2008 were considered by ACTPLA officials prior to the original decision. Further plans that were lodged with the application to the Tribunal were dated 16 September 2008. The applicant provided amended plans dated 15 October 2008 that clearly showed the amended portions of the plans. The applicant outlined the compliance of the development application with the Territory Plan, explaining the changes made to earlier plans to comply with the concerns indicated by the respondent in the original decision. Ms Dang, Messrs Cohen and Streatfeild and other witnesses commented on the amended plans at the hearing. The parties’ expert witnesses supported their contentions and the information contained in the Tribunal documents and had the opportunity to refute evidence provided by the other parties.
28. The parties joined gave evidence that some of them have lived in Nott Street and Daley Crescent for over thirty years. They based their objections to the proposed development on a range of matters set out in their statement of facts and contentions, which were tendered in evidence, and other matters. They relied, in part, on concerns about aspects of the development’s non-compliance with the Plan raised by the respondent in response to the original plans and the continuing concerns of the respondent in relation to the amended plans.
29. The Tribunal was assisted by written submissions provided by all the parties and supplemented by oral evidence and submissions.
The evidence and argument focussed on the following issues.
Private Open Space
31. Objective O4.1 of the Code refers to the requirement:
To provide each dwelling with private open space that meets the reasonable recreational, service and storage needs of residents.
Performance Criteria P4.1 and P4.2 relate to location, dimensions and capability of private open space for the enhancement of enjoyment of the dwelling by its occupants and to take advantage of the site.
33. Performance Measure D4.1 refers to dimensions that will normally meet the objectives and performance criteria. These are 6 metres and 1.8 metres on balconies.
The objectors argue that the provision of private open space (POS) for residents of the ground floor and upper floor units are inadequate and the requirements of the Plan are not met. The respondent noted that requirements of residents differ.
The applicant submits that while the ground floor units do not strictly meet the 6 square metres private open space requirement they meet the reasonable needs of residents, are directly accessible to indoor daytime living areas and located to the north of the units.
36. With regard specifically to the dimensions of private open space areas, the Tribunal is satisfied that the requirements are met in the proposed development.
Traffic and Safety
37. Section 7(1) of the Land Act states:
The object of the plan is to ensure, in a way not inconsistent with the national capital plan, that the planning and development of the ACT provides the people of the ACT with an ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation…
38. Part A3 clause 9.3 of the Plan (Plan Administration Policies) requires, among other things, that consideration be given to:
The amount of traffic likely to be generated and its impact on the movement of traffic on the road system.
39. The Residential Land Use Policies at Part B1 of the Plan include the objective to:
safeguard amenity, safety and special qualities ……. of established residential areas while carefully managing change in suitable locations .
A main concern for the objectors was the traffic and related safety issues from the addition of eight units in a suburban street. Mr Hobbs argued that limited manoeuvrability in the basement car park would result in increased on street parking. The objectors were also concerned about the problems that would be caused by the increase in visitors’ vehicles parking on the street and causing congestion, particularly when service vehicles, such as garbage trucks, seek access to the eight units.
41. The applicant submitted that, in response to the respondent’s concerns with the original plans, the layout of the basement car park was remodelled and the visitor car parking spaces moved inside.
42. Mr Curran gave evidence that traffic usage on Nott Street is low and the car parking entry and other arrangements comply with Australian Standards.
43. The Tribunal finds that it is clear that there would be an increase in traffic in Nott Street from the proposed development but the evidence is that the traffic flows will be within the acceptable range.
Access and mobility
ACT planning laws do not require an adaptable unit to be included in a development of less than ten units. The ACT Guidelines for Access and Mobility (AMG), to which the Tribunal has regard, refer to the need for a continuous path of travel to communal spaces. There is no requirement that such a path be provided but the applicant has indicated a path on the amended plans. The applicant has also nominated that a stairway from the basement car park to the ground floor would be capable of accommodating a stair lift but another flight of stairs would need to be climbed to reach the street entry. No doubt reasonable accommodation would be arranged by residents if necessary. The Tribunal finds that there is nothing in the Plan requiring further accessibility measures.
Streetscape
45. Part A3 of the Plan requires the Tribunal to “carefully consider” the following matters that are of relevance to the proposal:
e) impacts on the visual amenity and landscape or streetscape of the area.
46. An objective of the A10 policies in the Plan is to:
ensure development respects existing streetscapes and adjoining development, or contributes to the desired future suburban character of the area as defined by an approved master plan.
47. A control in the A10 policies states that proposals involving subdivision or consolidation of standard blocks for multi-unit housing must be accompanied by information that demonstrates how the proposed development fits with the existing streetscape character or statement of desired future suburban character as defined by an approved master plan. There is no master plan for Fraser but the objective and control regarding streetscape act as a guide.
48. As the Tribunal noted in AMC Projects Pty Ltd and ACT Planning & Land Authority & Ors [2006] ACTAAT 13 (2 May 2006):
It is apparent that, in order to balance the competing planning objectives of providing for continuing development without further urban expansion, on the one hand, and protection of the existing low density character of most residential areas, on the other hand, one strategy to achieve those objectives has been to identify parts of some residential areas with specific features which are to lose the kind of protection considered appropriate for most residential areas.
49. In Whitfield and ACT Planning & Land Authority & Ors [2008] ACTAAT 5 (28 February 2008) the Tribunal said (para 21):
It is to be expected, therefore, that more intensive development of the kind proposed in this case, provided that it meets the requirements of the relevant design and siting code and does not fail to respect the existing streetscapes and the adjoining development, will be permitted in areas to which the A10 policies apply. It would not meet the overall objectives of those policies to require development proposals to replicate the style and scale of development undertaken in accordance with the policies they have replaced.
50. In addressing the issue of the impact of the proposed development on the streetscape the Tribunal considers all the objectives of the Plan including the need to provide a wider variety of housing close to commercial centres to meet changing community needs and preferences.
51. “Streetscape” is defined in Part D of the 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, existing trees, landscaping, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.
52. In the original reasons the respondent said that the development did not meet the objective but the revised plans showed windows on the south and western elevations assisting in presentation to the street. The applicant submitted that impact of the proposal viewed from Nott Street is reduced because of the facts that: the street curves sharply at the point of the subject land; there is a significant amount of vegetation on the street; and the development is cut into the downward slope.
53. The objectors argued that the proposed development was incompatible with the existing streetscape. They said that Nott Street consists of single storey dwellings and the bulk, height and nature of the development would be inconsistent with the surrounding development. In submissions the objectors noted the limited opportunity for passive surveillance from the allegedly limited front windows which lack a visual connection with the street. The objectors referred to the ACT Crime Prevention and Urban Design Resource Manual (CPUDRM) which refers to surveillance afforded by activity rooms and argues for special consideration where development is adjacent to a laneway.
The respondent said the impact of the proposal viewed from the street is reduced by being cut in so it is similar in height to the adjacent single storey development and by the curve of the street and vegetation. It was submitted that the addition of windows assist the presentation to the street.
55. If the term “streetscape” is interpreted broadly, the arguments of the parties in relation to the bulk or density of the development can usefully be considered in this section of the decision, as well as in later sections. It is appropriate to introduce consideration of this issue here since it arises when testing the development against several controls, objectives, criterion and measures in the Plan.
56. In response to illustrations of various views from adjoining blocks of the development provided by Mr Gonzales, the respondent submitted that Blocks 32, 31 and 2 would be unacceptably affected by the visual impact of the development when viewed from their rear POS. Ms Dang said she thought the impact would be significant on Blocks 31 and 32. The respondent submitted that there would be a greater impact on the amenity of Block 2 (Dr Krone’s block) because the view from his block encompasses the length of the development.
57. The parties joined supported the respondent’s submissions and argued that the development had an inappropriate visual impact on the residents and users of Nott Street and Daley Crescent. They noted that Mr Streatfeild considers the development to be credible in relation to streetscape issues. They do not argue that it should not be approved on the streetscape issue alone but asked that the problems be considered in relation to the overall assessment of the development.
58. They argued also that the proposed development was inconsistent with existing development and referred to the complex roof form cited by Ms Dang in her evidence. Regarding the roof issue, the Tribunal has regard to Ms Dang’s concession that there are other hipped roofs in the area as well as the applicant’s submission that there are other complex hipped roof forms in the area.
The applicant further submitted that there was no uniformity of architectural form in the area and the proposed development was consistent with existing development. Mr Cohen gave evidence that the building would be no more remarkable than others in the area. The applicant’s evidence was that the proposed development met the requirements of the Plan in terms of height and compliance with the building envelope requirements. It was said to have appropriate address to the street and provide passive surveillance through the windows of Units 1 and 3.
60. The Tribunal has regard to the A10 policy of respect for “existing streetscapes” which would include Nott Street and Daley Crescent. It is required to carefully consider the “streetscape of the area” but the definition of streetscape in the Plan refers to the visible components “within a street”. Street is not defined in the Plan so the Macquarie Dictionary definition of “paved way or road” is used. This leads to a consideration of the streetscape from Nott Street rather than the “area” of residences in Daley Crescent, or even down the pathway on the eastern side of the subject land. This is important in this case because the Tribunal finds that the development viewed from Nott Street clearly respects the existing streetscape as it presents an angled section with windows providing passive surveillance to the street. It is set on the low side of the street, down the slope and takes advantage of the borrowed landscape of a well vegetated street – as was seen during the site visit and stated in uncontroverted evidence by Mr Cohen.
Site facilities including waste management
61. Objective O8.1 of the Code is to provide site facilities and design them to be convenient and visually attractive, blend with the development and street character and require minimal maintenance.
Performance criterion P8.1 requires the location and design of site facilities including garbage bin enclosures and mail boxes to be co-ordinated and complimentary to the overall building design. Criterion P8.3 requires a convenient area suitable for storage purposes to be provided in order to protect the amenity of the block and the street in general. Performance measure D8.2 requires that garbage handling and storage meet the requirements of Waste Management of the Department of Urban Services.
63. The objectors raised concerns about the waste removal arrangements. Mr Streatfeild said that it created unnecessary risk for waste management vehicles to drive in forwards and reverse backwards up the driveway. The respondent had sought the approval of a waste management plan by the Territory and Municipal Services (TAMS) to alleviate their concerns about waste management and the developer provided evidence that approval had been given to such a plan.
64. The TAMS approval (T88) stated that: “Waste Vehicles will enter the property and drive to the end of the driveway (ramp) where they will collect the waste from the recycling and refuse hoppers...The truck will then reverse back out of the development and continue on its way.” Evidence was given on the gradient of the ramp up which the truck would be reversing. The respondent pointed out that, as presently proposed, the vehicle access ramp must descend from about Reduced Level (RL) 619 to RL 611. Mr Curran conceded that, at one point, the ramp gradient was 1:5.6 (18%). The Australian Standard (AS 2590 1-2004) was cited.
65. During the course of the hearing a revised plan for the ramp was proposed but the respondent submitted that the plan was unworkable and provided an overlay plan to prove this (Ex 9). The applicant told the Tribunal it would be possible to prepare a suitable revised plan. The respondent argued that TAMS would have to approve any revision to the ramp plan.
66. The Tribunal is not satisfied that the plans for the ramp, and thus the plans for the waste management removal from the site, meet the requirements of the Plan. The evidence is unclear about the degree of compliance of the ramp gradient and the modifications required for it to enter the basement at the correct entry point. Revisions are required to the ramp to satisfy the requirements of “convenience” and “amenity”. If this was the only unresolved matter the Tribunal may impose a condition but there are other issues of non-compliance (see below).
Number of storeys
67. Control 3.4 of the Part B1 provides:
Except where provided for in a relevant Area Specific Policy (see Section 4) or in Special Requirements under the National Capital Plan, buildings shall not contain more than two storeys. Subject to clause 3.6, a basement and/ or an attic, may also be permitted. Notwithstanding this clause or clause 3.6, on land where a lawfully constructed building exceeds 2 storeys in height, a new building or buildings up to the height of the existing building may be permitted subject to consideration of any adverse impact resulting from increase in building bulk.
68. The two storey requirement also appears in the height performance measure that is discussed below.
69. “Basement” is defined in Part D of the Plan as:
a space within a building where the floor level of the space is predominantly below natural ground level and where the finished floor level of the level immediately above the space is less than 1.0 metre above natural ground level.
70. “Natural ground level” is defined as meaning “the ground level at the date of grant of the lease of the block.”.
The Tribunal was told that the lease of this block was granted in 1975. The contour lines produced as result of a survey in 2007 (T doc 384) provide a guide to the natural ground level (NGL) but excavations and the existing building on the subject land make it impossible to accurately ascertain the NGL without a current detailed survey.
72. As a result of cross-examination of the oral evidence given by the applicant’s witness, Mr Gonzalez, it became apparent that part of the north-eastern portion of the floor level above the basement of the proposed development would exceed the permitted one metre height limit above natural ground level.
The respondent, with the support of the parties joined, submitted that this would have the effect that the basement – at the north-east point – could not be characterised as a basement. Since the only other possible characterisation is “storey” this would mean the development is three storeys at that part of the building. The respondent said this could also impact on the plot ratio. The applicant’s evidence was that the current plot ratio is 42%, which allows scope for an increase in utilisation before reaching the maximum allowable level of 50%.
74. The precise location and dimensions of the area which would infringe the one metre height limit could not be determined at the hearing. Both applicant and respondent agreed that the extent of the problem could only be resolved after a detailed survey was undertaken. The possible remediation of the problem is thus uncertain. The applicant suggested that excavation and lowering of the basement floor in the (undefined) area in question, together with an option to step down a private open space area if required, could be a possible solution which would not impact upon the rest of the building, and further contended that the Tribunal could remit the matter to the Authority with a condition incorporating these options. By contrast, the respondent submitted that the uncertainty about the location and extent of the area affected by the infringement and the number of potential consequential changes that might have to be made to the development in order to remedy the situation meant that it would not be appropriate for the Tribunal to remit the matter with such a condition.
75. The respondent opposed the imposition of such a condition on the ground that an approval by the Tribunal should not leave matters of such broad scope for further approval. In support of this contention it cited previous Tribunal decisions: Strategic Developments Pty Ltd and Minister for Urban Services[1999] ACTAAT 10 (6 May 1999) and Pashalidis and ACT Planning & Land Authority [2004] ACTAAT 21 (24 May 2004). It also cited Winn v Director of National Parks and Wildlife [2001] NSWCA 17; Mison v Randwick Council [1991] 23 NSWLR 734; and City of Unley v Claude Neon (1983) LGRA 65. The applicant warned of the danger of applying decisions from other jurisdictions where different legislation applied.
76. The Tribunal has reviewed the authorities cited which show that a condition such as that proposed by the applicant is not appropriate when the revisions would have the effect of so substantially altering the development that it becomes, in effect, a new proposal. One reason for this is potential denial of administrative justice to parties with an interest in commenting on changes to the development.
77. It is agreed that, at one point, the proposed development consists of three storeys and is therefore non-compliant at that point. A survey is required to determine the extent of the non-compliance and enable revision of the plans. The extent of the modifications that would be needed to the building’s design is unknown. It is not appropriate for the Tribunal to formulate a condition or conditions to overcome the problem when the extent of the problem is uncertain and the consequences are unknown.
Overlooking
78. Control 7 of the Code deals with the interfaces between dwellings. Objective O7.2 is:
To limit overlooking of private open space and to enable residents to effectively control outlooks between rooms in adjacent dwellings.
Performance Criterion P7.2 requires:
The private open spaces and living rooms of adjacent dwellings to be protected from direct overlooking by dwelling layout, screening devices, distance or landscaping.
Performance Measure D7.2 requires:
Outlook from windows, balconies, stairs, landings and decks or other private, communal or public areas within a development to be screened or obscured if there is a direct view into private open space of another dwelling.
Performance Criterion P3.1 requires:
the privacy of dwellings and outdoor spaces to be protected
The setbacks from boundaries, which are discussed below, are also designed to achieve this.
The blocks most directly affected by overlooking and privacy issues are the next door neighbours (Dr Krone at Block 2 Section 19 and Mr Ewers at Block 10 Section 18) and the neighbours over the back fence (Mr Johnston at Block 32 Section 19 and the lessee at Block 31 Section 19, who is not a party to these proceedings but was an objector to the original application). Other residents on the downward slope, including Mr and Mrs Martin (Block 1 Section 18) would also be somewhat affected. Lessees of properties on the high side of Nott Street looking down onto the proposed development are less affected by this issue (e.g. Mr Hobbs at Block 10 Section 19).
80. The Tribunal was assisted by drawings provided by the parties showing sightlines from the upper level units to the private open spaces of the affected properties. Mr Cohen, for the applicants, provided an estimation of distances from the balconies of units in the proposed development to the back gardens of adjacent dwellings (Ex 16). For example, he estimated the distance from Unit 8 to Block 32 as 27 metres, the distance from Unit 8 to Block 31 as 31 metres and the distance from Unit 3 to Block 2 as 27 metres. The point at which these measurements were taken was questioned but they are a guide to the relevant distances. For example, Dr Jarvis noted that the pool in the garden of Block 32 is closer than the distance stated by Mr Cohen.
The site visit also provided the view from the subject land and the relevant private open spaces. The Tribunal was able to view the extent of current overlooking from the existing building on the subject land in conjunction with actions taken by all neighbouring residents to mitigate the effects of overlooking, having regard to the fact that the land is situated on the slope of Mt Rogers and drops over six metres from the front of the block to the rear and continues to fall beyond the rear boundary.
82. It is important in this case that the Tribunal carefully apply the words in the Plan. The relevant objective refers to the need to “limit” overlooking and the criterion refers to the need to “protect” privacy. As the applicant contended, there are challenges for any development on a sloping block. As the respondent noted in submissions, the Tribunal (differently constituted) has previously observed that the Plan does not require total elimination of overlooking, but that it be kept to an acceptable level, having regard to the intention of the Plan to allow higher density development in some areas: Freeman & Evans and ACT Planning & Land Authority [2006] ACTAAT 20 (16 June 2006) at 65.
83. In the decision in Stoddart & Ors and ACT Planning & Land Authority & Anor [2007] ACTAAT 27 (21 December 2007), the Tribunal (differently constituted) discussed the meaning and inter-relationship of relevant provisions of the Code. In that decision, the Tribunal considered the application of Performance Measure D7.2 when dealing with the interface between multiple units in a development and dwellings on adjoining land. We agree with the Tribunal’s interpretation of D7.2 in that decision and its statement at paragraph 70 that:
It is to be expected that planning guidelines would be concerned to impose stricter controls over the development of multi-unit developments because of their potential for greater impact than single dwellings on the amenity of the properties of adjoining land owners.
84. The applicant submitted that the privacy of dwellings on Blocks 30, 31 and 32 would be protected by the distance between them and the upper floor balconies and further, that the privacy of the private open spaces of adjacent blocks is protected by the inability to see the areas of POS near the dwellings, some of which have other structures intervening.
85. In the case of Block 2, that applicant pointed out that in the amended plans the balcony of unit 3 complies with the performance measure D7.2 and notes that it faces a blank wall for some distance. The applicant argued that only a small part of the POS on this block would be visible.
In respect of the potential to overlook Block 32, the applicant argued that the privacy of Block 32 is limited and protected by screening on the balcony of Unit 8, existing vegetation that will be retained and a shade cloth structure on the property. It was further argued that only a very small portion of the block falls outside the limits of the performance measure D7.2 and the area of POS at the rear of the house is at least 27 metres from the balcony. The applicant suggested that any overlooking could be further reduced by the addition of a small extension to the proposed screen.
87. In relation to Block 31 the applicant pointed out that only a small portion of the southern corner of the block is within 9 metres of the boundary and contended that any views from the balconies of the upper floor units to Block 31 are obscured by vegetation and a 1.8 metre high fence. The applicant argued that the area of POS in the back garden is large and its use is not clear. The applicant noted that the covered barbeque area is screened by an aviary and the owner has chosen not to plant vegetation.
In the case of Block 30, the applicant argues it is more than 20 metres from the balconies at its nearest point and that distance eliminates any issue of privacy or overlooking.
89. Mr Gonzales described the vegetative screening methods proposed to limit overlooking. He stated that a 4 metre high screen of pittosporum plants would be planted along the fence line between the subject land and Blocks 31 and 32. The Tribunal was given documentary evidence about the capacity of pittosporum to grow quickly and provide screening. Ms Dang pointed out that the ACTEW easement along that fence line means that screen planting there is limited to shrubs of no more than a metre in height. When the parties joined argued that ACTEW can request that such vegetation be removed at any time, the applicant responded that to date no plantings have had to be removed.
In response, the parties joined argue that temporary structures such as pergolas, aviaries and sheds in the back gardens of Blocks 31 and 32 should not be relied upon to answer concerns about overlooking as they may be removed. As evidence of this, Dr Krone (Block 2) stated that the POS on Block 2 is being re-developed which he believes demonstrates the changing nature of the use of back yards. It was submitted that residents could reasonably expect that performance measures would be upheld to protect their existing and future interests in making use of those spaces without unreasonable overlooking.
91. Mr Johnston, who lives on Block 32, argues that the “imposing” development would result in a significant impact from overlooking and loss of privacy. He also expressed a concern for the amenity of the residents in Unit 8, which would be adjacent to his property boundary, because of the high sill windows and screening.
92. The respondent submitted that the overlooking arises not only from the slope of the land but also from the design of the proposal which is not stepped down the slope, resulting in the upper floor level being elevated several metres above the natural ground level of adjacent blocks. Ms Dang gave evidence that the plans were amended with the result that the balcony of Unit 3 complies with the Code. She stated that a person standing on the balcony of Unit 3 could look into the rear of Block 2 (Dr Krone’s residence) from heights of over 5 metres. The respondent argued that the issue for all the upper floor level (UFL) balconies is whether the effect on the amenity of adjacent blocks caused by overlooking is kept to an acceptable level by distance or screening. The respondent submitted that due to the relative height of the balconies, despite the distance and vegetation, people using the POS of Blocks 2, 31 and 32 would feel that they were easily observed from the adjacent UFL balcony level and that this would detract unacceptably from the amenity of POS in those blocks. The respondent asked whether it would be a correct or preferable decision for the Tribunal to find that overlooking is limited and the privacy of outdoor spaces would be protected.
93. The Tribunal has carefully considered the proposed development in relation to the overlooking of adjoining properties with regard for planting proposals, taking into account the Plan’s recognition that landscaping proposals have a legitimate role to play in the assessment of privacy issues. (Appendix lll.2, P9.2 and P7.2).
Units 8 and 6 are adjacent to the boundary of Block 32. There is existing vegetation on the subject land and there is a proposed planting although this will always be subject to ACTEW’s access rights. There is currently overlooking from the house on the subject land but the proposed development is much closer and does not comply with the performance measure, albeit there is only minimal non-compliance.
95. Some of the POS on Block 31 can be overlooked from the balcony of Unit 8, past the screen. Indeed a person standing on the balconies of all the units who is interested in the activities of their neighbours could go onto their balcony and look over into the neighbouring properties.
It is the bottom eastern corner of Block 2 which is most exposed to overlooking from the balconies. This is the area that is subject to re-development by Dr Krone. It is some distance from the development and there is some existing vegetation on his block. There is limited scope for planting on the subject land due to location of the proposed waste unit.
97. The Tribunal agrees that the proposed development is, as the respondent pointed out, not designed to step down the block, but is designed as a two-storey building which, on a sloping block cannot but overlook the adjacent properties to varying degrees. In addition, there is some non-compliance with relevant performance measures for setbacks. While the Tribunal notes the applicant has adjusted the plans and added extra measures such as screens and vegetation to limit overlooking of adjacent residents, the Tribunal finds there is direct overlooking of neighbouring residents due to the height at the rear of the proposed development from upper floor balconies. Although distance, screening devices and landscaping assist in some limiting of overlooking of private open spaces of adjacent dwellings, particularly Blocks 2 and 32, they have not been protected from direct overlooking due to the dwelling layout of the proposed development.
Setbacks of buildings and driveway
98. The issue of setback requirements is closely connected with overlooking. The setback requirements are contained in the Plan’s objectives, performance criteria and performance measures.
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.
99. The relevant performance criteria are:
P2.1The setback from the street to be appropriate to the streetscape character, the efficient use of the site and the amenity of residents.
P3.1 The privacy of dwellings and outdoor areas 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.
100. The performance measures provide minimum setbacks that will normally be considered to meet the objectives and performance criteria. The required setbacks for lower floor levels are 3 metres and 6 metres for upper floor levels with blank walls or walls with windows with sill heights over 1.7 m or with obscure glazing (if located more than 12 metres behind the UFL building line). In relation to other walls, outer faces of unscreened decks, balconies and external stairs up to 12 metres behind the UFL building line must be set back 6 metres and over 12 metres behind the building line must be set back 9 metres.
101. In Stoddart & Ors (see above) the Tribunal analysed the operation of objective O3.1 in conjunction with performance measure D3.1 and performance criterion P3.1. This Tribunal agrees with its statement that:
In practice, the specified minimum side and rear boundary setback performance measures of Performance Control 3 have been applied as the means of affording privacy to dwellings and their POS on land which adjoins the site on which the proposed development is to be undertaken. ...The application of performance measure D3.1 and performance criterion P3.1 in this way is not obviously supported by the relevant objective (O3.1) which, relevantly to the issue of privacy, is expressed in a way that suggests it is confined in its application to achieving privacy for occupants of the land on which the (multi-unit) development is to be undertaken. (para 66).
As noted elsewhere, the steep slope of the subject land presents significant problems for a building in respect of overlooking. In response to the respondent’s concerns about overlooking, adjustments were made to the original plans. First, screens on the balconies on some upper level units were altered. The parties joined were not satisfied that the adjustments removed concerns about privacy protections. Second, the bedroom windows in bedrooms 1 and 2 of Unit 8 were raised to 1.7 metres but the parties joined argued this would reduce the amenity of residents of the units. Other adjustments were also made.
103. The two main areas where setback concerns arise are the balconies of Unit 3 and Unit 8. Ms Dang agreed that while a small part of the balcony of Unit 3 had been non-compliant this had been remedied in the amended plans. The Unit 3 balcony is adjacent to a blank wall on the neighbouring property and receives northerly sun. There is a view from the balcony over the backyard of the property. The balcony is above the driveway for vehicles travelling to the basement but would not be unduly affected by traffic.
Mr Cohen conceded that a screen located on the outer edge of the Unit 3 balcony to reduce any overlooking of Blocks 30 and 31 is an inelegant solution that detracts from the utility of the balcony. The applicant submits that this screen should be removed.
105. A small part of the Unit 8 balcony is within the setback area and the applicant concedes that it does not meet the performance measure. The question whether it meets the objectives and criteria cannot be finally determined until the height issue is considered (below) because the issues are interwoven.
The Unit 8 balcony is within the 9 metre setback on the outer edge of the balcony. The applicant explained to the Tribunal how the plans could be adapted to comply strictly with the setback but submitted that, since the variation was slight, the impact minimal, and the effect on residents’ amenity significant, the change was not warranted. The respondent and parties joined argued that the privacy of the residents of adjacent blocks was not protected.
Height
107. The requirement that there must only be two storeys in a development has already been discussed, as has the fact that the development is on a sloping block oriented to the north at the rear. Any development placed on this site would have significant POS areas looking out to the north and, given the slope of the land, are likely to be elevated above natural ground level to a significant extent. This is particularly the case when the proposed building is a two storey development.
108. The applicant’s evidence was that the proposed development meets the requirements of the Code in terms of height and compliance with the building envelope requirements. The respondent submitted that the proposed development is of a height and scale that would unduly affect the amenity of the residences of adjacent blocks at the side and rear. The parties joined support the respondent’s submissions.
109. One of the A10 objectives is respect for adjoining development. The relevant objective, performance criteria and performance measures of the Code, some of which appear also elsewhere in this decision, are:
Objectives:
O1.1 To provide an appropriate residential scale within a locality.
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:
P1.1 Buildings to be limited in height to ensure compatibility with adjacent
development.
P3.5Building walls to be sited and to be of length and height to ensure no significant loss of amenity to adjacent dwellings and private open space.
110. The agreed evidence is that Unit 8 has an RL of 617.3. The balcony of Unit 3 is over 5 metres higher than Dr Krone’s adjacent block (Block 2) and a person standing on the balcony would be at about 7 metres above it. The roof of the development is obviously even higher. The slope of the land means that the UFL of the development is elevated several metres above the natural ground level on adjacent blocks – even allowing for the slope of the natural ground level on those blocks. Dr Krone gave evidence to the Tribunal of his plans to redevelop the private open space at the rear of his block. There is some vegetation on this block and Mr Cohen gave evidence that the distance from the U3 balcony to a point in the POS of the block is 27 metres.
111. The respondent submits that the development should have been stepped down the slope to avoid the imposition of a development of incompatible scale and height for the area.
112. In considering the height of the proposed development the Tribunal has had regard to the slope of the subject land and the compliance of the development with the Plan. The Tribunal finds that the height of the development, inevitable as it will be for a two storey building on a sloping block, does have a significant impact on the adjoining blocks. It is significantly higher than the side boundary on the eastern side and the rear boundary (O3.3).
113. “Locality”, which is referred to in O1.1, is not defined in the Plan. The Macquarie Dictionary definition is “place, spot, or district...the place in which a thing is or occurs”. This broad term means the proposed development must be of an appropriate residential scale (O1.1) in the place where the relevant blocks meet, to ensure that the building is “limited in height to ensure compatibility with adjacent development” (P1.1) and that the height does not result in “significant loss of amenity to adjacent dwellings and private open space” (P3.5). The Tribunal finds that the height of this proposed development is not of an appropriate residential scale. The height relative to side and rear boundaries is not of an appropriate residential character.
The tree
114. The large eucalypt on the eastern boundary of the property is a protected tree within the meaning of the Tree Protection Act. The Conservator received the September plans and provided advice (Ex 6) that the proposed development be supported provided certain steps are taken to protect the tree during construction subsequently including that there are “no ground levels greater than 100 mm within 5 m from the outside edge of the trunk”.
115. Ms Dang gave evidence that the October plans did not appear to comply with the Conservator’s advice because the building would encroach into the 5 metre area referred to above. The Conservator had not been provided with the latest plans showing the proposed access path which passes over the critical zone of the tree.
The parties joined were concerned about what appeared to have been lopping of some branches of the protected tree at some time prior to the Tribunal hearing. They argued that, if the development were to be approved, a condition be imposed asking the Conservator to make any necessary adjustment having regard to the impact, if any, of the reduction in the canopy. They also sought that final approval be provided by Conservator after any works were completed.
117. Clearly, the development cannot proceed without the Conservator’s advice based on the current plans. Nor can the Tribunal make a decision different from that of the Conservator without evidence of alternative design solutions (Land Act section 231(5)). This matter remains in doubt.
Conclusion
The Tribunal has carefully considered the application, the adjustments proposed by the applicant and the concerns of the respondent and parties joined about the DA. It has had regard to the objectives, performance criteria and performance measures in the Plan including the objectives for A10 areas which include increasing the diversity and density of housing close to commercial facilities and providing a wider range of housing.
The parties joined referred to a “cascade” or “amalgam” of problems with the proposed development and argued that there should be a design more in sympathy with the constraints of the block. For the parties joined, this meant having a smaller number of units.
120. There is non-compliance with the Code. While the applicant has attended to many of the concerns of the respondent and the parties joined by modifying their plans, the development contains a number of unresolved issues. Some of these, taken singly, would not necessarily be fatal to approval of the development application. Taken together as a whole, they present a different picture to the Tribunal.
The first objective of the A10 areas is respect for existing streetscapes and adjoining development. The other two objectives are not linked by any word so all three objectives are taken as cumulative. They relate to the need to have more flexible housing and a more sustainable pattern of urban settlement. The three objectives have to be balanced. The proposed development would meet the objective of introducing more flexible housing and thus allow infill.
122. However, a fundamental issue to be resolved by the Tribunal is the appropriateness of the development within the residential setting and adjoining development. This requirement arises in the objectives and controls under “appropriate residential character”.
Some issues that the Tribunal has questioned are relevant to this matter of appropriateness of the development. The height of the northern face of the building is one such concern. A view of a 2 storey dwelling on adjoining land is not an unusual feature of a residential environment. Some overlooking and loss of privacy is to be expected in a residential setting, especially when occupying land on a slope. In the case of this development, although measures have been taken to reduce loss of privacy, there remains the issue of overlooking from adjacent blocks. This alone is not to the degree however, that would lead the Tribunal to refuse the application. The non-compliance with performance measures in relation to setbacks is also acceptable. However, the Tribunal must also have regard to the scale of the building (O1.1).
124. Because of the slope of the land and the design of the building proposed to be placed on it, the overall height of the building that creates a balcony over 5 metres above the adjoining residence on the eastern boundary, is not appropriate and does not respect adjoining development (O3.3). Similarly the height of the building adjacent to the rear of Block 32 does not respect the development on that block. The evidence that was tendered to the Tribunal that illustrated the views that residents of adjoining blocks would see of the proposed building, demonstrated to the Tribunal that it is not of an appropriate scale and height within the locality of the rear gardens of Blocks 31, 32 and 2 of Section 19.
125. It was suggested that a reduction in the number of units and a development that stepped down the block would alleviate the problems associated with the development. The Tribunal can only comment on the proposal before it.
126. Additionally, there is the matter of the infringement of the ground floor one metre height requirement. Considerable discussion during the hearing was unable to determine the precise location and extent of the problem. The difficulty for the Tribunal is that this issue could have further ramifications for the development that cannot be known at this stage. Likewise, there are questions about the gradient of the ramp that were not resolved over the duration of a hearing that lasted five days with a spread over three weeks. Various modifications to the ramp that were proposed during the hearing introduced other inconsistencies in gradients. There is a degree of uncertainty about this issue which adds to the other concerns about the development.
127. Eventually, the matter must be considered in its totality. An aggregation of the issues of concern leads us to conclude that the correct or preferable decision is that this development application should be refused.
128. We find that the development is not of appropriate residential character having regard to the kind of residential development permitted by A10 policies.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT08/61
APPLICANT: LAND ARCHITECTURE AUSTRALIA
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTIES JOINED: ANTHONY HOBBS; ANTHONY KRONE; DAVID & JANE MARTIN; EVAN & MARY BRETT; GARY JOHNSTON
COUNSEL APPEARING: APPLICANT: MR D MOSSOP
RESPONDENT: DR D JARVIS
PARTIES JOINED:
SOLICITORS: APPLICANT: DIBBS ABBOTT STILLMAN
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTIES JOINED:
OTHER:APPLICANT:
RESPONDENT:
PARTIES JOINED: SELVES; MR G EWERS (FOR D & J MARTIN)
TRIBUNAL MEMBER/S: MS S TONGUE, SENIOR MEMBER
DR E MCKENZIE, SENIOR MEMBER
DATE/S OF HEARING: 21-23 OCTOBER &
3 & 7 NOVEMBER 2008 PLACE: CANBERRA
DATE OF DECISION: 18 DECEMBER 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
2
0
0