Land Architecture Australia Pty Ltd and Act Planning and Land Authority and Anor
[2008] ACTAAT 26
•14 October 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:LAND ARCHITECTURE AUSTRALIA PTY LTD AND ACT PLANNING & LAND AUTHORITY & ANOR [2008] ACTAAT 26 (14 OCTOBER 2008)
AT08/46
Catchwords: Land and planning – review of decision refusing approval to construct multi unit development in an A10 area – issues relating to plot ratio and setback – whether proposed development exceeded gross floor area allowable in Territory Plan – whether proposed development would encroach protection zone of significant trees
City Area Leases Ordinance 1936-1967
Land (Planning and Environment) Act 1991, s 230
Tree Protection Act 2005, ss 11, 22
Tribunal:Mr B Hatch, Senior Member
Ms S Tongue, Senior Member
Mr R Nichols, Member
Date:14 October 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/46
LAND AND PLANNING DIVISION )
RE: LAND
ARCHITECTURE
AUSTRALIA PTY LTD
Applicant
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
AND: PHILIP & HELEN
PELLATT
Party Joined
CORRECTION OF ERROR
Tribunal : Mr B Hatch, Senior Member
Ms S Tongue, Senior Member
Mr R Nichols, Member
Date : 17 October 2008
Pursuant to section 44A of the Administrative Appeals Tribunal Act 1989 paragraph 3 of the reasons for decision dated 14 October 2008 is amended in accordance with the following:
Third line:
·delete “Block 1 Section 20” and insert “Block 9 Section 23”; and
·delete “11 Davison Place” and insert “17 Adair Street”.
…………………………
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/46
LAND AND PLANNING DIVISION )
RE: LAND
ARCHITECTURE
AUSTRALIA PTY LTD
Applicant
AND: ACT PLANNING AND
LAND AUTHORITY
Respondent
AND: PHILIP & HELEN
PELLATT
Party Joined
DECISION
Tribunal : Mr B Hatch, Senior Member
Ms S Tongue, Senior Member
Mr R Nichols, Member
Date : 14 October 2008
Decision :
The decision under review is remitted to the respondent for reconsideration in accordance with the findings in this decision.
………………………….
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/46
LAND AND PLANNING DIVISION )
RE: LAND
ARCHITECTURE
AUSTRALIA PTY LTD
Applicant
AND: ACT PLANNING AND
LAND AUTHORITY
Respondent
AND: PHILIP & HELEN
PELLATT
Party Joined
REASONS FOR DECISION
14 October 2008 Mr B Hatch, Senior Member
Ms S Tongue, Senior Member
Mr R Nichols, Member
This application is to review the decision of the respondent of 16 May 2008. This “decision” is in fact a notice of deemed refusal pursuant to section 230 of the Land (Planning and Environment) Act 1991 (“the Land Act”). The deemed refusal occurs when a decision is not made within the prescribed period as set out in the Act. Notwithstanding this, the respondent issued a document headed ‘Notice of Deemed Refusal’ which then sets out the reasons by which the application would have been refused had an actual decision been made. The effect of this is positive in that the developer was given the reasons by which the application would have been refused rather than being left in the situation of appealing from a deemed refusal.
2. The application relates to land on Blocks 3 and 4 Section 22 Scullin (“the subject land”) on the corner of Adair and McIntosh Streets . The application sought approval for consolidation of the blocks, the demolition of two existing dwellings, variation to the lease to permit the erection of ten units in a two storey building with basement car parking and associated landscaping, paving and other site works.
3. The applicant is Land Architecture Australia Pty Ltd which was represented at the hearing by Mr Jose Henriquez. Mr Philip and Mrs Helen Pellatt, who are the current lessees of Block 1 Section 20 in the suburb of Scullin, and reside at 11 Davison Place, were joined as a party who oppose the proposed development (“the parties joined”). In the hearing before the Tribunal the applicant and the party joined were self represented and Dr Jarvis instructed by the ACT Government Solicitor appeared for the respondent.
4. The Tribunal had before it documents prepared by the applicant, respondent and the party joined. The Tribunal visited and inspected the subject land and heard oral evidence from: the applicant’s representatives; Mr Raymond Brown, who is a town planner who manages assessments within the respondent and was the manager of the technical assessment for this development application; Mr Andrew Curran, who is a traffic expert called by the applicant; and Mr and Mrs Pellatt, the party joined. During the proceedings the applicant submitted revised plans and sketches to demonstrate how issues might be resolved. These plans were not necessarily a complete documentation of the amendments and consequently the Tribunal did not have before it a fully documented revised development application.
5. There are a number of issues raised in relation to the deemed refusal.
6. The first issue is in relation to the car parking and traffic arrangements for the site. This issue had initially been in relation to the width of the driveway. That issue has now been satisfactorily resolved by the driveway now being in accordance with the requirements of the Territory Plan. The Territory Plan also requires that 19 car spaces be provided and the plans provide for 20 car spaces. The final issue is in relation to the restricted areas for vehicles to pass each other in the driveway. The Tribunal accepts the evidence of the expert engineer, Mr Andrew Curran, who gave evidence that a traffic light arrangement can be installed and that such an arrangement would be more than adequate for the purposes of this driveway. Even where there was a power failure, Mr Curran assumed that such a traffic light arrangement would have a back up battery system. Even in the event of total failure of the traffic light system, Mr Curran did not envisage great problems considering the low volume of traffic and relatively slow movement of vehicles in the driveway. Further, the traffic light would be of such a height and intensity that it would not affect neighbouring residences.
7. The more serious matters in dispute related to the gross floor area, which affects the plot ratio. Pursuant to the Territory Plan plot ratio is defined as “ the gross floor area in a building divided by the area of the site”. For developments in the A10 area the maximum plot ratio permitted is 0.5:1(50%) as set out in the Territory Plan at Part B1 Area A10 Control (g). The proposed development involves consolidating two Crown leases into one. The combined area of the two leases is 1,689.6m2. Accordingly, the maximum GFA allowable would be 844.8m2.
8. Much time was spent in the hearing with evidence in relation to GFA.
9. The evidence of the applicant was that the GFA was just marginally below the 50% limit. The evidence of Mr Brown was that the plans as submitted and later plans had the plot ratio at above 50% by a small amount. The applicant measured the plot ratio by using a computer program. A computer program can only be as accurate as the person operating that system and the evidence provided by the applicant could not be regarded as independent expert evidence. The method used by Mr Brown uses the dimensions shown on the drawings and sometimes employs scale rules. The Tribunal accepts that both systems can be accurate. The party joined used a similar manual system as that employed by Mr Brown but the Tribunal notes that, unlike Mr Brown, the party joined are not expertly trained in these matters and while the Tribunal does not doubt the effort the party joined put in to achieving an accurate figure, some discount has to be made of the accuracy of that figure due to the lack of experience. Having said that, the Tribunal is aware that the figure arrived at by the party joined was above 50% for GFA.
10. The Tribunal is also mindful that on a number of occasions the applicant made errors in the plans. One is worthy of note whereby the size of the carport was incorrectly described. This left the Tribunal troubled as to what other mistakes had been made in relation to estimating the GFA by the applicant. In all of the circumstances, the Tribunal accepts the evidence of Mr Brown that the plans as drawn achieve a GFA above 50% and therefore not in accordance with the Territory Plan.
11. At the end of the hearing, the applicant produced sketch plans showing alteration to two of the units in the development. No final plans were produced and therefore no precise measurement of GFA. Simply based on the nature of the drawing which was also designed to overcome an issue in relation to the front setback of the development, the Tribunal concludes that the GFA has been reduced. Whether that reduction would thereby take the plot ratio below 50% is not clear to the Tribunal. It is open to the Tribunal to inform itself in whatever way it considers appropriate. It is not the place of the Tribunal in a matter such as this to attempt to finalise draft development plans into final drawings and thereafter calculate the GFA. Whether that would be appropriate in some other matters would be a matter for that Tribunal.
Performance Measures:
12. The other major issue in this matter is in relation to the front setbacks. Appendix III.2 of the Territory Plan sets out the scheme in relation to setbacks. In the Plan the objectives are the 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.
13. Objective 7.2 of the Plan is “to limit overlooking of private open space and to enable residents to effectively control outlooks between rooms in adjacent dwellings”. The performance criteria include requiring dwellings to be sited to allow good sunlight access to their private open space (P3.3), to minimise overshadowing of northern facades of adjacent dwellings and private outdoor spaces (P3.4) and to minimise overshadowing of northern facades of adjacent dwellings and private open spaces (P3.5). Performance measure D2.1 provides for the minimum setbacks of buildings from the street front boundary of street frontages and the performance measure for corner blocks over 650 square metres which this development is, allows for a setback of the lower floor level of 4 metres and the upper floor level of 6 metres.
14. The Tribunal and the respondent are required to take into account the performance measures. The objectives, performance criteria and the performance measures are a hierarchy. Where the performance measures are met then according to the Territory Plan that would normally meet the objective and the performance criteria.
15. The plans as submitted and the subject of this review had an initial setback for the lower floor level of 3.486 metres. The Tribunal notes that this is in contravention of the 4 metre performance measure. The issue thereafter becomes whether such a setback is appropriate in relation to the performance criteria and the objective. The Tribunal agrees with the decision-maker that such a setback is not appropriate for the streetscape character and the amenity of the residents of that area.
16. The setback issue is also related to the issue of significant trees which will also be dealt with this in this decision.
17. At the start of the hearing new plans were prepared which, once again, showed a setback which was still not 4 metres although much closer than the original set of drawings. The Tribunal forms the same conclusion in that a setback less than the performance measure would not be appropriate for the streetscape character which predominantly consists of houses set back well beyond 4 metres. The applicant produced the previously mentioned sketch drawings very late in the hearing. Those sketch drawings make considerable changes to units 4 and 5 such that the setback for the lower floor level is now at 4 metres. Being at 4 metres does not necessarily mean that such a setback would meet the performance criteria P2.1 but the Tribunal concludes that, in this instance, such a setback would meet the performance criteria. The Tribunal attended the site for a view on the first day of the hearing. The Tribunal formed the opinion from an inspection of the site that the setback distance was an important issue in relation to the streetscape character and the amenity of the residents. Taking into account the streetscape character and the setback of the current housing stock in that part of Scullin, the Tribunal does not consider that any setback less than 4 metres on this site would be appropriate.
18. The next important issue which also encroaches onto the setback issue is the significant trees. The two relevant trees are the trees noted as Tree 2 and Tree 3 which are casaurina cunninghamiana. The applicant in this application for review relied upon a report from EcoTrees of 9 March 2007. As the applicant admitted in evidence it is not clear from that report what plans were given to EcoTrees. Therefore the conclusion by EcoTrees that Trees 2 and 3 would not be adversely affected by the development is of little, if any, use to the Tribunal. The Tribunal however is able to conclude that, where the setback at the front boundary discussed above is less than 4 metres, then those two trees would be on the face of it adversely affected by the development. The applicant conceded as much by proposing that the development at that point not be built on a concrete slab but elevated on piers. With a setback of less than 4 metres, the Tribunal is not satisfied that such an alteration would necessarily properly protect those two trees. The Tribunal however, following its view of the site and upon seeing the amended sketch drawings which put the setback at at least 4 metres, concludes that, while the development would still encroach upon the tree protection zone, it may well be possible for safeguards to be put in place to protect those trees. The Tribunal is mindful of section 11 of the Tree Protection Act 2005 which is as follows:
11 Protection zone for protected tree
(1) The protection zone for a protected tree is—
(a) the area under the canopy of the tree; and
(b)the 2m wide area surrounding the vertical projection of the canopy; and
(c)the 4m wide area surrounding the trunk as measured at 1m above natural ground level.
(2)However, if another protection zone is defined in a tree management plan in force for the protected tree, that protection zone is the protection zone for the tree.
19. That Act also allows for an application to be made for what is referred to as “tree damaging activity” in section 22 which is as follows:
22 Application for approval of tree damaging etc activity
A person may apply, in writing, to the conservator for approval for 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.
20. The Tribunal considers that such an application would be essential in this sort of matter and it may be that when adequate safeguards are put in place by the Conservator that the building work is able to continue notwithstanding that the development proposal encroaches into the tree protection zone.
21. The final issue is in relation to the Crown lease. This development proposal includes a proposal that the two blocks, being Blocks 3 and 4 Section 22 Scullin, be amalgamated into one block. Both current Crown leases were granted on 2 April 1969 for residential purposes pursuant to the City Area Leases Ordinance 1936-1967 as it was then known. The Tribunal does not see any difficulty with this proposal. However where approval is to be granted the respondent would normally impose conditions for administrative arrangements to achieve a consolidated lease. This was not done in this case because of the deemed refusal.
Conclusion
22. The Tribunal considers that this development application fails to meet a number of requirements of the Territory Plan. The respondent was correct to reject this development application in the form in which it was lodged. It was inconsistent with the Territory Plan in relation to the front setback and tree protection. It was initially inadequate in relation to other matters such as traffic arrangements but that issue was easily overcome. Importantly the application was inconsistent with the gross floor area issue.
23. Different plans were submitted and these illustrated that issues raised were capable of resolution without substantial amendment to the development.
24. By the end of the hearing of this matter it was becoming increasingly clear to the Tribunal that the applicant was able to modify its proposal in order to meet the requirements of the A10 area. Unfortunately, by the end of the hearing, it was not clear to the Tribunal what the precise changes would have been. In particular, while the Tribunal could conclude that the setbacks were adequate, the Tribunal was not in a position to confirm that the GFA was within the acceptable limit. The Tribunal could also not be convinced that the tree protection issue had been adequately dealt with although, as set out, the Tribunal held the view that such a matter could be dealt with in discussions with the Conservator under the Tree Protection Act 2005.
25. Accordingly the Tribunal affirms the decision under review but remits it for reconsideration by the respondent in accordance with the findings in this decision. In particular the respondent needs to take special note in relation to GFA and the front setbacks. The matter needs to be raised specifically with the Conservator and, where necessary, the applicant needs to make application to the Conservator under the Tree Protection Act 2005.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT08/46
APPLICANT: LAND ARCHITECTURE AUSTRALIA PTY LTD
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: PHILIP & HELEN PELLATT
COUNSEL APPEARING: APPLICANT:
RESPONDENT: DR D JARVIS
PARTY JOINED:
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTY JOINED:
OTHER:APPLICANT: MR J HENRIQUEZ
RESPONDENT:
PARTY JOINED: SELVES
TRIBUNAL MEMBER/S: MR B HATCH, SENIOR MEMBER
MS S TONGUE, SENIOR MEMBER
MR R NICHOLS, MEMBER
DATE/S OF HEARING: 20, 21 & 25 AUGUST 2008 PLACE:CANBERRA
DATE OF DECISION: 14 OCTOBER 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
0
0