Landau v Territory Planning Authority (Administrative Review)
[2025] ACAT 19
•27 March 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LANDAU v TERRITORY PLANNING AUTHORITY (Administrative Review) [2025] ACAT 19
AT 131/2024
Catchwords: ADMINISTRATIVE REVIEW – planning – social housing development – whether proposed development too dense – whether parking inadequate – whether removal of existing green space in proposed development should be rejected – whether development should be changed to create greater amenity for residents – whether amendment to Territory Plan was invalid, or should be disregarded, because it was not a minor plan amendment as claimed – whether tribunal has power to determine invalidity of amendment
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 22P, 68 and Part 4A
Legislation Act 2001 s 43
Planning Act 2023 ss 10, 45, 48, 50, 51, 82, 83, 84, 85, 157, 166, 170, 172, 175, 180, 185, 186, 189, 190, 504, 506, 609, 610, Sch 5, Part 5.2, item 2
Subordinate
Legislation cited: ACT Housing Design Guide
ACT Urban Design Guide
Planning (Miscellaneous) Minor Plan Amendment 2024 cl 4.14
Planning (Residential Zones) Technical Specifications 2024 (No 3)
Territory Plan 2023
Territory Plan Amendment 2024
Cases cited:Brudenall & Ors v Owners Corporation Unit Plan No 202 [2016] ACAT 101
Bushell v Repatriation Commission [1992] HCA 47
Crook v ACT Firearms Registrar [2016] ACAT 62
Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666
Peraic & Anor v ACT Planning and Land Authority & Anor [2019] ACAT 118
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
List of
Texts/Papers cited: The Territory Plan Explanatory Report
Tribunal:Presidential Member J Lucy
Senior Member A Wilson
Date of Orders: 27 March 2025
Date of Reasons for Decision: 27 March 2025
Date of Publication: 3 April 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 131/2024
BETWEEN:
LES LANDAU
Applicant
AND:
TERRITORY PLANNING AUTHORITY
Respondent
AND:
COMMISSIONER FOR SOCIAL HOUSING
First Party Joined
JOHN HUTCHINSON
Second Party Joined
TRIBUNAL:Presidential Member J Lucy
Senior Member A Wilson
DATE:27 March 2025
ORDER
The Tribunal orders that:
The decision under review is varied by adding to the conditions of approval the following conditions:
(a)ACCESS AND MOBILITY (standard condition):
(i)The development is to comply with relevant provisions of “AS 1428.1-2009 Design for Access and Mobility”, any relevant provisions of the Premises Standards 2010 and the Disability Discrimination Act 1992 as applicable.
(ii)The development must consider and apply any recommendations as noted in the Accessibility Report, prepared by Purely Access, dated 17 July 2024.
Note: It is recommended as the development progresses in regard to detailed design elements that the applicant/lessee consult further with a suitably qualified access consultant to ensure compliance with all relevant accessibility requirements.
(iii)The proposal must be in accordance with relevant provisions of the Australian Standard AS 1428.1-2009 and AS/NZ 2890.6-2009 and the National Construction Code.
(b)LIGHTING (standard condition):
(i)All external lighting for the buildings is to comply with the following Australian Standards:
A.AS 1158.3.1 – “Pedestrian Lighting”; and
B.AS 4282 – “Control of the Obtrusive Effects of Outdoor Lighting”.
………………………………..
Presidential Member J Lucy
For and on behalf of the Tribunal
REASONS FOR DECISION
On 1 November 2024, the Territory Planning Authority (the Authority) approved a development application submitted on behalf of the Commissioner for Social Housing (the Commissioner) on 29 August 2024, in respect of a site in Solander Place, Yarralumla (the Site). The Site has been used for social housing since a lease of the Site was first granted in 1987. The approved development comprises demolition of the existing ten dwellings and structures, the removal of some trees, and the construction of 30 dwellings.
Mr Landau and Mr Hutchinson are residents of Solander Place. Mr Landau applied for review of the decision to approve the development (the Decision) and Mr Hutchinson was joined as a party to the proceedings. They sought variations to the development so that it would be of lower density, so that it would have more parking, including basement parking, and so that some existing green space would be retained.
We have found that the development, as approved, is compliant with the requirements of the Planning Act 2023 (the Act) and instruments made under the Act. We have varied the Decision by adding two standard conditions of approval sought by the Authority and not opposed by the Commissioner.
Parties’ positions
Mr Landau and Mr Hutchinson
In his application to the tribunal, Mr Landau objected to the approved development on a number of grounds. These were, in summary:
(a)Density. The density of the development was a “huge increase” which was not consistent with the streetscape and density in Yarralumla. There was a potential of having 88 people living on the site. Mr Landau contended that the development should be “markedly scaled back.”
(b)Parking. The 37 parking places planned for potentially 88 people was “clearly inadequate,” meaning that people would park on the neighbouring streets, adding to congestion, restricting parking for local residents and creating a safety hazard. Mr Landau said that more onsite parking should be provided.
(c)Green space. The removal of a particular pocket of open green space which was adjacent to the neighbouring street should not be replaced with dwellings.
(d)Noise. The amount of noise generated by “such high density” would “reduce the amenity of residents in the area.”
(e)Design. The development should be redesigned to have units backing on to Solander Place, with their courtyards to the north, and no access (other than the main driveways) to the units.
Mr Landau stated in his application that the proposed development should be rejected in its current form and redesigned with far lower density, retaining the existing open space and all mature trees on site.
In his application, Mr Landau sought the following orders from ACAT amending the development to:
(a)alter the design to “have less impact on existing residents”;
(b)be lower density;
(c)have more adequate parking, including underground parking;
(d)a single entrance on Bank Street;
(e)retain the existing open green space to the east;
(f)eliminate occupants access to Building 3 from Solander Place;
(g)deter parking in Solander Place; and
(h)higher density on Banks Street and possibly Schlich Street.
In written submissions,[1] Mr Landau stated that he was objecting to the proposed development on three inter-related grounds, being that the development:
(a)breaks planning rules concerning density of development;
(b)will introduce traffic and parking congestion for residents of both the new development and for other residents of the surrounding streets; and
(c)will lower the overall amenity of the immediate area for both existing residents and the occupants of the new development.
[1] Applicant’s written submissions filed on 21 January 2025. See also applicant’s material filed on 30 January 2025
Mr Hutchinson made written submissions supporting Mr Landau’s objections to the development.[2] Mr Hutchinson contended that the Territory Plan 2023 (the Territory Plan) had unlawfully been altered to change the maximum density of developments on non-standard blocks. It is not in contention that the Site is a non-standard block.
[2] Submission from John Hutchinson filed on 29 January 2025 and submission of John Hutchinson handed up at the hearing and filed on 6 March 2025
Mr Landau and Mr Hutchinson both emphasised that they supported social housing and did not oppose having a social housing development on the Site, but maintained that variations to the existing approved development should be made.
The Authority
The Authority made some submissions to assist the Tribunal and filed a bundle of Tribunal documents.[3] It also relied upon a witness statement of Lincoln Rixon-Petty made on 27 February 2025. Mr Rixon-Petty is a delegate of the Authority and Acting Assistant Director with the Environment, Planning and Sustainable Development Directorate.
[3] Respondent’s submissions filed on 27 February 2025 and Tribunal documents filed on 13 December 2024
Mr Rixon-Petty raised some issues in his statement about the apparent lack of lighting plans and concerns about whether the development complied with requirements relating to the number of storeys. He proposed some additional development conditions to address these matters. By the day of the hearing, the Authority accepted that those issues had been appropriately addressed and there was no need for those additional conditions. We also accept, having regard to the relevant evidence,[4] that that is the case.
[4] See, especially, Witness Statement of David Pennington dated 4 March 2025 and evidence given by David Pennington at the hearing
The Authority proposed that standard conditions relating to access and mobility and lighting be included, if the conditional approval be upheld. Those conditions were not opposed by the Commissioner.
The Commissioner
The Commissioner opposed the review application and submitted that the correct and preferable decision was that the Decision be confirmed pursuant to section 68(3)(a) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).
The Commissioner relied upon the following witness statements, along with some documentary material:
(a)two witness statements of David Pennington, the design architect for the proposed development;[5]
(b)two witness statements of Rebecca Cannon, Senior Director, Housing ACT in the Infrastructure and Delivery team;[6]
(c)a witness statement of Angela Jones, General Manager of Planning at Purdon Planning Pty Ltd, the company which applied for the development application and was engaged by the architect to provide the Development Outcomes Report;[7] and
(d)two witness statements of Ross Costello, senior Civil and Traffic Engineer at TTW (ACT) Pty Ltd.[8]
The hearing
[5] Witness statement of David Pennington dated 11 February 2025 and witness statement of David Pennington dated 4 March 2025
[6] Witness statement of Rebecca Cannon dated 10 February 2025 (No 1) and witness statement of Rebecca Cannon dated 10 February 2025 (No 2)
[7] Witness statement of Angela Jones dated 11 February 2025
[8] Witness statement of Ross Costello dated 11 February 2025 (No 1) and witness statement of Rebecca Cannon dated 11 February 2025 (No 2)
A hearing was held on 5 March 2025, commencing with a site visit.
The only witness who was required for cross-examination was Mr Pennington. The Tribunal also asked him questions to assist it in determining whether the development proposal complied with the “ZS1 – Residential Zones Specifications” as per the Planning (Residential Zones) Technical Specifications 2024 (No 3) (technical specifications), for building height and the number of storeys. Having heard his evidence, the Tribunal was satisfied that the development proposal did so comply, as the Authority ultimately conceded.
The parties all made oral submissions at the hearing.
Relevant law
The Act governs the making and determination of development applications.
The proponent of a development proposal may apply to the Authority for approval to undertake the proposed development (a development application).[9]
[9] Act s 166(1)
The Authority is required to refer a development application to certain entities.[10] The entity to which the development application is referred must give the Authority the entity’s advice in relation to the development application.[11]
[10] Act s 170
[11] Act s 172(2)
The Authority is generally required to publicly notify a development application.[12] Anyone may make a representation about a development application during the public notification period for the application.[13]
[12] Act s 175(1)
[13] Act s 180(1) and (2)
Section 185(1) of the Act provides for the determination of development applications as follows:
185 Deciding development applications
(1) The decision‑maker for a development application must—
(a)approve a development application; or
(b)approve a development application subject to a condition under section 187; or
(c)refuse a development application.
Section 186 of the Act provides for mandatory considerations when deciding a development application. It relevantly provides:
186 Considerations when deciding development applications
In deciding a development application under section 185, the decision‑maker must consider the following:
(a)any applicable desired outcomes in the territory plan;
(b)any applicable design guidance in a design guide;
…
(e)the suitability of the proposed development in the context of the site and the site surrounds, including the permissible uses for those areas;
(f)the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts;
…
(i)any advice given by an entity to which the development application was referred under section 170 (When authority must refer development application) or section 171 (Further entity referral—more information or amended application);
…
The reference in section 186(b) to a “design guide” is to design guidance for development proposals, prepared by the Minister, to support the territory plan.[14] The Minister has prepared, relevantly, the ACT Housing Design Guide and the ACT Urban Design Guide.
[14] Act s 50(1)
The chief planner may make technical specifications to support design guides and the territory plan.[15]
[15] Act s 51(1)
The territory plan, referred to in section 186(a), is required to set out the planning principles and policies for giving effect to the object of the plan, including the policy outcomes to be achieved by the plan and requirements and outcomes against which development proposals are assessed.[16]
[16] Act s 48(1)
Part D of the Territory Plan, entitled “District Policies,” includes the Inner South District Policy, which applies to an area including the Site.
Part E of the Territory Plan, entitled “Zone Policies,” includes the Residential Zones Policy, which applies to all development in a residential zone (RZ1 to RZ5 inclusive).
A decision‑maker may approve a development application for a development proposal only if the proposal is consistent with the territory plan and, for development in relation to which an entity has given advice under section 172, generally only if the proposal is consistent with the entity’s advice.[17]
[17] Act ss 189(1)(a) and (c) and 190(1)
An eligible entity for a reviewable decision may apply to the ACAT for review of the decision.[18] A “reviewable decision” includes a decision under section 185 to approve a development application and an “eligible entity” includes an entity if the entity made a representation under section 180 about the application.[19]
[18] Act s 506
[19] Act s 504 and Sch 5, Part 5.2, item 2
There is no dispute that Mr Landau is an “eligible entity”.
Under section 68(3) of the ACAT Act, the tribunal must confirm, vary or set aside the decision under review. If it sets the decision aside, it may either make a substitute decision or remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.
As it is conducting a merits review, the tribunal is required to make the correct or preferable decision.[20]
Issue 1: Density
[20] See Brudenall & Ors v Owners Corporation Unit Plan No. 202 [2016] ACAT 101 at [20]–[24]. See also Peraic & Anor v ACT Planning and Land Authority & Anor [2019] ACAT 118 at [138]
As indicated above, Mr Landau and Mr Hutchinson submitted that the density of the proposed development was not permitted and that a maximum of 25 units could be built on the Site.
The Site is zoned RZ2. Before 28 February 2024, the assessment requirements in the Residential Zones Policy, which is part of the Territory Plan, relevantly provided:
7. Multi-unit housing – for blocks in RZ2:
a)Minimum block area for more than one dwelling: 700m²
b)Maximum number of dwellings per block: 1 additional dwelling for every 250m² (or part thereof) over the minimum.
8. Multi-unit adaptable housing in RZ2:
a)Minimum block area for more than one dwelling: 600m²
b)Maximum number of dwellings per block: 1 additional for every 250m² (or part thereof) over the minimum and all dwelling are built to be adaptable.
On 28 February 2024, the Territory Plan was amended pursuant to the Planning (Miscellaneous) Minor Plan Amendment 2024 (the Planning Amendment), which commenced on 29 February 2024. The Planning Amendment states that it is a notifiable instrument made under section 85 of the Act. Section 85 gives the Authority power to make “a minor plan amendment.” A ‘minor plan amendment’ is defined to refer to various types of amendments, including an amendment that would not adversely affect anyone’s rights if approved and that has as its only object the correction of a formal error in the plan.[21] It also includes an amendment to change a provision in the territory plan that does not change the substance of the plan and is consistent with the policy intent of the provision.[22]
[21] Act ss 83, 84(1)(a)
[22] Act ss 83, 84(2)(d)
Clause 4.14 of the Planning Amendment provided:
4.14 Housing density and minimum block areas – Residential Zones Policy
Substitute Assessment Requirement 7 in the Residential Zones Policy with the following.
Multi-unit housing – for standard blocks in RZ2:
a)Minimum block area for more than one dwelling: 700m²
b)Maximum number of dwellings per block: 1 additional dwelling for every 250m² (or part thereof) over the minimum
Substitute Assessment Requirement 8 in the Residential Zones Policy with the following.
Multi-unit adaptable housing – for standard blocks in RZ2:
a)Minimum block area for more than one dwelling: 600m²
b)Maximum number of dwellings per block: 1 additional for every 250m² (or part thereof) over the minimum and all dwelling are built to be adaptable. (emphasis added)
The effect of this amendment was to disapply the housing density assessment requirements to non-standard blocks (such as the Site). From 29 February 2024, the Residential Zones Policy has not imposed any restrictions on the number of dwellings on a non-standard block in Zone RZ2, although it has continued to impose restrictions as to site coverage.
Mr Landau and Mr Hutchinson submitted that the density requirements still applied to the Site, even though they accepted that it is not a standard block. They relied upon The Territory Plan Explanatory Report, a document explaining proposed changes made to the previous territory plan by what was then a draft of the Territory Plan. They drew attention to a statement in the Explanatory Report that one of the proposed changes was “Maximum number of dwellings on a RZ2 block amended to one per 250 m2 above the minimum block size, as well applying to all blocks in the zone (not just standard blocks).”[23]
[23] Territory Plan Explanatory Report, page 23
Mr Landau and Mr Hutchinson submitted this statement indicated that the restriction on non-standard blocks was intentional. They said that the change made by the Planning Amendment was not a “minor plan amendment” but was rather a major policy change. They calculated that, disregarding the amendment, 25 dwellings instead of 30 would be permissible.
The Commissioner submitted that Mr Landau’s and Mr Hutchinson’s submissions were misconceived and could not be sustained for two reasons:
(a)Section 82(1) of the Act provides “[t]he validity of a provision of the territory plan must not be questioned in any legal proceeding other than a proceeding begun not later than 3 months after the day the provision, or an amendment of the provision, commenced.” As the amendment commenced on 29 February 2024, the Commissioner says that any challenge is now out of time.
(b)Even if the challenge were within time, the tribunal does not have the power to declare legislation invalid. The Commissioner relied upon Crook v ACT Firearms Registrar(Administrative Review) [2016] ACAT 62 at [97] and the provision that a statutory instrument is to be interpreted as operating to the full extent of the power given by the authorising law.[24]
[24] Legislation Act 2001 s 43(1)
Mr Hutchinson submitted, at the hearing, that he was not challenging the validity of the amended provision of the Residential Zones Policy, but said that the Tribunal had the power to decide whether the previous version or the current version should be given dominance, given that there were two conflicting versions. He said that the Tribunal could consider whether the amendment was appropriately applied. In oral submissions, Mr Hutchinson put it this way:
I'm not challenging the legal validity. My submission is the tribunal must determine whether the correct version of the Territory Plan applies to this case and whether the amendment was properly characterised as minor.
In our view, Mr Hutchinson’s challenge is properly characterised as a challenge to validity. The argument is that the amendment was not a minor plan amendment. If that is correct, the Authority did not have power under section 85 to make the amendment. It follows that, if the submission were accepted, the amendment would be invalid.
Section 82(1) of the Act precludes a challenge to the validity of a provision of the territory plan in any legal proceeding other than a proceeding begun not later than three months after the day the provision, or an amendment of the provision, commenced.
It may be doubted that the current proceeding is a “legal proceeding” within section 82(1). The proceeding on foot is for administrative review or merits review.[25] It is an administrative proceeding. The Tribunal “stands in the shoes” of the Authority when reviewing its decision and does not have to find legal error to substitute a different decision.[26] Its functions are inquisitorial.[27]
[25] ACAT Act, Part 4A and especially s 22P
[26] Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, page 671
[27] Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 424–425; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40]
Even if it is open to the Tribunal to consider the validity of the Planning Amendment, however, we do not consider that this would have any utility.
On 27 September 2024, the Territory Plan Amendment 2024 commenced. This is stated to be made under “Planning Act 2023, s 45 (Territory plan) (see also s 610 (Approval or confirmation of territory plan)).”
Until and on 27 September 2024, section 610(1) of the Act provided that the Minister was empowered to amend the territory plan in response to a report of the Assembly and to present it to the Legislative Assembly for approval as the territory plan, in place of the interim territory plan approved under section 609. Section 610(3) provided that the Legislative Assembly may, by resolution approve the amended territory plan presented to it as the territory plan.
The Territory Plan Amendment 2024 substituted a new Residential Zones Policy for the previous policy. It has not been suggested that the Territory Plan Amendment 2024 is invalid. The new Residential Zones Policy imposed the following assessment requirements:
19. For multi-unit housing on a standard block in RZ2 (excluding secondary residence developments):
a) Minimum block area for more than one dwelling: 700m².
b) Maximum number of dwellings per block: 1 additional dwelling for every 250m² (or part thereof) over the minimum.
20. For multi-unit adaptable housing on a standard block in RZ2(excluding secondary residence developments):
a) Minimum block area for more than one dwelling: 600m².
b) Maximum number of dwellings per block: 1 additional for every 250m² (or part thereof) over the minimum and all dwelling are built to be adaptable.
Accordingly, even if the amendment to the Residential Zones Policy made by the Planning Amendment was unlawful because it was not a minor plan amendment, the same changes have been lawfully imposed from 27 September 2024.
The law is to be considered by the Authority as it stands at the time it determines the development application. We cannot identify any indication in the Act that the Authority is to apply the law as it stood at the date of the development application when determining an application. On the contrary, the Authority may only approve a development application if it is consistent with the (current) territory plan.[28] We note also that section 157 provides that, if the Authority has prepared and given to the Minister a draft major plan amendment, a person may apply for approval of a development application as if the draft amendment were in force. These are indications that the Authority is to apply the current law, not the law at an earlier point in time.
[28] Act s 189(1)(a)
It follows that the Authority was required to consider the law as at 1 November 2024 when it determined the development application. Accordingly, the question of whether the Planning Amendment was invalid, or partly invalid, is irrelevant.
For these reasons, we reject the submissions of Mr Hutchinson and Mr Landau that we should apply the density provisions which applied before the Planning Amendment took effect.
Mr Landau made some submissions as to the merits of the decision about density, including that the density of the development “was far too great for this small pocket in Yarralumla.” He submitted that it was not consistent with the streetscape nor density in Yarralumla. He also submitted that it did not conform to the Residential Zones Policy for various reasons, including that it did not achieve “good connections with the surrounding area.”
We are not persuaded that the density of the development is contrary to law or to any principle or policy that the Tribunal is required to apply. We note that the site coverage is lower than that permitted for multi-unit housing in RZ1 and RZ2, being a maximum of 45% of the original block area,[29] and that it is a low-rise development. Even if the development were of a greater density than that of the surrounding residential houses, that would not be a reason to reject it. If it were, this would preclude the approval of many social housing developments. We accept the following evidence given by Angela Jones, which was not challenged:
The RZ2 zone hierarchy contains a mix of low to medium density developments where housing choices contain a mix of single dwelling and multi-unit housing. This multi-unit housing proposal helps achieve this mix in housing typology.[30]
[29] Residential Zones Policy, Assessment Requirement 14
[30] Witness Statement of Angela Jones dated 11 February 2025 at [29]
On this non-standard block of 6,641 m2, this multi-unit housing proposal is for about 35.15% site coverage on our calculations, well below the permitted 45%. We consider that the density of the proposed development is compliant and appropriate.
We find that the assessment outcome that “[t]he functionality and layout of the development is accessible and adaptable, while achieving good connections with the surrounding area”[31] is met. Mr Pennington, an architect, gave evidence that the proposed development had been designed to achieve functionality, accessibility, and adaptability, while fostering strong connections with the surrounding area.[32] As the Commissioner submitted, this is partly achieved through a pedestrian network within the Site.[33] There are also accessible car parks and lift access to all levels.
Parking and traffic
[31] Residential Zones Policy, Assessment Outcome 7
[32] Witness Statement of David Pennington dated 11 February 2025 at [6]
[33] Transcript of hearing dated 5 March 2025, page 41, lines 31–33
Mr Landau and Mr Hutchinson did not identify any error in the Authority’s approval of parking spaces, but contended that the amount of parking provided for in the development was inadequate. Mr Landau also submitted that the traffic study supplied in the planning proposal was inadequate because it did not mention the impacts on Solander Place. He said that the development would introduce traffic and parking congestion for residents.
Mr Landau also submitted that there would be increased traffic within the development itself due to the larger number of cars and that this was “a formula for accidents as there will be much reversing required to manoeuvre to park and de-park, especially with three exists to choose from.”[34]
[34] Applicant’s material filed on 30 January 2025, page 6
The Commissioner relies upon the report of Mr Costello, Senior Civil and Traffic Engineer. The Commissioner submits that the reason why the traffic report did not deal with the impacts on Solander Place is that it stated that another street was anticipated to convey most of the traffic generated by the Site.
As the Commissioner submitted, under the Residential Zones Policy, the assessment outcomes for proposed development in residential zones relevant to parking are:
Vehicle and bicycle parking sufficiently caters for the development while minimising visual impacts from the street or public space. This includes consideration of parking location, dimensions and number of spaces provided.[35]
[35] Residential Zones Policy, Assessment Outcome 27
Under the technical specifications, 45 parking spaces are required for the development, including eight visitor spaces. As Mr Costello stated,[36] those required spaces have been provided internally to the proposed development. We also accept Angela Jones’s unchallenged evidence that car parking has been provided in accordance with specifications 25.1 and Table 13 of the technical specifications.[37] We are satisfied that vehicle and bicycle parking sufficiently caters for the development while minimising visual impacts from the street or any public space.
[36] Witness Statement of Ross Costello dated 11 February 2025 (No 1) at [15]
[37] Statement of Angela Jones dated 11 February 2025 at [12]
Mr Costello gave evidence that parking and circulation within the development has been provided in accordance with the relevant Australian Standard.[38] Mr Landau and Mr Hutchinson have not provided any evidence to support their assertion that the traffic within the development would be unsafe. We reject that contention.
[38] Witness Statement of Ross Costello dated 11 February 2025 (No 1) at [43]
Mr Landau objected to what he described as “stacked parking” which he said would cause residents to park on Solander Place, causing congestion. As the Commissioner submitted, the provision of tandem car parking spaces is permitted where they belong to the same dwelling pursuant to the technical specifications at specification 27.3(c).[39] We accept the Commissioner’s submission that the tandem parking spaces will be allocated to single dwellings.
[39] See also witness statement of Ross Costello dated 11 February 2025 (No 1) at [42]
The ACT Housing Design Guide provides:
Technical planning specifications provide measurable and quantitative guidance, and if met, will be taken to achieve the stated assessment outcome. Note, not all assessment outcomes are covered by a design guide and/or a technical planning specification.[40]
[40] ACT Housing Design Guide, page 11
We find that the proposed development complies with the technical planning specifications for parking and is therefore taken to achieve the stated assessment outcome.
As for traffic issues, we accept Mr Costello’s unchallenged evidence that a maximum of 27 trips in the morning peak are expected on Solander Place post development and that the functional operating capacity of the street is 100 vehicles per hour.[41] We also accept his unchallenged evidence that street traffic volumes on completion of the development are allowable for the street classification in accordance with Transport Canberra City Services’ Municipal Infrastructure Standards 01 – Street Planning and Design.
[41] Witness Statement of Ross Costello dated 11 February 2025 (No 1) at [20]–[23]
Mr Hutchinson submitted that the traffic should be “routed” through to different streets — Banks Street and Schlich Street.[42] He said that would greatly reduce the risk for pedestrians from the proposed development and would improve traffic flow. Mr Hutchinson’s proposal would involve redesigning the development proposed. Even if it were our role to redesign the development, we are not persuaded that the current development proposal would give rise to a lack of safety or any traffic congestion such that it needs to be redesigned. Mr Costello’s evidence, which we accept, indicates that it would not do so.
[42] Transcript of hearing dated 5 March 2025, page 31, lines 16–18
We are not persuaded that the amount of parking provided for in the proposed development is inadequate or that the development will introduce traffic congestion for residents.
Reduced Amenity and Open Space
One of the matters about which Mr Landau and Mr Hutchinson expressed the greatest concerns is the loss of a large pocket of open green space adjacent to Solander Place. There is no fence between this green space and the street, so that it has functioned as a park, even though it is part of the Site. Mr Landau stated that, in the past, this was used by both the social housing residents of the existing development and the other residents in the street to meet each other and to form a single community. In the proposed development, that green space would be lost.
Mr Landau submitted that building over the green space presented “a closed community approach to social housing with the only communal space being very small and internal in the development.”[43]
[43] Applicant’s material filed on 30 January 2025, page 7
Mr Landau made a number of submissions as to why the Commissioner should be required to retain the existing pocket of green space. He said that it contradicted the Territory Plan, including the principles of good planning. The principle to which he referred is contained in section 10(2)(e) of the Act, providing that “policies should support and enhance the quality of life and wellbeing of residents.” That is a principle which, by operation of section 10(1) of the Act, must be considered in developing planning strategies, plans and policies. It is not a stand-alone principle which can be used to reject an application for development approval on the basis that a particular area of green space would be lost if the development were approved.
The same is true of the high-quality design principles on which Mr Landau relies, which are also set out in section 10(2) of the Act. These are principles which must be considered in developing planning strategies, plans and policies.[44] They are not intended to be used as a basis for rejecting a proposed development which complies with the planning strategies, plans and policies which have been developed.
[44] Act s 10(1)
We accept Angela Jones’s evidence that each dwelling is designed with private open space, proportional to the size of each dwelling. We also accept her evidence that communal open spaces for the proposed development are designed around existing mature trees and contain park benches and seating.[45] The communal open spaces are easily accessible to residents and visitors, with pathways through the site connecting communal spaces and buildings.[46]
[45] Statement of Angela Jones dated 11 February 2025 at [18]–[21]
[46] Statement of Angela Jones dated 11 February 2025 at [23]
Mr Pennington’s evidence, when cross-examined by Mr Landau, was that “promoting community cohesion” meant “creating spaces that are accessible and open for community to be engaged. So active street frontages, permeability of the sites, communal spaces for people to gather.”[47] When asked by Mr Landau how the two communal spaces in the proposed development compared in promoting community cohesion, Mr Pennington replied:[48]
Well, I guess the leverage – the existing trees and green open space. So creating a nice attractive space for people to gather. There’s also furniture provided such that it can encourage people to get to those. They’re accessible. And they do connect to the broader community, well to the east – it’s directly connected. And then, centrally, it does have separate pathways to the vehicular access to allow people to access those spaces.
[47] Transcript of hearing dated 5 March 2025, page 20, lines 31–33
[48] Transcript of hearing dated 5 March 2025, page 20, line 46 to page 21, line 5
Mr Pennington also explained that the central green space in the proposed development was not “disconnected” even though it was not on the boundary and that there was still “a visual connection” with the street.[49] This explanation of the way in which the communal spaces in the proposed development promote community cohesion was not challenged and we accept it.
[49] Transcript of hearing dated 5 March 2025, page 21, lines 15–17
We accept that the existing pocket of open green space adjacent to Solander Place has provided an opportunity for residents of the street in private housing to mix with residents in public housing, as Mr Landau and Mr Hutchinson submitted. The open spaces in the proposed development are less likely to be used by residents in other homes in the street. That may be less conducive to the social interaction which Mr Landau and Mr Hutchinson have found beneficial in the past. However, it may also have advantages. It may mean that the open spaces within the development will be less crowded and have a greater sense of privacy, which some residents of the development may value. Further, as Mr Pennington stated, non-social housing residents will be able to see people playing in the internal green spaces and may “be encouraged to join in.”[50]
[50] Transcript of hearing dated 5 March 2025, page 21, line 15
As the Commissioner submitted, the existing open green space which the applicant wishes to be retained is not in fact a public park but is rather part of the Site, within the Commissioner’s leased land. The plans show that the proposed development will be surrounded by green space, albeit that that existing pocket of green space will be lost.
We are not persuaded that we should reject the proposed development or require amendment of it on the basis of the loss of the existing green space, in circumstances where the development complies with the requirements under the Territory Plan for providing open spaces.
Mr Landau and Mr Hutchinson made a number of submissions to the effect that the development would lead to reduced amenity in other ways. One of these was that the amount of noise generated by “such high density will reduce the amenity of residents in the area.”[51]
[51] Applicant’s materials filed on 30 January 2025, page 8
As the applicant submitted,[52] increasing the number of dwellings on the Site is likely to increase the amount of noise coming from the development. However, as the Commissioner submitted, there is no expert report or otherwise as to what noise occurs on the site or to the extent to which any residential noise would increase.[53] There is no evidence on which we could conclude that the development would give rise to an unacceptable level of noise.
[52] Transcript of hearing dated 5 March 2025, page 29, lines 38–46
[53] Transcript of hearing dated 5 March 2025, page 56, lines 16–19
Another aspect of Mr Landau’s submissions about lack of amenity is that he said that there was insufficient solar access for 40% of the units. We accept the evidence of Mr Pennington that only 6.7% of dwellings received no solar access while 15% of dwellings without solar access are allowed in a development. We do not accept that there is insufficient solar access.
Mr Landau submitted in his application to the tribunal that the development should be redesigned to have units backing on to Solander Place, with their courtyards to the north, and no access (other than the main driveways) to the units. The tribunal’s role is not to redesign the development, but principally to consider whether a proposed development is compliant with the requirements under the Act. In any event, we consider that the future residents’ pedestrian access from the street presents opportunities for the community to engage with residents. The existing design encourages interactions between residents and the community as residents enter and leave their dwellings.
Conclusion
For these reasons, we have rejected the challenges made by Mr Landau and Mr Hutchinson to the Decision. Having had regard to the mandatory considerations in section 186 of the Act, we find that it is the correct and preferable decision, save for one minor matter. We will make a minor variation to the Decision to impose the additional standard conditions which the respondent says should be included, and to which the Commissioner does not object.
………………………………..
Presidential Member J Lucy
For and on behalf of the Tribunal
| Date(s) of hearing: | 5 March 2025 |
| Applicant: | In person |
| Counsel for the Respondent: | Mr J Bird |
| Solicitors for the Respondent: | ACT Government Solicitor |
| Counsel for first party joined: | Mr J Larkings |
| Solicitors for first party joined: | ACT Government Solicitor |
| Second party joined: | In person |
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