Mainore Pty Ltd v ACT Planning and Land Authority & Canberra Investment Corporation Ltd (Administrative Review)
[2010] ACAT 18
•16 April 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MAINORE PTY LTD v ACT PLANNING AND LAND AUTHORITY & CANBERRA INVESTMENT CORPORATION LTD (Administrative Review) [2010] ACAT 18
AT 79 of 2009
Catchwords: ADMINISTRATIVE REVIEW – Review brought under ACT Civil and Administrative Tribunal Act 2009 (ACT) s 9, as authorised by Planning and Development Act 2007 (ACT) s 408
LAND AND PLANNING – Proposal for mixed use development in Kingston Foreshore Area – whether development meets the provisions of the Territory Plan 2008 section 4.4- CZ5 Mixed Use Zone Development Code and section 3.3 - Residential Zones Multi Unit Housing Development Code - whether height of proposed building is consistent with the Territory Plan – whether 6 storey elements comply with the provisions of Rule 81 or Criterion 81of the CZ5 Code- whether car-parking provisions comply with the Lease and Development conditions and the Kinston Foreshore Development Control Plan –whether communal open space provisions comply with Rules 239 and Criteria 239 and 240 of the Multi Unit Housing Development Code – whether units with 32 square metres of floor area are permissible under Rule 204 or Criterion 204 of the Multi Unit Housing Development Code.
Legislation:Australian Capital Territory (Planning and Land Management) Act 1988 (CTH) s 11
Planning and Development Act 2007 (ACT) s50
Territory Plan 2008 (ACT) CZ5 Mixed Use Zone Development Code (Rule 3A, Criterion 18, Rule & Criterion 81,); Residential Development - Multi-Unit Housing Development Code (Rule & Criterion 239, 240)
Tribunal: Mr B. Hatch, Senior Member
Dr D. McMichael, Senior Member
Date of Orders: 16 April 2010
Date of Reasons for Decision: 16 April 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 79 of 2009
BETWEEN: MAINORE PTY LTD
Applicant
AND:ACT PLANNING &
LANDAUTHORITY
Respondent
AND:CANBERRA INVESTMENT
CORPORATION LTDParty Joined
Tribunal:Mr Brian Hatch Senior Member
Dr Don McMichael Senior Member
Date: 16 April 2010
ORDER
That the decision of 17 August 2009 approving development application No 200915754 is set aside and substituted with a decision that the development application is refused.
……………………………….
Dr Don McMichael
Senior Member
REASONS FOR DECISION
INTRODUCTION
- This is an application for review of a decision by the ACT Planning and Land Authority (“the Planning Authority”) dated 17 August 2009 to approve Development Application No 200914754, which proposed certain building works and associated landscaping on Block 7 Section 48 Kingston in the area generally known as the Kingston Foreshore (but also designated in Part CZ5 of the Territory Plan 2008 as the Kingston Mixed Use Area).
- The application for review was lodged on 14 September 2009 by Mainore Pty Ltd (“the applicant”) the lessee of Blocks 8 and 9 Section 48, which adjoin the subject land to the west, on which a multi-dwelling apartment complex known as “The Pearl” is currently being constructed. The lessee of Block 7 and developer of the proposed building, Canberra Investment Corporation Pty Ltd (“the developer”) was joined as a party to the proceedings
- The approval allows for a six storey building with a large expanse of open car-parking and no effective on-site communal open space. It is a mystery to the Tribunal as to how such a proposal could have been approved.
- The hearing of this matter proceeded over ten days. An enormous amount of evidence was produced together with an extraordinary number of exhibits. Many of these produced substantial heat, but often without shedding any further light upon the issues at hand.
- This is the first matter involving development within the Kingston Foreshore area to come before this Tribunal or its predecessor, and its resolution was confounded by the many and varied planning instruments that have applied to the area over the last 20 years. They include the National Capital Plan (1990); the Territory Plan (1993); Amendment 29 (Kingston Foreshore) to the National Capital Plan (1999); Territory Plan Variation 113 Kingston Foreshore (1999); Kingston Foreshore Development Control Plan (2002-2003 – incomplete); Territory Plan Variation 245 Defined Land Kingston (2004); Lease and Development Conditions Block 7 Section 48 Kingston Mixed Use Site (2005); Planning and Development Act (ACT) (2008); the Territory Plan 2008 and its part 14.3, the Kingston Foreshore Structure Plan(2008); and Territory Plan Technical Amendment 2009-22 (2009). In the paragraphs that follow, we have dealt only with the major issues that arose during the hearings and on which the Tribunal has based its decision.
MAXIMUM HEIGHT OF BUILDINGS IN KINGSTON FORESHORE AREA
- The starting point with respect to building height is the CZ5 Mixed Use Zone Development Code within the Territory Plan 2008 and in particular Rule 81 and Criterion 81. Rule 81 applies to the entirety of the Kingston Foreshore area and states that the maximum height of buildings is four storeys with a parapet level at the third storey level. This Rule is not mandatory and is qualified by Criterion 81 which reads:
C81
a) A limited number of buildings may exceed four (4) storeys provided they comply with all of the following:
i) they achieve urban design objectives such as adding visual interest to the built form, appropriately framing major public spaces, marking important corners or transition points, or screening unsightly elements from the public domain;
ii) they do not significantly impact on the landscape of the area;
iii) their ground floor level is not greater than RL560 m;
iv) they do not detract or compromise views and vistas to the Power House;
v) the footprint of the higher building elements is no greater than a 15 x 20 m rectangle.
b) To retain significant visual links between the Power House building and East Basin, the roofline of development in area b (Figure B2) is punctuated to frame and emphasise the views of the Power House building.
c) The overall maximum height of any building does not exceed the lesser of RL578 m or 20 m.
- On the face of it, there is a discordance between Rule 81 and Criterion 81 with respect to heights, these being governed on the one hand by reference to four storeys, and on the other, by a maximum height of 20 metres [It is worth noting that the overall maximum height of any building is not to exceed the lesser of RL578 m or 20 metres but the evidence in this matter indicates that the difference with respect to those two measures was not relevant and for the purposes of this decision the Tribunal will look at a simple 20 metre height limit for ease of discussion].
- Clearly, there must be a way of reconciling these two different ways of measuring the allowable height and the starting point is the National Capital Plan. The National Capital Plan restricts the content of the Territory Plan. The National Capital Plan is created by the Australian Capital Territory (Planning and Land Management) Act 1988 (CTH) and Section 11 of that Act states:
Effect of Plan
(1)An enactment that is inconsistent with the Plan has no effect to the extent of the inconsistency, but an enactment shall be taken to be consistent with the Plan to the extent that it is capable of operating concurrently with the Plan.
(2)The Commonwealth, a Commonwealth authority, the Territory or a Territory authority shall not do any act that is inconsistent with the Plan.
In the National Capital Plan, section 4.5.6 deals with the Kingston Foreshore and at 4.5.6 (ii) is the heading “Built form and materials”. The relevant part is under the heading “Building Height” which reads as follows:
The overall height of buildings in the area is to be generally consistent with that of the tree canopy of mature trees in the area. This can be achieved through buildings being a maximum of 4 storeys except for some taller buildings or focal elements where these do not significantly impact on the landscape of the area or detract from the massing of the Kingston Powerhouse building.
The discordance arises from the fact that the maximum height of four storeys is established not by reference to a specific height limit, but to the height of the tree canopy of mature trees in the area. In addition, the Kingston Foreshore Development Authority, as it then existed, produced the Kingston Foreshore Development Control Plan in June 2002. According to that document, the building heights across most of the area were to be three to four storeys to keep buildings generally consistent in height with the mature tree canopy, with the maximum height of the buildings set at RL578 m.
10.
Many witnesses gave evidence with respect to the trees which have been or may be planted in the area. Little, if any, of that evidence was of any assistance as there was no witness who professed to have any expertise in arboriculture and indeed many of them did not express any real knowledge of any type of horticulture. Documents were tendered showing heights of various trees when mature but it is unclear as to their relevance to this particular area and in any event the Tribunal does not consider such heights to be determinative as will be shown. In our view, it is absurd to use vague measures such as this in setting the parameters for development.
11.Mr Hamish Sinclair, who is a Principal Urban and Regional Planner employed by GHD Pty Ltd, gave evidence on behalf of the developer. He and contended that the number of storeys is not a control on height. Mr Sinclair pointed out that St Paul’s Cathedral in London is only two storeys. He suggested that a four storey building on this site could be 20 m in height throughout its length.
12.The Tribunal rejects that contention. A reference to storeys is a height control albeit not a very precise one. Criterion 81 modifies the reference to four storeys in Rule 81 by mentioning an overall height of 20 metres. Considering that there may be a limited number of buildings which exceed four storeys and the maximum can be 20 metres, it follows that the four storey height must be lower than 20 metres. It is difficult to know precisely what is meant by the height of the tree canopy but the Tribunal can only assume that that is some sort of reference to three to four storeys with each storey being approximately 3 metres as is generally the case in this kind of development. The evidence with respect to the height of the storey of a building was sparse and once Mr Sinclair is put to one side, the other experts who gave evidence did not raise any issue with respect to four storeys, the concept being something which they all understood.
13.The Tribunal takes four storeys to be the height of the first four storeys of this proposed development which, according to the approved plans, would be the ground floor at 4.2 metres and three storeys above that at 3 metres each, resulting in a total of 13.2 metres. One can assume that where a building stopped at four storeys, the top storey, as in this development, would have an extended height to cover items such as rooftop plant and lift overrun. For example, the top storey in this development is 3.6 metres rather than 3 metres and therefore a standard four storey building in this area would be a ground floor of about 4.2 metres, two storeys above that of 3 metres each and a top storey of 3.6 metres, giving a total of 13.8 metres. Higher building elements to take the building to a total of 20 metres could therefore involve two further storeys of 3 metres each, taking the overall height to 19.8 metres as shown in the plans for this proposed development.
14.Keeping the conclusions with respect to height in mind, the next issue for the Tribunal is the extent to which this proposed development may exceed four storeys in accordance with the provisions of Criterion 81. Paragraph (a) of Criterion 81 sets out five requirements. There is no suggestion that the ground level is greater than RL560 m (Criterion 81 (a) (iii)) but the other four are of concern to the Applicant and to this Tribunal.
15.At this point, it is worth noting the lease and development conditions for the site. In those lease and development conditions, building height is described in extremely similar but not exactly the same terms as Criterion 81. In them, the condition governing building height is as follows:
Building Height
Buildings shall be a maximum of four storeys with a parapet level at the third storey level. With the consent of the Agency and the approval of the Authority, a limited number of buildings may exceed the four storey limit where:
o they are used to achieve urban design objectives such as adding visual interest to the built form, appropriately framing major public spaces, marking important corners or transition points, or for screening unsightly elements from the public domain;
o they do not significantly impact on the landscape of the area;
o their ground level is not greater than RL560.0m;
o they do not detract or compromise views and vistas to the Power House; and
o the footprint of the higher building elements is generally no greater than a 15 by 20 metre rectangle.
The overall maximum height of any building shall not exceed 20 metres or RL578 m, whichever is the lesser.
16.A useful starting point is the issue of the footprint of the higher building elements, which are required by Criterion 81 (a) (v) to be no greater than a 15 by 20 metre rectangle. It is not clear why the element is described in terms of a shape. The shape is a rectangle with a total area of 300 square metres. An area of 300 square metres equates to a circle with a radius of 9.77 metres.
17.The Applicant’s building (the Pearl development), which is further away from the lake and closer to Wentworth Avenue, has higher elements which are circular in shape. Whether or not such a development with higher elements of that shape should have been allowed is not before the Tribunal now, but if it is allowable, it arguable that a square, rather than a rectangular, higher building element of 300 square metres should also be allowed. Such a square would have sides of approximately 17.3 metres and of course an area of 300 square metres can be moulded into a wide array of shapes. To assume that the planners meant that the higher building element could only be a rectangle of 15 by 20 metres and no other variation of a 300 square metre area seems illogical and the Tribunal concludes that the intent of such a criterion was that the area concerned should be no greater than 300 square metres, though the use of the word “generally” suggests that, in certain circumstances, the numerical control could be eased to allow a slightly larger area.
18.The witnesses called by the developer, and the expert called by the Planning Authority, succeeded in tying themselves in knots in trying to justify how the higher elements on this building are not three building elements of 20 metres by 37 metres but instead were six elements of half that size, in pairs joined by articulations which are the three lift wells.
19.A simple look at the plans demonstrates to the Tribunal that the developer’s and Planning Authority’s view cannot be sustained. The higher elements in the proposed development have some articulation which do add interest but cannot disguise the fact that each of these three articulated elements is one element and indeed as Mr Anthony Adams, a senior town planner employed by CB Richard Ellis Pty Ltd said in his evidence on behalf of the applicant there would be no reason as to why, by way of example, a person could not simply buy both penthouses at the top of one of these elements and join them into one, as the penthouses abut each other at both the front and rear of the lift and stairwell.
20.Much of the Tribunals time was taken up with evidence as to what is a ‘building element’. Having heard all of the evidence from all of the experts, the Tribunal concludes that the phrase ‘building element’ is a somewhat fluid concept and can be something as small as types of door furniture or window frames to something as substantial as the higher parts of the proposed development. It is clear that the higher parts of this building are building elements. It is equally clear that these building elements are not 15 metres by 20 metres adjoined by something minor in between, but that they are building elements which are three in number and more than twice the size that is allowed.
21.Having come to the conclusion that these building elements are substantially greater than 15 by 20 metres, there may be limited value in pursuing the matter further. It is however, worthwhile, examining the other parts of Criterion 81.
22.Criterion 81(a) (i) has five elements that the building elements above 4 storeys need to comply with to achieve urban design objectives. The first of these is to add visual interest to the built form. If this was a three or four storey building with higher elements with 15 metres by 20 metres footprints, then there could be some point in discussing whether those higher elements add visual interest. In this case, the design shows a building which is largely a six storey building with the visual interest being the gaps between the three higher parts. The frontage of this building extends the length of the block, which is 137 metres. The three higher elements are each about 37 metres long which means there is a total of 26 metres which is not built to six storeys. That means the gap between the higher elements is 13 metres. As such, it would a much more logical argument to claim that a six storey building has created visual interest to the built form by having two gaps of 13 metres in width, because that is what has been achieved with this design.
23.The other requirements are to mark important corners or transition points and framing major public spaces and to screen unsightly elements. As this is, in effect, a six storey building, the higher elements do not mark anything or act in particular to frame anything. Witnesses for the developer contended that the six-storey elements would frame Eastlake Parade, which is a public space, but the Tribunal does not accept this proposition. There was no suggestion that any part of this building was designed to screen an unsightly element.
24.Criterion 81(a) (ii) requires that the higher elements not significantly impact on the landscape of the area. As this building is effectively a six storey building, it does have a significant impact. The CZ5 Mixed Use Zone Development Code for this area is looking for a building height of about four storeys and this building will not be four storeys.
25.Criterion 81(a) (iv) requires that the higher elements do not detract or compromise views and vistas to the Power House. A view is different to a vista and the Tribunal accepts the evidence given that a view would be a broader, more general view such as seen from the opposite bank of Lake Burley Griffin towards the Kingston Foreshore area as opposed to a vista which would be a more specific and controlled view with the example being given of the view along the Champs Elysees in Paris towards the Arc de Triomphe. Perhaps a better local example would be the vista from Commonwealth Avenue towards Parliament House or up Anzac Parade towards the War Memorial. A vista is a view but a view is not necessarily a vista. This building would affect the extent of the views from the upper level units of The Pearl development, but would not have any effect on vistas of the Power House.
26.Overall, we conclude that Criterion 81 is not complied with, principally because the footprint of the higher building elements exceeds the allowable size, which in turn means that some other elements of the Criterion are not complied with.
CAR PARKING
27.The CZ5 Mixed Use Zone Development Code at section 4.4. deals with Parking. There is no Rule, but Criterion C18 requires that Car Parking complies with the requirements of the Parking and Vehicular Access General Code. While that code specifies parking provision requirements for Residential and Commercial Zones it does not deal specifically with the Mixed Use CZ5 zone. However, Rule 3A of the CZ5 Code requires that a development proposal complies with any pre-existing approved Lease and Development Conditions and, to the extent of any inconsistency, these take precedence over any Rules in the Multi-Unit Housing Development Code, including, inter alia, those relating to Parking. Again, there is no Rule in that Code, but the Criterion is couched in much the same language as is C18. Consequently, we conclude that the parking provisions in the Lease and Development Conditions for this Block are to be complied with.
28.The Lease and Development conditions for the block have a number of parts dealing with car-parking. The first of these is in the section headed “Lease Conditions” and states:
All car-parking spaces are to be accommodated on site together with internal roads and shall be drained and surfaced in accordance with plans and specifications previously submitted to and approved in writing by the Authority.
29.The “Site Specific Development Conditions” also have a paragraph dealing with car-parking which reads as follows:
car parking is to be provided in drained and sealed basements or undercrofts located predominantly under the building or buildings erected on the land. The lessee shall provide and maintain car parking in accordance with the requirements of the Kingston Foreshore Development Control Plan.
In addition, the “Standard Development Conditions” include the following:
All car-parking generated by the development shall be drained, sealed and provided to the satisfaction of the Territory. Large expanses of pavement shall not be permitted. Changes in material shall be used to define car-parking, access lanes and pedestrian areas. Landscaping shall be incorporated with any open car-parks. Car-parking spaces shall be in accordance with the current ACT Parking and Vehicular Access Guidelines. Design and construction of car-parking areas shall be in accordance with AS2890.1.
It is to be noted that the Site Specific Development Controls take precedence over the controls in the Standard Development Conditions.
30.The building in question is long and narrow, being 137 metres long and 32 metres wide. The proposed building runs the length of the block and faces the lake, which in effect means that the building occupies the entire eastern side of the block. The western side of the block is taken up with car-parking. There are 56 car parking spaces and 4 motor-cycle parking spaces at the back of the building, with 28 of the car spaces being undercroft parking and the other 28 and the motor-cycle spaces being open-air parking. The car-parking complies with the first requirement of the lease and development conditions as set out above, in that the spaces are on site with internal roads and drained and surfaced. With respect to the Standard Development Conditions, the parking does not comply as there is, in simple terms, a large expanse of pavement. Some evidence was given that the variation and the type of pavement would ameliorate this concern. In the consideration of the Tribunal, that is an attempt to read far too much into the control. This large expanse of pavement should not be allowed
31.In relation to the Site Specific Development Conditions, this design clearly fails in that the parking is to be in basements or undercrofts “located predominantly under the building or buildings erected on the land”. It is unclear from the way this is phrased as to exactly what the word “predominantly” is meant to relate. This sentence could be read to be saying that the car-parking is all meant to be in basements or undercrofts with those basements and undercrofts being “predominantly” under the building or buildings erected on the land with some extra parking under the building or buildings elsewhere. That would not accord with the first lease and development condition which is that all car-parking spaces are to be accommodated on site. Or is it that the word “predominantly” relates simply to where the undercrofts should be with the submission made that it meant a certain amount of open-air parking was allowed.
32.The purpose of the word “predominantly” in this condition is unclear and confusing. The parking all has to be onsite and large expanses of pavement are not allowed. Undercroft parking cannot be predominantly undercroft when part of it is not undercroft. If that were the case, not all of that parking would be undercroft. Perhaps the intention of the person drafting this condition was that some small amount of parking would be allowed which was neither undercroft nor in the basement. Perhaps a small amount of visitor car-parking was intended by this, although such a view is simply supposition by the Tribunal without any knowledge of what was intended. The Tribunal cannot see that there was an intention that 28 car spaces be provided on a paved area at the back of the building. Once turning, manoeuvring and laneway space is provided for such a large group of ground level car spaces, a large expanse of pavement is inevitably created.
33.The Tribunal finds that the parking as planned fails to meet any of the conditions. The conditions require that the parking be in basements or in undercrofts. A small number of car spaces might be allowable in the open at ground level for visitors or deliveries and such a situation could be viable with more appropriate plans for this block. The Tribunal observes that these problems would not have arisen if the developer had chosen to provide a second level of basement car parking, as has been provided in other developments in the vicinity.
NUMBER OF CAR PARKING SPACES
34. The Site Specific Development Conditions state that the car-parking is to be in accordance with the requirements of the Kingston Foreshore Development Control Plan. That seems to be the applicable control with respect to the number of car-parking spaces. The development proposed is 96 residential apartments with a ground-floor commercial area of 2, 210 square metres. Based on the Kingston Foreshore Development Control Plan parking rates, the following parking should be provided:
1.96 units x 1.25 spaces = 120 spaces
2.96 units x 1 visitor space per 4 units = 24 spaces
3.2210 square metres at 5 spaces per 100 square metres = 110.5 spaces
a.Total = 254.5 spaces (rounded up to 255 spaces).
35.The approval by the Respondent noted that 181 car-parking spaces were to be provided on-site, with a further 24 spaces on the public streets and that this was more than what is required by the Kingston Foreshore Development Control Plan. Based on our reading of the Kingston Foreshore Development Control Plan, we do not understand how this assessment was arrived at.
36.It is to be noted that the Kingston Foreshore Development Control Plan states that commercial development only needs to provide 20% of car-parking on site as the remaining spaces are to be accommodated in the public parking facilities that were to be funded by developer contributions to a parking trust fund. Such a fund has never existed. Therefore it is necessary for the Tribunal to consider what public parking is available.
37.No evidence was presented that any public parking facility is planned in the immediate vicinity. There is a reasonably large public surface car-park about 160 metres away next to the Power House. There was no evidence that that car-park would remain as a public car-park nor was there any evidence that anything was planned for that space. In any event, the Kingston Foreshore Development Control Plan envisaged some sort of developer funded public car-parking but such a system has never come into existence. As such, the Tribunal considers that the appropriate number of car parks for this site with this number of units and area of commercial space would be 255. Indeed, it could even be argued that a larger number of car-parks are required if a substantial proportion of the commercial space at ground level is used for purposes such as restaurants. There is nothing to prevent the entirety of the ground floor being used as restaurants. However, the Kingston Foreshore Development Control Plan has one parking rate for commercial use whether it is offices, shops or restaurants, which we have used in the above calculation.
38.The Tribunal concludes that the number of car parks to be provided does not meet the requirements of the lease and development Conditions and therefore of Rule 3A of the Code. Hence it is inconsistent with the Territory Plan.
COMMUNAL OPEN SPACE
39.The provision of communal open space is governed by section 3.3 of the Territory Plan - the Residential Zones - Multi-Unit Housing Development Code and it is worth setting out Rules and Criteria 239 and 240 which are as follows:
R239
An area of communal open space is provided that is centrally located and comprises at least 20% of the total site area. The calculation of the communal open space area is not to include front setbacks or narrow strips of residual land that are not visually or physically incorporated into the area, or areas not readily accessible by residents.
C239
Communal open space is clearly defined, useable and meets requirements for privacy, access, outdoor activities and landscaping Communal open space may include shared indoor facilities for use by all residents, such as gymnasiums, pools, reading rooms and lounge rooms.
R240
There is no applicable rule.
C240
A proposal providing less than 20% common open space may be considered where:
a) Communal open space is clearly defined, useable and meets user requirements for privacy, access, outdoor activities and landscaping;
b) Appropriate shared indoor facilities are provided for use by all residents in lieu of outdoor space, including a gymnasium, pool, reading room and/or lounge room;
c) There are less than 20 apartments;
d) The site is in a constrained urban area; or
e) The site adjoins a large area of public open space.
40. Mrs Christine Purdon, an urban planning consultant and Director of Purdon Associates Pty Ltd, gave evidence for the Applicant. Mrs Purdon was of the view that there would be some communal open space at the front of the building, forming part of the central common entry to the building from Eastlake Parade that this space would be about 120 m2 and would include seating, circulation space and two planter boxes.
41. Mrs Purdon contended that as the site has an area of 4,389 square metres the 20% required by Rule 239 would be 878 square metres for communal open space and that the communal open space proposed to be incorporated in the development is less than 15% of that requirement.
42.The Tribunal considers that Mrs Purdon was being over generous in her assessment of the communal open space for this development. Witnesses for the developer tried to persuade the Tribunal that the small areas outside the lifts in the building could be counted as a communal open area, but it is quite clear from looking at the plans of this building that the areas outside the lifts are no more than walkways from the lifts to the unit. The entrance at Eastlake Parade is little more than an area in which people may sit and wait for other people or perhaps for a taxi. It would be difficult to see the area outside the lifts of this building being used to wait for anybody other than perhaps fleetingly. To suggest that people would meet and mingle and perhaps enjoy food and drink outside the lifts of this building is simply not sustainable and such conduct could well be viewed with, at best, suspicion by other residents of the building.
43.The Tribunal finds that there is little, if any, communal open space in this building. Submissions were made that the open-air parking area for 28 motor cars could be altered to be garden space. On the assumption that the car spaces are the standard 5.5 metres in width then such a space would not be very usable. The through laneway would still be required to access the undercroft parking. A long thin area of communal open space only accessible across undercroft parking and a laneway is not practical.
44.Criterion 240 does allow for communal open space to be less than the required 20% of the site area in certain circumstances. Under Criterion 240, there are five lettered sub-paragraphs. The only one which could possibly be relevant to this site is sub-paragraph (e) which states that “the site adjoins a large area of public open space”. This development does adjoin such an area, Norgrove Park, which is a large and pleasant open area and the Tribunal agrees that this area could be taken into account.
45.Unfortunately the communal open space is so far below the required 20% (and indeed on some bases it could be seen as having no communal open space at all) that we do not consider that Norgrove Park is an adequate substitute, particularly for those Units at the north-western end of the proposed development which are furthest away from it. Although individual developments may vary to the extent to which the communal open space could be below 20%, the Criterion clearly does not intend that the open space be down to either nil or only a very small percentage, which is the best this development can manage.
46.We find that the proposal does not meet the requirements of the Multi-Unit Housing Development Code with respect to the provision of communal open space and is therefore not consistent with the Territory Plan.
THE 32 SQUARE METRE UNITS
47.This proposed development has four units with a floor area of 32 square metres which are described as “studios” - the modern term for a bedsitter. Rule 204 of the Multi-Unit Housing Development Code states that the minimum size of units is to be 40 square metres but Criterion 204 allows for smaller units where there is adequate provision of shared facilities for example open space, laundry, lounge or storage.
48.Some of the witnesses contended that it was a virtue to have the laundry inside the unit. The clear purpose of the Criterion is that the unit may be smaller where it does not need to provide certain facilities internally such as, for example, a laundry. The fact that the laundry is to be provided within the unit would appear to exacerbate the small size of the unit. Witnesses for the party joined gave evidence that each lower floor small unit could be joined by a stair to the similar unit immediately above to form a larger unit and suggested that a condition to this effect would be acceptable. While that may have overcome the problem, the other deficiencies of this proposed development make the imposition of such a condition pointless.
49.The Tribunal finds that the 32 square metre units do not comply with the Territory Plan.
CONCLUSIONS
50.The Tribunal has found a number of deficiencies in the proposed development which make it inconsistent with the Territory Plan. It cannot therefore be approved in accordance with s50 of the Planning and Development Act 2009.
51.The inconsistencies are, for the most part, not amenable to resolution by the imposition of conditions. They arise because the proposed development is too large for the block in question and because the developer has chosen not to provide two levels of basement car parking.
52.Inconsistencies also arise from the insufficiently precise language in the relevant planning documents. Terms like “building elements” are not defined, while vague concepts such as the “framing” of views and vistas and the notion of “transition points” lend themselves to a variety of interpretations. While recognising that many of these planning provisions are designed to provide for flexibility in approach, the Tribunal believes that the Planning Authority should seek to clarify the meaning of these and similar terms by including them in the Definitions section of the Territory Plan so that architects, developers and planners would have a common language from which to work with certainty.
DECISION
That the decision of 17 August 2009 approving development application No 200914754 is set aside and substituted with a decision that the development application is refused.
…………………………………..
Dr Don McMichael
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 09/79
APPLICANT: MAINORE PTY LTD
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: CANBERRA INVESTMENT CORPORATION LIMITED
COUNSEL APPEARING: APPLICANT: Mr D J C MOSSOP
RESPONDENT: Dr D R JARVIS
PARTY JOINED: Mr P WALKER
SOLICITORS: APPLICANT: MEYER VANDENBERG LAWYERS
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED: MALLESONS STEPHEN JAQUES
OTHER: APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR BRIAN HATCH, SENIOR MEMBER
DR DON MCMICHAEL, SENIOR MEMBER
DATE/S OF HEARING: 4, 5, 8, & 9 February, 4, 5, 10, 11, 15 & 16 March, 2010
PLACE: CANBERRA
DATE/S OF DECISION: 16 April 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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0
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