MARBURG MANAGEMENT PTY LTD & ACT PLANNING and LAND AUTHORITY (Administrative Review)
[2010] ACAT 56
•30 August 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MARBURG MANAGEMENT PTY LTD & ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2010] ACAT 56
AT 19 of 2010
Catchwords: ADMINISTRATIVE REVIEW – Planning and Development – Heritage Act.
Legislation:Heritage Act 2004
Planning and Development Act 2007
Territory Plans 2008 Rules 21, 31
Tribunal: Mr G. Lunney Presiding Member/
SC Member
Date of Orders: 30 August 2010
Date of Reasons for Decision: 30 August 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 19 of 2010
BETWEEN:
MARBURG MANAGEMENT PTY LTD
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
TRIBUNAL: Mr G. Lunney, SC, Member
DATE: 30 August 2010
ORDER
The decision under review of 19 February 2010 of the ACT Planning and Land Authority is confirmed.
………………………………..
Mr G. Lunney
SC, Member
REASONS FOR DECISION
The applicant submitted a development application dated 28 October 2009 to the respondent in respect of a privacy screen that had been erected at Block 7 Section 24, Barton. The street address was 6 Macquarie Street, Barton.
The application was described as:
- A proposal for the construction of a privacy screen adjacent to the boundary fence and associated landscaping, paving and other site works (retrospective).
Plans, drawings and other documents were submitted.
The application was lodged in the merit track. A decision was given by the respondent dated 19 February 2010. The decision was to refuse the application.
The subject block is listed as an entry to a Heritage Places Register as part of the Barton Housing Precinct. Objective 2.6 of the Barton Housing Precinct aims to re-establish the unified fence patterns including heights, location and materials. It provides (2.6e) that side and rear boundary fences and gates should:
· be less than or equal to 1.8 metres above ground level;
· be timber paling, timber lattice, brush or open mesh metal railing.
The respondent referred the application to ACT Heritage for comment. ACT Heritage objected to the installation of the screen on the northern boundary in the following terms:
The proposed development will have a detrimental impact upon the heritage values of the place unless the following revised conditions are complied with:
· The screen fence must be modified to be less than or equal to 1.8 metres above natural
ground level; and,
· The screen fence cladding must be changed either to paling, timber lattice, brush or open mesh metal railing.
This comment was referred to the applicant by email, however, there was no response.
After a period of public notification, a representation from occupants of the residential block on the northern side of the property was received, and the applicant was notified of this by email on 25 November 2009.
The respondent refused the application in a decision notified on 19 February 2010. The basis of refusal of the development application was on two grounds.
The first was that the screen, described as a privacy screen, was build 100mm from the northern boundary of the property and did not meet Rule 31 of the Single Dwelling Development Code, (the Code). This was because it was considered as a free standing structure built too close to the boundary, and would result in unreasonable amenity impact to the adjoining property.
The second related to the Heritage advice, and was based on the screen being a fence between the two properties and alleged that Rule 21 of the code had not been met.
The applicant’s company filed an application for review of a decision dated 29 March 2010.
The application was heard on 12 July 2010. The hearing commenced with a view at the property. Mr Marburg attended on behalf of the applicant, and Mr McCarthy instructed by the ACT Government Solicitor’s Office attended for the respondent. It was clear that the screen met the description set out in the advice given by ACT Heritage. The Harditex surface had been rendered and painted the same or a similar colour to the house at the premises. It had been bolted to the existing fence. There was no 100mm separation between the fence and the screen. From that point of view, it formed part of the fence. Its height was not uniform, but was greater than 1.8 metres.
When the hearing commenced, a Statement of Dr Pearson was tendered, and he gave evidence.
His evidence supported rejection of the application on heritage grounds. Evidence was also given by Ms Van Malenstein, an assessment officer employed by the respondent.
Since the screen was not a freestanding structure separate from the existing fence, it seems to the Tribunal unlikely that Rule 31 of the Code has been breached. That is to say that the structure being bolted to the fence and forming part of the fence, could not be considered a structure separate from the fence.
However, considered as part of the fencing to the premises, the privacy screen is inconsistent with Objective 2.6 of the Barton Housing Precinct in that its height was greater than 1.8 metres, and was not constructed of suitable materials. The proposal therefore does not meet Rule 21 of the Code since advice from the Heritage Council was not provided stating that the development met the requirements of the Heritage Act.
The decision of the Tribunal therefore is that the decision under review was correct, and that the decision of the respondent of 19 February 2010 should be confirmed.
………………………………..
Mr G. Lunney
SC, Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 10/019
APPLICANT: Marburg Management Pty Ltd
RESPONDENT:
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT: Geoff McCarthy/Lisa Tomlins
OTHER: APPLICANT: Tony Marburg
RESPONDENT:
TRIBUNAL MEMBER/S: Mr G. Lunney, SC, Member
DATE/S OF HEARING: 12 July 2010 PLACE: CANBERRA
DATE/S OF DECISION: 30 August 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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