Maurer & Ellis v ACT Planning and Land Authority & Ors (Administrative Review)
[2016] ACAT 83
•22 July 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MAURER & ELLIS v ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2016] ACAT 83
AT 2/2016
Catchwords: ADMINISTRATIVE REVIEW – planning – multi-unit housing development – whether development meets applicable codes
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 11, 22A, 27, 57, 68, 69
Planning and Development Act 2007 ss 50 119, 120, 121, 407, 408A,
Subordinate
Legislation:Multi Unit Housing Development Code
Parking and Vehicular Access General Code
Residential Boundaries Fences General Code
Cases cited:Deakin Residents Association v ACT Planning and Land Authority [2015] ACAT 37
Fielding, John v Commissioner for Land and Planning [2000] ACTAAT 26
Griffith/Narrabundah Community Association Inc & Ors v ACT Planning and Land Authority & Ors [2005] ACTAAT 34Mason & ACT Planning & Land Authority & Ors [2009] ACAT 7
Rudder v ACT Planning and Land Authority [2010] ACAT 24
The Proprietors of Units Plan 259 v Minister for Urban Services [1999] ACTAAT 33
Thomson v ACT Planning and Land Authority [2009] ACAT 38
Tribunal: Senior Member W Corby (Presiding)
Senior Member G Trickett
Date of Orders: 22 July 2016
Date of Reasons for Decision: 22 July 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 2 of 2016
BETWEEN:
LOUISE MAURER
JEFF ELLIS
Applicants
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
SUSAN SPEARITT
First Party Joined
AND:
STEWART ARCHITECTURE
PTY LTD
Second Party Joined
TRIBUNAL: Senior Member W Corby (Presiding)
Senior Member G Trickett
DATE: 22 July 2016
ORDER
The Tribunal Orders that:
Pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008 the reviewable decision to approve the DA with conditions is set aside. The Tribunal substitutes its decision that the DA is not approved.
………………………………..
Senior Member W Corby
For and on behalf of the Tribunal
REASONS FOR DECISION
Louise Maurer and Jeff Ellis (the ‘applicants’) and Susan Spearitt (the ‘first party joined’) have applied to the ACT Civil and Administrative Tribunal (‘ACAT’) for review of the ACT Planning and Land Authority’s (‘ACTPLA’ or the ‘respondent’) decision to approve, with conditions, a Development Application (‘DA’) for a suburban block (Block 18 Section 12) in Weetangera, ACT (the ‘subject site’).
The subject site is within an RZ2 residential zone. The DA proposes that an existing residence on the block will be demolished and four townhouses will be constructed.
Stewart Architecture Pty Ltd (the ‘second party joined’) lodged the DA with the respondent. The applicants and Ms Spearitt live in the area where the development is proposed.
The applicants and Ms Spearitt assert that the DA does not comply with some of the rules or it does not satisfy some of the relevant criteria of the applicable code/s. They submit that in response to their application to ACAT, ACTPLA’s decision to approve the DA should be set aside and DA should not be approved.
ACTPLA and the second party joined assert that the DA meets all applicable rules or satisfies, subject to some amended or additional conditions, all relevant criteria, and should be approved with conditions.
The applicants and the first party joined (Ms Spearitt) made joint submissions, relied on the same evidence and in effect have made a joint application for review by ACAT. For ease of reference, when the term ‘applicants’ is used in these reasons for decision, it refers to both the applicants and the first party joined.
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally or a previous tribunal, whereas ‘Tribunal’ refers to the members who heard the application.
The hearing
The hearing was conducted over four days on 20, 21 and 22 April and 17 May 2016. At the end of the fourth day of hearing the Tribunal reserved its decision.
At the hearing the applicants and Ms Spearitt were self-represented. Each of the applicants and Ms Spearitt asked questions and made submissions at various times. The applicants and Ms Spearitt did not call any witnesses, they relied on submissions made and the documentary information filed in ACAT and/or tendered at the hearing.
Mr Clynes of Counsel instructed by Ms Gasser from the ACT Government Solicitor’s Office appeared for the respondent at the hearing. Ms Jamaly from the respondent’s office attended for all days of the hearing and Ms Sheikh Lana from the respondent’s office gave evidence.
Ms Lana is a development assessment officer in the respondent’s office. She holds a Bachelor Degree in Architecture. She has had about 5.5 years experience working for the respondent.
Mr Hatch is the authorised representative of the second party joined. Mr Hatch gave evidence on behalf of the second party joined. In order to assist in the presentation of Mr Hatch’s evidence, Mr Clynes asked questions to guide Mr Hatch when he gave his evidence. Mr Hatch works for the second party joined and was responsible for submitting the DA to ACTPLA for approval. Mr Hatch is a graduate architect.
The respondent and the second party joined relied on the evidence of Mr Hatch and Ms Lana and the documents filed in ACAT and tendered as evidence during the hearing.
The respondent, in its statement of facts and contentions dated 6 April 2016[1], submits that the decision under review including conditions should be confirmed although varied to include the following amendment and additional condition: [2]
(a)the original condition C6 about fences with adjoining lease properties should be amended so that:
(i) the fences would only be upgraded to “1.8m high timber lapped and capped fence, or to another standard acceptable to [the respondent] if required”; and
(ii) that the respondent should not be the ‘dispute’ resolution body if there is a dispute about the need to replace fencing, and this part of condition C6 should be deleted; and
(b)a further condition requiring that the development comply with Criterion 42(g) of the MUHDC by providing a variety of materials in the courtyard walls. The respondent notes that this is not a matter that was raised by the applicants or the first party joined, but should be addressed so that the DA complies with C42 of the MUHDC. Currently the proposed courtyard wall is of a single material and colour.
View of site by parties and Tribunal – 22 April 2016
[1] Exhibit R2 on pages 3 and 4 under the headings ‘Additional Conditions’, ‘Changes to Condition C6’ and ‘Orders sought’
[2] Tribunal documents 12-15
On the second day of the hearing a view of the subject site and some other locations was undertaken. The Tribunal and all parties or their representatives attended. The respondent had provided to the Tribunal and other parties a bundle of documents.[3] These documents identified the matters that the parties wanted to point out to the Tribunal during the view.
[3] Exhibit R3
Gibbes Place is a cul-de-sac that runs east/west. At its western end Gibbes Place meets Bambridge Street at a 900 ‘T’ intersection. The subject site is on the north of this ‘T’ intersection. Another residential block, also planned for development, is on the southern side of the ‘T’ intersection. There is a multi-unit housing development of four units at the eastern end of the ‘key hole’ of the cul-de-sac. This development is built on the block that is adjacent to and south of a public open space which runs east/west from the top of the ‘key hole’ at the eastern end of the Gibbes Place cul-de-sac through to Coulter Drive, a major roadway.
At the view those present walked onto and around the subject site, walked to the end of Gibbes Place and then walked through the open public space at the eastern end (at the top of the cul-de-sac) through to Coulter Drive, then walked north on Coulter Drive until Belconnen Way, a major road. Then west on Belconnen Way until it meets the northern end of the public open space on the western side of the subject site. The parties or their representative asked the Tribunal to observe various features of the subject site and other properties and the surrounding area.
The subject site is adjacent to the south-eastern corner of a public open space. The public open space is bound by Bambridge Street on the south, by Belconnen Way on the north, on the east by the subject site and another residential block and by other residential blocks on the west.
At the applicants’ request, the participants at the view also went to the site of a completed multi-unit development of three units at a block in another suburb a short drive from the subject block.
Information considered by the Tribunal
The Tribunal took into account, and has in these reasons for decision where relevant made specific reference to:
(a)The documents filed by the parties in ACAT prior to the hearing that were not tendered as exhibits.
(b)The oral and written evidence of witnesses, specifically Ms Sheikh Lana on behalf of the respondent, and Mr Michael Hatch on behalf of the second party joined.
(c)Ms Lana also relied on a written statement and other documents which were tendered as exhibits when she gave evidence.
(d)Mr Hatch did not prepare a written statement or file a statement of facts and contentions, but he did tender as exhibits and rely on documents including drawings that he prepared and documents prepared by other people.
(e)Ms Lana and Mr Hatch each gave evidence in chief in response to questions asked by the respondent’s counsel. The applicants, Ms Spearitt and the Tribunal also asked both witnesses questions.
(f)The following documents were tendered as exhibits by the applicant:
(i) Exhibit A1: joint statement of facts and contentions by the applicants and [first] party joined
(ii) Exhibit A2: joint response to the respondent’s statement of facts and contentions and the witness statement of Ms Sheikh Lana by the applicants and first party joined dated 13 April 2016; and
(iii) Exhibit A3: statutory declarations of Mr McInnery and Mr Bayliss dated 20 April 2016;
(g)The following documents were tendered as exhibits by the respondent:
(i) Exhibit R1: the Tribunal Documents – these will be identified in these reasons for decision by reference to their page number/s (e.g. T 1-3);
(ii) Exhibit R2: respondent’s statement of facts and contentions dated 6 April 2016;
(iii) Exhibit R3: bundle of documents provided by the respondent in relation to the view conducted on 21 April 2016;
(iv) Exhibit R4: witness statement of Sheikh Lana dated 6 April 2016. Ms Lana, prior to this document being tendered, advised that the word ‘maximum’ in paragraph 38 should be changed to the word ‘approximate’. She otherwise confirmed that the information in the statement was true and correct;
(v) Exhibit R5: Ms Lana’s redrawn version of T233 and T235;
(vi) Exhibit R6: MUHDC as at 8 December 2012 re Rule 8;
(vii) Exhibit R7: MUHDC as at 5 July 2013 re Rule 8;
(viii) Exhibit R8: letter from Cia Landscapes + Colour dated 19 April 2016 re Block 18 Section 12 Weetangera, Landscape Architectural Consulting; and
(ix) Exhibit R9: witness Statement of Luka Kovacevic dated 10 May 2016 with Annexures A-D (incl)
(h)The following documents were tendered as exhibits by the second party joined:
(i) Exhibit PJ2A: redraw by Mr Hatch of T427;
(ii) Exhibit PJ2B : redraw by Mr Hatch of T410;
(iii) Exhibit PJ2C : redraw by Mr Hatch of T236;
(iv) Exhibit PJ2D: redraw by Mr Hatch of T235;
(v) Exhibit PJ2E : new drawing of building envelope dated 20 April 2016;
(vi) Exhibit PJ2F: bundle of four solar access drawings dated 13 May 2016;
(vii) Exhibit PJ2G: ‘marked up’ version of PJ2D re Rule/Criterion 60.
(i)The oral and written submissions made by or on behalf of the parties during the hearing.
(j)The observations made by the Tribunal during the view.
(k)The further documents filed by Mr Hatch on behalf of the second party joined on 24 May 2016 in relation to solar access in response to the Tribunal order made on 17 May 2016.
The reviewable decision and application to ACAT – section 121(2) of the PD Act
On 8 October 2015 the respondent approved, with conditions, the DA[4] (the ‘reviewable decision’) pursuant to section 162(1)(b) of the Planning and Development Act 2007 (‘PD Act’).
[4] T12-28
The DA proposes demolition of an existing residence and construction of four, four bedroom, partly two storey townhouses with double garages. Each townhouse has a living area that is single storey but, because of a void, the roof is almost double height, although the roof is slightly lower than the roof of the two storey part of the townhouses. The voided area allows for large areas of glass to this living area on the eastern side of all units, and on the north and south side of the townhouses 1 and 4 which are at the southern and northern end of the development respectively. The other part of each of the four townhouses is two storey, with living areas and one bedroom/ensuite downstairs, and three bedrooms and bathrooms upstairs.
The subject site is zoned ‘RZ2 – Suburban Core Zone’.[5] The Zone objectives for RZ2 are in Part 3.1 of the Territory Plan. The RZ2 development table requires that application for approval of a multi-unit DA in the RZ2 zone is assessable in the merit track.
[5] Territory Plan, Territory Plan Map
With the exception of the adjacent public open space on the western side of the subject site, all of the nearby blocks on the same side of Bambridge Street and between Bambridge Street and Belconnen Way and Coulter Drive are zoned RZ2. Blocks on the other side of the Bambridge Street are zoned RZ1.[6]
[6] Exhibit R3
A DA in a residential zone must comply with the Residential Zones Development Code (the ‘Residential Code’). The Residential Code requires that multi-unit developments comply with the Multi Unit Housing Development Code (‘MUHDC’). Other codes[7] also apply, these will be discussed below. A DA assessable in the merit track must not be approved unless it is consistent with the relevant code/s.[8]
[7] Parking and Vehicular Access General Code, Residential Boundary Fences General Code
[8] Section 119(a) of the PD Act
The original DA was lodged on 13 February 2015 and was duly notified. Entity advice was provided and written representations were received from the public.[9]
[9] T243-348
In response to issues raised by the respondent during the initial assessment process, a revised DA was submitted on 30 July 2015. No statutory entity raised objection to the amended DA. The revised DA was assessed. On 8 October 2015 the reviewable decision to approve the DA was made, subject to conditions that required: [10]
(a)approval at the Land Titles Office of a variation to the purpose clause in the Crown lease to permit a maximum of four dwellings on the block;[11] and
(b)certain specified actions were to be undertaken or requirements met prior to and during construction/demolition.[12]
[10] The specific details of the conditions is set out in full at T13-15 as part of Notice of the Decision (the reviewable decision) dated 8 October 2015 at T12
[11] T34 at A1
[12] T34 at B1-B5 and T35 at C1-C7
In making the reviewable decision the respondent’s delegate confirmed that the DA either met the rules or satisfied the criteria of the relevant code/s and was assessed as meeting the legislative requirements for approval.
The respondent concedes that due to an administrative oversight those people who had made representations in relation to the original DA were not advised of the reviewable decision until 9 December 2015.[13] On 5 January 2016 the applicants lodged an application for review of the reviewable decision in ACAT. On 27 January 2016 at the directions hearing, the Tribunal ordered that Ms Spearitt be joined as a party (the first party joined).
Scope of ACAT review – section 121 of the PD Act
[13] T110
Pursuant to section 408A and Schedule 1 Item 4 Column 3 of the PD Act and subject to section 121(2) of the PD Act, the applicants and the first party joined are ‘eligible entities’ who are entitled to apply to ACAT for review of the reviewable decision because they made representations about the DA and, because they live in close proximity to the subject site, are potentially negatively impacted by the approval of the development.
The right of review available to the applicants and the first party joined is limited by section 121(2) of the PD Act to the reviewable decision, or part of the decision, to the extent that the development proposal is subject to a rule and is not met, or no rule applies.
The reviewable decision before the Tribunal is the respondent’s decision pursuant to section 162(1)(b) of the PD Act to approve the revised DA subject to conditions.[14] Pursuant to section 68(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), in relation to those matters which fall within the operation of section 121(2), the Tribunal may exercise any function given to the original decision maker by the PD Act.[15]
[14] Section 67(a) of the ACAT Act
[15] ‘decision maker’ is defined in section 22A of the ACAT Act and section 407(c) of the PD Act to be, in this case, the respondent’s delegate who made the reviewable decision
Although the PD Act does not impose any specific limitation on ACAT’s powers in relation to the current application, the limitation on the applicants’ and the first party joined’s right to apply to ACAT for review as set out in section 121(2) and as noted in Schedule 1, Column 1, Item 4 of the PD Act, necessarily limits the permissible scope of an application to the Tribunal in such an application. That limitation does not alleviate the need for ACAT when conducting the review to comply with the requirements of the PD Act which apply to the original decision maker, for example the prohibition against approval of merit track applications in the circumstances described in section 119 of the PD Act.
Within those limits, the Tribunal ‘stands in the shoes’ of the original decision maker and should respond to the application as a de novo merits review pursuant to the relevant provisions of the PD Act.[16]
[16] Pursuant to section 69 of the ACAT Act the decision that ACAT then makes pursuant to section 68(3) is ‘taken to be’ a decision by the reviewable decision maker
In the current application,[17] the constraints on the applicants’ right of review imposed by section 121(2) limits the extent of the ACAT enquiry. However sections 50, 119 and 120 of the PD Act still operate and must be applied by the Tribunal when making its decision in relation to the ACAT application. The Tribunal can only make a decision that has the effect of approving the DA, if in doing so it does not act in breach of section 50 or section 119 of the PD Act.
[17] The applicants in the current matter are ‘eligible entities’ pursuant to Schedule 1 Item 4 and thus the decision, if confirmed, is necessarily a decision to ‘approve’ the DA and sections 119 and 120 are relevant to that decision
The ACAT decisions in Thomson v ACT Planning and Land Authority [2009] ACAT 38 (‘Thomson’), which was referred to and followed in Rudder v ACT Planning and Land Authority [2010] ACAT 24 (‘Rudder’),[18] state the limitation imposed by section 121(2) of the PD Act on the nature and extent of applications to and review by ACAT.
[18] See in particular paragraphs 43, 44, 100 and 101 in Thomson; and paragraphs 12-14 and 21 in Rudder
In Rudder the appeal tribunal confirmed that, although the extent of the ACAT review is limited to the matters that can be validly agitated under section 121, to the extent that the review is undertaken, section 120 of the PD Act still operates.
Summary of conclusion
In the current matter the Tribunal has concluded that, in response to matters raised by the applicants, some of the criteria of the MUHDC are not satisfied. In-so-far as the DA fails to satisfy these criteria the Tribunal has further concluded that it is not able to address the DA deficiencies identified by varying the reviewable decision to include additional or amended conditions. Therefore the Tribunal has concluded that the DA does not comply with the relevant code and cannot be approved.[19] Accordingly the decision under review is set aside.
The subject site
[19] Section 119 of the PD Act
The subject block has an area of 1448m2. It has a south facing street frontage to Gibbes Place of approximately 24m. The eastern boundary separates the subject block from another residential block at 3 Gibbes Place. There is a single dwelling on the block at 3 Gibbes Place and there is an established hedge for most of the length of the eastern boundary between these blocks. The western boundary abuts a public open space and a public footpath runs the length of and immediately adjacent to the western boundary within the public open space. There is an established hedge, with a variety of plants, which runs from the south west corner until about 7m south of the north west corner of the western boundary. The northern boundary runs between the subject site and another residential block.
The Multi Unit Housing Development Code (MUHDC)
The MUHDC forms part of the Territory Plan. Development proposals in the merit track must comply with each rule or satisfy the relevant criterion of the MUHDC.
The tribunal in Deakin Residents Association v ACT Planning and Land Authority[20] provides[21] a useful summary of the purpose of the MUHDC:
27 The purpose of the Multi Unit Code is to provide “additional planning, design and environmental controls to support the objective of the relevant zone”. The Introduction to the Multi Unit Code provides that each “element has one or more rules, each having an associated criterion (unless the rule is mandatory). Rules provide quantitative or definitive controls, while criteria are chiefly qualitative in nature”. The Introduction goes on to state that proposals in the merit track:
must comply with each rule or satisfy its associated criterion, unless the rule is mandatory…Where a rule is fully met, no reference to a related criterion needs to be made. Where there is a departure from a rule, or where a criterion only applies, the onus is on the applicant to demonstrate that the relevant criterion is satisfied, through supporting drawings and/or written documentation.
Issues raised by applicants and first party joined
(a) Solar access – R57 MUHDC
[20] [2015] ACAT 37
[21] at [27]
Rule 57 is as follows:
6.1 Solar access –other than apartments
R57 This rule applies to multi unit housing other than apartments. The floor or internal wall of a daytime living area of a dwelling is exposed to not less than 3 hours of direct sunlight between the hours of 9am and 3pm on the winter solstice (21 June). Note: Where a development comprises a mixture of apartments and other multi unit housing, this rule will apply to the multi unit housing.
The applicants raised, in the context of ‘orientation’[22] of the development, the issue of solar access although no specific assertion was made about rule 57. In their closing submission the applicants stated that they had not specifically raised R57 because they lacked the necessary expertise to assess the information relied on by the respondent in relation to this aspect of the DA. Rule 57 is mandatory.
[22] Exhibit A1 at [4]
Based on the further information provided by the Mr Hatch on behalf of the second party joined during the hearing[23] and on 24 May 2016,[24] which provided more detailed information about solar access to the dwellings in the development, the Tribunal is satisfied that the DA complies with R57.
(b)Plot Ratio – Rule 8 MUHDC
[23] Exhibit PJ2F
[24] In response to an order made by the Tribunal at the conclusion of the final day of hearing
Rule 8 of the MUHDC provides as follows:
R8 This rule applies to large blocks that are single dwelling blocks in RZ2, RZ3 and RZ4. In RZ2 the maximum plot ratio is 50%. In RZ3 the maximum plot ratio is 65%. In RZ4 the maximum plot ratio is 80%. For the purpose of calculating plot ratio for this rule, the gross floor area includes 18m2 for each roofed car space provided to meet Territory requirements for resident car parking, but does not include basement car parking.
Rule 8 is a mandatory. Ms Lana on behalf of the respondent says that she has checked and confirmed that the plot ratio for the development is 49.9%.[25] This is less than the maximum 50% in R8. The respondent submits that the DA is R8 compliant.
[25] Exhibit R4 at [32]
The applicants accept that if the upper level balconies are not included in the Gross Floor Area (‘GFA’) calculation used by the DA proponent and the respondent to calculate plot ratio then R8 is met.
The applicants assert that the upper floor balconies should be included within the GFA calculation. There is no specific information provided as to the size of the upper floor balconies. Therefore the exact calculation of the floor area of the upper floor balconies cannot be calculated. However the parties agree that if the Tribunal were to accept the applicants’ assertion then, due to the minimal degree of compliance with R8, the addition of the area of the upper floor balconies would increase the plot ratio beyond the 50% limit in R8.
The following terms are defined: [26]
[26] Part 13 of the Territory Plan
Gross floor area (GFA) means the sum of the areas of all floors of the building measured from the external faces of the exterior walls, or from the centre lines of walls separating the building from any other building excluding any area used solely for rooftop fixed mechanical plant and/or basement car parking.
Balcony means a small outdoor area, raised above the ground, directly accessible from within the building and open except for a balustrade on at least one side.
Plot ratio means the gross floor area in a building divided by the area of the site.
Building includes:
a) an addition to a building;
b) a structure attached to a building; and
c) a part of a building.
Structure includes a fence, mast, antenna, aerial road, footpath, driveway, carpark, culvert or service conduit or cable.
External wall means an external wall that may also incorporate any of the following:
a) windows with sill height at or above 1.7 m from the floor
b) screened decks
c) fixed pane windows with obscure glass
d) awnings sashes with obscure glass and with an opening of not more than 30 cm to the horizontal
e) obscure glass bricks
The applicants submit that the upper floor balconies on the east and west of the development are enclosed on three sides and are fully roofed. The applicants submit that these balconies add to the overall size and bulk of the development both actually and visually and should be included in the calculation of GFA and plot ratio.
The applicants submit that the walls that enclose the balconies on the north and south, the balcony floors and the roofing are, respectively, a continuation of the building walls, floors and roof. The applicants contend that the Tribunal should conclude that the balustrade on the ‘open’ side of the balcony is in fact an ‘external face’ of the building, as the balconies are an almost fully enclosed feature of the building. Alternatively, the front edge of the walls that enclose the balconies on two sides and which are a continuation of the building walls, are an ‘external face’ for the purpose of calculation of GFA. The applicants say the Tribunal should include the balcony floor space between these walls in the calculation of GFA because these walls are either exterior walls or separate the building from other buildings (being the other units).
In making the assertion that the balconies should be included in the calculation of GFA and plot ratio, the applicants rely on a decision of the, former, ACT Administrative Appeals Tribunal[27] (‘Griffith/Narrabundah decision’). The respondent says that this decision reflected a policy that required balconies to be included in this calculation. This policy no longer applies. The applicants accept that although this policy no longer explicitly applies, it has not been replaced or specifically addressed in subsequent legislative and policy changes, so the Tribunal should nonetheless adopt the same approach as was adopted when the policy explicitly operated, notwithstanding that there is no other basis for the inclusion of the balconies in the calculation of GFA.
[27] Griffith/Narrabundah Community Association Inc & Ors v ACT Planning and Land Authority & Ors [2005] ACTAAT 34 see in particular paragraph 62 which refers to a previous reference in Part B1 of the Territory Plan Residential Land Use Policies at section 3.8 which balconies which were ‘substantially enclosed by solid walls’ should be included in GFA when calculation plot ratio
The Tribunal is not persuaded by the applicants’ submission in relation to the inclusion of the upper floor balconies in GFA and the calculation of plot ratio. The definition of plot ratio refers to floors ‘in a building’. Balconies are defined as ‘outdoor’ areas. They can be enclosed on three sides and roofed.[28]
[28] The definition of ‘private open space’ specifically states that ‘a balcony may be entirely roofed over’
The term ‘exterior face’ is not defined. However, the Tribunal does not accept that the term ‘external face of the exterior walls’ in the definition of GFA includes the outside face of the balconies in this development. The outside face of the balconies is the ‘open side’ (with balustrade).[29] Nor does the Tribunal consider that the ‘external face’, being the width of the walls which enclose two sides of the balconies, meets the description ‘external face of the exterior walls’ for the purpose of calculation of GFA. Nor does the Tribunal consider that either the open face of the balconies or the external face of the walls meet the definition of ‘external wall’, if that were applicable.
[29] In the definition of setback a ‘building wall’ is separately identified from ‘the outside face of a balcony’’
The Tribunal finds that the upper floor balconies should not be included in the calculation of GFA. Rule 8 is met.
The applicants accept that the calculation of GFA, because it is restricted to floor area, does not include the ‘voided’ space above the, almost double height, ground floor living areas of all four units. The Tribunal can understand the applicants’ assertion that, if the calculation of GFA excludes these voided areas and the balconies, that the calculation of GFA and compliance with Rule 8 does not present an accurate assessment of the visual impact and actual bulk and scale of the proposed development. However plot ratio is only one of the factors in the MUHDC that is relevant to the assessment of the size, bulk and scale of a development. Compliance with R8 is not determinative of that aspect of the assessment except in relation to plot ratio as a factor.
(c) Building envelope – Rule/Criterion 25
Rule/Criterion 25 provide as follows:
R25
This does not apply to one or more of the following:
i) buildings with more than 3 storeys in RZ5
ii) buildings with more than 3 storeys in commercial zones.
Buildings are sited wholly within the building envelope formed by projecting planes over the subject block comprising lines projected at 45o to the horizontal from an infinite number of points on a line of infinite length 3.5m above each side and rear boundary, except as required by the next rule.
Refer figure A1.
Note: To remove any doubt, the reference to a building with more than 3 storeys is a reference to the whole building, not just that part of the building over 3 storeys.
C25
Buildings achieve all of the following:
a) consistency with the desired character
b) reasonable levels of privacy for dwellings on adjoining residential blocks and their associated private open space.
The applicants initially asserted that the DA did not comply with R25 and contended that the development does not, because of its bulk and scale, satisfy C25(a) of the MUHDC as it is not consistent with the ‘desired character’.
Desired character is a defined term in the Territory Plan:
Desired character means the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code
In their reply[30] to the respondent’s statement of facts and contentions[31] the applicants say that they are unable to conclude, based on the information provided by the respondent, whether or not the R25 has been met.[32]
[30] Exhibit A2
[31] Exhibit R2
[32] Exhibit A2 paragraphs 29-30
Ms Lana in her signed statement says[33] that the development is within the building envelope therefore the DA complies with R25. During the hearing further drawings were prepared[34] to demonstrate compliance with R/C25. Drawing T233, which was used to assess the DA, describes the envelope from the north-east corner of the site and not perpendicular to the boundary at the building. The building is not parallel to the boundary. The additional information[35] showed that the roof at the north-east corner of the building extended 40mm beyond the envelope. Based on this additional information the Tribunal is satisfied that a very small part of the development is not within the building envelope. The DA is not R25 compliant.
[33] Exhibit R4 at [54]-[60]
[34] Exhibit R5 which is a ‘redraw’ of T233 and T235 which more accurately responds to R25 and Diagram A1 in the MUHDC
[35] Exhibit R5
In relation to the minimal area that the building extends beyond the building envelope the Tribunal considers that the DA satisfies C25(a) as the effect of the area outside the envelope on bulk and scale is slight. There is no statement of ‘desired character’ in a relevant zone precinct code.
C25 (a) – ‘desired character’ - consideration of RZ2 zone objectives
The Tribunal considers that in relation C25(a), the proposed development is consistent with the RZ2 zone objectives in terms of bulk and scale.
RZ2 zone objective (a)
The Tribunal is satisfied that the development is consistent with RZ2 zone objective (a). It is a multi-unit development that is low to medium density. Whilst there is already a multi-unit development at the eastern end of Gibbes Place, and there is a further multi-unit development of similar size planned opposite the subject site, the other blocks in Gibbes Place and in the immediate vicinity are predominately single dwelling or, in a nearby street, single storey multi-unit development.
RZ2 zone objective (b)
Consistent with RZ2 zone objective (b) this development will operate to effect some further change to the density of dwellings but maintains the original pattern of subdivision in the area.
RZ2 zone objective (c)
The nature of the development is different from the predominantly ‘single dwelling’ options in the surrounding area and is therefore consistent with RZ2 zone objective (c) because it contributes to an increase in the range of affordable and sustainable household choices to meet changing household and community needs.
RZ2 zone objective (d)
The Tribunal considers that consistent with RZ2 zone objective (d) the proposed development, by increasing residential density, will contribute to the support and efficient use of social and physical infrastructure and services in the area.
RZ2 zone objective (e)
The extension beyond the building envelope is minimal and this does not impact on the amenity of residents or have any unreasonable impact on neighbouring properties. The RZ2 zone permits and anticipates some degree of change to neighbourhood character, and that will be an inevitable outcome of this development if approved. The Tribunal considers that, in terms of building envelope, the development would have a positive impact on the neighbourhood and landscape character and is consistent with RZ2 zone objective (e).
RZ2 zone objective (f),(g),(h),(i) and (j)
Although not the subject of any specific evidence, the Tribunal considers the development would provide opportunities for home-based employment (RZ2 objective (f)). It is not apparent to the Tribunal that RZ2 zone objective (g) is relevant to consideration of this aspect of the DA. The Tribunal has considered and concludes that the extension beyond the building envelope does not directly impact on solar access, energy efficiency, conservation and sustainable water use (RZ2 zone objectives (h), (i) and (j)).
C25(b) - privacy
The Tribunal is satisfied that the privacy on adjacent blocks will not be affected by the slight extension beyond the building envelope.
In summary the Tribunal finds that C25 is satisfied.
(d) Site Open Space – Rule/Criterion 38 MUHDC
Rule and Criterion 38 provide as follows:
R38: This rule applies to RZ1 and RZ2. Not less than 40% of the total site area is allocated to one or more of the following:
a) communal open space with a minimum dimension of 2.5m
b) private open space that complies with all of the following –
i) a minimum dimension of 2.5m
ii) is associated with dwellings at the lower floor level. Not less than 20% of the total site area is planting area.
C38: Open space on the site achieves all of the following:
a) sufficient space for the recreation and relaxation of residents
b) sufficient space for planting, particularly trees with deep root systems
c) provision for on-site infiltration of stormwater run-off
d) provision of outdoor areas that are readily accessible by residents for a range of uses and activities.
One or more of the following matters may be considered when determining compliance with this criterion:
i) whether the total area of upper floor level private open space contributes to the function of other open space on the site
ii) ii) whether any adjoining or adjacent public open space is readily available for the use of residents.
The applicants observe[36] that although the respondent states in the assessment of the DA[37] that R38 is not met, the respondent does not specify the basis for this conclusion. Using the information in drawing T222 and based on the site area of 1448m2 the applicants note that the DA meets the requirement of R38(b)(i) and (ii) so they assume that the DA either fails to meet the requirement that 40% of the site is communal or private open space, and or that 20% of the site is available for planting.
C38(a) and (d)
[36] Exhibit A1 at [13, 55-56]
[37] T147 at 4.2
The applicants accept that C38(a) and C38(d) are satisfied, but say the information provided does not demonstrate that C38(b) and C38(c) are achieved. In relation to C38(d), although the respondent in it assessment[38] concludes that the upper level balconies and the public open space on the west of the subject site are relevant to satisfying C38, the respondent does not specify how this is achieved.
Rule/Criterion 64 – balcony balustrades relevance to C38
[38] T147-148
The upper level balcony balustrades do not comply with R64 as they do not limit the visibility of these balconies from the public open space. R/C 64 provides:
R64 This rule applies to balconies with both of the following characteristics:
i) located on the third upper floor level or lower (ie the first four storeys)
ii) facing public streets or public open space. Balustrades are constructed of one or more of the following:
a) obscure glass panels;
b) solid panels with a total of all openings or clear glass panels not more than 25% of the surface area of the balustrade. For this rule obscure glass prevents printed text of 10mm high characters from being read through the glass when positioned 1m from the glass.
C64 Balustrades achieve reasonable privacy for residents and screen household items from adjoining public streets and public open space.
The respondent does not in its assessment of the DA[39] provide any detail of how it concluded that the DA is consistent with C64. Ms Lana on behalf of the respondent and Mr Hatch on behalf of the second party joined gave evidence that C64 is satisfied because the depth of the balconies provides the opportunity for residents to sit further back towards the building and thus the balustrades provide sufficient privacy for residents. The applicants did not raise R/C64 as an issue; however the respondent considered that use of the balconies by residents is relevant to satisfying C38. Therefore in the Tribunal’s view C64 is also relevant to C38.
[39] T149
The applicants point out that although the information appearing in T222 is a revised version of T408 and that T222 includes a 13m2 visitor car space that was not included in T408, the area of impervious surfaces and garden areas is unchanged.
The applicants submit that although C38 requires that the open space achieve all of the listed requirements, in the assessment the respondent only addresses C38(d)[40] and that, in part, by reference to the upper level balconies and the public open space west of the site.
[40] Exhibit A2 at [40]-[48]
The applicants assert that the respondent does not address C38(b), nor the applicants’ expressed concern that the limited area available for planting on the east of the development. The applicants say this could, in part, be addressed by retention of the established hedge on the eastern boundary. The respondent does not address the applicants’ concerns about the impact on the established hedge on the western front boundary of constructing of the 1.4 m mesh fence within a short distance from the base of the hedge. Nor the composition of that hedge which the applicants describe as being of mixed varieties of woody and some undesirable weeds. The applicants submit that the area of decking associated with the units at ground level further reduces the availability of planting area. The applicants say that although the respondent does not specify which units, the respondent concludes that the ‘majority’ of units have adequate planting, which suggests that one, or some, do not.
The applicants submit that the lack of available planting space means that the provision of on-site infiltration (C38(c)) is not adequately achieved and the respondent does not address this. The available evidence does not support the conclusion that C38(c) is satisfied.
Relying on the assessment of Ms Lana[41] the respondent contends that by taking into account the upper level balconies; the public open space on the west of the site which is readily accessible through the gates proposed to be constructed in the hedge along western boundary; the area for planting deep rooted trees[42] in the common area in the front zone of the site; the areas for planting associated with the ‘majority’ of the units as well as on the east of the site and the hedge to be retained on the western boundary; the Tribunal can be satisfied that C38 is ‘adequately dealt with’.
[41] Exhibit R4 at [67]-[76]
[42] Shown in T427
Updated landscape drawings and information[43] were tendered at the hearing. The respondent and Mr Hatch submit that the Tribunal can rely on this additional information from the DA proponent’s landscape architect, Cia Landscapes and Colour, to conclude that there is sufficient space for deep rooted plants/trees and C38(b) is achieved.
[43] Exhibit PJ2A and Exhibit R8
The landscape architect did not give evidence. There was no specific evidence in relation to C38(c).
C38(a) Open space achieves sufficient space for recreation and relaxation of residents; and
C38(d) provision of outdoor areas that are readily accessible by residents for a wide range of uses and activities
Without providing any specific explanation the respondent concludes that the DA does not meet R38. The Tribunal takes into account the availability for use by residents of the upper level balconies[44] and adjacent public open space.[45] These are factors that may be considered in relation to C38 and would appear to be most relevant to C38(a) and C38(d).
[44] C38(i)
[45] C38(ii)
In relation to the use of the upper floor balconies, the respondent and Mr Hatch agreed that the upper level balcony balustrades do not comply with R64. R/C64 is within ‘Element 6: Amenity’ in the MUHDC and is clearly aimed at achieving privacy for, and increasing the amenity of the dwellings to, residents when using the balconies. Compliance with R/C64 will limit the view of the balconies on the west of the development by people using the adjacent public open space or using Bambridge Street. In the Tribunal’s view, the suggestion that residents can overcome the limited privacy afforded by the balustrades by moving closer to the building would have the effect of considerably restricting the amenity of the balconies.
At the view on 22 April 2016, the applicants pointed out that the adjacent public open space (Block 16 Section 12 Weetangera), other than a public pedestrian pathway that runs adjacent to the subject site, has no facilities and has limited lighting along the pathway. From the observations made by the Tribunal at the view, it appears that the area is mowed but is not otherwise landscaped. Whilst it is not clear of how much ‘use’ this area would be to residents, the Tribunal accepts that this public space will be readily available to the residents through gates that are proposed to be included for each unit in the hedge on the western boundary.
The DA proposes four bedroom units, therefore it is not unreasonable to anticipate that units will accommodate up to five people. The Tribunal considers that the available open space, including the upper level balconies and public open space, achieves the space and accessibility requirements of C38(a) and C38(d).
C38(b) Open space on the site achieves sufficient space for planting, particularly trees with deep root systems; and
C38(c) provision for on-site infiltration of stormwater run-off
R38 requires that at least 20% of the site area (here 289.6 m2) is available for ‘planting area’ which is a defined term:
Planting area means an area of land within a block that is not covered by building, vehicle parking and manoeuvring areas or any other form of impermeable surface and that is available for landscape planting
Adequate planting needs to be provided in order to achieve both C38(b) and C38(c). The applicants assert that neither the respondent nor the DA proponent has demonstrated that this is achieved. The applicants in relation to C38 and R/C73 (concerning internal driveways) assert there is inadequate space for planting on the east of the site along either side of the internal driveway.
The Tribunal accepts that the number of deep rooted trees to be planted in the common area on the south west corner of the site and other trees identified in the landscaping plan[46] are adequate to achieve C38(b).
[46] Exhibit PJ2A
However the Tribunal accepts the applicants’ submission that, based on the information available and notwithstanding Exhibit PJ2A and T222, the Tribunal cannot be satisfied that there is provision for on-site filtration of stormwater run-off (re C38(c)). In the Tribunal’s view this is a matter that needs to be specifically addressed by the DA proponent in relation to C38(c) in order for the Tribunal to be satisfied that it is achieved. All of the matters set out in C38 must be achieved. The Tribunal finds that C38 is not satisfied.
(e) Front boundary setbacks – Rule/Criterion 29
Two boundaries on the block meet the definition of ‘front boundary’ in the Territory Plan. One front boundary faces south and is adjacent to a public road, Gibbes Place. The other front boundary faces west and is adjacent to a public open space (the ‘western front boundary’) that has a public pedestrian way that runs alongside the western boundary.
R29 and C29 of the MUHDC address front boundary setback requirements. For the subject block the minimum front boundary setback for all floor levels for the boundary facing Gibbes Place is 6m and for the western front boundary is 4m.[47] There is no dispute, and the Tribunal accepts, that the DA meets Rule or Criterion 29 for the front boundary facing Gibbes Place.
[47] Table A5 MUHDC
The parties agree that the DA does not meet Rule 29 for the western front boundary. Criterion 29 provides:
Front setbacks achieve all of the following:
a) Consistency with the desired character
b) Reasonable amenity for residents
c) Sufficient space for street trees to grow to maturity.
The applicants assert that the setbacks[48] for units 1, 2 and 3[49] do not comply with R29 on the western front boundary.[50]
[48] ‘Setback’ is defined in the Territory Plan to include the distance between the relevant boundary and “a building wall or the outside face of a balcony, deck”’
[49] The applicants refer to T236 to support these assertions
[50] Joint statement of facts and contentions by applicants and party joined; Exhibit A1 and in the joint reply to the respondent’s statement of facts and contentions and to the witness statement of Sheikh Lana by the applicants and the first party joined’ dated 13 April 2016
The applicants contend that there are setback encroachments of:
(a)the ground level deck of unit 3;
(b)the ground level deck and the upper level balcony of unit 2; and
(c)the ground level deck, the lower level and the upper level balconies of unit 1.
The applicants submit that some of the encroachments are major. The applicants assert that when assessed against C29(a), because of the encroachments, the DA is not consistent with ‘desired character’.[51] Specifically that it does not reflect the RZ2 zone objectives for bulk and scale. In relation to C29(b) the amenity for residents of units 1 and 2 is compromised due to their private open space being so close to the public walkway. The applicants say this is a factor ignored by the respondent in its assessment of the DA. In relation to C29(c) there is limited space for trees to be planted. In short, say the applicants, the DA fails to achieve any of the requirements of C29 notwithstanding that C29 requires the DA to ‘achieve all’ aspects of C29.
[51] ‘Desired character’ is defined in the Territory Plan as “means the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives…”
The respondent contends in the respondent’s statement of facts and contentions[52] that C29 is satisfied. The respondent adopts the evidence of Ms Sheikh Lana in her witness statement of 6 April 2016.[53] Ms Lana concludes that the angular encroachment of unit 1 of approximately 1m ‘appears to be minor’; that the neighbouring blocks on the western side of the public open space are located a reasonable distance away; and that the encroachment on the western front boundary does not have any significant adverse impact on the streetscape.
[52] Exhibit R2 - At [1]-[3] on page 3
[53] Exhibit R4 - At [35]-[47]
The respondent contends, and the Tribunal accepts, that there are no street trees on the western boundary and C29(c) is not relevant.
Mr Hatch as the designer of the DA gave evidence that he considers C29 is satisfied. Mr Hatch relied on Exhibits PJ2C and PJ2D[54] these include the dimensions of and notes about the encroachments of the western front boundary at the ground floor and the upper floor level respectively.
[54] Exhibits PJ2C re T236 (the ground floor) and PJ2D re T235 (re the upper floor)
Mr Hatch, referring to Exhibit PJ2C, said the encroachment of the building at ground level of unit 1 was 990mm at the corner of the kitchen, this reduced to approximately 350mm at the corner of the bedroom. There was an additional, approximately, 300mm encroachment at the corner of the dining room, and there was no encroachment by the building of the other units although there were encroachments of the decks.
Mr Hatch, referring to Exhibit PJ2D, said that the encroachment of the building at the upper floor level of unit 1 was 1390mm on one corner of the balcony reducing to a 780mm encroachment at the other corner. At unit 2 the encroachment was 380mm at the corner of the balcony reducing to 0 mm at the centre of the balcony.
C29(a) Front boundary setbacks achieve consistency with desired character; and
C29(b) reasonable amenity for residents
In considering C29(a), as for C25(a) discussed above, the Tribunal must assess whether this aspect of the development, as it impacts on the ‘form’ of the development – including bulk and scale and streetscape[55] - is consistent with the RZ2 zone objectives. In relation to the RZ2 zone objectives (a) - (d) [paragraphs 64-67 above] and (f) – (g) [paragraph 69 above] the Tribunal repeats the conclusions made in relation to C25 for C29(a) and is satisfied that the development is consistent those RZ2 zone objectives notwithstanding the front boundary setback encroachments.
[55] Streetscape is defined as “includes the visible component within a street (or part of a street) including the private land between facing buildings, treatment of setbacks, fencing, existing trees, landscapeing, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters”
However, the Tribunal considers that the front boundary setback encroachments have the effect that the development is not consistent with RZ2 zone objective (e), and does not achieve reasonable amenity for residents as required by C29(b).
Setback requirements are one of the building and site controls within Element 3 of the MUHDC. Whilst C29 accommodates approval of developments notwithstanding encroachments, it must be demonstrated that all of the requirements of the C29 are achieved.
The Tribunal finds that the setback into the front boundary on the west does not satisfy C29 for the upper level balcony for unit 1. The encroachment of 1390 mm of the unscreened balcony that faces the west front boundary and is adjacent to a public path is 35% of the minimum 4m setback required for rule compliance.
The Tribunal does not agree with Ms Lana and the respondent that C29(b) is only relevant to neighbouring blocks. The Tribunal agrees with the applicants that the upper level balcony being so close to the public path compromises the reasonable amenity of the residents of unit 1.
The definition of setback makes specific reference to decks. The decks of all four units encroach into the setback. Although for units 1 and 4 this might be considered as minor and C29 could be satisfied, the decks to units 2 and 3 extend well into the 4m setback. The deck to unit 2 is approximately 1.5m from the boundary at its closest point and the deck to unit 3 is approximately 2.5m from the boundary at its closest point. In the Tribunal’s view, for the reasons set out in relation to the upper floor balcony of unit 1, the Tribunal does not consider that C29(b) is satisfied.
The Tribunal accepts that when considering criterion the impact and design are relevant and the standard set out in the rule, although it may be useful, is not definitive.[56] However the Tribunal agrees with the applicants that the encroachment into the western front boundary for most of the units at either the upper floor or ground level is neither minor nor innocuous. The proximity of the decks and balconies to the boundary necessarily impacts on use of the open space by and amenity for future residents.
[56] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at paragraph 44(v) referring to the decision in Mason v ACT Planning & Land Authority & Ors [2009] ACAT 7
The Tribunal accepts that the encroachment of the upper floor balconies increases the bulk and scale of the development. Whilst this may not, of itself, have been relevant given that the western boundary is adjacent to a public open space, the combination of this encroachment with other features of the development is relevant to considering the ‘contribution’ that the development makes to the ‘neighbourhood and landscape character’.[57] Whilst the Tribunal accepts Mr Hatch’s assertion that the upper level balconies do provide the opportunity for surveillance of public open space[58] this is not a factor that, alone, demonstrates that the requirements of C29 are satisfied.
[57] RZ2 zone objective (e)
[58] R/C47
The balcony balustrades do not comply with R64 [discussed at paragraph 85 above]. The respondent submits that C64 is achieved because privacy can be achieved if the residents, when using the balconies, position themselves back from the balustrade and nearer to the building. The Tribunal considers this is relevant to the privacy and amenity of the balconies and is relevant to C29(b). If changes to the balustrades were made to increase the privacy and thereby the amenity of the balconies, this would exacerbate the impact on the ‘bulk and scale’ of the development in relation to C29(a).
The Tribunal finds that because of the encroachments into the front western boundary, the development does not achieve consistency with the desired character and does not provide reasonable amenity for residents. The DA does not achieve all of the requirements of C29 of the MUHDC.
(f) Fences – Rule/Criterion 41 MUHDC
The front fencing for unit 1 of the proposed development sits forward of the building line facing Gibbes Place. The front fencing to all units on the western frontage is forward of the building line facing the public open space and the path with the exception of small sections. The Tribunal considers that the building line is determined by the encroachment of the upper level balcony to unit 1 and is not the required setback of 4m. (Refer below).
R41 and C41 of the MUHDC determine the requirements as to boundary fences.
Rule and Criterion 41 provide as follows:
R41 Fences are permitted forward in the front zone or on the front boundary only where they comply with any of the following:
a) it is a gate to a maximum height of 1.8m and 1m width in an established hedge
b) exempt under the Planning and Development Act 2007
c) permitted under the Common Boundaries Act 1981.
C41 Fences may be permitted where the proposal meets the requirements contained in the Residential Boundaries Fences General Code.
R41 permits fences forward of the building line on the front boundary only where, relevantly, it is a gate to a maximum height of 1.8 metres and 1 metre width in an established hedge.[59] C41 permits fences where the proposal meets the requirements of the Residential Boundary Fences General Code (the ‘RBFG Code’).
[59] R41(a)
The applicants contend[60] that the front fencing which encloses the private open space (‘POS’) forward of the building line for unit 1 is a timber paling fence which does not comply with R41. The applicants contend that it does not satisfy C41 because R1 of the RBFG Code, which is mandatory, only permits fencing forward of the building line where the structure is a courtyard wall and that is not relevant.
[60] Exhibit A1 at 62-70
Rule 1 provides as follows:
R1 Front boundary walls or fencing are not permitted forward of the building line except as provided for in:
a) Accordance with the Residential Zone Development Code in the case of a courtyard wall;
b) A previous approval as part of an Estate Development Plan (EDP);
c) An approved fencing plan;
d) Development conditions released prior to the issue of the lease
e) Items 2.2 – 2.7 of this Code. AND
f) fences are constructed so that the front fence faces Territory land
The applicants further contend that the proposed 1.4m chain mesh fence that runs parallel to and inside the western front boundary should be considered against C8 of the RBFG Code, and not C4 as stated by the respondent’s approving officer at T148. Also that the established hedge which grows along the western boundary is comprised of plant material considered as woody weeds and the hedge does not go the full length of the western boundary.
Criteria 8 provides as follows:
C8 Where a residence has a frontage to open space or is a battle-axe block, a fence forward of the building line can be considered subject to the fence being:
a) Constructed of visually harmonious materials, colours and finishes with the surrounding area
b) Transparent type
c) A maximum height of 1.8m above natural ground level
d) Visually mitigated with planting grown as a hedge that is located wholly within the property boundary when grown
The respondent relies on the evidence of Ms Lana.[61] The respondent contends that C41 is met and agrees that C8 of the RBFB Code applies to the western chain mesh fence. The respondent asserts that the proposed ‘transparent type’, chain wire, fence is mitigated by the existing hedge on the western boundary and complies with the relevant codes.[62]
[61] Exhibit R4 at 86-88
[62] C41 MUHDC, R1(e)&(f) and C8 of the RBFGC
The respondent submits[63] that the paling fences for all units, being the fence to the south of unit 1 and west of units 2, 3 and 4 should be treated as courtyard walls. The respondent submits these can satisfy C42 provided approval of the DA by the Tribunal includes a condition that these courtyards walls are constructed with a variety of materials consistent with C42(g) of the MUHDC.
[63] Relying on the evidence of Ms Lana - Exhibit R4 at 83-85
Criteria 42 provides as follows:
C42 Courtyard walls achieve all of the following:
a) consistency with the desired character
b) visual softening though associated planting
c) reduced traffic noise, where necessary
d) reasonable privacy to lower floor level windows
e) opportunities for natural surveillance of public areas and the street
f) the articulation of elements
g) a variety of materials
h) reasonable solar access to principal private open space
The respondent and second party joined agree that the established hedge on the western boundary does not extend for the full length of the western boundary. This was pointed out to the Tribunal at the view. There is no hedge for approximately 7m south from where the western and northern boundaries meet. This ‘exposes’ an area of the proposed POS of unit 4 to the public open area and pathway to the west of the DA and proposed chain wire fence.
Conclusion re Rule/Criterion 41
The decisions of The Proprietors of UP 259[64] and Fielding[65] provide some guidance as to the categorisation of a structure as a fence or as the wall of a courtyard. Principally, courtyard walls serve a particular purpose of enclosing and “surrounding the open living space of units located on the subject land.”[66] Relevantly, the walls in Fielding were held to lack this function of surrounding outdoor living space and so were not accepted as courtyard walls.[67]
[64] The Proprietors of Units Plan 259 v Minister for Urban Services [1999] ACTAAT 33
[65] Fielding, John v Commissioner for Land and Planning [2000] ACTAAT 26
[66] Proprietors of UP 259 at [12]
[67] At [34]
Here, the proposed structures enclose the private open space of unit 1 and separate the principle private open space (‘PPOS’[68]) of each unit. The Tribunal finds that these are courtyard walls and not fences. R/C42 applies to courtyard walls.
[68] PPOS is a defined term in the Territory Plan it means private open space that is directly accessible from a habitable room other than a bedroom
If the DA is approved, then in order to satisfy C8(d) of the RBFGC (and C41 of the MUHDC) it would be necessary to include a condition that a hedge be planted along the approximately 7m on the western front boundary where there is no established hedge.
This condition would also be needed to address the current situation whereby the transparent chain wire fence proposed along the western frontage encloses the PPOS of unit 4 for the 7m where there is no hedge. It does not provide adequate screening or privacy to satisfy R61(c) or C61(e) of the MUHDC (discussed below).
(f) Courtyard walls Rule/Criterion 42
The Tribunal has found (see paragraph 126 above) that each of the units in the proposed development has a courtyard wall and, except for unit 4 (see paragraph 128 above), has an area of hedge forward of the building line which encloses private open space (POS).
The following are defined terms:
Private open space means an outdoor area within a block useable for outdoor activities, and may include balconies, terraces and decks, but does not include any area required to be provided for the parking of motor vehicles and any common driveways and common vehicle manoeuvring areas. Up to 25 per cent of any part of private open space may be roofed over, except that a balcony may be entirely roofed over.
Building line means a line drawn parallel to any front boundary along the front face of the building or through the point on a building closest to the front boundary. Where a terrace, landing, porch, balcony or verandah is more than 1.5 metres above the adjoining finished ground level or is covered by a roof, it shall be deemed to be part of the building.
R42 and C42 of the MUHDC determine the requirements of courtyard walls.
R42 Courtyard walls are permitted forward of the building line where they comply with all [emphasis added] of the following:
a) maximum height of 1.8m above datum ground level
b) a minimum setback to the front boundary complying with the following:i) where the wall encloses the principal private open space of a ground floor dwellings [sic] that is located to the west, north-west, north, north-east or east of the dwelling – 0.7m
ii) in all other cases - half the front boundary setback nominated elsewhere in this codec) trees and/or shrubs between the wall and the front boundary, in accordance with an approved landscape plan
d) a variety of materials or indentations not less than 15m apart where the indents are not less than 1m in depth and 4m in length
e) constructed of brick, block or stonework, any of which may be combined with timber or metal panels that include openings not less than 25% of the surface area of the panelf) maintain clear sightlines between vehicles on driveways and pedestrians on public paths in accordance with A2890.1- The Australian Standard for Off-Street Parking.
C42 permits courtyard walls, without specifying location, if:
Courtyard walls achieve all [emphasis added] of the following:
a) consistency with the desired character
b) visual softening though [sic] associated planting
c) reduced traffic noise, where necessary
d) reasonable privacy to lower floor level windows
e) opportunities for natural surveillance of public areas and the street
f) the articulation of elements
g) a variety of materials
h) reasonable solar access to principal private open space
The assessing officer[69] considered that R42 was not relevant to the DA and that the DA was “not inconsistent” with R61 and C61.[70] The applicants agree[71] that if the DA is approved, then it should include the additional condition, proposed by the respondent, that the DA comply with C42(g). However the applicants say that the Tribunal will need to clarify whether this condition should apply only to the courtyard wall of unit 1 or to all of the ‘courtyard walls’ on the western side of the DA.
[69] at T148
[70] at T150
[71] Exhibit A2 at 49
The Tribunal is satisfied that the walls to both of the courtyards of unit 1 and the walls that separate the units on the west of the building are courtyard walls that will need to meet R42 or satisfy C42.
(g) Principal private open space – Rule/Criterion 61
R/C 61 deal with the requirements of PPOS. PPOS is also relevant to consideration of R/C 42. Mr Hatch, on behalf of the DA proponent (second party joined), gave evidence that the area of PPOS for each unit was identified in Exhibit PJ2C, a document filed during the hearing. Mr Hatch advised that PPOS for each unit is depicted in green and the dimension referred to in R61 (b) (and Table A9[72]) by a 6 metre square. Only units 1 and 4 have these squares. The square to unit 1 is located south of the unit and the square to unit 4 is located north of the unit.
[72] R61(b) refers to Table A9 which sets out the PPOS area and dimension requirements for a four bedroom dwelling partially at lower floor level, in RZ2 - minimum area 45m2 and dimension 6m
Rule and Criteria 61 provide as follows:
R61 Each dwelling has at least one area of principal private open space that complies with all of the following:
a) located on the site
b) has minimum area and dimensions specified in table A9
c) is screened from adjoining public streets and public open space
d) is directly accessible from, and adjacent to, a habitable room other than a bedroom
e) is not located to the south, south-east or south-west of the dwelling, unless it achieves one or more of the following -
i) not less than 3 hours of direct sunlight onto 50% of the minimum required area between the hours of 9am and 3pm on the winter solstice (21 June)
ii) located at an upper floor level and overlooks a public street or public open space.
C61 Principal private open space for each dwelling achieves all [emphasis added] of the following:
a) an area proportionate to the size of the dwelling
b) an extension of the function of the dwelling for relaxation, dining, entertainment, recreation
c) directly accessible from the dwelling
d) service functions such as clothes drying and mechanical services
e) reasonable privacy
f) reasonable solar access.
The applicants contend[73] that the residential amenity of units 1 and 2 in particular is severely compromised as their private open space is forced so close to the public walkway and that this is relevant to C61. The applicants contend[74] that Ms Lana in her statement, and therefore the respondent, does not address all of the matters relevant to C61. Specifically whether the PPOS provided for each unit is proportionate to the size of the dwellings; and that it affords reasonable privacy.
[73] Exhibit A1 at 48
[74] Exhibit A2 at 58-59
The respondent adopts the evidence of Ms Sheikh Lana.[75] Ms Lana concludes that the DA does not comply with R61 but it does satisfy C61.
[75] Exhibit R4 at 61-66
Ms Lana uses the terms ‘private open space’ and ‘principal private open space’ when assessing R61 and C61.[76] Both are defined terms. PPOS is a sub-set of POS. The definition of PPOS and R61(d) requires direct access to the PPOS from a habitable room other than a bedroom. C61(c) does not refer to ‘habitable room’ or exclude ‘bedroom’ as an access point.
[76] Exhibit R4 at 61-66
Ms Lana considers that the ground level space combined with the upper level balconies and the proximity to the public open space are adequate to ensure consistency with the C61, notwithstanding that units 2 and 3 have minor encroachments into the minimum 6x6 m dimension set out in Table A9.
Mr Hatch (on behalf of the second party joined) and the respondent further contend that units 1, 2, & 3 have additional private open space to the eastern side and that these spaces can be added to meet the area requirements of C61 if necessary.
Conclusion re PPOS – Rule/Criterion 61
It is necessary to consider C61 in order to identify which POS is considered compliant PPOS.
The Tribunal finds that the PPOS for unit 1 as depicted on Exhibit PJ2C does not provide reasonable solar access. The shadow diagrams at T238 depict shade at 9am, 12pm and 3pm on 22nd June. The area to the east of unit 1 which is approximately 4.5m wide is predominantly in shade at 9am and is totally shaded at 12 and 3pm. The area to the south of the unit 1 is predominantly in shade at 9am and is nearly totally shaded at 12. There is direct sunlight on more than 50% of the area at 3pm. The area to the west of the unit 1 is totally shaded at 9am, is more than 50% in shade at 12 and is not shaded at 3pm. This area has a minimum dimension of approximately 3m.
Where a rule is not mandatory the DA proponent can provide supporting evidence and documents to demonstrate that the proposed development satisfies the applicable criterion. When terms such as ‘proportionate’ and ‘reasonable’ are used in criterion, it is relevant and useful to consider the ‘minimum ideal’ set out in the applicable rule. Whilst clearly ‘something less’ than the rule requirements may be approved, the degree of divergence from the rule requirement is a matter that will help guide the Tribunal in its consideration of the evidence provided in support of satisfying criterion. All of the requirements of C61 must be satisfied.
The Tribunal finds that the evidence does not support the conclusion that all of the requirements of C61 are satisfied for unit 1. The Tribunal has considered the dimension and area of the PPOS proposed for unit 1 (as set out in Exhibit PJ2C) comparing the area and dimensions set out in Table A9; and the solar access to those area/s as demonstrated in Exhibit T238 and as compared with the requirements in R61(e)(i). The Tribunal is not satisfied that the PPOS proposed for unit 1 is an area proportionate to the size of the dwelling.[77] Taking into account that the minimum dimension of the PPOS for unit 1 that has reasonable solar access is half of that which would be required to meet R61(e)(i), the Tribunal is not satisfied that it has reasonable solar access.[78] The Tribunal considers that the DA fails to achieve C61(a) and C61(f) for the PPOS for unit 1 and therefore does not provide an effective extension of the function of the dwelling for relaxation, dining, entertainment and recreation.[79]
[77] C61(a)
[78] C61(f)
[79] C61(b)
The Tribunal finds that the PPOS for unit 2 as depicted on Exhibit PJ2C does not provide reasonable solar access to the eastern area. The area to the east of unit 2 which is approximately 4.5 m wide is predominantly in shade at 9am and is totally shaded at 12 and 3pm. The area to the west of the unit 2 is totally in shade at 9am and is partially shaded at 12. There is direct sunlight on most of the area at 3pm. This area has a minimum dimension of approximately 3.3m from the corner window of the kitchen, which is shown as being located on the 4m setback dashed red line, to the proposed wire fence inside the line of the existing hedge. The area of PPOS to the west is stated to be 44.3m2. The unit is designed to accommodate at least five people. The minimum dimension of the PPOS for unit 2 is 55% of that which would be required to comply with R61. The Tribunal is not satisfied based on the evidence that the PPOS for unit 2 is an area proportionate to the size of the dwelling;[80] or that, given its dimensions and the probable number of residents, it can provide an effective extension of the function of the dwelling for relaxation, dining, entertainment, recreation.[81]
[80] C61(a)
[81] C61(b)
The Tribunal finds that the PPOS for units 3 and 4 as depicted in Exhibit PJ2C do not provide reasonable privacy (C61(e)). There is no established hedge along the western boundary between the public open and the PPOS of unit 4 (from the northwest corner of the site) for 7m being approximately 50% of the PPOS. Although this deficiency could be addressed by a condition to plant a hedge, in addition, the western deck to unit 3 has a floor level that is 800 mm above the finished ground level where it is adjacent to the courtyard wall that divides the PPOS of unit 3 from the PPOS of unit 4. The deck extends beyond the building line. Forward of the building line the courtyard wall must not to be higher than 1.8m.[82] The courtyard wall height, from the deck, will therefore be 1m. A person standing on the deck of unit 3 would be able to look over a courtyard wall into the PPOS of unit 4. The deck to unit 4 is 600 m above finished ground level. The elevated height of both decks means that the, approximate, 1.8m high hedge along the western front boundary will only have an effective height of 1 – 1.2 m above these decks. In the Tribunal’s view this does not provide reasonable privacy from the adjacent public pathway. Based on the available evidence the Tribunal is not satisfied that the DA achieves reasonable privacy for PPOS for unit 3 and unit 4 (C61(e)).
Conclusion re Courtyard wall – Rule/Criterion 42
[82] R42 (a)
The requirement of R61 and C61 for privacy of PPOS is supported by the requirements in relation to the construction of and materials to be used in courtyard walls. If the Tribunal approves the DA, then the approval would need to include the additional condition proposed, and agreed to by the applicants, in relation to courtyard wall for unit 1 and R/C42.
R42/C42 also applies to the proposed courtyard walls that enclose POS[83] and separate the units on the western side of the building. R42(e) requires courtyard walls to be “constructed in brick, block or stonework.” The dominant material in a courtyard wall is masonry, not timber or metalwork. If metal or timber is combined with masonry then these elements must be in panels surrounded by masonry to at least three sides. If the DA is approved, then the further condition proposed by the respondent in relation to R42(e)/C42(g) also need to address the courtyard walls between each of the units on the west of the building.
(h)Internal driveways - Rule/Criterion 73 MUHDC and the Parking &Vehicular Access General Code
[83] POS is a more general term than PPOS. PPOS is restricted to POS directly accessible from a habitable room other than a bedroom. R/C61 deals with PPOS. R/C42 refers to, but is not only concerned with PPOS
R/C73 of the MUHDC deals with the requirements of internal driveways. R73 sets conditions for internal driveways that are used by residents of more than one dwelling. The Parking and Vehicular Access General Code (the PVAG Code) also applies. The PVAG Code clause 2.3.1 (a) states that the layout of the car park should meet the requirements of AS 2891.1.
R73 This rule applies to internal driveways that are used by residents of more than one dwelling. Internal driveways comply with all of the following:
a) are set back from external block boundaries by not less than 1m
b) are set back from the external walls of buildings on the site by not less than 1m
c) the setbacks referred to in items a) and b) are planted to a width of not less than 1m
d) windows to habitable rooms and exterior doors within 1.5 of an internal driveway have at least one of the following -i) an intervening fence or wall not less than 1.5m high
ii) for windows, a sill height not less than 1.5m above the drivewaye) the relevant requirements in Australian Standard AS2890.1 - Off Street Parking for sightlines and gradients
f) provide internal radius of at least 4m at changes in direction and intersectionsg) have a surface treatment that is distinct from car parking spaces.
C73 Internal driveways achieve all of the following:
a) sufficient space for planting along property boundaries
b) sufficient space for planting between internal driveways and buildings
c) reasonable residential amenity, particularly in relation to the intrusion of light and noise into habitable rooms
d) clear differentiation between the driveway and parking spaces.
The applicants contend that R73 (a) and (c) are not met at the eastern boundary as the area of driveway abutting the eastern boundary is set back less than 1m for at least 60% of its length.[84] They contend that the existing 3.5m high planting along this boundary on the subject site provides privacy to the neighbour on the adjoining block to the east. If the 1 m set back was provided the existing planting could be retained as compared with the proposed planting which will provides ‘scant’ screening for the residents of the neighbouring property on the east.
[84] Exhibit A1 at [71]-[78]
The applicants assert that as a result of the failure to meet the set back requirements of R73(a) and therefore the need to remove the existing planting and because of the nature and location of the proposed planting, C73 is not satisfied, in particular C73(a) and (c).
The applicants assert that the respondent has not adequately considered issues about vehicle movement and the requirements of the PVAGC. The applicants assert that the information provided by the DA proponent is not sufficient, given the issues raised by the applicants in relation to setback and planting, to support a conclusion that the MUHDC or PVAG Code are satisfied.
The respondent contends that C73 is satisfied and adopts the evidence of Ms Lana.[85] Ms Lana considered that the proposal meets C73. She contends that the width of the driveway is adequate and safe and there is planting at the front and at some intervals along the eastern boundary and that other boundaries of the block will have substantial planting. She gave evidence that the side setback of 6.3m was adequate for the driveway and planting along the property boundary on the east.
[85] Exhibit R4 at [89]-[93]
Mr Hatch for the second party joined (and DA proponent) relied on the ‘Vehicle Turning Plan’[86] prepared by Kova Engineering and Design Pty Ltd (the second party joined’s consultant engineer) which depicts a car entering and exiting the northern most garage space on the site and the visitor parking space inside the front zone. The drawing is based on a vehicle size - B99 - which Mr Hatch said reflects the manoeuvring capacity and dimension of 99% of all cars.[87]
[86] T221
[87] This evidence is confirmed by the description of B99 vehicle in Exhibit R9, Annexure C being AS2890.1, appendix A, at A4 on page 53
The consultant’s drawing shows that a ‘B99’ vehicle exiting the garage space needs to manoeuvre up to the boundary when reversing. This manoeuvre was shown for only one garage space but the Tribunal assumes that this depicts what would happen for all eight parking spaces in the four double garages.
On the fourth day of the hearing Mr Hatch tendered a written statement by Mr Luka Kovacevic of Kova Engineering and Design Pty Ltd dated 10 May 2016.[88] Annexed to the statement were revised Vehicle Turning Plans.[89]
[88] Exhibit R9
[89] Exhibit R9 Annexure D
The respondent’s counsel informed the Tribunal that Mr Kovacevic was not able to attend the hearing or give telephone evidence, consequently he was not available to give evidence or answer questions which may have been put to him by the applicants or the Tribunal. Mr Kovacevic holds a Bachelor of Engineering Technology (Civil) and Diploma level qualifications in engineering, design and drafting.
In his statement Mr Kovacevic explains why in his revised drawings he has used a B85, rather than B99, vehicle to demonstrate parking manoeuvres to enter and exit the garage spaces.[90] He notes that a B99 vehicle is 5.2 m long while a B85 is 4.91 m. He relies on notes B2.2 and B2.3 of AS2890.1, Appendix B and says that, as the traffic volumes would be relatively low at the development, use of a B85 vehicle is permitted.[91]
[90] Exhibit R9 at [19]-[21] and annexure D
[91] Exhibit R9 Annexure B at page 57
By reference to T236 and Fig 2.2 in AS2890.1 (Exhibit R9 Annexure A) Mr Kovacevic in his 10 May 2016 statement, as compared with T221 (dated 2 April 2015), adopts an aisle width of 5.8m for the driveway. His revised drawings (Exhibit R9 Annexure D) show that a B85 vehicle could manoeuvre within a distance of 0.5 m from the side boundary in and out of both spaces within each garage. Mr Kovacevic refers to note B4.8 of AS2890.1 which explains why there is a concession where space is limited to tolerate a reduction in aisle width from 6.2 m to 5.8 m. A narrower aisle may result in vehicles larger than B85 needing to make a 3-point turn and some a 5-point turn.
The Tribunal notes that other than for unit 1 each exiting manoeuvre for a B85 vehicle depicted (in Exhibit R9 Annexure D) showed that reversing out of the garage required a three point turn. The manoeuvre for unit 1 showed that a four or five point turn was required.
Conclusion re driveway - Rule/Criterion 73
The Tribunal finds that the requirements of C73(a) are not met for most of the driveway. The 0.5m setback from the eastern boundary is 50% of the set back stated in the R73(a) and is not sufficient space to allow adequate planting along the east boundary adjacent to the driveway. Mr Kovacevic’s revised drawing[92] has two plans but does not depict manoeuvrability relating to all eight garage spaces. The plan on the left side depicts two cars each of which is accommodated on the northern side of the garages to units 2 and 4. The plan on the right side depicts two cars one each accommodated on the southern side of the garages to units 1 and 3. The driveway is not 5.8 m wide for its full length as there is landscaping [93] at intervals on both sides of the driveway in front of the entries to units 1, 2 and 3. This landscaping extends approximately 1m out from the eastern side boundary and 1.8m from the courtyard walls on the western side of the driveway. The manoeuvrability of the four cars depicted, out of the total of eight available spaces, does not appear to be affected by the proposed landscaping. However, if the manoeuvrability of the car depicted for unit 3 is overlaid at units 2 and 4 then, in the view of the Tribunal, they would conflict with the proposed landscaping both entering and exiting the garage spaces. The manoeuvrability of the car depicted for unit 1, including the 4 or 5-point turn, conflicts with the landscaping on the western side when exiting the garage.
[92] Exhibit R9 Annexure D
[93] The landscaping plans prepared by the second party joined’s landscaper Cia Landscapes + Colour Exhibit PJ2A, which Mr Hatch advised at the hearing replaces T427
The units in the development are designed to accommodate at least five residents. It is likely that the garages for these four bedroom units may need to accommodate family vehicles. AS 2890.1 sets out at clause A3[94] that a B85 vehicle does not include the turning circle for a Ford Falcon. Note B2.2 of Appendix B to AS2890.1 states that the B99 vehicle should be used to demonstrate movement for access driveways “unless there are special circumstances of severe space limitation coupled with relatively low traffic volume.”[95]
[94] Exhibit R9 Annexure B at page 53
[95] Exhibit R9 Annexure B at page 57
There was no evidence provided about space limitation and Mr Kovacevic only refers to traffic volume.[96] The Tribunal considers that any space limitation is created by the size of the subject development. The normal requirement is to use a B99 car. Mr Kovacevic explained[97] that when he drew T221 his:
… use of B99 was a mistake and not necessary for the development. B99 is used for areas where there is high turnover of traffic flow / parking such as shopping centres.
[96] Exhibit R9 at paragraph 20
[97] Exhibit R9 at paragraph 19
The Tribunal considers that this statement does not adequately explain why he used a B85 vehicle in his later manoeuvrability drawings nor does it reflect the requirement that a B99 vehicle should normally be used.
In the ‘Note’ about the class of parking space (here Class 1A)[98] it states that:
… many drivers may have difficulty driving into and out of such spaces, especially those with vehicles larger than the B85 vehicle.
[98] Exhibit R9 Annexure B, Note 1 for Table 1.1 which designates the 1A user class which is then used in Table 2.2 to describe the required length of parking space and associated aisles – in this case the driveway
It seems that Mr Kovacevic was not aware of the requirement for landscaping along the east and for the planned landscaping on the west side of the driveway when he prepared the drawings demonstrating movement of vehicles. Mr Kovacevic makes no reference to this in his conclusion.[99] He says that after allowing for 0.1m for the width of the eastern boundary fence, the width of the driveway would be 6.1m which is more that the 5.8m required by AS 2890.1.[100]
[99] Exhibit 9 at [17]
[100] Exhibit R9 [10]
The Tribunal considers that it would be more appropriate to demonstrate the manoeuvring of a B99 vehicle for this development. The Tribunal is not satisfied on the evidence provided that the requirements of AS2890.1 are met. The drawings provided by the Mr Kovacevic suggest that even a B85 vehicle would need to undertake a 3-point turn to enter and or exit most (if not all) of the garage spaces. A larger vehicle, if it could be accommodated, would presumably require more turns.
The additional manoeuvring of a larger vehicle would impact on the amenity of the residents of the development in using the driveway and garages. The added time and manoeuvring requirement for entry into and out of the garages by larger vehicles may also, as suggested by the applicants, impact on the neighbours to the east, particularly when combined with the limited facility for planting on the eastern boundary.
The Tribunal is not satisfied that there is sufficient space for planting along the eastern boundary. The area for planting is limited to less than half of the width required by R73(b) for much of its length and the nature of the planting is necessarily restricted to accommodate the reduced aisle width and need for considerable manoeuvring of vehicles to enter and exit the garages.
Whilst the Tribunal does not consider that, if the development were approved, it would be appropriate to require the DA proponent to retain the existing hedge on the eastern boundary, the Tribunal considers that it is necessary for there to be sufficient space for adequate planting along the driveway adjacent to the eastern boundary for much of its length.
Based on the available evidence the Tribunal finds that C73, and specifically C73(a) and C73(c) are not satisfied.
(i) Visitor car parking - Rule/Criterion 82 MUHDC and PVAG Code
The DA provides for 2 parking spaces per unit and 1 visitor car space. This complies with the requirement of the PVAG Code.[101] R82 and C82 of the MUHDC set out the requirements of visitor parking space.
[101] Paragraph 3.1.5 – Schedule 1 of the PVAG Code
Rule and Criteria 82 provide the following:
R82 Visitor car-parking spaces on the site comply with all of the following:
a) located behind the front zone (except for apartment car parking)
b) do not encroach any property boundaries
c) are separated by not less than 1.5m from windows and doors to habitable rooms of dwellings
d) are not more than 50m walking distance from any common building entry
e) clearly identified and visible from driveways.
C82 Visitor parking achieves all of the following:
a) accessible for all visitors
b) safe and direct visitor entry to common building entries.
The applicants contend that because of site specific factors an additional visitor parking space should be provided to conform to the performance requirements of the PVAG Code.[102] The development is to be built near a walkway and on a street corner. A further multi-unit development for three dwellings has been approved on the site opposite the subject site in Gibbes Place.[103] That development has no on-site visitor parking and this will further contribute to on-street parking issues for the subject site.
[102] Exhibit A1 at 79-84
[103] Exhibit A2 at 56-57
The respondent contends that C82 is met and adopts the evidence of Ms Lana.[104] Ms Lana states that the visitor parking space does not comply with R82(a) as it is located in the front zone but considers that the proposal meets C82. Ms Lana considers that the space is accessible and safe, and that it allows direct visitor entry to common building entries.
[104] Exhibit R4 at 94-96
Mr Hatch for the second party joined contends that C82 is satisfied. He relies on Exhibit PJ2C which shows the visitor parking space located half-way into the front zone, and approximately 3.5m from unit 1 and the wall to the eastern entry courtyard of unit 1.
Conclusion – Rule/Criterion 82 visitor parking
The Tribunal finds that the visitor car space meets the requirements of the PVAG Code and that no additional on-site visitor parking space is required.
The Tribunal finds that R82 is not met as the visitor parking space is partially located into the front zone.[105] The space is accessible to all visitors. Each unit has its own entry, and so there is no common building entry. The Tribunal finds that C82(a) is satisfied and C82(b) does not apply.
[105] R82(a)
During the hearing the respondent informed the Tribunal that Australia Post has requested that the mailbox structure be moved further forward towards the street.
By way of comment the Tribunal notes that there is enough space to relocate the visitor parking a further 2m approximately into the site so that it is 1.5m from unit 1 and would then comply with R82 (c), although the courtyard wall would restrict sightlines. If the visitor parking space were repositioned, this would facilitate the relocation of the mailbox structure.
There is no common building entry. The only path for visitors to access the front entry to each unit is along the driveway. The visitor space is approximately 50 m from the front door of unit 4, and then progressively less for units 3, 2 and 1.
At the hearing Mr Hatch, on behalf of the second party joined, suggested that an alternative to accessing units from the driveway would be for visitors to enter the units via the public path on the western boundary where it is proposed to put gates to each unit into the existing hedge. The Tribunal does not consider that this would be a suitable, or convenient, alternative.
The Tribunal finds that the current location and provision of one on-site visitor parking space satisfies C82 and meets the requirements of the PVAG Code. If the visitor car space were to be relocated as suggested by the Tribunal in paragraph 175 above and notwithstanding the ‘sightline’ issue, the Tribunal considers the visitor car space would nonetheless satisfy C82.
Section 119 – not code compliant
The Tribunal has concluded that the development proposal does not satisfy criteria 29, 38, 42, 61 and 73 of the MUHDC. The parties have agreed and the Tribunal accepts that a condition requiring that materials be used that comply with the requirements of R42(e) or C42(g) in the construction of the courtyard walls could overcome the DA deficiency in relation to the courtyard walls.
The Tribunal has considered the option of making a decision pursuant to section 68 of the ACAT Act to vary the reviewable decision to include additional conditions that might address other deficits in the DA which have been identified by the Tribunal in relation to C29, C38, C61 and C73. However the Tribunal considers that it either does not have sufficient information to formulate conditions to address the deficiencies identified or that to impose conditions that amend the DA would, or could, impact on other features of the DA and perhaps other aspects of code compliance.
By way of comment, had the Tribunal decided that C29, C38, C61 and C73 were satisfied, and subject to the need for further information in relation to the R/C64,[106] the Tribunal would have been satisfied that the DA was otherwise code compliant, subject to the conditions in the reviewable decision and the additional/amended conditions that:
(a)the fencing condition in the reviewable decision (Condition C6) be amended as proposed by the respondent (Exhibit R2 paragraph 10(a) under the heading ‘Orders Sought’);
(b)a hedge be planted for the 7m along the western front boundary where there is currently no established hedge; and
(c)the approval include a condition in relation to R42(e) and C42(g) for the courtyard walls to all units as proposed by the respondent (Exhibit R2 paragraph 10(b) under the heading ‘Orders Sought’).
[106] R/C64 re balustrades is discussed at paragraphs 75-76 and 85 above
The Tribunal has concluded that the DA is not consistent with the applicable codes. Section 119 operates so that the Tribunal must therefore set aside the approval of the DA.
Conclusion
Pursuant to section 68 of the ACAT Act the reviewable decision to approve the DA with conditions is set aside. The Tribunal substitutes its decision that the DA is not approved.
………………………………..
Senior Member W Corby
for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | AT 2 of 2016 |
PARTIES, APPLICANT: | Louise Maurer Jeff Ellis |
PARTIES, RESPONDENT: | ACT Planning and Land Authority |
FIRST PARTY JOINED: | Susan Spearitt |
SECOND PARTY JOINED: | Stewart Architecture Pty Ltd |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | Robert Clynes |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Senior Member W Corby Senior Member G Trickett |
DATES OF HEARING: | 20,21,22 April and 17 May 2016 |
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