McAndrew and Anor v ACT Planning and Land Authority and Anor; Owen and Anor v ACT Planning and Land Authority and Anor (Administrative Review)
[2019] ACAT 102
•21 November 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MCANDREW & ANOR v ACT PLANNING AND LAND AUTHORITY & ANOR; OWEN & ANOR v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2019] ACAT 102
AT 8/2019
AT 9/2019
Catchwords: ADMINISTRATIVE REVIEW – planning and development – whether there are encroachments into the solar building envelope and overshadowing by the proposed development – whether the buildings achieve consistency with the desired character in the zone objectives – whether reasonable solar access to dwellings on adjoining blocks - whether the development achieves a minimum front street setback of six metres, and that no building or design elements are to be located within the setback – concerns about the number of storeys – whether the internal driveway is set back from external block boundaries by not less than one metre – developer providing incomplete or wrong information to the Authority in the development application
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 68
Planning and Development Act 2007 ss 119-122, 144, 156, 162, 407, 408A
Territory Plan
Subordinate
Legislation: Inner North Precinct Code
Multi Unit Housing Development Code
Parking and Vehicular Access General Code
Cases cited: Deakin Residents Association Inc v ACT Planning and Land Authority [2015] ACAT 37
Hamilton v ACT Planning and Land Authority [2018] ACAT 121
Javelin Projects v ACT Planning and Land Authority [2017] 87
North Canberra Community Council v ACT Planning and Land Authority [2019] ACAT 87
Texts/papers cited: Pearce, DC and RS Geddes, Statutory Interpretation in Australia (8th ed, 2014)
Tribunal: Senior Member R Orr QC (Presiding)
Senior Member G Trickett
Date of Orders: 21 November 2019
Date of Reasons for Decision: 21 November 2019AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 8/2019
BETWEEN:
ROY MCANDREW
First Applicant
LORRAINE TOMLINS
Second Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND
STRATAGEM CAPITAL GROUP PTY LTD
Party Joined
AT 9/2019
BETWEEN:
ANTHONY CARTER OWEN
First Applicant
WAI CHENG OWEN
Second Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND
STRATAGEM CAPITAL GROUP PTY LTD
Party Joined
TRIBUNAL: Senior Member R Orr QC (Presiding)
Senior Member G Trickett
DATE: 21 November 2019
The Tribunal orders that:
1. The decision of the respondent on 7 January 2019 in relation to DA no. 201833361 to approve the development subject to conditions is varied as follows.
(a) Part A, point 1, paragraph (a)(iii) is deleted and replaced by the following: “(iii) The replacement of the courtyard walls and concrete elements within the 6 metres setback from the front boundary with landscaped hedges;” .
(b) The addition in Part A, point 1, paragraph (a) of the following subparagraphs:
“(iv) The stairs facing the front of the block for Townhouses 1 and 2 are redesigned to be beyond the 6 metres setback;
(v) The northernmost car park beneath Townhouse 3 be converted into a storage space;
(vi) The basement southern external wall beneath Townhouse 2 moved 0.8 metres to the north;
(vii) The annotations showing the width of the driveway along the southern boundary be corrected to show a driveway minimum width of 3.6 metres for the whole of the length of the driveway;
(viii) The contour lines at the bottom of the driveway ramp be corrected to ensure that a hard edge is not created.”
…………………………………..
Senior Member R Orr QC
For and on behalf of the Tribunal
REASONS FOR DECISION
1. Roy McAndrew (Mr McAndrew) and Lorraine Tomlins (Ms Tomlins) in proceedings AT 8 of 2019 and Anthony Owen (Mr Owen) and Wai Cheng Owen (Ms Owen) in proceedings AT 9 of 2019 (applicants) have sought review of a decision of a delegate of the ACT Planning and Land Authority (Authority or respondent) made on 7 January 2019 under section 162 of the Planning and Development Act 2007 (Planning Act) to approve subject to conditions (decision) a development application (DA no. 201833361) (development application) made by Stratagem Capital Group Pty Ltd (Stratagem or party joined) for a construction at 19 Forbes Street, Turner, which is Block 4 Section 46 Turner (subject site).
2. The subject site is about 973 square metres. It fronts Forbes Street on the east where it is widest and narrows running to the west. It is nearly level, rising by about 40 centimetres from the middle of the southern edge to the north-east corner. The land is zoned RZ4 – Medium Density Residential Zone (RZ4). The approved development application is for construction of one two storey dwelling (with five bedrooms) and two three storey dwellings (each with three bedrooms), basement car parking, landscaping and associated works (proposed development). The original development application was for two two storey dwellings and two three storey dwellings.
The main objections of the applicants and summary of the Tribunal’s decision
3. The primary ground of review concerned the encroachments into the solar building envelope and overshadowing of the neighbouring southern property owned by Mr McAndrew and Ms Tomlins by the proposed development. This is regulated by R25 and C25, and R26 and C26 of the Multi Unit Housing Development Code (MUHDC) of the Territory Plan. R25 and R26 provide specific rules for this, and much of the hearing concerned the application of these rules to the development application. The applicants argued that the party joined provided wrong or incomplete information about compliance with these rules, and therefore the assessment of the extent of the encroachment was understated as was the impact on the neighbouring property and the future potential of the adjoining site.
4. The party joined and respondent admitted that the rules were not complied with, but argued that the criteria, C25 and C26, were complied with. The applicants argued in effect that the terms of the rules were relevant to interpreting the criteria, with which the Tribunal agrees, and that failure to comply with the rules was relevant to whether the criteria were complied with, though the Tribunal is not convinced of this.
5. The criteria focus on whether the buildings achieve consistency with the desired character (25(a) and C26(a)). The Tribunal thinks that they do, including because they will provide for medium rise and predominantly medium density housing. The criteria also focus on whether the buildings achieve reasonable solar access to dwellings on adjoining residential blocks and their associated private open space (C26(b)). It is true as the applicants argued that the encroachment will be significantly greater than that allowed by R25 and R26. But the criteria requirement is for reasonable solar access, not the same access as now or what the rules provide. Only about 7.5% of private open space on the adjoining block will be affected at noon on the winter solstice, and only one window in one bedroom used as a study. On balance the Tribunal thinks this is still reasonable solar access. The criteria also require reasonable levels of privacy for dwellings on adjoining residential blocks and their associated private open space (C25(b) and C26(c)). The Tribunal thinks that they do. Therefore the Tribunal does not think that the proposed development can be rejected on the basis of failure to comply with C25 or C26, or that further conditions are needed to address this issue.
6. A second issue concerned compliance with the requirement in R6 and R7 of the Inner North Precinct Code (INPC) of the Territory Plan for a minimum front street setback of six metres, and that no building or design elements are to be located within the setback. The Tribunal is of the view that the development application does not comply with these requirements. The party joined provided a draft proposed condition which would ensure compliance with these requirements and the Tribunal will make orders applying this condition.
7. A third issue concerned the number of storeys and the requirement of R21 of the MUHDC which limits development to three storeys. The Tribunal is of the view that the development complies with this rule as the basement is not considered a storey. A fourth ground of review concerned the requirement in R73 of the MUHDC that the internal driveway be set back from external block boundaries by not less than one metre. It was said that the plans submitted show that the setback is zero. The party joined provided plans showing a one metre setback from the southern boundary and also proposed draft conditions to move the basement southern external wall beneath Townhouse 2 0.8 metres to the north, and correctly dimension the width of the driveway along the southern boundary with a minimum width of 3.6 metres for the whole of the length of the driveway. The Tribunal will make orders applying these conditions.
8. A fifth issue concerned compliance with the requirement in C20 of the INPC in effect limiting the number of carpark spaces to a maximum of two for each dwelling. The party joined provided a draft proposed condition which would ensure compliance with this requirement and the Tribunal will make orders applying this condition.
Background
9. A development application for the subject site was lodged by the party joined on about 14 February 2018. The proposal was for the “construction of four units, basement car park, landscaping works and demolition of encroaching driveway”.
10. The proposal was considered in the merit track under sections 119-122 of the Planning Act and generally no issue about this process was raised before the Tribunal, except the issue as to the correctness of the advertised plans discussed at paragraphs [34]-[35]). When the proposal was advertised, the Authority received a range of comments, including from the applicants.
11. In response, the party joined lodged amended plans and documentation under section 144 of the Planning Act on about 27 August 2018. The amendments sought to address a site coverage issue, and provided for one unit to be removed and the driveway realigned to ensure that the site coverage did not exceed 30%. These changes meant that visitor parking was no longer required. The amendment also sought to address the privacy concerns of adjoining blocks by providing that many windows, especially those facing south, be “obscured through design elements and louvres to prevent overlooking”. In response to building coverage and overshadowing issues, the envelope encroachment was said to be reduced and shadow diagrams were provided which it was said demonstrated that the encroachment does not significantly impact on solar access on the neighbouring block. Whether this was the case was a major issue in the proceedings. This amended proposal was published and the applicants made further comments. The party joined provided further information on about 27 November 2018.
12. The Authority approved the amended proposal, subject to conditions on 7 January 2019. It did so under section 162 of the Planning Act which provides in part:
162 Deciding development applications
(1) The planning and land authority … must—
(a) approve a development application; or
(b) approve a development application subject to a condition; or
(c) refuse a development application.
The relevant terms of the decision are discussed below.
13. A decision under section 162 to approve a development application in the merit track is reviewable by the tribunal under sections 407, 408A and Schedule 1, item 4 of the Planning Act. The applicants are each an eligible entity who can apply for review of the decision; no challenge was made to their ability to do so. Under section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) the Tribunal may exercise any relevant function given by an Act to the Authority, and must confirm the decision, or vary the decision, or set aside the decision and make a substitute decision, or remit the matter for reconsideration.
Challenge
14. By applications dated 6 February 2019 the applicants sought review of the decision (Applications).
15. This matter was heard on 30 April and 1 and 2 May 2019. The applicants represented themselves and provided a statement of facts and contention (exhibit A1) and a range of documents (exhibits A2 and A3). Mr McAndrew, Ms Tomlins, Mr Owen and Ms Owen gave oral evidence.
16. The T-documents in relation to the decision were provided by the respondent (exhibit T1). The respondent was represented by Ms Musgrove instructed by the ACT Government Solicitor. The respondent provided a statement by Hayden Pini (Mr Pini) (exhibit R1). Mr Pini was put forward as an expert, which the Tribunal accepts, but it is noted that he is a development assessment officer with the ACT Government, although he did not assess the development application the subject of these proceedings. The respondent also provided a number of documents (exhibit R2). Mr Pini gave oral evidence. The respondent provided written submissions.
17. The party joined was represented by Mr Buckland instructed by Mills Oakley. The party joined provided a statement by Richard Nash (Mr Nash) (exhibit PJ2). Mr Nash was put forward as an expert, which the Tribunal accepts, but it is noted that he was retained by the party joined in relation to the development application. The party joined also provided a range of other material (exhibits PJ3, PJ5-PJ8). Mr Nash gave oral evidence. The party joined provided written submissions.
18. The parties and the Tribunal had a view of the site, and there was a written record of what occurred during this view (exhibit PJ4).
19. The issues raised in relation to the decision are now considered in turn.
Building envelope (R25, C25, R26, C26 of MUHDC)
20. All the parties accepted that the development was subject to the MUHDC and INPC and the issues raised were regulated by these aspects of the Territory Plan.
21. The MUHDC deals with the building envelope in rules and criteria 25 and 26. Rule 25 relevantly provides that buildings are sited wholly within the building envelope formed by planes projected over the subject block at 45° to the horizontal from a height of 3.5 metres above each side and rear boundary, except as required by the next rule. It was agreed by the respondent and the party joined that the development application does not comply with this rule along the southern boundary.
22. It was argued by the respondent and party joined that criteria 25 was met and this states:
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.
23. Rule 26 relevantly provides in part as follows:
… Buildings are sited wholly within the building envelope formed by planes projected over the subject block at X° to the horizontal from the height of the ‘solar fence’ on any northern boundary of an adjoining residential block.
X° is the apparent sun angle at noon on the winter solstice. Values for X are given in Table A4.
The height of the solar fence is:…
i) in the primary building zone – 2.4m
ii) all other parts of the boundary – 1.8m
…
An example of a typical building envelope is shown at figure A1.
Table A4 provides a range of angles for varying aspects of the boundary from 31° to 39°. Figure 1 is a diagram showing a typical building envelope for R25 and R26. Primary building zone (PBZ) is defined in the Territory Plan to mean “the area between the front zone and a line projected 12m distant”. It appears that the reference to “all other parts of the boundary” is to the rear zone, a defined term (RZ) which means the area of a block behind the primary building zone and the rule would appear to include side as well as rear boundaries.
24. Again the respondent and the party joined agreed that R26 was not met, but that C26 was, and this provides:
C26 Buildings achieve all of the following:
a) consistency with the desired character
b) reasonable solar access to dwellings on adjoining residential blocks and their associated private open space
c) reasonable levels of privacy for dwellings on adjoining residential blocks and their associated private open space
d) where an adjoining block is not yet developed, the potential for reasonable solar access and privacy on the adjoining residential block(s) is maintained.
25. In the hearing the respondent and the party joined continued to concede that R25 and R26 were not met. Notwithstanding this, much of the hearing focussed on them.
26. In this regard the applicants argued that the information provided by the party joined which enabled assessment of whether R25 and R26 were met was wrong or incomplete and that this of itself was a basis for rejecting the development application. Further, the applicants argued in effect that the terms of the rules were relevant to interpreting the criteria, and that failure to comply with the rules was relevant to whether the criteria were complied with.
27. In particular the applicants pointed out that in the original development application in relation to R25 and C25 it was stated that “there is a minor encroachment into the envelope on the southern side of the development of less than 300mm”. It was said in the original DA that this “minor encroachment will have minimal adverse impact on living areas of the adjacent development in the form of overlooking or overshadowing” and that the “encroachment will not impact on privacy of the neighbours”.
28. The applicants pointed out that in an email from Thara Boraiah of the respondent dated 22 June 2018 she said that the building envelope indicated on the original plans was incorrect. Ms Boraiah went on to state that the development encroaches both in the primary building zone and rear building (sic) zone and that an overshadowing diagram was required indicating the shadow length on the adjoining block and dwelling (owned by Mr McAndrew and Ms Tomlins) including the extent of the increase in shadow due to the encroachment.
29. The original development application was amended. The party joined argued that in its revised development application the reduction of one unit had significantly reduced the encroachment. The applicants argued, and this was eventually conceded by the party joined and the respondent, that the changes made had little impact on this issue.
30. The assessment by the respondent of the final plans stated in relation to R26 and C26:
The development encroaches both in the PBZ [primary building zone] and RBZ (sic) [rear zone]. The RBZ (sic) encroachment could be considered minimal but the elevation is not clear. The PBZ encroaches by 1.6m x 7.5m in two places.
31. The applicants said that the respondent’s assessment was correct, and that the proposed encroachment was and continues to be significant. It was said that the encroachment in the primary building zone was about 1.6 metres x 7.5 metres, which was said to be five times greater than what had earlier been acknowledged by the party joined.
32. Notwithstanding this, the amended development application was approved. The respondent in its notice of decision briefly addressed the issue of these requirements concerning encroachments and overshadowing which had been consistently raised by the applicants and stated that the reduction in one unit reduced the building envelope encroachment. It was said that the party joined provided adequate justification of the encroachment and that the proposal complied with the applicable criteria. Further, it was stated that the shadow diagram provided indicated that the adjoining block will receive a minimum of three hours of solar access.
33. The applicants argued at the hearing that in the PBZ the height provided for was 2.4 metres which would create a shadow of 4 metres on the property to the south, but that the effective or actual height proposed for the majority of the PBZ was 4.2 metres creating a shadow of 7 metres. In the RZ 1.8 metres was allowed creating a shadow of 3 metres, but the effective or actual height proposed for a large section was 3.2 metres creating a shadow of 5.4 metres. There was ongoing debate about these figures in the hearing, but they were generally accepted and indeed the party joined suggested that on its figures the encroachment may be even slightly greater than that suggested by the applicants.
34. As noted, the applicants argued that the party joined had provided wrong or incomplete information about compliance with the rules generally and these rules in particular. Hence the assessment of the extent of intrusions was understated as was the impact on the neighbouring property and the future potential of the adjoining site. They gave a number of examples of this. One was the statement in the revised development application that the reduction of one unit had significantly reduced the encroachment. Mr Nash conceded reluctantly that the encroachment was in fact similar. The fact that such incomplete or wrong information was provided was said by the applicants to be a ground for rejecting the development application, and that it should not be considered until the case for the development is made with accuracy. It was also said that ACTPLA’s role had changed and it was “no longer there to test the nature and quality of proposed buildings but to push them through with scant regard to the accuracy of plans and attention to detail”. It was argued that it ought not be left to members of the public with adjoining lots to undertake such checking.
35. The Tribunal has considerable sympathy for the concerns of the applicants in this regard. The system of assessment and public consultation on the proposal only works if the details provided are correct. The respondent accepted these details, although as noted on close consideration it identified the encroachment as an issue (see paragraph [28] above). Members of the public are at a significant disadvantage if the figures in the development application are wrong or incomplete. Indeed this undermines the integrity of the consultation process. It is only because the applicants in these proceedings have particular expertise and identified and pursued their concerns about these errors that the true position has been ascertained and can be addressed. However, now that the true position has been accurately identified, we think the proposal can be addressed on this basis.
36. As noted, the party joined and the respondent concede that R25 and R26 are not complied with, but that C25 and C26 which are in more general, less precise terms, are. The criteria call for a consideration of consistency with desired character (C25(a) and C26(a)), reasonable solar access (C26(b)) and reasonable levels of privacy (C25(b) and C26(c)). Paragraph C26(d) is not relevant here.
37. The applicants argued in effect that the terms of the rules were relevant to interpreting the criteria. The Tribunal agrees with this.
38. The applicants also seemed to argue that failure to comply with the rules was itself relevant to whether the criteria were complied with. They saw the rules as the primary requirement, and indicated that if the rules had been complied with the applicants would have had no objection to the development. The Tribunal is not convinced of this. The Introduction to the MUHDC notes that rules provide quantitative or definitive controls, while criteria are chiefly qualitative in nature. It goes on to state:
Where a rule is fully met, no reference to the related criterion needs to be made. Where there is a departure from a rule … the onus is on the applicant to demonstrate that the relevant criterion is satisfied through supporting drawings and/or written documentation.
Similar statements are made in Part 1.1 Governance of the Territory Plan.
39. These provisions make clear that the criteria are a legitimate way of complying with the Territory Plan. Because they are qualitative, there is an onus on the developer to demonstrate that the relevant criteria is satisfied. But if satisfied, the failure to comply with the rule is generally irrelevant. As noted the related rule may be relevant to interpreting the criteria and thereby determining whether it is met.
Consistency with the desired character (C25(a) and C26(a))
40. It is therefore now necessary to look at the requirements of C25 and C26. The first is consistency with the desired character.
41. The concept of desired character is defined in the Territory Plan to mean “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”. ‘Streetscape’ is also defined to include “… private land between facing buildings, including the form of buildings …”.
42. The relevant RZ4 zone objectives begin:
a) Provide for the establishment and maintenance of residential areas where the housing is medium rise and predominantly medium density in character and particularly in areas that have very good access to facilities and services and/ or frequent public transport services
43. Mr Pini for the respondent said that the development application was consistent with the zone objectives generally. As to this objective he said in his statement that the inclusion of this block within RZ4 will provide for the establishment and maintenance of areas where housing is medium rise and medium density in character, and that Turner provides good access to facilities and services and public transport. He did not address the key issue of whether this development in particular is consistent with the desired character of medium rise and medium density residential areas.
44. There is an issue about how many storeys the development is which is discussed below at paragraphs [99]-[101]. As noted there the Tribunal is of the view that under the MUHDC the development is three storeys. This is strong evidence that it is in fact medium rise. As the party joined argued, if low density is accepted under the Plan as two storeys, then three storeys, even three and a half, must be medium density. The applicants in fact argued that the development appears more like three and a half storeys; Ms Tomlins indicated that even if it met the MUHDC requirements it is a bulky, tall building at the top end of those requirements. But this objective focusses on medium rise and the Tribunal is satisfied that this will be medium rise. The proposal also meets the plot ratio requirements for density in the MUHDC for the RZ4 zone. Again this is strong evidence that it is in fact medium density. The respondent and applicants had significant concerns about the density of the original development application which was in excess of 65%. It seems that it is now significantly less than that.
45. The zone objectives go on:
b) Provide opportunities for redevelopment by enabling changes to the original pattern of subdivision and the density of dwellings
46. Mr Pini in his statement noted that the zoning provides opportunity for redevelopment with changes to the original pattern and housing diversity. The development will provide for greater density of dwellings than the previous house. As noted the proposed density is within that allowed by the MUHDC for RZ4. The proposal is therefore consistent with this zone objective.
47. The zone objectives also state:
c) Provide for a wide range of affordable and sustainable housing choices that meet changing household and community needs
48. Mr Pini stated that the townhouses proposed provide diversity and further housing choices for those people looking to live within close proximity to Canberra’s CBD. There was no evidence of their affordability. It appears that the development will meet the relevant sustainability requirements though there was no specific evidence of this apart from the decision-maker’s assessment. The Tribunal accepts that the proposal will add to the range of housing choices in this area.
49. The zone objectives then state:
d) Ensure development and redevelopment is carefully managed so that it achieves a high standard of residential amenity, makes a positive contribution to the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties
50. Mr Pini suggested that the development application had demonstrated that the proposal will achieve a high standard of residential amenity on an underdeveloped site. It has a reasonable plot ratio, reasonable solar access and sufficient private space for each dwelling. He said it would make a positive contribution to the area. Materials will be of a high standard sympathetic to the surrounding buildings. He noted that the building encroaches into the building and solar envelope which will impact the adjoining blocks, however not unreasonably so. The applicants disagreed with this and in effect argued that these would be unreasonable negative impacts in particular in relation to solar access. These arguments are addressed under reasonable solar access requirement below.
51. The INPC does not have anything expressly called a statement of desired character. But it does have “Objectives for the General Controls” which may in substance be a statement of desired character. At any rate these objectives set out the purpose of the relevant rules in the INPC, and the MUHDC to the extent it applies to the inner north, and as such can be used to interpret the criteria. It seems appropriate therefore to have regard to them. They include:
a) Conserve the Garden City character of the area
b) Optimise residential land use adjacent to the Northbourne Avenue corridor, the commercial area of the City Centre, the Sullivans Creek open space corridor and other areas of open space
c) Retain and enhance a healthy and attractive residential environment for existing and new residents to the area
…
g) Ensure orderly redevelopment of blocks within sections
52. The Tribunal notes that the proposed development includes some landscaped areas and, as discussed below, development in the front zone will not include concrete walls. We do not think it is inconsistent with the Garden City character of the area.
53. The development will provide for greater residential use of the block, with three dwellings. This will optimise residential land use. The Tribunal accepts that these will be a healthy and attractive residential environment for the new residents. The applicants challenge whether this will be a healthy and attractive residential environment for them, but this is principally on the basis of solar access which we consider below.
54. There was some discussion of what orderly redevelopment means in paragraph (g). Mr Pini agreed that if the development complies with the rules and criteria or has the ability to comply with the criteria it would be orderly.
55. Mr Pini noted the importance of bulk and scale to desired character, and that the buildings at 11 Forbes Street, 40 Macleay Street, and 52 and 54 Macleay Street are similar to what is proposed for the subject site in terms of bulk and scale. However, the applicants noted that these may not have been Code compliant and may not be allowed if proposed now. They also noted that they had objected to some developments in the past. But when pressed there was no evidence produced by the applicants that these developments did not pass through the relevant assessment process and it was admitted that they were approved. In our view it is likely that the existing large buildings in the area do reflect orderly development and the desired character, but there are some uncertainties about this. Some weight can therefore be given to the fact that there are already buildings of a similar bulk and scale to the proposal in the area, but this is not a determinative factor.
56. Ms Tomlins stated in relation to orderly development:
… we submit that if this development goes ahead as proposed it will disrupt the orderly redevelopment of the section. The proposed development is we say demonstrably, according to analysis of the DA with the Inner North Precinct Code and the Multi Unit Housing Development Code too big for the block. As the development extends out of the allowed building envelope the shadow it casts at midday on 21 June along its southern boundary … [extends] 5 metres into the southern neighbour's block on parts of the RBZ and 7 metres into the parts of the primary building zone.
And this is rather than the three and 4 metres that would occur if the rules had been followed. This goes on to limit the usable redevelopment land available in the neighbouring block. If this non-compliance is seen to be allowed and adopted through the precinct it has a snowballing effect and disrupts the orderly redevelopment for future developments, and it impacts on the achievements of other - well, the achievement of other objectives.
57. A concern of the applicants was therefore the potential for the intrusion into the envelope to cascade down the block in future developments. In our view there is a possibility of this giving rise to an unreasonable negative impact, but this is uncertain. Again some weight can be given to this but it is not a determinative factor.
58. Mr Nash also gave evidence that this was an orderly development. He stated that it is consistent with the form and bulk of other developments in the section and he noted that there was a tension between development in a regular sequence and a tidy manner, that is orderly, with other requirements to add variation to the building alignment (INPC Element 3(a)). He thought that the fact that the design was not present in other buildings on the section did not of itself prevent the development being orderly.
59. As to the general concept, the party joined argued that the proposed development is well within the desired character of Turner in terms of siting, bulk and scale. It was said that the townhouses will not dominate Forbes Street when built, rather that the bulk and scale of the development is well within the range of other houses in Forbes Street and within Turner generally. Mr Nash said he was proud of the work he had done on this development which is something that is above and beyond what is usually expected, in terms of the design quality, materiality, and façade treatments.
60. However, Ms Tomlins maintained that the opinions given by the experts about how this particular development fits in with a desired character was not based on any objective evidence, and rather was just their subjective opinions.
61. We take the desired character to be the character that the zone objectives, and other statements, are promoting or aiming towards. The key indications of this are the terms of the MUHDC itself, but C25 and C26 specifically refer to these broader objectives. It seems clear therefore that the desired character involves redevelopment to the area in which the site sits to medium rise and predominantly medium density housing. This of itself must involve bigger and more dense developments sitting next to existing older houses. This redevelopment is particularly sought in areas that have very good access to facilities and services and frequent public transport services, which Forbes Street clearly does. This development and its higher density will provide the desired social benefit of a greater range of housing choices to the area. Leaving to one side C25 and C26, the development will generally comply with the MUHDC as a result of this decision, and this suggests that it will reflect the desired character and orderly development. Generally therefore we think the proposal is consistent with the desired character of the area.
62. But this medium rise and medium density development should be carefully managed so that it does not have unreasonable negative impacts on neighbouring properties (RZ4 zone objective (d)). It is clear that the development will have a negative impact on the solar access of Mr McAndrew and Ms Tomlins. Is this reasonable? This is the specific issue which is discussed in the next section.
Reasonable solar access to dwellings on adjoining residential blocks (C26(b))
63. In its amended application documentation for the assessment process the party joined said that the reduction of one unit had significantly reduced the encroachment. This was not correct. It was then said that the encroachment does not significantly exceed the impacts of the solar fence; that the design did not adversely impact on the solar access of adjoining blocks; and that the majority of the neighbouring block’s open space will receive at least three hours of sunlight between 9am and 3pm on June 22. It was said that solar impacts on the dwelling house mostly fell on the roof; one habitable window is impacted; however it is within the bounds of impacts expected from the solar fence allowed in the rule. It was said that encroachment does not increase the adverse impact. This was generally the position put in the hearing.
64. Mr Nash gave evidence that this was a minor encroachment into the solar fence and that the impact on the existing property to the south was negligible because it was an encroachment of only 22 square metres in an area of about 410 square metres of open space.
65. The respondent generally accepted the party joined’s position. After quoting the party joined’s submission addressing this provision Mr Pini noted that a shadow diagram submitted by the party joined demonstrated reasonable solar access is provided. He said that reasonable solar access to private open space was considered to be achieved if not less than three hours of direct sunlight is provided into 50% of the minimum required area between the hours of 9am and 3pm on the winter solstice.
66. His statement did not indicate any source for this three hours of sunlight on the winter solstice test etc, but it seems to be derived from R61 of the MUHDC which requires in that context each dwelling to have at least one area of principal private open space that is not located on the south, south-east or south-west unless it achieves not less than three hours of direct sunlight onto 50% of the minimum required area between the hours of 9am and 3pm on the winter solstice or overlooks specified things. The formula is also contained in other provisions, such as C57A and R58. But this specific requirement is not present in C26; here the requirement is reasonable solar access; this more general term is also used in other criteria, see C20, C21, C22, C23, C30, C31, C32, C33, C61, C95. In our view given that this different term is used, it conveys a different concept to the three hours of sunlight on the winter solstice etc formula. What that different concept is is quite unclear.
67. ‘Reasonable’ is a relative term which can mean fitting, just, fair, rational, ordinary, usual, moderate and not excessive. The Tribunal considers it to mean in this context ‘appropriate for a particular situation’. In North Canberra Community Council v ACT Planning and Land Authority [2019] ACAT 87 we discussed whether the purpose of another similar requirement in the MUHDC is energy efficiency or general amenity or both. In that case it seemed appropriate to take the view that R58 and C58 were seeking to both enhance the general amenity by requiring solar access, and enhance passive solar design with the intent of improving energy efficiency by reducing the level of heating needed. For similar reasons it seems that the same is the case here, that is that this element of C26 is seeking to both allow the neighbours to this development to maintain some level of the general amenity by requiring solar access and to allow them to maintain or develop a passive solar design with the intent of improving energy efficiency and reducing the level of heating needed.
68. As we have noted above, we think that the reasonable test is a different test to not less than three hours of direct sunlight is provided into 50% of the minimum required area between the hours of 9am and 3pm on the winter solstice. The three hours of sunlight on the winter solstice etc test may set some form of indicative minimum, and the Tribunal notes that it appears that this minimum will be met. But in the context of an existing house which currently has a large amount of solar access, providing general amenity and use of solar passive design, in our view reasonable solar access requires more.
69. The Tribunal thinks that regard can be had to the rules, R25 and R26, to determine what is reasonable. The Tribunal has used this type of analysis in other cases, but in general to confirm a conclusion reached on some other primary basis. The primary test here is that there is reasonable solar access to dwellings on adjoining residential blocks.
70. The strongest argument for the applicants takes this approach of comparing what is allowed by R25 and R26 with what is actually proposed. As noted at paragraph [33] above, the applicants argued and it was generally accepted by the party joined and the respondent that in the PBZ the height provided for by R26 was 2.4 metres which would create a shadow of 4 metres on the property to the south, but that the effective or actual height under the proposal for the majority of the PBZ will be 4.2 metres creating a shadow of 7 metres. This is a significant increase of 75%. In the RZ, 1.8m was allowed creating a shadow of 3 metres, but the effective actual height for a large section will be 3.2 metres creating a shadow of 5.4 metres. This is an increase of 78% and 80%. The party joined suggested that, on its figures, the encroachment may have been even slightly greater.
71. The respondent and party joined focussed however on what will be the practical impact on the adjoining property as currently configured. The party joined provided diagrams which showed that the further encroachment in the PBZ fell mainly on what is now the building on the block. Now of course the measurement is at ground level and ignores the building. But the diagram does suggest that the front of the building will be in some shade on midday on the winter solstice if R26 were implemented, and that most of the additional shade will land on this part of the building. Mr McAndrew agreed that the extended shadow will not reach the solar passive living area of the house.
72. The applicants pointed out that this further encroachment in the PBZ will prevent sun landing in the window to what was described as a third bedroom, now used as a study for sewing or computer use. Ms Tomlins stated:
In practical terms the difference between the shadowing caused when the rule is followed and when the amended DA - and what the amended DA would produce is between having sun - among other things is between having sun unhindered to the computer room and third bedroom at the north of the neighbouring dwelling and, if the development went ahead, that window being totally shaded. Not meeting this rule has very significant financial impacts on the cost of using this room, which is regularly used for about six hours per day.
The shading would reduce the solar energy available during the best part of the day and would increase the winter heating costs substantially.
73. The respondent and party joined pointed out that there was already a grevillea shading the room. Mr McAndrew and Ms Tomlins admitted this, but noted that this was their choice. They liked the shrub, it attracts birds, was lightly vegetated and the light readily comes through it. It is noted that they can change the shrub at any time, but they will have no power in relation to the proposed building and the shadow it creates. The respondent conceded that on the winter solstice the shadow cast will be greater than that which is cast by the grevillea, but argued that this was not an unreasonable negative impact in relation to the property in light of the zone objectives for RZ4.
74. The party joined argued that on its figures in the RZ the encroachment on private open space was 31 square metres out of 390 square metres, namely 8%. In fact it noted that Mr McAndrew admitted that private open space at the rear is not 390 square metres but actually closer to 410 square metres. The party joined argued that in terms of an additional encroachment above and beyond that which is permitted by the solar fence and R26, we are looking at 31 square metres divided by 410 square metres which is about 7.5% of the area. The party joined’s diagrams generally showed what was described as only a very minor encroachment in the RZ on the building on the adjoining land. Further, the party joined’s diagram for 3pm showed less further encroachment than at midday. However as Mr McAndrew pointed out, these diagrams showed considerably greater shadow encroachment at 9am. Mr McAndrew admitted that the principal private space for their property was at least 410 square metres, perhaps more, and that the proposed building will only encroach on 22 square metres of that private open space, which was a minor encroachment on the overall area.
75. In summary, Mr McAndrew described his concerns as twofold. First, his current situation where the failure to comply with the building envelope imposes a penalty on them now. But second, his concern was the future, and their ability to develop or sell their block. Mr Owen stated that if the proposed development goes ahead it may cascade down the street and have a negative impact on any future developments that they or others might make on their block and would force the location of their future developments to be altered on the block.
76. So do Mr McAndrew and Ms Tomlins have reasonable solar access? They will clearly have less solar access than they have now, but in part this is because of the medium rise and medium density housing now allowed by the Territory Plan. More significantly they will have less solar access than if R25 and R26 were complied with. As set out in paragraph [70] above this is at various points a greater encroachment of between 75% to 80% than that allowed by the rules. This is on any view a significant amount.
77. However, this will only affect one window in the existing house; this window is in a third bedroom used as a sewing and computer room. This window is already blocked to some extent by a grevillea, though Mr McAndrew and Ms Tomlins have full control of this and can remove it if they wish.
78. Further, this only affects about 7-8% of the private open space of the block, and does not affect the solar passive living area. This is at midday on the winter solstice so that generally the limits on solar access would be less. This does not seem a significant amount.
79. We agree with the argument of the respondent that the principal question of whether or not the adjoining owners have reasonable solar access is to be determined by looking at the entire block that they hold. This particular block has a very large amount of private open space the solar access for which will remain to a large extent unaffected by the development. Further, the only window affected is for a bedroom that is used as a study or sewing room; it is not a kitchen, a family room, or a living room and it is not impacting on the existing extension that was designed to be solar passive.
80. Of course this is in the current arrangement of the house. Mr McAndrew and Ms Tomlins may wish to develop their house further; they may wish to redevelop the block themselves or sell it for this purpose. Counsel for the party joined and the respondent argued that it is only appropriate to look at what is there now, that is reasonable solar access to dwellings currently on adjoining residential blocks. This seems to be supported by C26(b) and its reference to “associated private open space”; this is presumably current open space, not whatever might develop in the future which is impossible to assess. It is also supported by C26(d) which expressly refers to potential development but only in the context of a block that is not yet developed. Even if one were to look at future development, should the proposal go ahead, there does seem to be the ability for any new development on the adjoining block to have significant solar access.
81. On balance the Tribunal is of the view that the proposed development will still allow reasonable solar access to the adjoining dwelling to the south and its associated private open space. The provision does not provide for this dwelling and its open space to have the same solar access as it has now. The move to a medium rise and medium density residential area makes this difficult to achieve. The fact that the encroachment will be significantly greater than allowed for in R25 and R26 is a consideration. But in this case we think that the fact that only about 7.5% of the private open space will be affected at noon at the winter solstice, and only one window in one room, which is a bedroom used as a study, suggests that reasonable solar access remains.
Reasonable levels of privacy for dwellings on adjoining residential blocks (C25(b) and C26(c))
82. The party joined also argued that the proposed development will not adversely impact the privacy of neighbouring properties. It was said that the proposed development was setback and screened, including the rooftop works.
– The rooftop area does not allow for views of the private open space of any of the neighbouring properties as it is only open on the street-facing eastern side. It is also screened on that eastern side to provide for the privacy of residents.
– The westernmost unit does not have a rooftop terrace.
– All windows on the southern side of the proposed development will be screened by metal louvres and sunshades, which will limit the surveillance of neighbouring properties through those windows.
– The only non-screened windows look out over private open space at the rear of the block or onto the street.
83. The applicants generally agreed that they did not have a concern with privacy.
Conclusion on building envelope
84. In summary therefore the Tribunal is of the view that the proposed development on balance will provide reasonable solar access to dwellings on adjoining residential blocks and their associated private open space. We note the concerns of the applicants in this regard, and that the encroachment for Mr McAndrew and Ms Tomlins will be significantly more than allowed for by R25 and26. But the actual affect will be limited and leave them with significant solar access. It is clear that there will be reasonable levels of privacy for dwellings on adjoining residential blocks and their associated private open space. These findings suggest that this redevelopment will be carefully managed so that it achieves a high standard of residential amenity and does not have unreasonable negative impacts on neighbouring properties (Zone objective (d)). Further the development will promote the zone objectives of providing a range of medium rise and medium density housing. On this basis it seems that there will be consistency with the desired character of the area. The development will therefore comply with C25 and C26 and cannot be rejected for failure to do so, and it is not necessary to impose further conditions to ensure compliance.
Front setback (R6 and R7 of INPC)
85. The issue of the front setback is dealt with by the INPC which states in rules 6 and 7:
R6 Minimum front street setbacks are 6m unless otherwise specified in Part C of the code (Site specific controls)
…
R7 No building or design elements including basement structure are to be located forward of the specified minimum front street setback.
…
These are mandatory requirements. There are no applicable criteria.
86. The party joined said in its revised development application that the application complied with R6 and R7. In particular it stated that “landscape elements, including courtyard walls and steps will be located forward of the minimum setback in accordance with the desired character of the area” and that “landscape elements are not physically attached to the building and will be assembled and installed separately”. This position was maintained at the beginning of the hearing.
87. The respondent in its assessment of the proposal noted that the stairs encroach into the front 6 metres setback. However the application was approved without any relevant condition. The respondent in these proceedings took the position that both R6 and R7 were met.
88. The approved development application therefore had front steps to the two townhouses facing Forbes St within the 6 metres setback. The applicants had argued repeatedly that this clearly breached R6 and R7, and continued to do so in the hearing. There were also courtyard walls and concrete elements within the six metres setback.
89. The term ‘setback’ in R6 is not italicised but clearly takes the definition in the Territory Plan as “the horizontal distance between a block boundary and the outside face of any building or structure on the block including: a) a building wall, b) a post that supports a roof, c) a balcony, deck or verandah.” This is the first of a number of relevant inclusive definitions which generally incorporate the ordinary meaning of a term and then enlarge it to include specified items, or at least make clear that these items are included. This is in contrast to definitions which state what the term means, and are generally exclusive of other meanings. There are some difficulties in relation to these principles for definitions and in deciding into which category particular definitions fall. But in our view it is clear that this and the following definitions are inclusive, that is they incorporate the ordinary meaning of the term and then enlarge or at least make clear that certain items are included. In this case the words after including clearly do not set the limits of what is a building or structure.
90. In turn, the term ‘building’ is defined as “includes a) an addition to a building b) a structure attached to a building; and c) a part of a building”. It was said by the respondent and party joined that stairs are therefore not included in the definition of a building because they are not expressly specified. This is somewhat misleading in that the specified items in the definition are expanding or making clear things which are included in the ordinary meaning of the term building. They clearly do not set the limits of what is a building. Other things which are part of the ordinary meaning of a building are also included. The relevant ordinary meaning of building is “a substantial structure with a roof and walls, as a shed, house, department store, etc.” This definition of building is relevant to the definition of setbacks, used in R6. It is also relevant to the term building elements in R7, which would mean any element of the townhouse buildings proposed in this development.
91. The word ‘structure’ in the definition of setback is not italicised, so there is some issue as to whether it takes just its ordinary meaning or its defined meaning in the Territory Plan. In this case it does not matter. ‘Structure’ is defined in the Territory Plan as “includes a fence, mast, antenna, aerial road, footpath, driveway, carpark, culvert or service conduit or cable”. It was said that stairs are therefore not a structure as they are not specified. This is again somewhat misleading in that the specified items in the definition are expanding or making clear things which are included in the ordinary meaning of the term structure. Other things which are part of the ordinary meaning of a structure are also included. The ordinary meaning of structure is “something built or constructed; a building, bridge, dam, framework, etc.” In turn construct means “to form by putting together parts; build; frame; devise”. This definition of structure is relevant to the definition of setbacks, used in R6.
92. In our view the entry stairs to Units 1 and 2 are a necessary element of the building and therefore a building element in R7. Their current location is in breach of R7. They are also something constructed, and therefore a structure; the setback is determined from the boundary to the outside face of this structure; the front street setback is therefore less than 6 metres, in breach of R6, and should not have been approved.
93. In addition, it seems to us that even if the stairs are considered an addition to the building or a structure attached to the building (see the definition of building in para [90] above), they are therefore included in the definition of a building for the purposes of the setback. These additions or attachments do not have to be a building themselves.
94. The fact that the stairs are not a building wall, a post or a balcony, deck or verandah; or a fence, mast, antenna, aerial road, footpath, driveway, carpark, culvert or service conduit or cable, does not change this conclusion. These extended definitions do not suggest that stairs are not included in the ordinary meaning of part of a building, or a structure or a building element. If a fence, antenna, footpath, or driveway is included in the concept of structure it would seem appropriate that stairs are also included.
95. Mr Nash in his report stated that the steps were landscape elements not building or design elements. He gave further oral evidence that he did not think the steps were part of the building; he thought they were not a structural element; he thought it relevant that you could delete them and the building would not fall down, that they will be constructed after the building is built and that their purpose was not structural but to provide access. For the reasons given we think this analysis is irrelevant or wrong; it does not reflect the specific terms used in the provisions.
96. Mr Pini in his report indicated that as the definition of setback in the Territory Plan was from a block boundary to the outside face of any building or structure including a building wall, post that supports a roof, balcony, deck or verandah, that the steps were not a building wall, post or balcony, deck or verandah, and that therefore the steps could be within the setback. This ignores the fact that the definition includes the specified things, but also includes the ordinary concepts of building or structure; for the reasons set out above in our view the steps are part of a building and a structure and the setback must be to them. Mr Pini gave oral evidence in which he conceded it was possible that that steps were not included in the concept of structures, that it was open to interpretation. For the reasons give the Tribunal thinks it is clear that the steps are structures.
97. The party joined suggested the drafting of a condition to address this issue. The respondent’s positon was that they did not wish to be heard in relation to the party joined’s proposal, which the respondent regarded as adequate, but it was said to be a matter for the Tribunal whether it accepted the condition. The Tribunal will adopt that suggestion and make it a condition of development that the stairs facing the front of the block for Townhouses 1 and 2 are redesigned to be beyond the six metres setback.
98. There are also some concrete courtyard walls and other concrete walls within the 6 metres setback from the front boundary. In our view these are also something constructed, and therefore a structure. The party joined suggested the drafting of a condition also to address this issue. The Tribunal will also adopt this suggestion and make it a condition that these courtyard walls and concrete elements are replaced within the 6 metres setback with landscaped hedges.
Maximum number of storeys (R21 of MUHDC)
99. Another ground of review concerned the number of storeys. This is regulated by R21 and C21 of the MUHDC which states that the maximum number of storeys is three. The applicants argued that the development appears more like three and a half storeys given the finished floor level for the ground floor of Units 1 and 2 is proposed to be nearly a metre above the ground.
100. The word ‘storey’ is italicized in the text of the rule and defined to mean “a space within a building that is situated between one floor level and the floor level next above, or if there is no floor level above, the ceiling or roof above but does not include an attic or a basement”. ‘Basement’ is further defined to mean “a space within a building where the floor level of the space is predominantly below datum ground level and where the finished floor level of the level immediately above the space is less than 1.0 metre above datum ground level”.
101. The upper most level of the development is designed as two roof terraces. However spaces on this upper level have roofs and as such they are at least a third storey. However, the fact that the finished floor level above the basement is less than one metre above the datum ground level means that there are only three storeys, and not four, and that R21 is complied with.
Internal driveway setbacks (R73 and C73 of MUHDC)
102. The applicants and the Tribunal raised with the respondent and the party joined issues of the proposed driveway width and compliance with R73 and C73 of the MUHDC. The building setback dimension from the southern boundary and driveway width were shown differently on some drawings. The party joined provided amended vehicle turning path drawings that showed the driveway required a clear minimum width of 3.6 metres. The other drawings consistently showed the driveway to have a one metre setback from the boundary for planting to comply with R73(a). R73 additionally states that internal driveways are set back from the external walls of buildings on the site by not less than one metre (R73(b)) and that this setback be planted to a width of not less than one metre (R73(c)). C73 states that the internal driveways achieve sufficient space for planting between internal driveways and buildings (C73(b)). The party joined suggested the drafting of conditions to address these issues. The Tribunal will adopt those suggestions and make it a condition of development that the basement southern external wall at Townhouse 2 be moved 0.8 metre to the north; that the width of the driveway be 3.6 metres for its whole length; and that the contour lines at the bottom of the driveway ramp be corrected to ensure that a step or hard edge is not created, to ensure compliance with C73.
Carparks (C20 of INPC)
103. The Tribunal raised with the respondent and the party joined the issue of the number of basement parking spaces and C20 of the INPC. C20 is a quantitative rather than a qualitative criterion in that it sets a maximum rate and states that car parking provision rates identified in the Parking and Vehicular Access General Code are the maximum rates for development. The maximum parking provision rate for this development is six spaces while the development proposed seven.
104. The party joined suggested the drafting of a condition to address this issue. The Tribunal will adopt this suggestion and make it a condition of development that the basement northern parking space for Townhouse 3 be replaced by a storage space.
Conclusion
105. The Tribunal will therefore propose amendments to the conditions in the decision to deal with the front setback, the internal driveway setback and the internal carparks. However, the Tribunal is of the view that the proposal currently complies with the C25 and C26 in relation to the building envelope and R21 in relation to the maximum storeys, cannot be rejected on these bases, and that it is not necessary to impose further conditions in relation to them.
……………………………….
Senior Member R Orr QC
For and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER:
AT 8 & 9/2019
PARTIES, APPLICANTS:
Anthony Carter Owen & Wai Cheng Owen
Roy McAndrew & Lorraine Tomlins
PARTIES, RESPONDENT:
Act Planning And Land Authority
PARTY JOINED:
Stratagem Capital Group Pty Ltd
COUNSEL APPEARING, APPLICANTS
N/A
COUNSEL APPEARING, RESPONDENT
Ms K Musgrove
COUNSEL APPEARING, PARTY JOINED
Mr B Buckland
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
SOLICITORS FOR PARTY JOINED
Mills Oakley
TRIBUNAL MEMBERS:
Senior Member R Orr QC (Presiding)
Senior Member G Trickett
DATES OF HEARING:
30 April, 1-2 May 2019
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