MCARDLE & ACT PLANNING AND LAND AUTHORITY (Administrative Review)
[2013] ACAT 29
•29 April 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MCARDLE & ACT PLANNING AND LAND AUTHORITY
(Administrative Review) [2013] ACAT 29
AT 12/99
Catchwords: ADMINISTRATIVE REVIEW – development application to build a garage and studio - approval by the Planning and Land Authority against the Single Dwelling House Development Code - whether proposed development would result in additional dwelling; incorrect characterisation of development in application - jurisdiction of the tribunal: no third party review right if development application does not result in more than one dwelling
List of Legislation: ACT Civil and Administrative Tribunal Act 2008, s.9
Planning and Development Act 2007, ss. 162 and 408
List of Regulations: Building Code of Australia, Clause 1.3.2
Planning and Development Regulation 2007, Schedule 3
Territory Plan, Residential Zones – Single Dwelling Housing Development Code
Tribunal: Mary-Therese Daniel, Member
Date of Orders: 29 April 2013
Date of Reasons for Decision: 29 April 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 12/99
BETWEEN:
COLLETTE AND PETER MCARDLE
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
TRIBUNAL: Mary-Therese Daniel – Member
DATE: 29 April 2013
ORDER
The Tribunal Orders that:
1.The application for review is dismissed.
………………………………..
Mary-Therese Daniel
Member
REASONS FOR DECISION
These proceedings were instituted by an application (substantive application) by Collette and Peter McArdle (applicants) for review of a decision of the ACT Planning and Land Authority (respondent) to approve a development application.
The substantive application was filed 17 December 2012.
On 1 February 2012 the respondent filed an application for summary dismissal of the substantive application, on the basis that the Tribunal lacked jurisdiction in the matter. On 15 March 2013 the application for summary dismissal came before me for hearing and at the conclusion of the hearing I reserved the decision.
After considering the matter, I have decided to dismiss the substantive application, for the reasons that follow.
Background
At hearing, the Tribunal had before it the application for review, the respondent’s documents relevant to the decision, letters and submissions filed by each party. Mr McArdle gave oral evidence, as did the delegate of the respondent who had made the decision. There was no dispute as to the basic facts, which I find to be as follows.
The applicants reside in Canberra. On 2 October 2012, their neighbour submitted a development application (DA) to ACTPLA. The DA sought permission to build a second building on the property. This second building would consist of a two storey structure, comprised of four car garage underneath and a studio apartment on top. The garage would be 600 mm from the property boundary, while the studio apartment would be 1500mm distant.
The DA was submitted using the online facility made available by the respondent. In this application, the neighbour indicated that the application was to build an additional ‘dwelling’ on the block. The full description of the proposal included “The proposed building will be a habitable space including bathroom, bedroom and rumpus with a subground 4 car garage underneath.” Plans for the proposed development were submitted. These demonstrate that the upstairs studio space did not have a designated kitchen area. Notwithstanding the reference in the DA to building a second dwelling, the Statement Against Relevant Criteria provided with the DA referred to the criteria set out in the Territory Plan - Single Dwelling Housing Development Code.
On 22 October 2012, the respondent advised relevant persons, including the applicant, of the DA. The notification letters sent referred to the DA as a ‘Single Dwelling Development Application’ and invited representations by 7 November 2012.
On 1 November 2012, the applicants submitted a representation to the respondent, setting out their concerns as to setbacks, privacy and amenity with reference to the criteria set out in the Single Dwelling Housing Development Code.
On 19 November the delegate of the respondent assessed the DA and approved it under section 162 of the Planning and Development Act 2007, subject to conditions. It is clear from the documents relating to this decision that the DA was assessed against the Single Dwelling House Development Code. The applicant’s concerns as to setbacks and privacy were considered in Part 3 of the Notice of Decision.
Jurisdiction of the Tribunal
Section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that if an authorising law provides a person may apply to the Tribunal. In relation to decisions made under the Planning and Development Act 2007, section 408 of that Act provides that an eligible entity for a reviewable decision may apply for review. These terms are defined in Schedule 1 to that Act, and relevantly for current purposes item 4 provides that a decision under section 162 to approve a development application in the merit track is not reviewable where exempted by regulation.
Reference to the Planning and Development Regulation 2008 (Planning Regulation) provides by item 3 of Part 3.2 of Schedule 3 that the following class of matter is exempt from third-party ACAT review:
‘The building, alteration or demolition of a single dwelling, if the development would not result in more than 1 dwelling being on a block.’
This means that, if the DA was for a development that would only result in one dwelling on the block, it would not be open to third party review. The applicants, as third parties to the DA, would not be entitled to seek a review by the Tribunal of the decision to approve the DA.
Would the application result in more than 1 dwelling on the block?
The term ‘dwelling’ is defined in section 5 of the Planning Regulation as follows:
5Meaning of dwelling
(1) In this regulation:
dwelling—
(a) means a class 1 building, or a self-contained part of a
class 2 building, that—
(i)includes the following that are accessible from within the building, or the self-contained part of the building:
(A)at least 1 but not more than 2 kitchens;
(B)at least 1 bath or shower;
(C)at least 1 toilet pan; and
(ii)does not have access from another building that is either a class
1 building or the self‑contained part of a class 2 building; and
(b) includes any ancillary parts of the building and any
class 10a buildings associated with the building.
(2) In this section:
kitchen does not include—
(a)outdoor cooking facilities; or
(b)a barbeque in an enclosed garden room.
There is no doubt that the existing house on the block is a class 1 dwelling under the Building Code of Australia. The Building Code of Australia is an integral part of the legislative scheme for planning and building in the ACT, being adopted under the Building Act 2004. Clause 1.3.2 of the Building Code of Australia provides both in words and diagrammatically that a Class 1 dwelling may consist of one or more buildings.
The proposed garage/studio meets most of the requirements of the definition of a ‘dwelling’, save for the requirement that it have at least 1 but no more than 2 kitchens.
The term ‘kitchen’ is not defined in the relevant legislation, so one must turn to the ordinary English meaning of the word. The Macquarie Dictionary defines a kitchen as:
1.A room or place equipped for or appropriated to cooking. 2. The culinary department; cuisine: the hotel kitchen will serve lunch. 3. The complete furnishings of a kitchen, including cupboards and appliances.
It is clear from the plans provided that the garage/studio did not contain a reference to a kitchen, or demonstrate the plumbing or joinery that might be associated with a kitchen. The plans did not provide for a room or place equipped for or appropriated to cooking.
It follows that the garage/studio is not itself a dwelling, but is a building associated with another building (the main residence) that taken together form one dwelling.
Consequently, it is not open to the applicants to apply for review of the decision to approve the DA. The right of review otherwise available is excluded by regulation.
The applicants submitted, both in written submissions and at the hearing, that their neighbour should be held to the nomination in his online DA that it was a multi-dwelling application. The applicants said it was open to interpret the application as being an application to construct a second dwelling, and that was how it had been characterised in the online application. Mr McArdle in his evidence pointed out how easily a kitchen could be incorporated into the current design, and this was acknowledged by the delegate of the respondent.
As the delegate explained in his evidence, while the DA on its face did suggest a second dwelling was to be built, in his opinion this was clearly not a correct characterisation of the proposed development. The detail of the plans provided with the DA showed that the development would result in only one dwelling on the block. That was at all times the way the DA was assessed by the respondent and consequently, with conditions, approved.
Although it does not take much imagination to see how additional work might be done, during or after construction of the building, to add a kitchen, it remains the case that the approved plans themselves do not provide for a kitchen. Any construction of a kitchen would be outside the terms of the development approval and would be unauthorised. In the current regulatory scheme, the certifier would not certify a construction that was not in accordance with the development approval. I cannot comment on what regulatory processes are in place to control subsequent alterations to approved building work, or the adequacy of those processes. At the least, it would seem that if the property were to be sold, any building report attached to the Contract for Sale would identify the presence of unauthorised structures in the property and the potential for compliance action to be taken.
Conclusion
While there is some ambiguity on the face of the online DA, the substance of the DA was for a single dwelling development and this is how it has been assessed and, with conditions, approved.
It follows that under the provisions of the Planning Regulation the applicants, as third parties, have no right to seek a review by the ACAT of the approval of the DA.
The application for review filed by the applicants must therefore be dismissed.
………………………………..
Mary-Therese Daniel
Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER: | AT 12/99 |
PARTIES, APPLICANT: | Collette and Peter McArdle |
PARTIES, RESPONDENT: | ACT Planning and Land Authority |
COUNSEL APPEARING, APPLICANT | |
COUNSEL APPEARING, RESPONDENT | |
SOLICITORS FOR APPLICANT | |
SOLICITORS FOR RESPONDENT | Ms Mathie, ACT Government Solicitor |
TRIBUNAL MEMBERS: | Mary-Therese Daniel-Member |
DATES OF HEARING: | 15 March 2013 |
PLACE OF HEARING: |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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