Miles v Director-General, Transport Canberra and City Services Directorate (Administrative Review)
[2018] ACAT 69
•2 July 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MILES & ANOR v DIRECTOR-GENERAL, TRANSPORT CANBERRA AND CITY SERVICES DIRECTORATE (Administrative Review) [2018] ACAT 69
AT 13/2017
Catchwords: ADMINISTRATIVE REVIEW – application for review of decision not to approve work on public unleased land – bollards, arbour, lighting and watering system – whether the work causes undue disturbance, inconvenience or offence to people lawfully on or near the public unleased land – whether the work causes undue risk to people or property – whether the work causes damage to the public unleased land
Legislation cited: Environment Protection Act 1997
Legislation Act 2001 s Dictionary
Public Unleased Land Act 2013 ss 6, 18, 19, 20, 21
Subordinate
legislation cited: Environment Protection Regulation 2005Residential Boundary Fences General Code 2008
Cases cited:Alcock v Director-General, Territory and Municipal Services [2016] ACAT 78
Tribunal: Senior Member P Spender
Date of Orders: 2 July 2018
Date of Reasons for Decision: 2 July 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 13/2017
BETWEEN:
ANDREW PETER MILES
First Applicant
SAMANTHA MILES
Second Applicant
AND:
DIRECTOR-GENERAL, TRANSPORT CANBERRA AND CITY SERVICES DIRECTORATE
Respondent
TRIBUNAL:Senior Member P Spender
DATE:2 July 2018
ORDER
The Tribunal orders that:
1.The decision under review is set aside and substituted with a decision that the application for work approval lodged by the applicants on 4 November 2016 be approved subject to the Standard Terms and Conditions with the following amendments:
(a)Standard Condition 12 is amended to omit the words “be erected with a gap of a minimum of 1.2 metres between each bollard and”; and
(b)Standard Condition 20 is amended to omit the words “and reinstated with topsoil and grass”.
………………………………..
Senior Member P Spender
REASONS FOR DECISION
1.The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the current panel. A reference to ‘Standard Condition’ or ‘Standard Conditions’ refers to the standard terms and conditions imposed by the respondent pursuant to a ‘Nature Strip Development Work Approval’,[1] as set out in Annexure 1 below.
Background
[1] Tribunal documents, pages 48 – 50
2.The applicants purchased their property in Dickson in January 2005 and have lived at the property since that time. In 2016 they landscaped the front and rear of the house. The work undertaken at the front was on land that comprised the applicants’ Crown lease and land between the boundary of the Crown lease and the footpath which ran along the front of the applicants’ property (the works). The boundary of the Crown lease is 7.010 metres back from the kerb.[2] The applicants admitted that the works are partially placed on public unleased land between the boundary of their Crown lease and the footpath (the subject land). The work on the subject land comprised some paving, two trellises and an arbour. The trellises and the arbour provide a frame for climbing roses.
[2] Supplementary Tribunal documents, pages 75 - 79
3.On 24 August 2016 the respondent received a complaint from a member of the public who was concerned about the works on the subject land. A file note of the complaint noted that “it looks like a fence line and pergola structure that is currently under construction”.[3] On 26 August 2016 a ranger from the respondent attended the applicants’ property and spoke with Mr Miles, one of the applicants. During the conversation Mr Miles was “apologetic”, stated that he did not realise he needed a permit for the works on the subject land and advised that he would submit an application (the work application).[4] On 4 November 2016 the applicants made an application for approval pursuant to section 19 of the Public Unleased Land Act 2013 (PULA) (the work approval).[5]
[3] Tribunal documents, page 57
[4] Tribunal documents, page 55
[5] Tribunal documents page 59
4.On 15 February 2017 a decision was made by the delegate of the Director-General of Territory and Municipal Services that the application under section 19 of PULA was not approved for the following reasons, which are numbered for ease of reference:
[1]Nature strips provide a safe public walking area and usually contain essential services such as sewerage, water pipe, telephone, power and gas. Unapproved works or alteration to the nature strip may result in limiting accessibility or causing damage to these services. As the arbor (sic) is located in an area which may contain existing services or may require the installation of future services, approval cannot be granted for a structure of this type.
[2]The bollards do not meet standard specification (between 1m and 1.2m from ground level). Approval could be given if the height of the bollards is decreased to 1m to 1.2m in height
[3]The trellis wire is not permitted
[4]Paved or cement paths are not permitted on the nature strip
[5]There is also live lighting installed along the edge of the path which is also not permitted on a nature strip.
[6]It will be the residents responsibility to repair any damage to the watering system if it is damaged by utilities companies needing access to underground infrastructure.
[7]Shrubs must be kept at less than 0.5m from ground height as per Austroads guidelines.
[8]Any costs associated with damage to the structures/paving etc on Government land due to accessing underground services located within the nature strip in the future reserve will be borne by the applicant/lease holder.[6]
[6] Tribunal documents page 41
5.On 14 March 2017 the applicants filed an application in the tribunal for review of the respondent’s decision. The applicants and the respondent filed facts and contentions and the applicants filed material in reply. The hearing was held on 22 June 2017. The hearing included a view of the applicants’ front yard and the subject land as well as several premises in Dickson. After the hearing the parties made submissions regarding the jurisdiction of the tribunal on 6 August 2017 and 6 September 2017.
The legislation
6.The objects of PULA are set out in section 6: to protect the amenity and natural value of public unleased land and to facilitate the use of unleased land. Part 2 of PULA is headed “managing and protecting public unleased land” and Division 2.3 is concerned with “work on public unleased land”.
7.Section 18 of PULA defines ‘work’ on public unleased land for the purposes of PULA to include:
(a)any interference with Territory property on the public unleased land; and
(b)construction work carried out on the public unleased land.
8.Section 19 of PULA states as follows:
Approval to carry out work on public unleased land
(1)A person may apply to the director-general for approval (a work approval) to carry out work on public unleased land.
…
(2) On receiving an application, the director-general must—
(a) give a copy of the application to each entity the director-general considers should be consulted about the application; and
(b) tell each entity that they may give a written submission to the director-general, not later than 15 working days after receiving the copy of the application, about—
(i) why the work should not be carried out; or
(ii) how the work should be carried out.
(3) In deciding whether to issue an approval, the director-general must consider—
(a) whether the work would be likely to—
(i) cause undue disturbance, inconvenience or offence to people lawfully on or near the public unleased land; or
(ii) cause undue risk to people or property; or
(iii) damage the public unleased land; and
(b) any submissions received under subsection (2).
(4) The director-general may issue an approval only if reasonably satisfied that carrying out the work in accordance with the approval would not be likely to—
(a) unacceptably affect people lawfully on or near the public unleased land; and
(b) cause unacceptable risk to people, property or the public unleased land.
(5) An approval may be subject to any condition that the director-general reasonably believes is necessary to—
(a) eliminate an effect or risk mentioned in subsection (4); or
(b) if the effect or risk cannot be eliminated—minimise the effect or risk.
9.Under section 20 of PULA a person commits an offence if the person carries out work on public unleased land and does not hold a work approval authorising them to carry out the work. Pursuant to section 21 of PULA, the Director-General may issue a repair damage direction to a person who has caused damage to public unleased land requiring them to repair the damage. This provision states, in part, as follows:
21 Directions to repair damage to public unleased land
(1)This section applies if—
(a) a person causes damage to—
(i) public unleased land; or
(ii) Territory property on public unleased land; and
…
(b) the damage is not authorised under—
(i) an approval under this Act; or
Examples—approvals that may authorise damage
1 closed road approval
2 work approval
(ii) a public unleased land permit; or
(iii) a nature conservation licence under the Nature Conservation Act 2014, section 262 …
(2) The director-general may direct (a repair damage direction) the person to repair the damage. …
10.Therefore, if a person causes damage to public unleased land, they may be subjected to a repair damage direction but a pre-requisite to the repair damage direction is that the damage is not authorised under a work approval. ‘Work approval’ is defined under section 19 of PULA as an approval by the Director-General to carry out work on public unleased land.
The applicants’ submissions
11.In the applicants’ ‘Facts and Contentions’,[7] they challenged the respondent’s reasons for not approving the work under section 19 of PULA. The applicants’ submissions are set out at length below because the submissions include some reasoning adopted by the delegate of the respondent to decline the approval.
[7] Applicants’ Facts and Contentions 3 May 2017 (Applicants’ Facts and Contentions)
Reason 1 – Nature strips
Nature strips provide a safe public walking area and usually contain essential services such as sewerage, water pipes, telephone power and gas. Unapproved works or alteration to the nature strip may result in limiting accessibility or causing damage to the services. As the arbour is located in an area which may contain existing services or may require the installation of future services, approval cannot be granted for a structure of this type.
12.The applicants contended that the majority of the subject land does not have and is not intended to “provide a safe public walking area”.[8] The applicants argued that the delegate of the respondent had in mind a nature strip properly so-called and perhaps a strip of 0.5 m between the footpath and the front boundary of the Crown lease. However, they agreed that the margin immediately adjacent to the footpath is intended for use by pedestrians in circumstances that necessitate stepping off the footpath.
[8] Applicants’ Facts and Contentions at [50]
13.The applicants asserted that it was incorrect as a factual matter and a misrepresentation to suggest that the subject land provides, or is intended to provide, a “safe public walking area”.[9] The applicants said that no one ever walks over the subject land; rather people walk on the footpath adjacent to the subject land. Occasionally, if persons or groups of persons (perhaps with prams or the like) are walking in opposite directions and happen to meet outside the front of the house, one or more of those persons might step onto the subject land to pass those travelling in the opposite direction. They stated that “[g]enerally, nobody walks on it except us.”[10]
[9] Applicants’ Facts and Contentions at [49]
[10] Applicants’ Facts and Contentions at [49]
14.The applicants further argued that the works were deliberately designed to enhance this facility. The works levelled the ground immediately adjacent to the footpath so it is the same height as the footpath (which was not the case previously). In this area there is a blue gravel strip that the applicants asserted widened the traversable path in front of the property. Therefore, after the works, elderly pedestrians with walking sticks were able to use the gravel area, as were parents with prams. Previously they could not do so easily, because the grass was higher than the footpath and was uneven. The applicants therefore rejected the implication that the works had rendered the subject land less of, or no longer, a safe walking area. On the contrary, the applicants contended that pedestrian access was improved.
15.The applicants also challenged the finding of the delegate that unapproved works or alterations to the nature strip may result in limiting accessibility or causing damage to essential services such as sewerage, water pipes, telephone, power and gas. The applicants provided details of the location of the Telstra cable and received specific approvals from the relevant authorities in relation to electricity, stormwater, gas, water and sewerage and the NBN.[11]
[11] Applicants’ Facts and Contentions at [52] - [58]
16.The applicants noted that section 19(2) of PULA requires the Director-General to consult with entities and the applicants noted the absence of any specific objection to the works from any entities. The respondent had stated in its statement of findings that:
Any undertakings by the current lessee to remove significant landscape installations on public land and restore the site at their own cost is not a reliable long-term solution, particularly if the property changes ownership thus creating a likely future financial burden to the Territory. This is exacerbated by the short-term and non-transferable nature of a Permit Approval.[12]
[12] Tribunal documents, page 1
17.The applicants contended that this assertion ignores Standard Condition 26, which states that:
… [S]hould the applicant resolve to sell his/her lease, he/she will, prior to such disposal, supply the Territory with a name and address of the intending purchaser. The new owner must in writing agree to continue this contract and adhere to the above conditions, or reinstate the area back to its original grass condition to the satisfaction of the Territory.[13]
[13] Applicants’ Facts and Contentions at [65]
Reason 2 – Bollards
Bollards do not meet standard specification.
18.The applicants argued the relevant structures were trellis posts not bollards but in any case, challenged the respondent’s finding that the structures do not meet the standard specification. The applicants stated that the trellis posts are 1.25m high and therefore 50mm higher than the “standard specification”. They submitted that the difference in height is so trivial as to be barely noticeable and ought not to be grounds for refusing approval for the works or that part of them comprised in the trellis posts.[14]
[14] Applicants’ Facts and Contentions at [69]
19.The applicants disputed the characterisation of the trellis by the respondent as a “fence”.[15] In its reasons for decision, the respondent had stated that:
… the ACT government considers the placement of bollards with multiple wire strung between each of the bollards is a fence as it prevents access.[16]
[15] Applicants’ Facts and Contentions at [72]
[16] Tribunal documents, page 2
20.The applicants noted that ‘fence’ is defined by the Macquarie Dictionary as:
… an enclosure or barrier, usually of wire or wood, as around or along a field, garden, etc.
21.The applicants noted that there is no mention in the Residential Boundary Fences General Code (March 2008) of a trellis being regarded as a fence, as cited by the respondent in its statement of findings.[17] Additionally, they asserted that it is not clear why an impermeable hedge seems to be perfectly acceptable to the Territory but a rose trellis is not. Further, said the applicants, a fence connotes an intention to effect physical exclusion but the present trellis does no such thing. Rather, the arbour is wide open and the trellis is only part of the way along the front boundary. There is nothing to prevent someone from walking behind the trellis.[18] Furthermore, the applicants submitted that the trellis posts comply with the Territory’s current policy in any event. The applicants contend that the only express statement about bollards is in Standard Condition 12, which states that bollards must “extend a minimum of 800mm in height above the ground”.[19] The trellis posts comply with this height requirement.
Reason 3 – Trellis wire
[17] Tribunal documents, page 2
[18] Applicants’ Facts and Contentions at [77]
[19] Tribunal documents, page 48
The trellis wire is not permitted.
22.The applicant acknowledged that a prohibition on trellis wire would be quite understandable in relation to posts installed in an area where foot traffic occurs. Such an area might be a nature strip properly so called as described above. In those circumstances, there would be good reason to prohibit such wire because of the risk of people inadvertently running into it while trying to walk between the bollards. Such a risk would be an unacceptable risk to people within the meaning of section 19(5)(b) of PULA. However, no such risk exists in the present case because no foot traffic uses the applicant’s front yard to get from Point A to Point B. The trellis posts are well set back from the footpath – 2500 mm. In due course, the space between the trellis posts will be covered with roses making it even less likely that someone would walk between the trellis posts. The applicants assert that the nature and location of the trellis wire is such that the risk of a person being injured by it is minimal. The trellis wire therefore does not present an undue risk to persons or anything else within the meaning of section 19(4) of PULA.
Reason 4 – Paved or cement paths
Paved or cement paths are not permitted on the nature strip.
23.The applicants stated that this reason is in direct contradiction to the Territory’s current policy which states that “landscape developments may include … paving”. Standard Condition 1 states the same.[20] The pavers are generally set back even further from the footpath than the trellis posts, with the closest being about 2800 mm from the path. The applicant contends that the paving does not give rise to any of the prescribed circumstances in subsections 19(4) or 19(5) of PULA. On the contrary, they say the paving is aesthetically pleasing and has provided access from the footpath to the front of the house. During the hearing the respondent made vague allegations about the alkalinity and porosity of the blue granite included in the works, referring to it as “compacted blue granite”.[21] However these contentions were not pursued systematically and are discussed below.
Reason 5 – Live lighting
[20] Tribunal documents, page 48
[21] Respondent's Facts and Contentions 30 May 2017 page 2
Lighting installed along the edge of the path is not permitted on the nature strip.
24.The applicants stated that the lighting is a 12 V system as opposed to a 240 V mains power system and 12 V systems are inherently safer than 240 V systems. Further, the lights are of “304 grade” stainless steel that are specifically designed for inground installation and were installed by licensed electrician. Members of the public will not be near the lighting because the closest light is more than 2m from the edge of the path. The applicants contended that the lighting actually enhances safety by enabling the path to be lit at night and there is nothing in the works to suggest that the 12 V lighting is an undue risk to people or property. The lights are specifically designed for outdoor use – the lens is small (35mm) and is surrounded by a stainless steel shroud. Although the respondent had contended that the lights would be subject to “damage/vandalism” resulting in “shards of glass/plastic on public land”,[22] the applicants alleged that the respondent’s assessment of the potential risk to public safety presented by the lighting to be overstated.
Reason 6 – Watering system
[22] Tribunal documents page 2 at [5]
It is the residents’ responsibility to repair any damage to the watering system.
25.The applicants assert that this is no more than a repetition of Standard Condition 16 and they would have no issue in complying with the condition if the Tribunal sees fit to approve the works.[23]
Reason 7 – Shrubs
[23] Applicants’ Facts and Contentions at [90]
Shrubs must be kept at least 0.5 m from ground height as per Austroads guidelines.
26.The applicants say that this broadly reflects Standard Condition 10. The applicant acknowledged that the maintenance of a clear line of sight is a legitimate consideration in assessing the inconvenience and risk presented by a proposal under section 19(4) and its effects under section 19(5) of PULA. However the applicants do not consider there is anything in the works that do now or will in the future cause line of sight problems for neighbours accessing their driveways, for motorists or for any other road users.[24] The applicants contend that plantings do not create line of sight problems for neighbours on either side of the property and the shrubs are planted back from the road, at least 3800 mm from the back of the kerb.[25] Nothing has been planted forward of the Algerian Oak street tree (the street tree).[26] Further, the assertion that the roses included in the works, as a “large thorny species”, have the potential to create a “public safety hazard” is erroneous because the part of the subject land on which the roses planted is not used by anyone other than the residents. The applicants allege that the respondent’s contention that the roses constitute a public safety hazard is entirely without credibility.[27]
Reason 8 – Costs associated with damage
[24] Applicants’ Facts and Contentions at [94]
[25] Applicants’ Facts and Contentions at [95]
[26] Applicants’ Facts and Contentions at [95]
[27] Applicants’ Facts and Contentions at [97]
Any costs associated with the damage to the structures/paving on government land due to accessing underground services located within the nature strip in the future reserve will be borne by the applicant/leaseholder.
27.The applicants say that this is essentially a duplication of the respondent’s reasons given in respect of the watering system. The applicant repeats its contentions made in relation to the watering system discussed above. Therefore, they would have no issue in complying with the condition if the Tribunal sees fit to approve the works.[28]
Reason 9 – Additional reasons given by the respondent
[28] Applicants’ Facts and Contentions at [104]
28.Under this heading, the respondent included a number of additional reasons for the denial of the work approval.[29] The Tribunal will deal with the applicants’ arguments in relation to each of these additional reasons as follows:
Reason 9(a)
[29] Tribunal documents, page 3
If this installation was approved it would set a precedent for vast number of similar applications, which would considerably increase the risk to government and public and impact on the amenity of Canberra’s urban streetscapes.[30]
[30] Tribunal documents, page 3
29.The applicants described this reasoning as a ‘floodgates’ argument and an “Arbourgeddon” scenario.[31] They say that the works would positively impact on the amenity of Canberra’s urban streetscapes.[32] They also note that they have expressly assumed responsibility for the works and expect that other residents who carry out similar landscaping would do so too.[33]
Reason 9(b)
[31] Applicants’ Facts and Contentions at [105]
[32] Applicants’ Facts and Contentions at [107]
[33] Applicants’ Facts and Contentions at [107]
Excavation of nature strips can adversely affect the health of street trees.
30.The respondent stated in its reasons that the “excavation of the nature strip to install structures or pavements impacts the root zone of existing street trees and potentially can affect tree health”.[34] The applicants acknowledged that this is a legitimate consideration so they were careful when carrying out the works to avoid the roots of the street tree. The applicants contended that the street tree had not been adversely affected by the works and its health appears to be excellent.[35]
Reason 9(c)
[34] Tribunal documents, page 3
[35] Applicants’ Facts and Contentions at [108]
Integration of the public realm into the private realm to discourage entry by the general public.
31.The respondent asserted that “this particular landscape design integrates the majority of the public realm (nature strip) into the private realm in such a way as to discourage entry by the general public”.[36] The respondent’s delegate stated that the “installation of the arbour (in effect a covered entryway) and fence line strongly creates the impression of a public/private boundary where none in fact exists.”[37] In response, the applicants contended that the subject land is not used by anyone but them. The general public does not use and has never used the subject land. They stated that they are the only people who use it.[38]
Reason 9(d)
[36] Tribunal documents, page 3
[37] Tribunal documents, page 3
[38] Applicants’ Facts and Contentions at [110]
Construction negatively impacts the “avenue effect” of the streetscape
32.The final reason given by the respondent for refusing approval was that the “construction significantly impacts streetscape negatively impacting on the ‘avenue effect’”.[39] The applicants denied that the arbour spoils the avenue effect of the trees. Rather, the applicants allege that in the avenue effect had already been significantly undermined by the presence of 26 ‘No Parking’ signs the respondent installed on the street in 2017.[40] The respondent introduced parking restrictions on a house by house basis therefore 26 ‘No Parking’ signs were installed in a 550m stretch, all of which are immediately next to the footpath well forward of the street trees. The applicants assert that the installation of the ‘No Parking’ signs has had a significantly greater negative impact upon the avenue effect in the street than the works undertaken by the applicants.
[39] Tribunal documents, page 3
[40] Applicants’ Facts and Contentions at [114] and Annexure 27
33.The applicants referred to a subsidiary reason for the design of the work. They said that the property is situated at the end of a road with the house facing the street and there is a possibility that a driver will lose control of a motor vehicle causing it to enter the front yard towards the house at high speed. The works have been designed to dampen the momentum of an out of control vehicle incursion.
34.In summary, the applicants say the respondent's reasoning fails to distinguish between what is unleased Territory land intended for public use – a ‘nature strip’ in the true sense – and unleased Territory land which is not intended for use by anyone other than the homeowner and which, to all intents and purposes, is part of the front yard. Although the grounds of objection on which the respondent relied are sound in principle (such as the need for access for services, maintenance of clear line-of-sight, risk and hazard prevention and avoiding damage to public assets), they have either not been considered properly in the context of the works or have been misapplied in relation to the subject land.
35.In conclusion, the applicants submitted that the delegate ought not to have concluded, or that it was not reasonably open to the delegate to conclude, that the works:
(a)presented any undue disturbance, inconvenience or offence to people lawfully on or near the subject land;
(b)presented undue risk to people or property; or
(c)damaged the public unleased land.
Therefore, they submitted that the correct or preferable decision is to approve the works subject to appropriate conditions.[41]
The respondent’s submissions
[41] Applicants’ Facts and Contentions at [119]
36.Initially, in its original statement of facts and contentions, the respondent challenged the jurisdiction of the tribunal, alleging that it did not have the power under section 19 of PULA to approve works that have already been carried out.[42] Subsequently, the respondent accepted that the legal interpretation of section 19, as outlined in the applicants’ submissions on the jurisdictional issue,[43] is open to the tribunal. Further, it stated that the preferable interpretation of section 19 of PULA does not prevent the granting of approval for works that have already been carried out prior to the application.[44]
[42] Respondent's Facts And Contentions 30 May 2017 [10]-[11]
[43] Respondent’s email to the tribunal dated 6 September 2017
[44] Respondent’s email to the tribunal dated 6 September 2017
37.Nevertheless, the respondent argued that (taking into account the factors in section 19(4) of PULA), the carrying out of the landscaping works, and the resulting landscaping itself unacceptably affects people lawfully on or near the public unleased land and/or causes unacceptable risks to people, property or the public unleased land. In particular, the respondent relied upon a witness statement made by a delegate of the respondent to the following effect:
(a)The excavation works and laying of compacted stone pathway adversely interfered with the root ball of the pre-existing tree on public land, increasing the risk of death and damage to that tree with an attendant risk to nearby people and property;
(b)The rose trellis/fence, arbor (sic), pavers and compacted stone pathway (and the associated digging and excavation work) are all “damage” within the meaning discussed in [Alcock v Director-General, Territory and Municipal Services[45] (Alcock)] and should not be approved as they unacceptably interfere with public unleased land and the use thereof by the public;
(c)The landscaping works, when taken as a whole, amount to a colonisation of public unleased land by the Applicants, and has both the aesthetic and practical effect of appropriating the relevant public land to the use of the Applicants. This appropriation results in a loss of amenity to the public of the unleased land, as they are unlikely to be able, or to think they are able, to use that unleased land in the same manner as if the works had not been carried out.[46]
The hearing
[45] [2016] ACAT 78
[46] Respondent's Facts and Contentions 30 May 2017 at [13]
38.The hearing commenced with a view of the premises and the surrounding neighbourhood by the Tribunal and the parties. The Tribunal observed the works and the subject land, as well as other premises in the neighbourhood generally, and in particular premises where work had been undertaken on public unleased land. The respondent produced two applications for the development of public unleased land which had been approved in 2010 and 2011.[47] After the hearing resumed at the tribunal, evidence was given by Mr Matthew Conrick, a principal of Blades Landscaping who undertook the works on behalf of the applicant,[48] Mr Andrew Mann, a qualified arborist and the principal of Canopy Tree Experts Pty Ltd[49] and Ms Jane Carder who gave evidence on behalf of the respondent. Ms Carder has qualifications in horticulture, science and public administration.[50]
Consideration
[47] Exhibit R5 and Exhibit R6
[48] Witness Statement of Matthew Conrick 14 June 2017
[49] Report of Andrew Mann 8 June 2017
[50] Witness Statement of Jane Carder 29 May 2017
39.In deciding whether to issue an approval under section 19(4) of PULA the Tribunal, standing in the shoes of the Director-General, must consider whether the work would be likely to:
(a)cause undue disturbance, inconvenience or offence to people lawfully on or near the public unleased land;
(b)cause undue risk to people or property; or
(c)damage the public unleased land.
40.On receiving an application for work approval, the Director-General must give a copy of the application to each entity the Director-General considers should be consulted about the application and tell each entity that they may give a written submission about why the work should not be carried out or how the work should be carried out. The Director-General must also consider these written submissions in deciding whether to issue a work approval.[51]
[51] Section 19(4)(b) of PULA
41.Pursuant to section 19(5) the Director-General may issue an approval only if reasonably satisfied that carrying out work in accordance with the approval would not be likely to:
(a)unacceptably affect people lawfully on or near the public unleased land; and
(b)cause unacceptable risk to people, property or the public unleased land.
42.Importantly, pursuant to section 19(6) an approval may be subject to a condition that the Director-General reasonably believes is necessary to eliminate or mitigate an effect or risk mentioned in subsection 19(5).
The application of section 19 of PULA - overview
43.The Tribunal has concluded that the correct and preferable decision is that a work approval be issued for the works, subject to the amended standard conditions. The Tribunal is reasonably satisfied (pursuant to section 19(5) of PULA) that the works do not unacceptably affect people lawfully on or near the public unleased land and do not cause unacceptable risk to people, property or the public unleased land. In coming to this conclusion, the Tribunal considers, pursuant to section 19(4), that the work is not likely to cause undue disturbance, inconvenience or offence to people lawfully on or near the public unleased land or cause undue risk to people or property. The Tribunal also concludes, pursuant to section 19(4), that whilst the applicants have undertaken physical works on the public unleased land, it does not amount to ‘damage’ to that land. In this respect, the works that are the subject of the current proceedings are distinguishable from the works analysed by Presidential Member Daniel in Alcock because the works have not resulted in “physical injury or harm” and have not “impaired the value, usefulness or normal functioning of the public land” in any respect.[52] This reasoning is elaborated in the paragraphs that follow.
[52] Alcock at [70]
44.The respondent argued that the works constituted ‘damage’ within the meaning discussed in Alcock and section 19(4)(ii) of PULA and should not be approved as they unacceptably interfere with public unleased land and the use thereof by the public. In Alcock Presidential Member Daniel had to consider whether the works amounted to ‘damage’ to public unleased land as required by section 21(1)(a) of PULA.[53] As stated above, section 21(1)(a) states that a direction to repair public unleased may be issued if a person has caused damage to that land. The interpretation of the word ‘damage’ is useful to the analysis of subsection 19(4)(a)(iii) which requires the decision maker to consider whether the work (for which approval is sought) would be likely to damage the public unleased land.
[53] Alcock at [3]
45.In Alcock the works consisted of a sizeable concrete block retaining wall forming a dogleg from the north-eastern boundary of the applicant’s Crown lease, a colour bond fence, steel and glass pool fences on the north-eastern side of the retaining wall, a strip of concrete roughly 3m wide and a series of stepped concrete garden terraces approximately 3m wide, running most of the length of the retaining wall (the terrace gardens).[54] The applicant in Alcock conceded that he had undertaken earthmoving works which had altered the contours of the public land. The Tribunal will extract the relevant portions of Presidential Member Daniel’s decision as follows:
[54] Alcock at [2]
70.The word ‘damage’ is not defined in the PUL Act. The ordinary meaning is “injury or harm that impairs value or usefulness” or alternatively “physical harm that impairs the value, usefulness, or normal function of something”. To determine whether the public land has been damaged, therefore, it is necessary to establish that physical injury or harm has occurred, and be satisfied that this has impaired the value, usefulness or normal functioning of the public land. …
71.The applicant did not contest that he had undertaken physical works on the public land, and this included preliminary earthworks. However, he argued that these were largely consisting of concrete poured on top of the land, would not be difficult to remove, and could not be considered to be permanent. He contested that he had in any but the most minor way, caused physical harm to the public land situated underneath the works
…
73.The phrase ‘causes damage’ has been the subject of judicial interpretation where appearing in many other pieces of legislation. … [I]t has long been accepted that the term can encompass even the ‘temporary functional derangement’ caused when a police officer’s cap was squashed flat. Given the purpose of the PUL Act, it is not appropriate to read into the concept of ‘damage’ the necessity that the damage be permanent or irreversible.
74.I am satisfied that the works, and the preliminary earthworks, constitute injury or harm to the public land, and turn next to the question of whether the value, usefulness or normal functioning of the public land has been impaired.
…
76. The respondent submitted that in interpreting the word ‘damage’ regard should also be had to the objects of the PUL Act, which are to “protect the amenity and natural value of public unleased land” and “facilitate the use of public unleased land.”
77. It was submitted by the applicant that the works constitute necessary erosion control measures which should have been undertaken by the Territory in the stormwater rectification project, and were not. The applicant submitted that as a result of the state the contours of the land were left in at the conclusion of the stormwater project, his property was left exposed to risk of damage from concentrated water flows, and the terracing and concreting and preliminary reshaping of the land had been necessary to remove this risk.
78. The applicant submitted that the overall consequence of the works was not to damage but to improve the public land, in that the risk of erosion was reduced, and the surface of the concrete strip was safer for pedestrians than a grassed surface or nearby footpaths with loose soil on them. He submitted that the visual aspect provided by the works was pleasing and consistent with other works on public land in the vicinity.
79. The respondent argued that the Tribunal should not engage in a process of determining whether the ‘net’ value of the public land had been reduced overall, and that it was sufficient if value or usefulness in any one aspect had been impaired.
80. I consider that the approach urged by the respondent is correct, and the concept of ‘damage’ in paragraph 21(1)(a) is not to be determined by an assessment of whether the overall value, usefulness and normal function of the public land has been impaired. Rather, the decision-maker must make an assessment of whether the injury or harm to the land has in any respect impaired the value, usefulness or normal function of that public land.
…
82. Applying this rubric, I am satisfied that the preliminary earthworks undertaken on the public land by the applicant prior to 2007, constituted damage to the public land. Further, although the applicant argued that these structures simply sit on top of the public land, I am satisfied that the erection of the retaining wall, any fill placed behind it, and the earthworks necessary to construct it, each constitute damage to the public land on which they are situated. This is because these works have interfered with what was the natural state of the public land, and the consequence of these works is that the area of public land is physically changed and not available to the public. Its value, usefulness and normal function has been reduced.
83. I am also satisfied that the construction of the terraced garden beds, and the laying of the concrete strip, each constitute damage to the public land. This is because in order to construct these works the applicant undertook further minor earthworks to reshape the contours of the public land from how it had been left at the conclusion of the stormwater rectification works. While the concrete in the terraced garden beds and elsewhere sits largely on the top of the re-shaped land, these are significant structures – in the case of the concrete being reinforced with continuous steel mesh – that affect not only the visual amenity of the area but the way in which the public can use the public land. While the quality of the workmanship may be high, this does not mean that it is not ‘damage’.[55]
[55] Alcock at [70] – [83] (footnotes omitted)
46.The works in the present case are distinguishable from those that were the subject of the proceedings in Alcock. Following Presidential Member Daniel’s test, it is necessary to establish first whether physical injury or harm has occurred, and secondly be satisfied that this has impaired the value, usefulness or normal functioning of the public land.
47.The present works do not constitute injury or harm to the public land, which is the first limb of Presidential Member Daniel’s test. Presidential Member Daniel notes that the term ‘causes damage’ can encompass even ‘temporary functional derangement’ so there is no necessity that the damage be permanent or irreversible.[56] In the present case, the structures sit on top of the land. The Tribunal notes that the applicants levelled the ground immediately next to the footpath so it is of the same height as the footpath, but the levelling was de minimus—there was no ‘functional derangement’ created by it. This is in contrast to Alcock where the contours of the land had been altered.
[56] Alcock at [73]
48.Even if the Tribunal assumes that some injury or harm to the public land has occurred (for example by the de minimus levelling of the ground next to the footpath) the next question is whether the value, usefulness or normal functioning of the public land has been impaired. It is not necessary to determine whether the overall value, usefulness and normal functioning of the public land has been impaired, it is sufficient if the value or usefulness of the land has been reduced “in any one aspect.”[57] In Alcock, Presidential Member Daniel found that the works interfered with the natural state of the public land with a consequence that the area of public land was physically changed and not available to the public. In other respects, the work undertaken in Alcock had reshaped the contours of the public land, affected the visual amenity of the area and the way in which the public could use the land.
[57] Alcock at [79] (emphasis added)
49.In the present case, whilst there has been some affect to the visual amenity of the area in which the subject land is situated, there is no reduction in the value, usefulness and normal functioning of the subject land. There has been no change of any substance to the natural state of the public unleased land and no changes to the way in which the public can use or access the subject land. Therefore the Tribunal concludes that there has been no damage to the public land as per subsection 19(4)(a)(iii) of PULA.
50.As stated above, the Tribunal is reasonably satisfied, pursuant to section 19(5) of PULA, that the works that have been carried out do not unacceptably affect people lawfully on or near the public unleased land and do not cause unacceptable risk to people, property or the public unleased land. The Tribunal concludes that there is some impact on people and a very minor loss of amenity to the public by the diminution of the ‘avenue effect’ on the street where the work was conducted, however this is not an unacceptable affect, particularly in the context of the affect caused by the introduction of 26 ‘No Parking’ signs in that street. The Tribunal is also satisfied that there is no unacceptable risk to people, property or the public unleased land. The Tribunal accepts the applicants’ submissions that members of the public walk along the footpath at the front of the works. Although it would be necessary from time to time for a member of the public to step off the footpath and onto the works, the Tribunal notes that the works have levelled the unevenness between the two surfaces and the installation of lights has potentially enhanced the visibility of the footpath at night.
51.The Tribunal notes the applicants’ arguments that most of the subject land was not intended to provide a “safe public walking area”. It is unlikely that members of the public would be crossing the land other than for the purpose of visiting the applicants and the traversing of the land on foot would clearly be made by the path constructed by the applicants during the works. This path proceeds under the arbour and to the applicants’ front door. For purposes other than visiting the applicants, members of the public would traverse the property by using the public footpath and there is ample space for a pedestrian to step off the footpath and onto the works without being unacceptably affected or encountering risk.
52.The respondent further contended that it would be subject to additional risk in the form of exposure to public liability claims as a consequence of issuing a work approval because the land would remain Territory land but there are additional hazards which cannot be resolved by the creation of an indemnity binding subsequent leaseholders. The respondent did not adduce any evidence in support of its assertion that public liability claims for public unleased land have increased or are likely to increase if work approvals are issued. The Tribunal is not satisfied that this is a relevant consideration for the purposes of section 19 of PULA because the provision does not stipulate risks to the Territory, only to people, property or the public unleased land. The interests of the Territory as a sovereign body or polity is not necessarily contemplated by these provisions. However, assuming that risks to the “public unleased land” might encompass risks to the owner, the Tribunal is not satisfied that any additional public liability risks would cause an “unacceptable risk” for the purposes of section 19(5) of PULA.
53.The Tribunal has framed its orders so the work approval is subject to amended standard conditions. The Tribunal notes that some of the standard conditions are advisory and some may not be relevant to the works but has adopted them subject to minimal amendment for the sake of consistency with past and future applications for work approval. The Tribunal is satisfied that any affect or risk is minimised by the standard conditions pursuant to section 19(6) of PULA that apply to the work approval.
The application of section 19 PULA – addressing the respondent’s reasons
54.Adopting the numbering used above that sets out the respondent’s reasons for refusing the works approval, and the applicant’s submissions in relation thereto, the Tribunal notes the following to further explain the reasons for its orders.
Reason 1 – Nature strips
Limiting access to essential services
55.The Tribunal concludes that Standard Condition 26 will resolve this issue and notes that the applicants received specific approvals from all the relevant entities.
Reason 2 – Bollards
Bollards do not meet standard specifications
56.The Tribunal accepts the applicants’ submissions that the 50mm difference in height does not amount to an unacceptable effect or risk. The Tribunal notes that the respondent considers the placement of the bollards with wires strung between them as a fence because it prevents access. However, the Tribunal accepts the applicants’ submission that the effect of the trellis is more like a hedge than a fence. Nevertheless, the question is not whether the trellis constitutes a fence but whether its effect is to create a physical exclusion in circumstances where people might otherwise venture. The arbour is open and the trellis is only part of the way along the front boundary. The Tribunal does not consider that the trellis discourages people from using the public unleased land, relying upon the findings made above about the manner in which people are likely to traverse the subject land. The positioning of the trellis does not interfere with this.
Reason 3 – Trellis wire
The trellis wire is not permitted
57.The Tribunal agrees with the applicants’ submission that no foot traffic is likely to use the applicants’ front yard to get from Point A to Point B and therefore the trellis wire does not constitute an unacceptable effect or risk.
Reason 4 – Paved or cement paths
Paved or cement paths are not permitted on the nature strip
58.The pavers are set back further from the footpath than the trellis, with the closest being about 2800 mm from the path. The paving does not give rise to any issues under sections 19(4) or 19(5) of PULA.
Reason 5 – Live lighting
Lighting installed along the edge the part is not permitted on the nature strip
59.The lights are specifically designed for inground installation and were installed by licensed electrician. The lenses on the lights are small, surrounded by a stainless steel shroud and the closest light is about 2 m from the edge of the foot path. The lighting probably enhances safety by enabling the path to be lit at night. The lighting does not unacceptably affect people or cause an unacceptable risk.
Reasons 6 and 8 – Costs associated with any damage
It is the residents’ responsibility to repair any damage to the watering system structures and paving
60.Standard Condition 16 has been imposed by the Tribunal in the orders.
Reason 7 – Shrubs
Shrubs must be kept at least 0.5 m from ground height
61.This requirement is reflected in Standard Condition 10 which has been imposed by the Tribunal. The Tribunal accepts the applicants’ submission that there is nothing in the planting that is likely to cause future line of sight problems for neighbours, motorists or other road users. The rose trellis does not constitute a public safety hazard.
Reason 9(a) – Floodgates
62.The Tribunal does not consider that this is a valid ground to refuse a work approval under section 19(1) of PULA. Each application must be considered on its own merits by applying Division 2.3 of PULA.
9(b) – Damage to the street tree
63.The respondent submitted the works had probably adversely interfered with the roots of the street tree, alleging that the driveway had been widened during the works and damage had been caused by a section of “compacted” blue granite forming part of the works.[58] However, the Tribunal accepts the evidence given by Mr Conrick that the applicants only replaced and did not widen the existing driveway[59] (constructed prior to 2005) during the works. Mr Mann testified that the blue granite pathway was not compacted. He stated that the
…blue metal does not appear to have been excessively compacted. I was able to dig it out with a small hand tool to examine both its nature and the nature of the soil below. The gravel is of a composition that prevented it from forming an impenetrable surface: it was mostly of one size grade with little or no fines. It is the type of gravel that one would select to allow water infiltration. I poured water onto the gravel surface and although some run-off did occur, a high proportion infiltrated. … The gradual wetting of the gravel in the rain would allow more infiltration into it and through the gravel. … [T]he nature of the gravel was quite open and the soil beneath it was moist...[60]
[58] Witness statement of Jane Carder’s 29 May 2017 [25]
[59] Transcript of proceedings, page 6
[60] Report of Alan Mann 8 June 2017 pages 5-6
64.Mr Mann testified that there was no evidence of ongoing damage to the street tree. He considered the tree was in good health and continues to grow. Ms Carder conceded that the street tree is not showing any current signs of damage or distress.[61] Whilst it is likely that the street tree suffered some loss of absorptive roots when the work was undertaken and the concrete construction of the new driveway was less permeable than the previous pavers, Mr Mann considered that this has been “well compensated for with the installation of mulch and irrigation.”[62]
[61] Transcript of proceedings, page 72
[62] Report of Alan Mann 8 June 2017 pages 4 - 6
65.The Tribunal does not consider that the respondent established damage to the street tree. After Mr Mann had given evidence, the respondent faintly contended that the blue granite might constitute a slip hazard but this argument was not pressed or fully developed.[63]
9(c) – Integration of the public realm into the private realm to discourage entry by the general public
[63] Transcript of proceedings, page 89
66.As discussed above, the respondent argued that the value, usefulness and normal functioning of the subject land has been impaired and therefore damage has occurred under the Alcock test because the combined effect of the works is to privatise or ‘colonise’ the subject land. The contention is that the applicants extended the entry way to their house essentially to the kerb and through the landscaping work made the entire public unleased land an entry way to their house.[64]
[64] Transcript of proceedings, page 89
67.The respondent argued that the works amounted to an unacceptable ‘colonisation’ of Territory land which integrated a significant part of the public realm into the private realm to discourage entry by the general public and had the aesthetic and practical effect of appropriating the relevant public land to the use of the applicants. It was further argued that the appropriation results in a loss of amenity to the public of the unleased land as members of the public are unlikely to think that they are able to use that unleased land in the same manner as if the works had not been carried out. The Tribunal made some findings above about the way that the public would traverse the subject land. These findings are not dependent upon the public or private nature of the land. The Tribunal concludes that the public use of the subject land is not discouraged by the works and therefore rejects this submission.
9(d) Construction negatively impacts the ‘avenue affect’ of the streetscape
68.The Tribunal accepts this submission made by the respondent, however concludes above that it does not amount to an unacceptable effect.
Consultation with the community
69.The Tribunal, standing in the shoes of the Director-General, must consider any written submissions from entities that the Director-General considers should be consulted about the application. The word ‘entity’ is defined in the Dictionary of the Legislation Act 2001 to include “an unincorporated body and a person (including a person occupying a position).”
70.The delegate at first instance consulted with utilities, the land manager and Transport Canberra and City Services[65] but did not consult with neighbours or other members of the community.[66] The scope of the consultation obligation in section 19(2) PULA is unclear and was not the subject of detailed submissions by the parties. For the sake of completeness, the Tribunal notes that the applicants delivered a flier regarding the works to neighbours residing in the street. The flier stated in part:
We are currently appealing the decision to ACAT, and would greatly appreciate if you would provide a short note or email saying you support the landscaping works and/or prefer the current look and/or think it looks better than before.[67]
[65] Transcript of proceedings, page 61
[66] Transcript of proceedings, page 75
[67] Applicants’ Reply 12 June 2017 [74]
71.Based on these responses, the applicants contended that many of the residents are in favour of the works they carried out. They received 20 positive responses and one negative response.[68] The respondent argued that the applicants’ flier was designed to elicit positive responses, so little weight should be attributed to the letter and the responses received to it.[69] Although it is noteworthy that 21 members of the community took the trouble to contact the applicants about the work, the Tribunal agrees that no weight may be given to this exercise. The responses do not constitute a consultation for the purposes of section 19(4)(b) of PULA.
Conclusion
[68] Applicants’ Reply 12 June 2017 at [64]
[69] Transcript of proceedings, page 44
72.The Tribunal concludes that the application for a work approval made by the applicants on 4 November 2016 satisfies section 19 of PULA and therefore sets aside the decision made by the respondent and substitutes a decision that the work approval be granted subject to amended standard conditions.
………………………………..
Senior Member P Spender
Annexure 1
Nature strip development application
Nature strip development work approval
Section 19, Public Unleased Land Act 2013
Standard Terms and Conditions
Landscape Development
1.Landscape development may include the following features: garden beds, rockeries, paving, trees, shrubs, ground cover plants, tan bark or similar materials.
2.Tan bark, wood chips, loose soil or other material will only be approved if stable and suitably contained.
3.If you wish to remove any trees that you or a previous lessee have planted on the nature strip, you are required to obtain written approval from Territory and Municipal Services (TAMS) before removing the tree. Telephone 13 22 81.
4.If you do not have a street tree and would like one planted, contact City Services on telephone 13 22 81.
Street Tree Protection Requirements
5.Adequate protection for nature strip trees is required. This can be achieved by:
(a)no unapproved excavation within the drip line of trees;
(b)no excavation for services, driveways, or footings within at least 3m of the tree trunk;
(c)avoiding hard paving surfaces which create an impermeable layer, preventing air and water from reaching tree roots, stop paving at least 500mm from the trunk of the tree and provide a gravel diffusion layer under the pavement; and
(d)ensuring that the ground level around nature strip trees is not altered and that materials are not to be built-up around the base of any trees.
Pedestrian Access, Line of Sight and/or Obstructions
6.A strip of grass or stable surface a minimum of 1.2 metres wide must be maintained at the back of kerb for pedestrian access. No obstruction is permitted within this 1.2 metre wide strip. Any edging must be flush with the adjacent ground.
7.Foliage which is on the nature strip, or growing on your lease and overhangs a footpath, must be pruned to maintain a minimum height of 2 metres clear above footpaths and pruned back in line with the edge of the footpath (including hedges and groundcovers). For safety purposes, pedestrians must have access to the entire width of the footpath.
8.Foliage or structures are not to cause a line of sight problem for vehicles or pedestrians when using, entering or exiting an intersection, driveway or footpath.
9.Where a lease is adjacent to a pedestrian laneway which meets a road, extra provision for line of sight must be considered.
10.Grass should be kept below 0.5 metres, to ensure that it does not cause a line of sight problem or a fire hazard.
Log Barriers and Bollards
11.Log barriers are generally not approved on the nature strip.
12.Bollards - vertical posts (100-150mm in diameter) are permitted on the nature strip provided they are positioned a minimum of 1.2 metres from the back of the kerb. They are to be erected with a gap of a minimum of 1.2 metres between each bollard and extend a minimum of 800mm in height above the ground. A row of bollards can be erected at right angles to the road provided they are positioned a minimum of 1.2 metres from any driveway or footpath.
13.Temporary protective fencing is permitted with approval, if constructed and maintained in a safe condition, in areas where newly seeded soil or turf is located. Protective fencing must be clearly marked with reflective tape or similar materials etc. Permanent fencing is not permitted.
Watering System
14.The system must be regulated and maintained so that water does not fall on the footpath (where provided), roadway or adjacent driveway(s) under normal weather conditions.
15.The requirements of public utility authorities (e.g., gas, telephone, electricity) must be met concerning installation procedure where services are contained within the road verge.
16.Should the need arise for maintenance of any public utility or tree contained within the road verge, the Territory will not be held responsible for any damage to the watering system.
17.The Territory will not be responsible for any damage caused to the watering system by roots of trees planted or maintained by the Territory.
18.The watering system is to cause minimal inconvenience to pedestrians and must be kept in good repair (i.e. no leaking sprinklers over footpaths and down gutters).
Sound
19.The Environment Protection Act 1997 and the Environment Protection Regulation 2005 has established noise emissions standards for the ACT. The Applicant is to ensure that noise from mechanical plant complies with these noise standards at all adjoining properties. The noise standards are set out below.
20.The area shall be managed by the Applicant in an orderly and safe manner. When vacated it should be left in a clean and tidy condition and reinstated with topsoil and grass to the satisfaction of the Territory and at no expense to the Territory.
21.Any damage to grassed surfaces, footpaths, kerbs and gutters, trees, irrigation systems or any other installations or services contained within the unleased land must be fully restored by the Applicant to the complete satisfaction of the Territory and at no expense to the Territory.
ACT Government Requirements
22.Should the need arise, the area is to be vacated within a period specified by the Territory, at no expense to the Territory.
23.Should the need arise for the installation, maintenance or erection of any public utility or Territory improvement on the unleased land the Territory or public utility provider will not be held responsible for restoration of any substance, material or item affected by the said installation or erection.
24.If this application is approved, all costs arising out of the Applicant's use of the unleased land, including the relocation of any engineering services, will be borne by the Applicant.
25.The Territory reserves the right to withdraw, make changes to, or change the conditions to an approved application at any time. Changes are to be completed at no expense to the Territory.
26.In the case of a nature strip development, should the applicant resolve to sell his/her lease, he/she will, prior to such disposal, supply the Territory with the name and address of the intending purchaser. The new owner must in writing agree to continue this contract and adhere to the above conditions, or reinstate the area back to its original grass condition to the satisfaction of the Territory.
Bushfire Fuel Hazard
27.Broadscale mulch, trees with stringy, fibrous or ribbon bark and plantings of shrubs and large tussock grasses will not be approved on Nature Strips within bushfire Ember Zones, adjacent to Inner Asset Protection Zones or in other locations that may be threatened by bushfire.
28.Nature strips on the urban edge facing west, north-west or north, maybe particularly threatened.
29.Rock gardens containing succulent plants such as cactus, or lawn grass are recommended in these locations.
HEARING DETAILS
FILE NUMBER:
AT 13/2017
PARTIES, APPLICANT:
Andrew Peter Miles and Samantha Louise Miles
PARTIES, RESPONDENT:
Director-General, Transport Canberra and City Services Directorate
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Mr B Buckland
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Senior Member P Spender
DATES OF HEARING:
22 June 2017
DATE OF FINAL SUBMISSION
6 September 2017
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