MIOSGE & ANOR v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) - [2020] ACAT 65

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MIOSGE & ANOR v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2020] ACAT 65

AT 14/2020
Catchwords: ADMINISTRATIVE REVIEW – dual occupancy development on surrendered residential block in RZ1 zone (‘Mr Fluffy’ block) – whether roofed car shelter ‘wholly or partly enclosed on not more than two sides’ – meaning of ‘partly enclosed’ – whether removal of garage doors makes the roofed car shelter a ‘carport’ – whether R7 requires 18m² to be included in the calculation of gross floor area of each dwelling for each of two roofed car spaces provided for each dwelling – meaning of ‘each roofed car space provided to meet Territory requirements for residential car parking’ in R7 – whether the requirement to provide two car spaces for a dwelling of three or more bedrooms in Schedule 3.1.5 of Parking and Vehicular Access Code is one of the ‘Territory requirements for residential car parking’ for the purposes of R7 – where external width of garages or parking structures substantially exceed maximum width permitted by R79 – held to be not consistent with desired character – where provision of additional driveway verge crossing held to be not compatible with streetscape and other requirements of C70 – where design of driveway verge crossing does not comply with R72 and not endorsed by Territory and Municipal Services Directorate as required by C72 – decision to grant development approval set aside – substituted by decision to refuse development approval

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Legislation Act 2001 ss 4, 139
Planning and Development Act 2007 ss 119, 120, 121, 139, 165, 407, 409

Subordinate

Legislation cited: Multi Unit Housing Development Code R7, C43, C44, C56A, R60/C60, C61, R70/C70, R72/C72, R77, R79/C79
Parking and Vehicular Access General Code Schedule 3.1.5
Single Dwelling Housing Development Code R41
Territory Plan Part B – Definition of Terms
Waterways Water Sensitive Urban Design General Code Sections 2.2, 2.4

Cases cited:Deakin Residents Association v ACT Planning and Land Authority [2015] ACAT 37
Glass v ACT Planning and Land Authority [2016] ACAT 96
Hamilton v ACT Planning and Land Authority [2018] ACAT 121
Javelin Project Pty Ltd v ACT Planning and Land Authority & Anor [2017] ACAT 87
McGrath v ACT Planning and Land Authority [2018] ACAT 100
Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority [2017] ACAT 44
Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority [2018] ACAT 95
Peraic v ACT Planning and Land Authority [2019] ACAT 118
Sladic v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority [2018] ACAT 38
Temple v ACT Planning and Land Authority [2012] ACAT 54

Tribunal:Senior Member M Orlov (Presiding)
Senior Member G Trickett

Date of Orders:  14 July 2020
Date of Reasons for Decision:         27 August 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL      AT 14/2020

BETWEEN:
PAUL MIOSGE
TRACEY MIOSGE
Applicants

AND:

ACT PLANNING AND LAND AUTHORITY

Respondent

AND:
GINA CARMODY
Party Joined

TRIBUNAL: Senior Member M Orlov (Presiding)
Senior Member G Trickett

DATE:14 July 2020

ORDER

The Tribunal orders that:

The decision under review is set aside and substituted by a decision to refuse to approve the development application.

.…………Signed………
Senior Member M Orlov
For and on behalf of the Tribunal

REASONS FOR DECISION

Synopsis

This is an application for review of a decision to grant development approval for a dual occupancy development on a ‘surrendered residential block’[1] in the suburb of Spence – i.e. a block surrendered to the ACT Government under what has been referred to as the ‘Mr Fluffy’ buy-back scheme and subsequently sold to a developer. The block is zoned Residential RZ1 Suburban and has an area of 986m². Approval for the development proposal was given in the merit track,[2] subject to conditions.
[1] ‘Surrendered residential block’ means a block that has been surrendered under the Loose Fill Asbestos Insulation Eradication Scheme Buyback Program and included as a surrendered block on the Affected Residential Property Register (Part B – Definition of Terms, Territory Plan)
[2] Division. 7.2.3 of the Planning and Development Act 2007
Section 119 of the Planning and Development Act 2007 (PD Act) provides that development approval must not be given for a development proposal in the merit track unless the proposal is consistent with all relevant codes. Dual occupancy development of the block is permissible provided that the development complies with the Multi Unit Housing Development Code (Multi Unit Code) and other codes applicable to the development.
For the reasons that follow, we are satisfied that the development proposal does not comply with R7 of the Multi Unit Code, which restricts the maximum ‘plot ratio’[3] for dual occupancy housing, where both dwellings directly front a public road from which vehicular access is permitted, to 50%. This is a mandatory requirement. Non-compliance means that the development approval must be refused.
[3] ‘Plot ratio’ means the ‘gross floor’ area in a building divided by the area of the site (Part B – Definition of Terms, Territory Plan)
There are other respects in which we are satisfied that the development proposal does not comply with the Multi Unit Code that provide additional grounds upon which we consider development approval should be refused.

Background

The original applicant for development consent, Mr Patrick Maiuto, acting on behalf of the Crown lessee, Ms Kay Sharp, lodged an application with the respondent, the ACT Planning and Land Authority (ACTPLA), for approval to construct two residences on Block 20, Section 19, Spence (the subject block) on 12 March 2019 as a two storey dual occupancy development. The party joined, Ms Gina Carmody, later took over responsibility for the application on behalf of the Crown lessee.
The applicants in this proceeding, Mr and Mrs Miosge, are the owners of a property that adjoins the northern boundary of the subject block. They made representations objecting to the development on the grounds that it would infringe their privacy – specifically, that the development did not comply with R60 of the Multi Unit Code.
ACTPLA approved the development proposal on 26 February 2019 subject to conditions. Condition 1 provided as follows:[4]
Within 28 days from the date of this decision, or within such further time as may be approved in writing by the planning and land authority, the applicant shall lodge with the planning and land authority for approval:
(a)     Removal of the car port [sic] roller doors or other method agreed to by the planning and land authority for the development to comply with Rule7 of the Multi Unit Housing Development Code.
Note: Car ports [sic] are defined by the Territory Plan as: Carport means a car shelter wholly or partly enclosed on not more than two sides. The roller doors cause the proposed car ports [sic] to exceed the 2 sides requirement and therefore cannot be defined as a carport as proposed. Consequently, the car parking [sic] areas count to the gross floor area and exceed the requirements of R7.
(b)     Amend dwelling 1 bedroom 2 window to be a high sill (minimum 1.7m above the adjacent finished floor level) or other method to minimise the potential privacy impacts from the bedroom to the adjoining property.
(c)     Provide a revised landscape plan showing a minimum of two new trees in the front zone (one for each residence). The proposed trees are to be species that will grow 8-10m in height with a minimum 6m canopy at maturity. The revised landscape plan is to be to the satisfaction of the Planning and Land Authority and the Tree Protection Unit.
[4] Exhibit 1 T Docs page 9
Condition 2(a) provided as follows:[5]
(a) The approval does not take effect until the lessee, or applicant has obtained a written statement of endorsement from TCCS[6] and submits a Statement of Acceptance to the planning and land authority as satisfying this condition of approval under s165 of the Planning and Development Act 2007.
[5] Exhibit 1 T Docs page 9
[6] Transport Canberra and City Services
ACTPLA’s reasons for decision stated that the application was approved because it was found to meet the relevant rules and criteria of the Territory Plan and section 120 of the PD Act.[7]
[7] Exhibit 1 T Docs page 10
ACTPLA described the main issues raised with respect to the development in the following terms:[8]
Visual impact of the development, zone objectives & existing street character (1 storey):
The development is largely rule compliant. The bulk and scale is within the MUHDC rules for building envelope (R23 & 25) and setbacks (R30). 2 stories [sic] are permitted. Noting the existing residential development, the proposal will be noticeable by comparison however does not depart from the TP [sic] to require significant redesign or refusal. Note that as conditioned [sic], the removal of the car port [sic] roller doors will help minimise such impacts too.
Privacy impacts:
The development is setback from the side boundaries [sic] compliant with rule 30. R25 satisfied therefore no assessment against C25 possible. R26/C26 is not applicable. R60 complied with therefore no assessment of C60 possible. A condition is to be imposed in regards to Dwelling 1, bedroom 2 window to be high sill or equivalent. This will make R60 compliant. [Emphasis added]
[8] Exhibit 1 T Docs page 10
Mr and Mrs Miosge take issue in this proceeding with the underlined statement regarding compliance with R60.
Pursuant to Division 7.3.3 of the PD Act, ACTPLA referred the application to relevant entities, including Transport Canberra and City Services (TCCS) and the Tree Protection Unit (TPU).
ACTPLA’s notice of decision referred to the response from TCCS as follows:[9]
TCCS provided advice stating that the proposal is not supported, however a condition has been imposed in Part A of this decision that the approval does not take effect until written endorsement is provided by TCCS.
[9] Exhibit 1 T Docs page 11
TCCS gave the following advice concerning the proposed verge crossings:[10]
1.     The existing street light over the proposed verge crossing must be relocated a minimum of 1.5m away from the verge crossing.
2.     A detail verge crossing plan must be submitted showing the new street light location, distance from the original location, and the clearance to the new verge crossing and the neighbours (21/19) verge crossing.
3.     The existing verge trees does not shown on the site plan. The all of the verge trees must mark on the plan including any trees to be removed.
4.     The long section of the proposed verge crossing must submit showing that the longitudinal grade. [All errors in the original]
[10] Exhibit 1 T Docs page 69
ACTPLA’s notice of decision referred to the response from the TPU as follows:[11]
TPU provided advice stating that the proposal is not supported, however written endorsement was provided by the lessee from TPU for the removal of the regulated tree on the block. It was determined that revised landscaping would be required to provide further tree planting. A condition has been imposed in Part A of this decision for a revised landscape plan showing a minimum of two new trees in the front zone (one for each residence). the proposed trees are to be species that will grow 8-10m in height with a minimum 6m canopy at maturity. The revised landscape plan is to be to the satisfaction of the Planning and Land Authority and the Tree Protection Unit.
[11] Exhibit 1 T Docs page 11
Mr and Mrs Miosge lodged this application for review of the decision to approve the development proposal on 16 March 2020.

Scope of the merits review by the Tribunal

It was common ground that Mr and Mrs Miosge are eligible entities within the meaning of section 407 and Schedule 1 (item 4, column 3) of the PD Act and are entitled to apply to the Tribunal for a review of the decision to give development approval pursuant to section 409 of the PD Act.
Although Mr and Mrs Miosge’s primary contention was that the proposal did not comply with R60 of the Multi Unit Code, ACTPLA accepted that the scope of the Tribunal’s review of the merits of the decision was not limited to consideration of compliance with R60.
Pursuant to section 121(2) of the PD Act, the right of review is only in relation to the decision or part of the decision to the extent that the development proposal is subject to a rule and does not comply with it, or no rule applies to the development proposal.
Prior to the hearing, the Tribunal notified the parties that they should address the following compliance issues:
Whether the development proposal complies with the following rules and criteria set out in the Multi Unit Housing Development Code:
(a)     R7 having regard to:
(i)whether the result produced by removing the carport roller doors in accordance with clause 1(a) of the conditions of approval is a carport as defined in the Territory Plan;
(ii)the requirement in R7 that, for the purpose of calculating plot ratio for the rule, the gross floor area includes 18 m² for each roofed car space;
(b)     R60/C60 having regard to the location and extent of the minimum principal private open space of the single dwellings adjoining the rear of the property with reference to R41/C41 of the Single Dwelling Housing Development Code;
(c)     R70/C70;
(d)     R79/C79
(e)      C40 having regard to any issues that may arise if the development proposal does not comply with either or both of R70/C70 and R79/C79.
At the hearing, ACTPLA also raised and addressed issues whether the development proposal complies with C43, C44, C56A, R64 and R72 of the Multi Unit Code and the 40% mains water reduction target in the Waterways Water Sensitive Urban Design General Code.
The issue whether the correct and preferable decision in this case is to confirm the original decision, vary the original decision by including additional or different conditions, or set aside the original decision and substitute a decision that development approval should be refused turns on the question whether the development proposal complies with the Multi Unit Code. ACTPLA accepts in those circumstances that it is not necessary for the Tribunal to consider the difference of views that has emerged in recent tribunal decisions about the scope of the tribunal’s jurisdiction to have regard to considerations arising under section 120 of the PD Act on a merits review of a decision under section 121.[12]

Evidence

[12] See Glass v ACT Planning and Land Authority [2016] ACAT 96; Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority [2017] ACAT 44; Sladic v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority [2018] ACAT 38; Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority [2018] ACAT 95; McGrath v ACT Planning and Land Authority [2018] ACAT 100; Hamilton v ACT Planning and Land Authority [2018] ACAT 121; Peraic v ACT Planning and Land Authority [2019] ACAT 118

A view was conducted of the subject block, the property at the rear owned by Mr and Mrs Miosge and some of the surrounding streets, attended by all of the parties. Tracey Miosge gave evidence on behalf of the applicants. Gina Carmody gave evidence on behalf of the party joined and tendered an amended set of drawings, which she said addressed all of the conditions of approval.[13] The original drawings on which development approval was based were in evidence also.[14] Sheikh Lana, who is employed by ACTPLA as a development assessment officer, also gave evidence. Ms Tomlins, who appeared on behalf of ACTPLA, addressed and referred to the witness as Ms Sheikh. We will do so also.

Non-compliance with R7 – plot ratio > 50%

[13] Exibit 3 comprising A3 size drawings numbered (in the order in which they appeared) A100 (site plan), A102 (longitudinal driveway section for house 2), A201 (elevations 3 & 4), A105 (indicative landscape plan), A107 (ground floor plan), A109 (upper floor plan), A200 (elevations 1 & 2), A101 (upper floor site plan), A102 (longitudinal driveway section for house 1). An A2 size version of drawings A107 (ground floor plan) and A109 (upper floor plan) was tendered as Exhibit 2
[14] Exhibit 1 T Docs pages 153 to 173

R7 specifies the maximum ‘plot ratio’[15] for dual occupancy housing on ‘standard blocks’[16] in RZ2 and blocks defined as a ‘surrendered residential block’[17] in RZ1.
[15] Plot ratio means the gross floor area in a building divided by the area of the site (Part B – Definition of Terms, Territory Plan)
[16] Standard block means a block with one of the following characteristics: a) originally leased or used for the purpose of one or two dwellings except where the original lease explicitly permits two dwellings; b) created by a consolidation of blocks, at least one of which is covered by a) (Part B – Definition of Terms, Territory Plan)
[17] See definition of surrendered residential block in footnote 1
The relevant parts of R7 provide as follows:
The maximum plot ratio for dual occupancy housing is:
(i)where at least one dwelling does not directly front a public road from which vehicular access is permitted – 35%
(ii)in all other cases – 50%
…
For the purpose of calculating plot ratio for this rule, the gross floor area includes 18m² for each roofed car space provided to meet Territory requirements for resident car parking, but does not include basement car parking.

The issues

The question whether the development proposal in this case complies with R7 gives rise to two issues.
The first issue is whether each part of the building identified on the plans as a ‘carport’ meets the definition of ‘carport’ in the Territory Plan. A ‘carport’ means a car shelter wholly or partly enclosed on not more than two sides.[18] In this case, the development proposal includes a roofed car shelter for each dwelling, each of which can accommodate parking for two cars[19] and has a floor area of 39.93 m². If the car shelters do not meet the requirements for a ‘carport’ – i.e. if we find that they are wholly or partly enclosed on more than two sides – ACTPLA accepts that the actual floor area of the two car shelters (79.86m²) must be included in the ‘gross floor area’[20] (GFA) for the purpose of calculating the plot ratio. In that event, ACTPLA accepts that the development would exceed the maximum permissible plot ratio.
[18] Part B Definition of Terms, Territory Plan
[19] Exhibit 1 T Docs page 153; compare Exhibit 2 drawing A107, A200
[20] ‘Gross floor area’ means the sum of all areas of all floors of the building measured from the external faces of exterior walls, or from the centre lines of walls separating the building from any other building, excluding any area used solely for rooftop fixed mechanical plant and/or basement car parking (Part B – Definition of Terms, Territory Plan)
The second issue is whether, if the car shelters meet the requirements for a ‘carport’ – i.e. if we find that they are wholly or partly enclosed on not more than two sides – an area of 36m² or 72m² must be included in the GFA for the purpose of calculating the plot ratio. The development proposal includes four roofed car spaces – two for each dwelling. The issue turns on whether two, or all four, roofed car spaces are “provided to meet Territory requirements for resident car parking” within the meaning of R7. If only two roofed car spaces are provided to meet the relevant parking requirements, 36m² must be included in the GFA. In that case, the development does not exceed the maximum permissible plot ratio of 50%. If all four car roofed spaces are provided to meet the relevant parking requirements, 76m² must be included in the GFA. In that case, the development exceeds the maximum permissible plot ratio.
Compliance with R7 is a mandatory requirement. There is no applicable criterion. If the development proposal does not comply with R7 on either of the abovementioned grounds, development approval must be refused under section 119 of the PD Act.

Is each car shelter a carport within the meaning of the Territory Plan?

As we have noted earlier in paragraph 27, this issue turns on whether each car shelter is “wholly or partly enclosed on not more than two sides”. This is a question of fact.
In this case, each car shelter is fully enclosed along the internal side wall adjacent to the entry and partly enclosed along the rear wall. The front wall of each car shelter forms an integral part of the brick and rendered masonry front facade of the building. Each car shelter is 6.46 metres wide and 3.05 metres high, measured from the floor to the underside of the ceiling[21] and is provided with an entrance that is 4.82 metres wide and 2.5 metres high. Each entrance is framed by 820mm wide brick or rendered masonry walls on each side and by brickwork to a height of 550mm above the door head. Approximately 39% of the front of each car shelter is enclosed by brickwork.[22]
[21] Exhibit A2, drawing A200 shows the ‘carport’ ceiling level at 639.550 and the ‘carport’ floor level at 636.500. We have disregarded brickwork that extends above the ceiling line to create a parapet
[22] The front side of each car shelter has an area of 19.7m² (6.46m x 3.05m). The entrance to each car shelter has an area of 12.05m². Therefore 7.65m² (19.7m² – 12.05m²) or 38.8% of the front of each car shelter is enclosed by brickwork.
The original development proposal included panel lift garage doors, which meant that the car shelters could not be classed as a ‘carport’. ACTPLA included a condition requiring the panel lift doors to be removed and approved the development on the basis that this was sufficient for the car shelters to meet the definition of a ‘carport’. With that modification, ACTPLA considered that 36m² should be included in the GFA for the purpose of calculating plot ratio in accordance with R7, instead of the actual floor area of 79.86m². This produced a plot ratio of 49.97% which complied with R7. We consider whether ACTPLA’s calculation of the plot ratio is correct later in these reasons.
The panel lift garage doors have been removed in the amended plans tendered at the hearing. Otherwise the treatment of the front of the car shelters is unchanged. The question is whether the car shelters now comply with the Territory Plan definition of a ‘carport’. As it is common ground that the car shelters are enclosed or partly enclosed on two sides, the answer depends on whether the entrance to each car shelter – i.e. the front side – also is ‘partly enclosed’. If it is, the car shelter is not a ‘carport’ within the meaning of the Territory Plan.
Ms Tomlins made the following submission in response to a question by the Tribunal:[23]
Q. The question is, accepting that it is certainly enclosed on two sides, whether the degree of enclosure that is provided by the two side walls and the – sort of treatment – the brickwork over what would have been the top wall – whether that amounts to partial enclosure. Now, we’re not concerned with aesthetic issues. Yes you can put a steel post in the corner, you can put a brick column, whatever. That’s not what’s there at the moment. The question is whether what is there meets the description of carport.
A. Yes, I understand, Senior Member, and I accept that the front facade is not completely open, but in my submission the concept of enclosure must relate to or be determined having regard to elements of nature and degree, because necessarily, it would seem with a carport, there will be structural columns of some nature on all four sides, so there will always be posts of some width, and the question then really I think becomes where does that become so significant that the carport reaches that threshold of being partly or wholly enclosed on the sides.
[23] Transcript of proceedings 23 June 2020, page 70, lines 30-56
The phrase ‘partly enclosed’ in the Territory Plan definition of ‘carport’ is not a defined term. Nor is it one that has an accepted technical meaning. The expression should be understood in its ordinary English sense. One of the meanings given to ‘enclose’ in the Macquarie Dictionary is ‘to shut in’, which we think is apt in the present circumstances. The side of a car shelter is ‘partly enclosed’ if it is partly shut in. As we have found earlier, in this case approximately 39% of the front of each car shelter is covered or shut in by brickwork on either side and above the entrance. In our view, that amounts to the front of the car shelter being ‘partly enclosed’.
This means that the actual floor area of the car shelters (79.86m²) must be included in the GFA for the purpose of calculating the plot ratio, as a result of which the plot ratio exceeds the maximum permissible under R7. Development approval must be refused in those circumstances.

Does the GFA in this case include 36m2 or 72m2 for the roofed car spaces?

If, contrary to the conclusion we have reached above, removal of the panel lift doors does result in the car shelters meeting the definition of a ‘carport’, it is necessary to decide whether, in the circumstances of this case, R7 requires the GFA to include 36m², or 72m², for the purpose of calculating plot ratio.
R7 requires 18m² to be included in the GFA “for each roofed car space provided to meet Territory requirements for resident car parking.”[24] The development includes four roofed car spaces – two for each dwelling. The issue is whether two or four roofed car spaces are “provided to meet Territory requirements for residents car parking.”
[24] The same requirement appears in R8, which applies to the calculation of plot ratio for large blocks that are standard blocks in RZ2, RZ3 and RZ4 and in R9, which applies to blocks other than standard blocks in RZ1, RZ2, RZ3 and RZ4
The Parking and Vehicular Access General Code (Parking Code) specifies vehicular access and parking requirements for all developments. Section 3 states the parking provision rates relating to each of the Territory Plan’s zones. Section 3.1 states that the “provision for parking in residential areas must be considered in conjunction with the requirements specified in the residential zones development codes” (our emphasis). In this case, that means the requirements specified in the Multi Unit Code must be considered “in conjunction with” the requirements specified in the Parking Code. We will consider each in turn.
Schedule 3.1.5 of the Parking Code specifies the “parking provision rates for the provision of parking in the residential zones”. In the case of an ‘attached house’,[25] schedule 3.1.5 requires two parking spaces to be provided for each dwelling with three or more bedrooms. In this case, each dwelling in the development is an ‘attached house’ with four bedrooms.
[25] ‘Attached house’ means any dwelling, within a building containing two or more dwellings, which has within its curtilage open space at ground level and private access for the exclusive use of the occupants of the dwelling (Part B – Definition of Terms – Territory Plan)
R77 of the Multi Unit Code requires that:
Car-parking spaces on the site for residents [must] comply with all of the following:
(a)located behind the front zone[26] (except for apartment car parking)
(b)can be in tandem where they belong to the same dwelling
(c)do not encroach any property boundaries
(d)one car space per dwelling is roofed is roofed and located behind the front zone
(e)are separated by not less than 1.5m from windows or doors to habitable rooms of dwellings that are not associated with the parking space
[26] ‘Front Zone’ means the area of the block between the ‘front boundary’ and the ‘building line’ or at the minimum front setback of the lower floor level for the block whichever is greater (Part B – Definition of Terms – Territory Plan)
Therefore, the “Territory requirements for resident car parking” applicable to this development are to provide four parking spaces to comply with the parking provision rate in schedule 3.1.5 of the Parking Code (two for each dwelling), two of which must be roofed (one per dwelling) to meet the requirement for roofed car spaces in R77(d). The GFA in that case would include 18m² for each of the two roofed car spaces.
However, in this case, two roofed car space are provided for each dwelling. Is the second roofed car space “provided to meet Territory requirements for resident car parking”? In our view, the question must be answered in the affirmative. The relevant requirement is to provide a second car space for each dwelling. The requirement may be met by providing a car space that is roofed, or one that is not roofed. If a roofed car space is provided to meet the requirement for a second parking space, the provisions of R7 are engaged and the GFA includes 18m² for four, rather than two, roofed car spaces.
The proposition may be tested by asking this question: how does the development meet the Territory requirements for resident car parking? The answer is in two parts. One roofed car space is provided to meet the requirement in R77(d). A second roofed car space is provided to meet the requirement for a second parking space in Schedule 3.1.5 of the Parking Code. The fact that the second parking space is not required to be roofed is immaterial. It must be provided. If the car space provided to meet that requirement is roofed, it is a “roofed car space provided to meet Territory requirements for resident car parking” and must be accounted for in the GFA.
At the hearing, ACTPLA submitting that “roofed car space” in R7 refers to a place where more than one car may be parked,[27] so that “regardless of the number of cars that may be housed, rule 7 refers to the location for the parking of cars rather than allocated single car spots”.[28] However, ACTPLA abandoned this position, correctly in our view, in supplementary written submissions filed at the Tribunal’s request after the hearing:
At hearing, the respondent first submitted that the phrase ‘roofed car space’ should be taken to refer to spaces (in the general sense) in which cars are to be parked. The Respondent withdraws this submission in light of the reference to ‘car space’ in R77 and accepts that the terms should be read consistently.
[27] Transcript of proceedings 23 June 2020, page 73, line 15-19
[28] Transcript of proceedings 23 June 2020, page 73, line 37-39
In its supplementary submissions, ACTPLA developed an alternative position, as follows:
20.    Given that the Parking Code requires more than one parking space for each of these dwellings, it is clear that R77 requires only one of those spaces to be roofed. the other may be roofed or not. Indeed, there may be more than 2 spaces – the requirement is 2, but more are permitted. The only relevant requirement in R77 is that of the 2 or more spaces provided, one is roofed.
21.    Returning to R7, it becomes clear that the Territory requirements referred to in R7 are, in particular, the requirements of R77(d). That requirement is for one roofed car space, even if the Parking Code requires more than one car space. Other roofed car spaces are permitted, but are not required.
22.    Consequently, the respondent contends that R7 should be interpreted as requiring that the one roofed car space required by R77(d) is to be included in the GFA. If there are other car spaces provided that are not in a structure that has exterior walls, they are not included in the GFA because the structure does not fall within the definition of GFA and R7 brings only the single roofed car space required by R77(d) into the calculation. [Original emphasis]
ACTPLA submitted that this approach is consistent with the result in McGrath v ACT Planning and Land Authority [2018] ACAT 100 (McGrath) and “appears to be the reasoning contained tersely in [64] of that decision.”[29]
[29] Paragraph 23, Respondent’s Supplementary Submission on Rule 7, dated 29 June 2020
McGrath also concerned a merits review of a decision to grant development approval for a dual occupancy development of a ‘Mr Fluffy’ block in an RZ1 zone. One of the issues was whether the actual floor areas of the proposed carports, namely 38m² and 42m², should be included in the calculation of the GFA. The Authority argued that because the carport areas did not have doors and were enclosed only at their rear and on one side, the actual floor area was not included when calculating the plot ratio, except “for the mandatory allowance of 18m² for each area.”[30] The tribunal dealt with the issue as follows:
61.    We have considerable sympathy for the applicants’ viewpoint. In each case, the carports are an integral part of a single building under one roof. The ‘intent’ of rule 7 is to set a limit on the footprint of a proposed building or buildings relative to the size of the block on which they are to be built. To exclude the carport areas in the manner proposed defeats the intent of rule 7.
62.    Also the proposed construction, with brick piers on each side of the entry to each carport, readily lends itself to installation of a secure double garage door. Each carport is, for all practical purposes, a garage awaiting its door.
63.    Ms Jamali, who gave evidence as a Residential Outcomes Manager with the Authority, appeared to acknowledge the loophole in rule 7 regarding plot ratio calculations. At the hearing, she said:
Because when the territory plan – previously, when we used to have carports, we were not able to include GFA at all because they were, like, open structures and they are not garages. But then it was – however, to make sure that yes, there is some inclusion of some area in the gross floor area – otherwise you could get, like a triple carport or something which could be quite a bulky thing. But you couldn’t add that to the GFA at all. So it was amended, I can’t remember when, I think probably back in 2000 when this clarification was added to rule 7 so that at least some of the GFA, like, you know, the area is included in the GFA.
64.    Ms Jamali’s reference to “at least some of the GFA…is included in GFA” was a reference to the obligation under rule 7 to include 18m² for each roofed car space required to meet requirements under the Parking and Vehicular Access General Code for residential car parking.
65.    We have carefully considered the applicant’s submission but have concluded that, without the garage doors, rule 7 as presently drafted allows Fleming to include only 36m² of the floor areas rather than the actual areas of 80m². Later installation of the doors is an enforcement consideration, not a matter for planning approval, however problematic and unlikely enforcement would be.”
[30] McGrath v ACT Planning and Land Authority [2018] ACAT 100 at [59]
We note that the evidence of Ms Jamali, to which the tribunal referred in McGrath, was generally consistent with evidence that Ms Sheikh gave on behalf of ACTPLA in this case in response to questioning by the Tribunal:[31]
Q. So how do you get to 18 square metres instead of 36?
A. Because that’s the approach that we take – ACTPLA takes for – if that’s a carport structure even that is – even if that is a double space for two cars, only 18 square metres would be added with – for the calculation of the plot ratio. That’s the approach we have been taking for this to assess against the rule.
[31] Transcript of proceedings 23 June 2020, page 54, line 30-36
The tribunal in McGrath decided that the decision to give development approval should be set aside on other grounds. Insofar as McGrath considered how plot ratio should be calculated for the purposes of R7, the tribunal appeared to accept that R7 required the GFA to include only 36m² for the roofed car spaces. However, we reject ACTPLA’s submission that ACTPLA’s approach to the construction of R7 to which we referred in paragraph 46 above “appears to be the reasoning contained tersely in [64] of that decision”[32]. We are unable to discern from the reasons in McGrath that the proper construction of R7 was in issue. We suspect that it was not. We note, for example, that in McGrath there is no mention of R77(d) or its relevance to the interpretation of R7. Instead, at [64] McGrath appears to equate the requirements under the Parking and Vehicular General Access Code with “Territory requirements for resident car parking”, which is contrary to ACTPLA’s submission in this case that “Territory requirements for resident car-parking” refers only to R77(d).
[32] Paragraph 23, Respondent’s Supplementary Submission on Rule 7, dated 29 June 2020
It appears to us that the main issue in McGrath focused on the effect of removing the garage doors from the carport structure. If the result was a ‘carport’ within the meaning of the Territory Plan, the parties and the tribunal appear to have assumed that R7 meant that 18 m² should be included in the GFA for each carport instead of the actual floor area. Accordingly, while a different result was reached in McGrath, we do not think that the decision can be taken to support ACTPLA’s submissions about the proper construction of R7.
In essence, ACTPLA’s submission with respect to the construction of R7 reduces to the proposition that the phrase “Territory requirements for resident carparking” in R7 must refer only to the requirement in R77(d) that one car space must be roofed but not to the requirement in Schedule 3.1.5 of the Parking Code that two car spaces must be provided. In other words, “each roofed car space provided to meet” should be treated as words of limitation that qualify the apparent generality of the phrase “Territory requirements for resident car-parking” so that the latter should be understood as if it read ‘Territory requirements for the provision of roofed resident car-parking’. In our view, the submission must be rejected. It involves an impermissible departure from the plain meaning of the text. There is nothing in the language of R7, or for that matter in R77, that supports restricting the scope of “Territory requirements for resident carparking” to the requirement to provide one roofed car space in R77(d).
The Multi Unit Housing Development Code replaced the Residential Zones – Multi Unit Housing Development Code on 5 July 2013 pursuant to Variation No 306 of the Territory Plan.[33] The predecessor to R7 in the replaced code was phrased differently and did not include the words “each roofed car space provided to meet Territory requirements for resident car parking”. The Explanatory Statement for Variation No 36 does not shed any light on the meaning of the words.
[33] See Notifiable Instrument NI 2013-208
Our research has identified only one case in which the meaning of similar but not identical words was considered. In Temple v ACT Planning and Land Authority [2012] ACAT 54 (Temple), the tribunal considered whether to issue a Controlled Activity Order in respect to works carried out on a block in Deakin. The works involved additions and alterations to a single storey duplex house, including a new double carport forward of the original building line. One of the grounds relied upon by the applicant was that ACTPLA had not included 18m² for each of the two roofed car spaces in the GFA for the purpose of calculating whether the development complied with the applicable plot ratio.
At the time, R4 of the Single Dwelling Housing Development Code (SDHDC) limited the maximum plot ratio on a standard block to 50%. A note to R4 stated:
Note: Where a maximum Plot Ratio is specified, the gross floor area of the development used in the calculation of the Plot Ratio shall be taken to be the gross floor area of the building plus 18m² for each roofed open car space or car port provided to meet Territory requirements for resident car parking (not including basement car parking) and the area of any balcony that is roofed and substantially enclosed by solid walls. [Emphasis added]
R42 required two car-parking spaces to be provided on site. R43 required one space to be capable of being roofed. The tribunal considered that the note to R4 required 18m² to be added to the GFA where a development did not include a carport and also where a development included a single carport. The issue the tribunal had to decide in Temple was whether the note to R4 required 18m² or 36m² to be added to the GFA where the development included a double carport.

The tribunal stated at [54]:
The Tribunal reasons that the Note at Rule 4 is specifically included in the SDHDC in consideration that there is the potential for the total GFA of a development to increase were a carport to be enclosed later and is guided by Rule 42 and Rule 43. It is however unclear to the Tribunal as to whether the area to be added as required by the Note is for only one space [Rule 43b] or for the two required spaces that have been roofed in this development.
The tribunal concluded at [60]:
The Tribunal has determined that Rule 4 Note requires that one car space of 18sqm is to be included in the calculation of the GFA…
Although the reasoning by which the tribunal arrived at that conclusion is not exposed, it appears to us that the note to R4 is capable of being understood to require 18m² to be added to the GFA for each roofed carport provided to meet Territory requirements for resident car parking, regardless whether the carport is a single or double carport. We do not consider that the language of R7 is capable of being understood in the same way. It will be recalled that ACTPLA made a submission to similar effect at the hearing in this case, which it later abandoned.[34]
[34] See paragraph 45 above
The Multi Unit Code is a statutory instrument made or in force under the provisions of section 46 of the PD Act. The meaning of R7 must be worked out in accordance with the requirements of Chapter 14 of the Legislation Act 2001.[35] Of particular relevance is section 139, which requires the interpretation that would best achieve the legislative purpose to be preferred to any other interpretation.
[35] Section 4 of the Legislation Act 2001 states that the Act applies to all Acts and statutory instruments
We agree with the tribunal’s statement in McGrath that:[36]
In each case the carports are an integral part of a single structure. The ‘intent’ of rule 7 is to set a limit on the footprint of a proposed building or buildings relative to the size of the block on which they are to be built. To exclude the carport areas in the manner proposed defeats the intent of rule 7.
[36] At [61]
R7 provides a limited concession to developers in the calculation of plot ratio by including a notional area of 18m² in the GFA for each roofed car space instead of the actual floor area. In this case, that means the GFA includes only 72m² instead of 79.86m². This is not inconsistent with the evident purpose of R7 which, as the tribunal considered in McGrath, is to limit the footprint of a proposed dual occupancy relative to the size of the block. However, to adopt a meaning of R7 which would result in the GFA including only 36m² in the circumstances of this case, in our view would defeat the intent of R7.
The construction of R7 that we consider to be correct, in our view best achieves the evident purpose of R7.
In this case, all four roofed car spaces are provided to meet Territory requirements for residential parking. An area of 72m²is included in the GFA, as a result of which the plot ratio substantially exceeds 50%. The development proposal therefore does not comply with R7. As compliance with R7 is mandatory, section 119 of the PD Act requires that development approval must be refused.

Non-compliance with R79/C79 – external width of carports > 6m

The relevant part of R79 of the Multi Unit Code provides as follows:
The maximum total width of garage door openings and external width of carports facing a street complies with the following:
(a)for up to 3 dwellings, the lesser of the following:
i)6m
ii)50% of the total length of the building facade facing that street
The total length of the building facade facing the street is 16.31 metres.[37] Accordingly, the maximum width permitted by R79 is 6 metres.
[37] Exhibit 2, drawing A 107, shows the width of the facade of each dwelling is 8155mm
If we are correct that the removal of the panel lift doors does not result in a ‘carport’ within the meaning of the Territory Plan, the total width of the garage door openings for the two dwellings is 9.64 metres.[38]
[38] Each opening is 4820mm wide
If, contrary to our view, the removal of the panel lift doors does result in a ‘carport’ within the meaning of the Territory Plan, the external width of the carports is 12.92 metres.[39]
[39] The external width of each carport is 6460mm (820 + 4820 + 820)
The development proposal therefore does not comply with R79. ACTPLA concedes that R79 is not met.[40]
[40] Ms Sheikh’s evidence Transcript of proceedings 23 June 2020, page 58, line 42
It is necessary therefore to consider whether the criteria in C79 are satisfied. C79 provides as follows:
Garages and parking structures are consistent with the desired character.
‘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.[41]
[41] Part B, Definition of Terms, Territory Plan
‘Streetscape’ is defined in the Territory Plan to include the visible components within a street (or part of a street) including the private land between facing buildings, including the form of buildings, treatment of setbacks, fencing, existing trees, landscaping, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.
RZ1 zone objectives include:
a)     Provide for the establishment and maintenance of residential areas where the housing is low rise and predominantly single dwelling and low density in character
b)     Protect the character of established single dwelling housing areas by limiting the extent of change that can occur particularly with regard to the original pattern of subdivision and the density of dwellings
c)     Provide for a wide range of affordable and sustainable housing choices that meet changing household and community needs
d)     Ensure development respects valued features of the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties
Ms Sheikh gave the following evidence in response to questions from the Tribunal:[42]
Q.     So what you've got in that street, the desired character in RZ1, would you agree the desired character and what you have in that street are either double garage doors or two single garage doors facing the streets where they – each block has got some sort of garage or carport that faces the street. Would you agree with that?
A.     Yes.
Q.     Did we see anywhere this morning where one block had 6 metres of – sorry, 12 metres of garages or 12 metres of carport facing the street?
A.     On that street this morning…
Q.     Any street?
A.     I believe not.
[42] Transcript of proceedings 23 June 2020, page 60, line 12-22
Later Ms Sheikh gave the following answer to a question from the Tribunal:[43]
Q. So, how's that anywhere near the rule and how – if there’s nothing in that street that's got two double garages or two double carports facing directly onto the street, how is that anywhere near what's desired in that area or in RZ1?
A. Well at – I think it complies with the criteria with the desired character because it's a dual occupancy development and as a whole with landscaping and building form and also from the street it gives – it's two separate dwellings. It gives a kind of articulation as a whole. It's a combination of the siting complying with the setback distance and also redevelopment can happen within this area.
[43] Transcript of proceedings 23 June 2020, page 61, line 7-15
In response to a follow up question from Ms Tomlins, Ms Sheikh said as follows:[44]
Q. …are there any other elements of the surrounding streetscape that are relevant to your view that criterion 79 is met?
A. Well I think I explained it. I cannot remember really. But that's the – obviously desired character has its own objective and other issues. That is important too. I mean this is – these are the blocks that have the potential to be redeveloped and dual occupancy development, it's permissible. And as for the rule, they can have two spaces because they’re three bedroom, four bedroom units. So, it's kind of a balance and also the character and architectural element that is required for this sort of development. And to – it also relates to the objective of the zone too a bit. So, it is redeveloped – the site can be redeveloped. Any other block – RZ1 can be redeveloped like for dual occupancy development if it meets the other requirement as per the code so changes can happen. So, it – that's how I came to the conclusion that the siting of the design, the bulk and scale and also the compliance with this setback requirement and so the objective, it guides you to – I say that it complies with the criteria.
[44] Transcript of proceedings 23 June 2020, page 62, line 8-23
Ms Sheikh said objective (d) of the RZ1 zone objectives was important to her opinion that the development proposal complies with C79.[45] She explained her reasons as follows:[46]
Because this proposed development will not have any unreasonable negative impact on the neighbouring properties because it's kind of – it is complying with height, building envelope and setback distance except minor encroachment in the front setback and also the revised landscape planning requested for more planting so that's how it is actually keeping that – enhancing the landscape character also. So, it mainly – these valid features that – of the neighbouring property will not have any unreasonable negative impact by this development.
[45] Transcript of proceedings 23 June 2020, page 62, line 38
[46] Transcript of proceedings 23 June 2020, page 62, line 46 to page 63, line 7
We are not persuaded by Ms Sheikh’s evidence.
In considering whether the particular aspect of the proposed development involving the external width of the carports complies with objective (d) of the RZ1 zone objectives – namely, whether it “does not have unreasonable negative impact on neighbouring properties” – it is useful to have regard to the degree of divergence from the “minimum ideal”[47] requirements of R79 in evaluating the evidence relied upon to support satisfaction of the criteria in C79.[48]
[47] Javelin Project Pty Ltd v ACT Planning and Land Authority & Anor [2017] ACAT 87 at [73]
[48] See Peraic v ACT Planning and Land Authority [2019] ACAT 118 at [81]-[83] and McGrath v ACT Planning and Land Authority [2018] ACAT 100 at [15]-[18], [44]-[45] citing Javelin Projects v ACT Planning and Land Authority [2017] ACAT 87 at [73] and Deakin Residents Association v ACT Planning and Land Authority [2015] ACAT 37 at [35]
It is necessary first to say something about the characteristics of Baddeley Crescent. The crescent distributes suburban traffic to lesser streets. There is a Community Facility Zone a short distance to the east of the subject site. Directly opposite this zone there are individual carports and/or garages to single residences, none of which is wider than two car spaces. To the west of the intersection with Croft Crescent there are nine single residences. Of these nine residences, only two garages address Baddeley Crescent in addition to the subject block. One residence is adjacent to the intersection with Croft Crescent on the opposite side of the crescent and the other is the neighbouring residence. For the remainder of the crescent there are no garages that address the street.
The external width of the carports (assuming for present purposes that they are ‘carports’ within the meaning of the Territory Plan) exceeds the maximum permitted width under R79 by more than 100%. The result is that the siting of the double carports in the facade of the proposed development facing the street results in the facade being dominated by car accommodation to a degree that, in our view, is not consistent with the desired character in terms of siting and the nature of the resulting streetscape.
For this reason, in addition to non-compliance with R7, we consider that development approval must be refused on the grounds that the development proposal does not comply with R79 and does not satisfy the criteria in C79.

Non-compliance with R70/C70 and R72/C72 – driveway verge crossings

R70/C70 and R72/C72 set out rules and criteria applicable to the driveway verge crossings provided in the subject development proposal. It is convenient to consider their relevance to the development proposal at the same time.
R70, which applies to previously developed blocks such as this one, provides that no additional driveway verge crossings are permitted.
C70 provides that additional driveway verge crossings may be allowed in any one of the following three circumstances:
(a)     where forward entry to roads carrying more than 3000 vehicles per day is desirable
(b)     where all of the following are achieved:
(i)compatibility with the streetscape;
(ii)priority for pedestrians and cyclists
(iii)retention of existing street trees
(iv)protection of existing landscape features
(v)public safety
(c)     where the block is a corner block
R72 requires that driveway verge crossings must comply with a number of stated requirements. Relevantly, these include:
(b)     1.5m horizontally clear of transformers, bus stops, public light poles
…
(d)     uphill grade of less than 17% as measured from the kerb; downhill grade of less than 12% measured from the kerb
(e)     at a right angle to the kerb line with a maximum 10% deviation
(f)      a maximum of 5.5m wide, and a minimum of 5m wide at the kerb, a minimum 3m wide at the front boundary, and a maximum width no greater than the width;
…
(h)     a minimum of 3m clear of small and new street trees
C72 states:
Driveway verge crossings are endorsed by the Territory and Municipal Services Directorate.

Non-compliance with R70

The development proposal provides for two driveway verge crossings replacing the existing single verge crossing. It therefore does not comply with R70. ACTPLA does not dispute this. The issue is whether the additional verge crossing should be approved under C70. It is convenient to defer consideration of this issue until after we have dealt with R72/C72.

Non-compliance with R72 and the criteria in C72

The initial development proposal did not comply with R72 in various respects and was not supported by TCCS, which advised certain requirements (reproduced in paragraph 14 above), including the preparation and submission of a revised plan and long section of the proposed verge crossings. As a result, ACTPLA included condition 2(a) requiring that the approval not take effect until the lessee or applicant for approval obtained a written statement of endorsement from TCCS and submitted a Statement of Acceptance to ACTPLA in satisfaction of the condition.[49]
[49] See paragraph 8 above
The party joined provided the Tribunal with amended plans showing revised details of the driveway verge crossings which were said to address the issues raised by TCCS. However, TCCS had not seen or endorsed the amended plans so that the criteria in C72 and condition 2(a) remains unsatisfied. The issue, as we understand it, is whether we should approve the development proposal subject to condition 2(a) or a similar condition.
It is nevertheless necessary for us to consider whether the revised arrangement of the driveway verge crossings on the amended plans now meets R72.
The position of the driveway verge crossing for House 2 originally conflicted with the location of an existing public light pole. The proposal therefore did not comply with R72(b). TCCS required the pole to be relocated a minimum distance of 1.5m from the verge crossing and details to be provided showing the relationship between the verge crossing (originally shown as five metres wide at the kerb) and the relocated pole. The party joined resolved the issue by skewing the edge of the driveway inside the boundary of the property and providing a narrower verge crossing, now shown as three metres wide at the kerb. The distance from the existing light pole to the edge of the verge crossing is not shown, but scaling from the plans indicates that the distance is about 1.5 metres. The proposal complies with R72(b) but now does not comply with R72(f), which specifies a minimum width of the verge crossing at the kerb of five metres.
A note on amended drawing A100[50] provides that the “new driveway / crossover to be in accordance with TAMS standard drawing – refer to drawing sheets A105a, A105b and A105c”. The reference to various versions of drawing A105 is incorrect. The correct reference should be to drawings A106a, A106b and A106c. The revised dual driveway design on amended drawing A100 does not comply with the TAMS standard drawings in at least two respects. First, design note 3 on drawing A106a requires driveways to be constructed normal (i.e. at 90 degrees) to the kerb line wherever possible but, where necessary, permits a maximum skew of 1:10. Amended drawing A100 does not include dimensions for the skewed edge of the driveway for House 2. However, by scaling the skew appears to be approximately 3:5, which substantially exceeds the maximum permissible skew of 1:10. Second, the Type 2 detail on drawing A106a for a rising driveway with a footpath at the kerb requires the first 1500mm from the edge of the road pavement to have a maximum 2% grade, followed by a 1000mm ease into a maximum 17% grade to the boundary line. However, the longitudinal driveway sections for House 1 and House 2 provide for a 1500mm wide ease into a maximum grade of 18.5% for House 1 and 18% for House 2.[51]
[50] Part of Exhibit 3
[51] Exhibit 3, drawing A102 ‘Longitudinal Driveway Section (House 2) and Drawing A102 ‘Longitudinal Driveway Section (House 1)
Ms Carmody conceded that, as currently drawn, the driveway verge crossings did not comply with drawing A106a, but claimed that they could be redesigned to comply.[52] ACTPLA submitted that this could be dealt with by including a condition. The main difficulty we see with this approach is that the antecedent issue – namely, whether a second driveway verge crossing should be approved under C70 – must be resolved first. If a second driveway verge crossing should not be approved in the circumstances, the current design must be scrapped in favour of a new design for a single driveway verge crossing. Compliance issues arising from R72 and the criteria in C72 would have to be addressed at that time.

Non-compliance with the criteria in C70

[52] Transcript of proceedings 23 June 2020 page 16 line 11 to page 17 line 14

It was common ground that the criteria in C70(a) and (c) were not applicable. C70(b) applies where “all of the following [five requirements] are achieved”. Of these, the key issues with respect to compliance with C70 are the criteria in C70(b)(i) (compatibility with existing streetscape), C70(b)(iii) (retention of existing street trees) and C70(b)(iv) (protection of existing landscape features).
The front of the subject block faces Baddeley Crescent. Looking from the street towards the block, there is an existing concrete footpath, approximately one metre wide, abutting a raised nature strip, approximately four metres wide. A stone retaining wall separates the footpath from the nature strip. While we were not given the dimensions of the retaining wall, by eye it appears to be between about 600mm and one metre high at various points, extending from the edge of the existing verge crossing at the eastern end of the subject block to the edge of the verge crossing at the eastern end of the adjacent property (to the west) and then extending in a westerly direction along Baddeley Crescent for a considerable distance. It is a prominent feature of the streetscape in the vicinity of the subject block. Ms Sheikh agreed that the retaining wall is an ‘existing landscape feature’ and that it forms part of the existing streetscape.[53]
[53] Transcript of proceedings 23 June 2020 page 43 line 19 to page 44 line 1-8

A note on amended drawing A100 states, “modify/demolish part of existing stone retaining wall to suit new verge crossing.” The extent of demolition or the nature of the proposed modifications is not shown. Further, as we have found earlier, the revised design of the driveway verge crossing does not comply with the TAMS standard drawings and has not been approved by TCCS, so the extent to which any part of the retaining wall may be preserved, whether in its original or a modified form, remains a matter for speculation.
In our view the applicant for development approval has not demonstrated that the proposal satisfies criterion C70(b)(iv) – i.e. protection of existing landscape features.
Four small trees are planted along the raised nature strip in front of the subject property. A substantial tree, which appears to be some kind of pine, is located in the south-western corner of the subject property. According to a survey plan submitted with the application for development approval, the tree is located just inside the boundary.[54] The four small trees are not shown on the survey plan. Ms Sheikh agreed in her evidence that none of the drawings provided to TCCS for comment in relation to the design of the proposed driveway verge crossings shows the trees planted on the nature strip.[55] There was some debate about whether these were “street trees”.[56] Ms Tomlins submitted as follows on behalf of ACTPLA:[57]
In relation to paragraph 3, Ms Sheikh conceded that the small trees – I’m not sure if they’re fruit trees of flowering trees, but the four small trees along the verge were street trees and they are proposed to be removed. So in my submission, on the basis of that evidence, that element of the criterion is not met, however, I note that ‘street tree’ is not a defined term and is something that the respondent ordinarily refers to TCCS for their consideration, and in my submission that is something that, in the event the tribunal were otherwise minded to grant approval, could be addressed with some further advice and condition in relation to referral to TCCS and their comment in relation to whether or not those trees are street trees.
In my submission, and notwithstanding the evidence of Ms Sheikh, they are not, Whilst it is not a defined term, I think in the context of the Territory Plan, street trees are understood to be significant plantings made by the Territory, maintained by the Territory, and are required to be approved by TCCS, and those small trees that we saw this morning do not, in my submission, fall within those categories. Nonetheless I appreciate that that’s not a matter about which the tribunal has evidence before it, and in my submission, were the tribunal otherwise minded to confirm the decision, in my submission that’s something that could be addressed through a condition.
[54] Exhibit 1 T Docs page 173
[55] Transcript of proceedings 23 June 2020 page 40 line 19 to page 41 line 29
[56] Submissions by party joined Transcript of proceedings 23 June 2020, page 64, line 26-30
[57] Transcript of proceedings 23 June 2020 page 95 line 28 to page 96 line 2
An information brochure published on the Access Canberra website titled ‘Your Nature Strip – Guidelines for use of residential nature strips’[58] prohibits the planting of trees on the nature strip or verge without Territory approval and appears to treat any existing trees planted on the nature strip or verge as a street tree. In the absence of evidence that the small trees planted on the nature strip of the subject property were put there illegally, we consider that they should be regarded as street trees.
[58] See Transport Canberra and City Services Directorate (TCCS), Your Nature Strip (2019) City Services < >
In our view the applicant for development approval has not demonstrated that the proposal satisfies criterion C70(b)(iii) – i.e. retention of existing street trees.
The most important issue, however, is whether an additional verge crossing is compatible with the streetscape as required by C70(b)(i). We are satisfied that it is not. The subject block faces Baddeley Crescent, which supplies the relevant streetscape. The streetscape is made up of single and two-storey dwellings. There is a mix of single and double garages facing the street, as we state above, but there are relatively few driveways and those that are there certainly do not dominate the streetscape. We were not shown a single dwelling on Baddeley Crescent which had two driveway verge crossings. Merely because a dual occupancy development is permissible on the block is not a sufficient reason to justify a second driveway verge crossing. In this case, to be compatible with the streetscape, we consider that the dual occupancy should have been designed with a single driveway verge crossing. That may not have suited the particular building design that the developer chose to use, but that design choice, freely made, is not a sufficient reason to justify approval of a second driveway verge crossing. It was not suggested that there are any site constraints that would preclude a different design solution which does not require an additional driveway verge crossing.
In our view the applicant for development approval has not demonstrated that the proposal satisfies criterion C70(b)(i) – i.e. compatibility with the streetscape.
In the result, we are satisfied that the development proposal does not comply with R70 and R72 and that the developer has not demonstrated that the proposal satisfies relevant criteria in C70 and C72. We found earlier that development approval should be refused for non-compliance with R79/C79 because the front facade of the proposed development is dominated by car accommodation to a degree that is not consistent with the desired character in terms of siting, building bulk and scale, and the nature of the resulting streetscape. Our findings in relation to non-compliance with R70/C70 and R72/C72 are additional reasons why development approval should be refused, irrespective of whether we are correct in finding that the proposed development exceeds the maximum permissible plot ratio under R7.

Other non-compliance issues

As we are of the opinion that the decision under review should be set aside and substituted by a decision to refuse to approve the development application on other grounds, we have considered the remaining non-compliance issues only briefly as they are not material to the outcome.

C40 – landscape design

There is no applicable rule for landscape design. C40 provides that landscape and site design must achieve all of the following:
(a)     planting of trees of semi-mature stock
(b)     planting of trees with a minimum mature height of 4m
(c)     a contribution to energy efficiency by providing substantial shade in summer, especially to west-facing windows and open car-parking areas and admitting winter sunlight to outdoor and indoor living areas, especially to the north;
(d)     reasonable residential amenity
(e)     reasonable visibility along paths and driveways
(f)      visual interest in pavement materials and finishes
(g)     species with appropriate growth habits and mature height in relation to site conditions.
Condition 1(c) of the development approval requires the applicant for development approval to provide a revised landscape plan showing a minimum of two new trees in the front zone of species that will grow 8-10 metres in height with a minimum six metre canopy at maturity. The revised plan is required to be to the satisfaction of ACTPLA and the TPU. The amended drawings tendered as Exhibit 3 include drawing A105, which is labelled “Indicative Landscape Plan”. The plan has not been submitted to the TPU for approval.[59] It includes minimal detail of the proposed landscaping at the front and no details about how the remainder of the block is proposed to be landscaped, other than the removal of all remaining non-regulated trees on the site. The plan shows two new trees planted at each corner of the front of the site, but other than identifying the species as pistachia chinensis, provides no information about whether, for example, the trees are to be planted as mature stock. Ms Sheikh gave evidence that the plan does not comply with condition 1(c) because it was “indicative” and not a “proper landscape plan, with all the information that has been requested to reverse the decision”[60] and because it had not been approved by the TPU.[61]
[59] Transcript of proceedings 23 June 2020, page 25, line 1
[60] Transcript of proceedings 23 June 2020, page 37, line 29-33
[61] Transcript of proceedings 23 June 2020 page 38 line 14 to page 39 line 44
We accept Ms Sheikh’s evidence that the current form and content of the ‘indicative’ landscape plan does not meet condition 1(c). Apart from the fact that the current design is described as ‘indicative’ only, we observe that the redesign of the driveway verge crossings to achieve compliance with R70/C70 and R72/C72 is likely to require the landscape plan to be redesigned.

C43(e), C44 and C61 – clothes drying area and mailbox

C61 requires that the principal private open space for each dwelling must, among other things, achieve “service functions such as clothes drying”. C43(e) requires that the clothes drying area for each dwelling should be screened or adequately separated from public areas. C44 requires that mailboxes should be located for convenient access by residents and deliverers and that compliance should be demonstrated by showing the location and design of the mailboxes on a site plan submitted with the application. In the case of C43 and C44, there is no applicable rule. ACTPLA drew the Tribunal’s attention to the fact that the amended drawings did not meet any of the abovementioned criteria, but submitted that the omission could be dealt with by a condition. If not for the fact that we have found that development approval should be refused on other grounds, we would agree.

C56A – building design

There is no applicable rule governing building design for a dual occupancy on a surrendered block. C56A provides that:
The design of buildings encourages high quality architectural standards that contribute to a visually harmonious streetscape character with variety and interest, whilst not detrimental to, or overtly detracting from the existing streetscape character.
Although ACTPLA raised the issue of compliance with C56A and submitted that the development proposal met the criteria in C56A, it was not an issue that received close attention at the hearing.
Ms Sheikh described the building design as “actually a good quality and visually harmonious to the character and visually interesting”.[62] The difficulty we have with ACTPLA’s submission arises from our findings that the design of the car parking structures (whether or not they meet the definition of a ‘carport’) is not consistent with the desired character in terms of siting, building bulk and scale, and the nature of the resulting streetscape and that the inclusion of an additional driveway verge crossing also is not compatible with the streetscape. We struggle to see how, in those circumstances, the development proposal can be said to satisfy the criteria in C56A. However, given our findings on other issues it is not necessary for us to express a concluded view about this.

R60 – privacy

[62] Transcript of proceedings 23 June 2020, page 51, lines 30-38; see also page 51 line 42 to page 52 line 39

It will be recalled that the question whether the development proposal complies with R60 is the sole ground on which Mr and Mrs Miosge seek to have the decision under review set aside. They are concerned that the upstairs bedrooms at the rear of the dual occupancy provide an unobstructed view into their backyard and are likely to impinge significantly on their privacy and the amenity of their private open space. We agree that most of their backyard is likely to be visible from the upstairs bedroom windows. We are sympathetic to their concerns that their privacy may be intruded upon as a result. That, however, is not the test that we are required to apply.
R60 states as follows:
This rule applies to the principal private open space on the same block and adjacent blocks.
A person with an eye height of 1.5m standing at any point on the extremity of an unscreened element of one dwelling shall not have a direct line of site to more than 50% of the minimum principal private open space of any other dwelling.
The direct line of sight is a minimum distance of 12m.
‘Unscreened element’ is defined in the Territory Plan to mean unscreened windows, decks, balconies and external stairs. Each of the upstairs bedroom windows facing north towards Mr and Mrs Miosge’s property is an unscreened element.
‘Direct line of sight’ is not a defined term. The ordinary meaning of ‘line of sight’ is a straight line along which an observer has an unobstructed view to an object or place some distance away. We do not think that the word ‘direct’ adds to the meaning, except perhaps to emphasise that the rule is concerned with the unobstructed view of the notional observer. The issue with which R60 is concerned is whether a person standing at the upstairs bedroom windows, with a notional eye-height of 1.5 metres, has an unobstructed view over a distance of 12 metres to more than 50% of the minimum principal private open space of another dwelling. This is a question of fact. ‘Private open space’ is defined in the Territory Plan to mean:
an outdoor area within a block useable for outdoor living activities, and may include balconies, terraces or decks but does not include any area required to be provided for the parking of motor vehicles and any common driveways and common vehicle manoeuvring areas. Up to 25% of any part of private open space may be roofed over, except that a balcony may be entirely roofed over.
‘Principal private open space’ is defined in the Territory Plan to mean:
private open space that is directly accessible from a habitable room other than a bedroom.
In the case of Mr and Mrs Miosge’s property, which is to the north of the subject block, it is necessary to consider the rules and criteria governing ‘principal private open space’ in R41 of the Single Dwelling Housing Development Code (Single Dwelling Code). R41 requires that there should be at least one area of principal private open space on the block that complies, among other things, with the requirement in R41(f) that the space:
is not located to the south, south-east or south west of the dwelling, unless it achieves not less than 3 hours of direct sunlight onto 50% minimum principal private open space area between the hours of 9am and 3pm on the winter solstice (21 June).
Table 8, which appears immediately after R41, specifies a minimum area of 36m² for the principal private open space of a single dwelling in an RZ1 zone, where the dwelling is greater than 105m² in area. The minimum dimension in that case is specified as six metres.
The rear of Mr and Mrs Miosge’s property faces south. Their principal private open space therefore is located to the south of their dwelling. The minimum principal private open space specified for the size of their dwelling is an area of 36m² (6 metres x 6 metres). To qualify as such, the minimum principal private open space must achieve at least three hours of direct sunlight onto 50% of the area between 9:00a.m. and 3:00p.m. on the winter solstice.
There was no real attempt on the part of ACTPLA or the party joined to establish the location of Mr and Mrs Miosge’s minimum principal private open space with any reasonable degree of precision. We had the distinct impression that neither ACTPLA nor the party joined had given any thought to the implications of the principal private open space being located to the south of Mr and Mrs Miosge’s dwelling. For example, neither the original application for development approval nor the evidence at the hearing included any shadow diagrams to establish that any part of the Miosge’s backyard in which ACTPLA and party joined claimed their minimum principal private open space must be located in fact achieved not less than three hours of direct sunlight between the hours of 9:00a.m. and 3:00p.m. on the winter solstice. Instead, ACTPLA and the party joined relied on evidence that the distance between the bedroom windows in question and the rear of Mr and Mrs Miosge’s residence exceeds 24 metres,[63] from which it was said that the Tribunal should conclude that “the only inference that can be drawn is that there is an area of at least 6 by 6 metres beyond the 12 metre distance [measured from the upstairs bedroom windows] that meets the minimum principal private open space within that backyard.”[64] That submission prompted the following exchange between the Tribunal and Ms Tomlins on behalf of ACTPLA:
Q. So you’re suggesting that, without evidence, we should draw an inference that there is an area which gets more than three hours of direct sunlight on the winter solstice?
A. My submission, Senior Member, is that whilst I appreciate the note and accept that you do not have shadow diagrams before you, that by function of the distances and the landscape and built form apparent from the aerial view, that you can be satisfied that the minimum area is met and receives the minimum sunlight.
[63] Transcript of proceedings 23 June 2020 page 26 line 46 to page 29 line 36
[64] Transcript of proceedings 23 June 2020 page 91 line 40 to page 92 line 2
The evidence of ACTPLA and the party joined in respect to this issue was, to say the least, unsatisfactory. Compliance with R60 cannot be assumed. ACTPLA accepted, properly in our view, that the applicant for development approval must demonstrate compliance with the rule.[65] We note that section 139(2)(e) of the PD Act requires that, if an application is for approval of a development in the merit track, it must be accompanied by information or documents addressing the relevant rules and relevant criteria. In this case we are satisfied that the information provided to ACTPLA with the application for development approval did not demonstrate compliance with R60.
[65] Transcript of proceedings 23 June 2020, page 88, line 31-43
The question remains, however, whether the development complies with R60 with respect to its impact on Mr and Mrs Miosge’s privacy. On balance we are inclined to the view that it probably does. However, as we consider that the decision under review should be set aside on other grounds, the issue of compliance with R60 is not material to the outcome. If the Crown lessee wishes to develop the block as a dual occupancy, a new application for development approval must be submitted to ACTPLA based on a revised design. The applicant for development approval will have to provide information at that time demonstrating that the revised design achieves compliance with R60.
There remains a further issue concerning compliance with R60/C60 and condition 1(b) of the development approval which must be addressed. ACTPLA determined that the development proposal did not comply with R60 with respect to overlooking from the upstairs bedroom of House 1 into the minimum principal private open space of the residence located to the east of the subject block. ACTPLA addressed this by including a condition that the bedroom window “be a high sill (minimum 1.7m above the adjacent finished floor level) or other method to minimise the potential privacy impacts from the bedroom to the adjoining property”. The party joined amended the plans to provide a metal laser cut screen with 25% maximum openings covering the existing bedroom window to a height of 1.7 metres.[66] The issue is whether the bedroom window now complies with C60. For reasons that we will explain, we are satisfied that it does.
[66] Exhibit 3 drawing A201, which includes a note “1.7m high pc metal laser cut screen as selected by owner. ensure [sic] 25% maximum openings”

C60 states:
Evidence is provided demonstrating that reasonable privacy of principal private open space of each dwelling is achieved through design solution.
Note: this does not include installing high sill windows, obscured glass, and/or angled louvres.
The requirement in condition 1(b) that the bedroom window should be a high sill window is inconsistent with the note to C60. The design solution adopted in this case was to use a perforated metal screen, which is a ‘screening device’ as defined in the Territory Plan. A ‘screening device’ means a permanent structure that comprises on or more of the following:
(a)     opaque or translucent glazing
(b)     solid panels
(c)     perforated panels or trellises with a maximum 25% openings
The use of opaque or translucent glazing – i.e. obscured glass – and angled louvres is not permitted by C60. However, a design solution based on using a perforated metal panel with a maximum of 25% openings is not excluded by the note to C60 and, in our view, satisfies the criteria in C60.

R64 – balustrades

R64 applies in this case to the upstairs balcony of each dwelling facing the street and requires the balustrades to be constructed with obscure glass or solid panels. ACTPLA drew our attention to the fact that the original design provided for one metre high clear glass balustrades, which would not comply with R64. The revised drawings tendered as Exhibit 3 now provide for the balustrades to be frosted glass. We accept that the balustrades now comply with R64.

Non-compliance with 40% mains water reduction target

Section 2.2 of the Waterways Water Sensitive Urban Design General Code sets a target of 40% for mains water use reduction compared with 2003 water usage levels in all new developments and redevelopments including single residential dwellings and multi-unit developments. Section 2.4 requires that each individual block must demonstrate compliance with the mains water use reduction target of 40%. For multi-unit developments, calculations need to demonstrate that the target is being achieved.
The applicant for development approval provided ACTPLA with calculations purporting to show that the proposed development would achieve a 42% reduction in mains water usage.[67] However, in its closing submissions ACTPLA submitted that the calculation was unreliable because the value of 131 m² provided for ‘total roof area’ was inconsistent with the value of 250 m² provided for ‘total roof area flowing into the tanks’.[68] ACTPLA was not in a position to provide the Tribunal with the correct values and accordingly, submitted that the issue should be addressed by including a condition requiring a new mains water reduction calculation to be prepared demonstrating compliance with the target.[69] However, given that we consider that development approval should be refused on other grounds the issue of including conditions of approval does not arise. Any fresh application for development approval will have to include fresh calculations demonstrating compliance with the mains water reduction target based on the revised design.

Conclusion

[67] Exhibit 1 T Documents page 152
[68] Transcript of proceedings 23 June 2020 page 96 line 43 to page 99 line 1
[69] Transcript of proceedings 23 June 2020, page 99, line 18-20

We are satisfied that the decision under review should be set aside and substituted by a decision to refuse the development application on two independent grounds. Development approval must be refused under section 119 of the PD Act on the grounds that the development proposal does not comply with the mandatory requirement in R7 that the plot ratio not exceed 50%. We are satisfied also that development approval should be refused on the grounds that the development proposal does not comply with R70, R72 and R79 and the applicant has not established that the proposal satisfies the criteria in C70, C72 and C79.
………………………………..
Senior Member M Orlov
For and on behalf of the Tribunal
HEARING DETAILS

FILE NUMBER:	AT 14/2020
PARTIES, APPLICANT:	Paul Miosge and Tracey Miosge
PARTIES, RESPONDENT:	ACT Planning and Land Authority
PARTIES, PARTY JOINED	Gina Carmody
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
COUNSEL APPEARING, PARTY JOINED	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor:
SOLICITORS FOR PARTY JOINED	N/A
TRIBUNAL MEMBERS:	Senior Member M Orlov (Presiding) Senior Member G Trickett
DATES OF HEARING:	23 June 2020