MOROZOW & JYOTI AND ACT PLANNING & LAND AUTHORITY
[2007] ACTAAT 14
•2 July 2007
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:MOROZOW & JYOTI AND ACT PLANNING & LAND AUTHORITY [2007] ACTAAT 14 (2 JULY 2007)
AT07/08
Catchwords: Land and planning – application to review decision to conditionally approve a development application to construct an outdoor smoking area adjoining club premises – noise, visual and health issues.
Administrative Appeals Tribunal Act 1989, ss. 37, 43
Environment Protection Regulation 2005
Smoking (Prohibition in Enclosed Public Places) Act 2003
Bonansea and Commissioner for Land & Planning & Ors [2001] ACTAAT 4 (13 February 2001)
Tribunal:Mr M H Peedom, President
Dr E McKenzie, Senior Member
Mr R Nichols, Member
Date:2 July 2007
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/08
LAND AND PLANNING DIVISION )
RE: ALEXANDER
MOROZOW &
RAJEEV JYOTI
Applicants
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
DECISION
Tribunal : Mr M H Peedom, President
Dr E McKenzie, Senior Member
Mr R Nichols, Member
Date : 2 July 2007
Decision :
The decision under review is set aside and substituted by a decision that the development application be refused approval.
…………………………….
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/08
LAND AND PLANNING DIVISION )
RE: ALEXANDER
MOROZOW &
RAJEEV JYOTI
Applicants
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
REASONS FOR DECISION
2 July 2007 Mr M H Peedom, President
Dr E McKenzie, Senior Member
Mr R Nichols, Member
Background
The Italo-Australian Club Incorporated (“the Club”) operates a licensed club in a two storey premises at Block 9 Section 19 Division of Forrest which is situated at the corner of Franklin Street and Dominion Circuit, Forrest. On 9 October 2006 a development application was lodged on behalf of the Club which sought approval to the construction of a partially enclosed structure on land on the south-eastern side of the Club premises which faces Dominion Circuit. It is proposed by the Club that the area to be developed in accordance with the development application be used as an outdoor smoking area.
2. An objection to the development application was jointly lodged by Mr Alexander Morozow, Mr Rajeev Jyoti and Mr Peter Burrett who are the residents of 22, 24 and 26 Dominion Circuit, respectively. The residences of the objectors are located on that side of Dominion Circuit which is opposite the site of the Club’s proposed development. Mr Morozow and Mr Jyoti are the applicants for review of the decision made by a delegate of the respondent on 27 February 2007, to conditionally approve the development application. Their objections to the development application are based upon the potential adverse impact of noise on their amenity, the visual impact of the proposed structure and the inconsistency of the decision under review with current government policy to discourage smoking due to its health risks.
The development proposal
3. The plans of the development application show an area of approximately 83m2 which is partially paved and surrounded on two sides by a grassed apron and accessible from a doorway on the south-eastern side of the Club premises. The area is partially covered by colourbond roofing to match the roof of the Club premises. The roofing, which covers an area of approximately 35m2, is supported by posts and the sides of the structure are not enclosed. The paved and grassed area is shown as enclosed, apart from a pathway connecting it to an entrance doorway to the Club premises, by a 2.1m high chain fence. The chain fence on the south-eastern side is parallel to the Dominion Circuit boundary and 1.7m from it. The south-eastern side of the roof of the pergola is angled to the south-eastern boundary of the property so as to be set back approximately 3m at the nearest point to approximately 4m at the furthest point from the south-eastern boundary. The posts supporting the roof are 3.9m, at nearest and 4.9m, at furthest from the south-eastern boundary.
Conditions of approval
4. Under Appendix II of the Territory Plan a development proposal related to club/drink establishments within 150m of a residential land use area requires a mandatory preliminary assessment to be undertaken. The intent of the requirement is said in the explanation to Appendix II to be to make mandatory the power to require a preliminary assessment where the probability of environmental impact is high. Such a requirement is excluded if, inter alia, the proposal is an alteration or addition to an existing situation which does not cause significant change in the scale, size or purpose of the existing situation.
5. The respondent granted an exemption from the ordinary requirement for a preliminary assessment on the basis that the proposed development would not significantly change the scale, size or purpose of the existing situation but requested the development applicant to provide a noise management report, including attenuation measures, for consideration as part of the development application approval process.
6. In accordance with the respondent’s request, the development applicant provided an acoustic report prepared by Marion Burgess BSc (Hons), MSc (Acoust), FAAS. Ms Burgess is employed by the Acoustics and Vibration Unit, School of Aerospace, Civil and Mechanical Engineering, University of New South Wales at the Australian Defence Force Academy.
7. In her report, Ms Burgess concluded that the proposed outdoor smoking area would not provide excess environmental noise for surrounding properties but she recommended that a good quality timber fence be installed along the boundary to provide additional shielding and that the underside of the roof covering be lined with sound-absorbing material to reduce reverberant sound in the area.
8. In giving approval to the development application the delegate of the respondent imposed conditions that required a 1.8m lapped and capped timber fence inside the south-eastern boundary in place of the proposed 2.1m chain wire fence; additional advanced 1.8m high screen planting between the fence and the south-eastern boundary and on the western side of the smoking area; and revised architectural drawings showing details of noise attenuation measures recommended by Ms Burgess.
The noise issue
9. Ms Burgess, the author of the acoustic report was unavailable to attend the Tribunal. Accordingly, the Tribunal indicated to the parties that it would give such weight to the report as it considered appropriate having regard to the absence of any opportunity for the applicants to cross-examine her.
10. In her report, Ms Burgess notes that any noise from patrons using the smoking area would not be subject to the Environment Protection Regulation 2005. That is not, however, to say that any noise generated by persons using the smoking area is not a relevant consideration in determining whether approval should be given to the development application. It is an objective (1(d)) of the Part B8: Entertainment, Accommodation and Leisure Land Use Policies of the Territory Plan that apply to the land on which the Club premises are located that any development proposal:
…. ensure the amenity of any nearby residential areas is not unacceptably affected by the operation of entertainment, accommodation and leisure facilities, particularly in terms of noise, traffic, parking and privacy.
(See also clause 9.3(d) of the Part A3: Plan Administration Policies of the Territory Plan).
11. The acoustic report contains a number of assertions. They include: that there will be no musical or mechanical equipment noise in the outdoor smoking area; that there will be an automatic closer on the access door from the Club premises to the smoking area to allow it to remain open only for transit time; that there will be no live or loud music in the area just inside the access door; that the smoking area will be open for use during specified hours which range from 10.00am each day to “late ….. usually 2400 hours” on Friday and Saturday; that there will be no bar service, music or seating in the smoking area; that poker machines in the area of the Club premises adjacent to the smoking area are to be relocated and that any music in that area will be kept to a low volume; that live entertainment will be remote and shielded from the smoking area; and that the nearest residential area would be over 50m from the smoking area.
12. The evidence given at the hearing by Mr Morozow that the smoking area would be 35m from the nearest residential area, an aged persons complex, and not over 50m as asserted by Ms Burgess was not disputed by the respondent.
13. It is to be inferred from the acoustic report that the matters referred to in paragraph 11 above were significant considerations in Ms Burgess’ conclusion that, subject to her recommendations being implemented, the proposed smoking area would not provide excess environmental noise for the surrounding properties. There is no documentation forming part of the development application or in the material lodged by the respondent with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1989 that verifies the assumptions made by Ms Burgess. Nor was evidence presented to the Tribunal in relation to them at the hearing of the appeal. The basis upon which the various assertions were made by Ms Burgess was not explained to the Tribunal. We are unable to accept them as other than assumptions made by her, presumably based upon information given to her by someone whose identity and authority to speak on behalf of the Club is unknown to the Tribunal.
14. We note that the Club did not apply to be joined as a party to the appeal but that the firm which lodged the development application on its behalf, HN Design & Drafting, was joined as a party to the appeal despite making an application outside the time specified by the Tribunal in directions for it to do so. We note also that the party joined was given the opportunity by further directions given by the Tribunal on 16 and 23 April 2007 to submit evidence and other material to support the development application and that it did not do so. In consequence of the failure of the Club’s representative to comply with the Tribunal’s directions, given on 16 April 2007 and amended on 23 April 2007, the Tribunal made an order on 26 June 2007 pursuant to section 43(7) of the Administrative Appeals Tribunal Act 1989 that the party joined cease to be a party to the appeal.
15. It is clear from the acoustic report, in particular the recommendations for noise attenuation measures to be adopted, that Ms Burgess considered that there was a potential noise impact that needed to be addressed in order to protect the amenity of nearby residents. It accords with common experience that a potential for noise which may be of unreasonable disturbance to others can be generated by groups of people whilst consuming alcohol. That such a potential to affect nearby residents in Dominion Circuit is not remote is supported by Mr Morozow’s evidence that he has been disturbed by loud singing occurring on the Club’s premises. We do not accept the submission made by Mr McCarthy, of counsel, on behalf of the respondent that because the Club has operated on the subject block from a date which preceded Mr Morozow becoming the lessee of his present residence, that he should be expected to endure the consequences of choosing to live in close proximity to a licensed club. That is to ignore the objective of the Territory Plan that the decision to be made in this case ensures that the amenity of nearby residential areas is not unacceptably affected by the operation of entertainment and leisure land use activities.
16. As we have observed above, the recommendations made by Ms Burgess are based upon untested and unverified assumptions as to the method of operation by the Club of its premises. It leaves unanswered what might be the impact of noise generated by persons using the larger part of the smoking area that is not covered by the noise protected roof. It leaves unanswered what might be the impact of the noise if the assumptions on which the report was based are incorrect. That is not to imply any criticism of the acoustic report. It does, however, leave the Tribunal in a position where it is unable to be satisfied that the development application will satisfy objective 1(d) of the Part B8 land use policies.
The visual impact
17. The most significant visual impact of the proposed development would be on Dominion Circuit, the street which it faces. The site plan of the development application shows that the fence on the south-eastern boundary is approximately 10m in length and on the south-western boundary, is approximately 7.5m in length.
18. The south-eastern elevation drawing depicts a chain wire fence 2.1m high with the roof of the structure unscreened above it. It also depicts a fence constructed to the 1.8m dimension as specified in the conditions of approval which would leave unscreened a greater length of the upper portion of the posts which support the roof. The posts are located at approximately 3.9m and 4.9m from the south-eastern boundary and therefore do not meet acceptable standard 2.4 of the Part B8 policies which specifies the acceptable setback standard from boundaries of blocks in adjacent residential areas as 6m. It also specifies the relevant performance criteria for building setbacks to be:
To minimise the impact of development on adjacent residential areas.
19. Part B0 of the Territory Plan provides that “(p)roposals which do not meet relevant performance measures may still be considered in terms of whether they meet the related objective”.
20. Ms Thara Boraiah, who was the delegate of the respondent who made the decision under review and who gave evidence at the hearing on behalf of the respondent, said that the proposed development would meet the performance criteria in clause 2.4 of Schedule 2.
21. We note that Part B0 of the Territory Plan makes no reference to either “acceptable standards” or to “performance criteria”. Be that as it may, Ms Boraiah’s evidence makes it clear that, unless concealed from view, the fence required by the conditions of approval would not meet either the criterion in Schedule 2 or objective 1(d) of the Part B8 policies.
22. In answer to questions asked by the Tribunal, Ms Boraiah confirmed that the fence required by the conditions of approval to be constructed was of the dimensions and materials ordinarily specified for use on common side boundaries and back yards in residential areas where a greater degree of privacy between neighbours was considered necessary than would be afforded by a standard 1.5m timber paling fence. She accepted that, if not screened, the fence would result in an unacceptable visual impact on the Dominion Circuit streetscape. Ms Boraiah considered, however, that the unacceptable visual impact of the fence would be avoided by the requirement of the conditions of approval that there be additional advanced 1.8m high screen planting between the fence and boundary adjoining Dominion Circuit and continuing on the western side of the smoking area.
23. The Tribunal has previously indicated its view that caution needs to be exercised in accepting landscaping proposals as an acceptable solution to an otherwise unacceptable building development (see, for example, Bonansea and Commissioner for Land & Planning & Ors [2001] ACTAAT 4 (13 February 2001)). The need for caution, we consider, is increased where the features to be screened would have not only an unacceptable visual impact but also involve development that failed to meet the requirements of a performance measure specified in the Territory Plan. Further, we take account of the evidence given by Mr Morozow, supported by our observations made during a site inspection, that a hedge comprising shrubs of the same species and planted in approximately the same location as that proposed by the conditions of approval has failed since being planted about 5 years ago to achieve any significant growth and that some of the plantings appear to be in a poor state of health, possibly due to water restrictions which may continue and at a greater level of restriction than has applied during that 5 year period.
24. Reliance was placed on behalf of the respondent on hedge plantings on the Dominion Circuit street boundary of residential units in Section 13, Forrest. Those plantings appear to be intended to provide a courtyard-type privacy to the occupants and incorporate no built element within the front setback with which the proposed development would achieve any design compatibility.
Health issues
25. No evidence was provided to the Tribunal that would allow it to find that the use of the proposed smoking area for its intended purpose would affect the health of nearby residents or members of the public. We do not accept the submission made by the applicants that approval of the development application would be inconsistent with government policy. On the contrary, the proposed smoking area appears designed to conform to the provisions of the Smoking (Prohibition in Enclosed Public Places) Act 2003.
Conclusion
26. We consider that there is substance in the applicants’ objections to the development application which are based on the potential noise and visual impacts of the proposed development and that the correct or preferable decision is to refuse approval to the development application.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT07/08
APPLICANTS: ALEXANDER MOROZOW & RAJEEV JYOTI
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANTS: N/A
RESPONDENT: MR G MCCARTHY
PARTY JOINED:
SOLICITORS: APPLICANTS:
RESPONDENT: ACT OVERNMENT
SOLICITOR
PARTY JOINED:
OTHER: APPLICANTS: MR A MOROZOW
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DR E MCKENZIE, SENIOR MEMBER
MR R NICHOLS, MEMBER
DATE/S OF HEARING: 26 JUNE 2007 PLACE: CANBERRA
DATE OF DECISION: 2 JULY 2007 PLACE: CANBERRA
______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
0
0