Morozow v ACT Planning And Land Authority and Ors (Administrative Review)
[2017] ACAT 79
•28 September 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MOROZOW v ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2017] ACAT 79
AT 20/2017
Catchwords: ADMINISTRATIVE REVIEW – planning and development – constructions of hotel and associated works – whether the proposed development satisfies criterion C57(a) and criteria C58(a) and C58(b) of the Commercial Zones Development Code and is it consistent with objective f) of the CZ6 Leisure and Accommodation Zone Objectives – whether the proposed development is consistent with objective d) of the CZ6 Leisure and Accommodation Zone Objectives – whether the proposed development satisfy criteria C57(b) and C58(c) of the Commercial Zones Development Code
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Planning and Development Act 2007 ss 48, 50, 53, 55, 113, 119, 120, 121, 138, 138AE, 141, 407
Subordinate
Legislation cited: Commercial Zones Development Code cr C57, C58Cases cited:Downer Community Association and ACT Planning & Land Authority [2007] ACTAAT 20
Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96
Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority and Anor [2017] ACAT 44
Stryver Pty Ltd v ACT Planning and Land Authority & Ors. [2004] ACTAAT 42
Tribunal: Senior Member G Lunney SC (Presiding)
Senior Member R Pegrum
Date of Orders: 28 September 2017
Date of Reasons for Decision: 28 September 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 20/2017
BETWEEN:
ALEXANDER MOROZOW
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
RAJEEV JYOTI
First Party Joined
SUSAN PARR
Second Party Joined
SIROCCO (ACT) PTY LTD
Third Party Joined
JOHN MICHAEL KALISH
Fourth Party Joined
JEREMY RILEY
Fifth Party Joined
DESMOND FOOKS
Sixth Party Joined
TRIBUNAL: Senior Member G Lunney SC (Presiding)
Senior Member R Pegrum
DATE:28 September 2017
ORDER
The Tribunal orders that:
1.The decision of the respondent is confirmed.
………………………………..
Senior Member G Lunney SC
Delivered for and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
1.Mr Alexander Morozow (Mr Morozow or the applicant) has sought review of a decision by the ACT Planning and Land Authority (the Authority or the respondent) made under section 113(2) of the Planning and Development Act 2007 (the Planning Act) being a decision to approve, subject to conditions, development application 201630073 for construction of a hotel and associated works (the proposed development) at Block 9 Section 19 Forrest ACT (the subject site).[1]
[1] Notice of decision at T-documents pages 89-147
2.The applicant is a long time nearby resident. A number of residents in streets close to the proposed development are joined as parties in this matter. The registered proprietor of the subject site Sirocco (ACT) Pty Ltd (Sirocco) is the third party joined in this matter.
3.The applicant seeks the following orders.
(a)That the development application be rejected.
(b)That the authority issues a guideline to the proponent of any further development application pursuant to section 138AF of the Planning Act requiring community consultation be undertaken through all of the following:
(i)letter box drops to all residents of sections 19 and 20 and also nearby sections; and
(ii)a publicly notified community meeting and meetings with both the Inner South Community Council and the Forrest Residents Group.
(c)That all driveway crossings for any future proposed development be located on Franklin Street as is the case with the existing driveways on the block and as was the development applicant’s original wish.[2]
The decision of the Authority
[2] T-documents page 13
4.The Authority approved, subject to conditions, the proposal for:
Construction of a hotel comprising of 227 rooms, a restaurant, bar and lounge, a function room and multi-purpose office and meeting rooms; in a seven-storey building with three basement levels for car parking. (The development also includes a pool, gym, health spa/treatment rooms, hairdresser, storage rooms, plant rooms, waste room, and loading dock;
·new driveway crossings;
·associated landscaping and site works;
·and a variation to the Crown Lease purpose clause by adding the following uses:
· carpark;
· commercial accommodation use LIMITED TO commercial accommodation unit, hotel and/or serviced apartment;
· drink establishment;
· indoor recreation facility; restaurant; and shop LIMITED TO personal services.[3]
[3] T-documents page 89
5.The Tribunal notes in particular that the following further information was required to be lodged with the authority by the developer for approval[4]:
[4] T-documents page 91
(a)Revised site plan, landscape plan and architectural drawings showing wind amelioration measures; confirmation of compliance with the recommendations in the wind report; vehicle sight lines in the vicinity of the driveway crossings on Dominion Circuit; and additional advanced stock trees between the building and the Dominion Circuit boundary.
(b)Revised noise management plan endorsed by the EPA.
(c)Incorporation of the recommendations and mitigation measures contained in the wind impact assessment dated 27 July 2016.
(d)Compliance with a number of requirements of Transport Canberra and City Services (TCCS) including the engagement of a landscape architect or consultant arborist to supervise and document works within tree protection zones and construction access to the site by the existing driveway on Franklin Street only.
The development application
6.Development application 201630073 was lodged on 25 August 2016 by Elton Consulting (Elton) on behalf of Sirocco. The application was accompanied by architectural and engineering drawings and supporting documents including a design report dated 8 August 2016 prepared by architects Bates Smart; a planning report and statements against criteria dated August 2016 by Elton Consulting; a landscape report dated 8 August 2016 by Turf Design Studio; a noise management plan dated 14 July 2016 by SLR Consulting Australia; a traffic engineering assessment dated 9 August 2016 by Traffix Group; and a qualitative environmental wind impact assessment dated 27 July 2016 by SLR Consulting Australia.
7.The development application was publicly notified from 1 September to 21 September 2016 and this period was extended until 5 October 2016. Twenty-one (21) written representations were received during the public notification period and one late representation was received after 5 October. Issues raised in the representations included inadequate community consultation; failure of the Authority website during the consultation period; inconsistency with CZ6 zone objectives; non-compliance with the Commercial Zones Development Code; overshadowing; the height of landscaping; privacy; noise; traffic and parking.[5]
[5] T-documents page 44
8.Entity responses were supportive or supportive with conditions.
9.In response to issues raised by representors and entities, further information was lodged with the Authority in December 2016 under section 141 of the Planning Act:
(a)A tree management plan prepared by a consulting arborist from Canopy the Tree Experts.
(b)An updated traffic engineering assessment dated 24 November 2016 prepared by Traffix Group.
(c)Updated solar shadowing studies prepared by Bates Smart showing shadows cast by existing trees.
The subject site
10.The site of the proposed development is basically rectangular and has an area of 5450 square metres with frontages of approximately 90 metres to Dominion Circuit and 66 metres to Franklin Street. The frontage to Franklin Street is aligned about 35 degrees west of north. A site survey dated November 2015 shows that the boundary to Dominion Circuit is essentially level. The land falls approximately one metre from the Franklin Street boundary down to the road level.
11.There are mature street trees along Dominion Circuit and Franklin Street. A club building on the subject site has been demolished and the site is being used as a commercial carpark with vehicular access from Franklin Street.
12.The site is within a CZ6 Leisure and Accommodation zone. Land use zones in the vicinity of the subject block are RZ1 Suburban zone to the west; RZ2 Suburban Core zone on Dominion Circuit to the south of the site and CZ5 Mixed Use zone to the east of the site across Franklin Street.
Applicable law
13.The relevant statute is the Planning Act. The Planning Act provides that there must be a territory plan the objects of which are set out in section 48 as follows:
The object of the territory plan is to ensure, in a manner not inconsistent with the national capital plan, the planning and development of the ACT provide the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation.
14.Section 50 of the Planning Act provides that a territory authority must not do any act, or approve the doing of an act, that is inconsistent with the Territory Plan.
15.Section 53 of the Planning Act states:
(1)The objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone.
16.Section 55 of the Planning Act states:
(1)A code (other than a general code or precinct code that is a concept plan) in the territory plan must contain either or both of the following:
(a) the detailed rules that apply to development proposals the code applies to;
(b) the criteria that apply to development proposals the code applies to, other than proposals in the code track.
(2)A code must be consistent with each objective for the zone to which the code relates.
(3)A code that sets out the requirements that apply to stated areas, or places, or states that it is a precinct code, is a precinct code.
(4)A code that sets out the requirements for types of development, or states that it is a development code, is a development code.
(5)A code that sets out requirements applicable to the Territory, the Executive, a Minister or a Territory authority is a general code.
(6)To remove any doubt, a general code may also contain—
(a) policies to be complied with; and
(b) rules and criteria applicable to development proposals the code applies to.
17.Division 7.2.3 of the Planning Act, specifically sections 119 and 120, sets out the considerations applicable when deciding development approvals in the merit track. In accordance with section 119 of the Act, approval must not be given to a development proposal in the merit track unless the proposal is consistent with the relevant code in the Territory Plan and with entity advice. The relevant code is defined to be the Commercial Zones Development Code (CZDC).
18.The decision before the Tribunal is a reviewable decision in accordance with section 407 of the Planning Act.
19.Section 68 of the ACT Civil and Administrative Appeals Tribunal Act 2008 (ACAT Act) provides that the Tribunal may exercise any function given by an Act to the entity for making the decision. The Tribunal has all the powers of the Authority in reviewing the decision to the extent that those powers are related to the making of the decision under review.
The Tribunal proceedings
20.The matter was heard on 18, 19 and 20 July 2017. Immediately prior to the commencement of the hearing, the Tribunal, the parties, the parties joined and their representatives inspected the subject site and adjacent sites and the general environment of Section 19 Forrest including Dominion Circuit, National Circuit and Franklin Street.
21.Mr Morozow represented himself at the hearing. Mr Walker SC and Ms Katavic appeared for the Authority. Mr Bird appeared for Sirocco (ACT) Pty Ltd.
22.Three of the resident parties joined attended or were represented at the hearing, where they actively supported the applicant. The resident parties joined engaged in cross examination of witnesses as they considered appropriate but, in doing so, pointed out that they wished to emphasise their own view of opposition to the proposed development.
23.Neither the applicant nor the resident parties joined called expert witnesses to give evidence in support of the applicant’s submissions.
The applicant’s submissions
24.A statement of facts and contentions (the statement) was filed by the applicant on 22 May 2017. The resident parties joined subscribed to the applicant’s statement. The applicant had previously prepared similar statements and a response to a statement of facts and contentions filed by the respondent.[6]
[6] Exhibit 3, statement of facts and contentions by Alexander Morozow, Rajeev Jyoti, Susan Parr, John Michael Kalish, Jeremy Riley and Desmond Fooks, 22 May 2017
25.The applicant’s statement of facts and contentions is in three parts. It commences with the following general observations regarding the adverse impact of the proposed development on the residents of the surrounding streets:
We submit that if the development as proposed were to proceed, its detrimental impact would be both significant and irreversible. A seven storey 227 room hotel with a 500-seat function room on this site is the wrong development in the wrong place on the wrong scale and would:
· Detrimentally impact on the privacy and amenity of existing homes that form the surrounding landscape
· Represent a substantial intrusion into the unique low-rise surrounding landscape and garden character of the suburb
· Dominate the surrounding skyline and set a height precedent that other lessees in section 19 would consider themselves entitled to match
· Impact severely on traffic flows and parking access for a considerable distance around the development site including the nearby primary school
· Result in a significant erosion of the Walter Burley Griffin vision for Canberra
· Undermine the public policy objectives for which the National Capital Authority has responsibility through its setting of special requirements for main avenues.
26.In Part A of his statement headed ‘Territory Plan’, the applicant submits that the proposed development fails to meet criterion C57 and criterion C58 of the Commercial Zones Development Code as follows:
Commercial Zones Development Code
Element 18: Buildings - CZ6
Rules
Criteria
18.1 Number of storeys R57
The maximum number of storeys is 2.
C57
Buildings achieve all of the following:
(a) consistency with the desired character
(b) reasonable solar access to dwellings on adjoining residential blocks and their associated private open space.
18.2 Setbacks R58
Minimum boundary setback is 6m.
Note:
This applies to front, side and rear boundaries.
C58
Buildings comply with all of the following:
(a) are compatible with the desired character
(b) are appropriate to the scale and function of the use
(c) minimise detrimental impacts including overshadowing and excessive scale.
27.The applicant also submits that the proposed development is not consistent with the zone objectives for the CZ6 Leisure and Accommodation Zone, in particular objectives d) and f) as follows:
CZ6 – Leisure and Accommodation Zone
Zone Objectives
a) Provide for the development of entertainment, accommodation and leisure facilities for residents of and visitors to the ACT and surrounding region
b) Protect leisure and accommodation uses from competition from higher order commercial uses, and encourage activities that enhance the region's economic diversity and employment prospects
c) Ensure leisure and accommodation facilities have convenient access to public transport
d) Protect the amenity of nearby residential areas, with regard to noise, traffic, parking and privacy
e) Ensure the location of facilities, and their design and landscaping is compatible with environmental values
f) Ensure that the bulk, scale, size, design and landscaping of development is compatible with the surrounding landscape
g) Encourage activity at street frontage level and provide an appropriate level of surveillance of the public realm.
The applicant further submits that the proposed development fails to address the safety implications of directing all hotel exit traffic onto Dominion Circuit rather than Franklin Street.
28.In Part B of his statement headed ‘Statutory Failures’ and in Part C headed ‘Circumvention of Statutory Planning Process’, the applicant refers to section 138AE of the Planning Act regarding a number of procedural matters in relation to community consultation. When asked during the course of the hearing what action he was seeking from the Tribunal in relation to these parts of his statement, Mr Morozow responded that he sought comment from the Tribunal supporting his contentions.
29.The Tribunal declined to do so and referred the applicant to the decision of the then ACT Administrative Appeals Tribunal in Downer Community Association and ACT Planning & Land Authority [2007] ACTAAT 20 where the Tribunal responded to the contention by the applicant that, among other matters, the Planning Authority had given inadequate consideration to the application as follows:
We do not need to dwell on this contention. On the hearing of an application for review of decision the Tribunal stands in the shoes of the original decision-maker. It is not necessarily the Tribunal’s concern to determine whether the respondent was right or wrong or whether it followed correct procedures or whether those procedures were flawed or deficient. Its principal function is to determine what, on the evidence before it, is the correct or preferable decision for it to make.[7]
[7] Downer Community Association and ACT Planning & Land Authority [2007] ACTAAT 20 at [5]
30.This Tribunal adopts the decision in Downer, which has been followed in a number of later cases. Accordingly, the Tribunal will not take any action in these proceedings in relation to the second order sought by the applicant in respect of community consultation and will not deal with the issues raised in Parts B and C of his statement of facts and contentions.
The issues
31.Section 119 (Appendix 1) of the Planning Act requires consistency with entity advice and with the relevant code, in this case the CZDC. As noted earlier by the Tribunal, entity advice has been either supportive or conditionally supportive. The developer has agreed to meet the conditions of approval.
32.Section 120 (Appendix 1) of the Planning Act requires consideration of a number of matters when deciding an application in the merit track. Section 121 of the Act is reproduced in Appendix 1 and limits the scope of the Tribunal’s review.
33.The respondent submitted that the Tribunal should consider the discretionary considerations referred to in section 120.[8]
[8] Statement of facts and contentions of the respondent at [17] to [24]
34.Recent decisions of the tribunal in Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96 and Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority and Anor [2017] ACAT 44 indicate that where a rule in a code has not been complied with and a decision is to be made relating to the corresponding criterion, it is appropriate for the reviewing Tribunal to consider the issues in section 120 of the Planning Act.
35.In Glass, referred to above, the Tribunal made the following observations.
44--For these reasons, the Tribunal concludes that it has jurisdiction to consider the objectives of the zone where the development is approved to occur, subject to the constraint that where a development is subject to a rule concerning an issue or point and is compliant with that rule the Tribunal cannot further consider the issue or point.
45--In this case, it is common ground that none of the proposed buildings comply with rule 7 of the Community Facility Zone Development Code concerning building height. The question then is whether the buildings comply with corresponding criterion 7, as discussed below. However, in that circumstance the Tribunal must also consider the issues in section 120 where relevant. Under section 120(a), those issues include the zone objectives for the Community Facility Zone, but within limits.
36.The third party joined, Sirocco Pty Ltd (Sirocco), made a similar submission to that of the respondent. Sirocco submitted also that the Tribunal should not conduct a wide ranging review of all aspects of the decision but restrict its enquiry to the issues raised between the parties, citing Stryver Pty Ltd v ACT Planning and Land Authority & Ors. [2004] ACTAAT 42 in support. The Tribunal generally agrees with that approach.[9]
[9] Statement of facts and contentions of Sirocco (ACT) Pty Ltd dated 26 June 2017 at [69]
37.The issues before the Tribunal relate to the issues raised between the parties and the submissions by Mr Morozow that the proposed development does not comply with the relevant legislation and planning codes as follows:
(a)Issue 1: does the proposed development satisfy criterion C57(a) and criteria C58(a) and C58(b) of the CZDC and is it consistent with objective f) of the CZ6 Leisure and Accommodation Zone Objectives?
(b)Issue 2: is the proposed development consistent with objective d) of the CZ6 Leisure and Accommodation Zone Objectives?
(c)Issue 3: does the proposed development satisfy criteria C57(b) and C58(c) of the CZDC?
Consideration of the issues
Issue 1: Does the proposed development satisfy criterion C57(a) and criteria C58(a) and C58(b) of the CZDC and is it consistent with objective f) of the CZ6 Leisure and Accommodation Zone Objectives?
38.It is common ground that the proposed development does not comply with rule 57 and rule 58 in the CZDC. The Code provides that where there is a departure from a rule “the onus is on the applicant to demonstrate that the relevant criterion is satisfied through supporting drawings and/or written documentation”.
39.Criteria 57(a) and 58(a) are expressed slightly differently. Criterion 57(a) relates to building height and requires “consistency with the desired character”. Both criteria 58(a) and (b) relate to setbacks from boundaries. Criterion 58(a) requires that buildings are “compatible with the desired character”. Criterion 58(b) requires that buildings are “appropriate to the scale and function of the use.”
40.It was not suggested by any of the parties that there was any operative difference between the two requirements for consistency and/or compatibility with “the desired character” for the purposes of the decision under review.
41.The Territory Plan defines ‘desired character’ as:
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 the relevant precinct code.
42.There is no relevant precinct code for the subject site.
43.The relevant zone objectives are the objectives for the CZ6 Leisure and Accommodation Zone. Objective f) reads as follows:
f) Ensure that the bulk, scale, size, design and landscaping of development is compatible with the surrounding landscape.
44.The Territory Plan defines ‘streetscape’ as follows:
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.
45.For the purposes of determining consistency, and in the absence of any relevant submissions from the parties, the Tribunal does not identify any tension between the differential use of ‘landscape’ and ‘streetscape’ in the provisions referred to above. Landscape refers, at least potentially, to a greater area than streetscape and the Tribunal will refer to that on the assumption that the streetscape forms part of the landscape.
46.The proposed development is seven stories high and exceeds the primary setbacks on both street frontages by approximately three metres. Mr Morozow describes the proposed development as being “in a residential setting” and “in the midst of residences” and submits that in its setting it “cannot by any stretch of the imagination be considered compatible with this surrounding landscape.” He also refers to buildings on Canberra Avenue as being subject to NCA controls and comparison with them as not being appropriate.[10]
[10] Exhibit 3, statement of facts and contentions by Alexander Morozow, page 2, page 7
47.In his submissions, Senior Counsel for the respondent tendered documents to indicate that CZ6 zones were to be found all over Canberra because of the diverse nature of their objectives and allowed uses. The uses will not vary, but what would be an appropriate development will depend on the physical context in which the site is located, so that the streetscape will largely define the parameters of the development that should proceed.
48.A witness statement was tendered by Mr Philip Vivian, who was the principal architect involved in the design of the proposed development. Mr Vivian gave evidence and was cross examined about his design. He appended to his witness statement a copy of his design report which had been submitted with the development application. Mr Vivian described the concept for the building as follows:
Our aim is to create a unique Garden City building typology inspired by Griffin’s planning of Canberra. The organic form connects with the natural environment while responding to neighbourhood views as well as the scale of local streets. The building’s aesthetic is created through an honest and direct expression of structure and construction, remaining true to the laws of nature.
The building’s form has been designed to meet a number of site specific issues relating to the building’s context. The curved form with three ends minimises the building’s impact on the streetscape and confines the bulk of the building to the centre of the site. The façade wraps its way around the building often recessing to create an entrance or expressing itself to form a defined space such as the function room. This, in addition to the setback on the top floor reduces the perceived scale of the building and creates interesting and varied elevations that have a minimal impact upon the two streetscapes and neighbouring properties. The soft edges that the curved form presents also allow the building to sit respectfully into the prominent corner site that it occupies and its orientation opens up the corner allowing for unrestricted views and sunlight.[11]
[11] 78 Franklin Street Forrest ACT: DA design report dated 8 August 2016 at T-documents 1260; T-documents 1284
49.Mr Vivian gave evidence that he had taken particular care to minimise overshadowing of the houses opposite. Solar studies showed that the building “casts virtually no additional shadow on Dominion Circuit residences than that already cast by the existing trees.” Responding to a suggestion from Mr Morozow that the shadow effect of a tree is more dappled than the shadow cast by a building, Mr Vivian said that for “large mature trees with large canopies I believe the impact is not substantially different.”[12]
[12] Witness statement at [7]; transcript of proceedings 18 July 2017 page 15, line 37; page 16, line 16
50.As to the building itself, Mr Vivian noted the façade is “highly modelled giving it a fine grain which references domestic scale buildings…a human scale…a hotel design differently wrapped in a glass façade would not have that fine grain scale.” The plant at the roof level had also been set back a minimum of four metres from the building façade to reduce its visual impact.[13]
[13] Transcript of proceedings page 17, line 18
51.A witness statement was also tendered by Mr Chris Gell, a manager with the Environment, Planning and Sustainable Development Directorate. Mr Gell is a senior development assessment officer employed by the respondent. He was not the assessing officer for this development application.[14]
[14] Exhibit 9, witness statement of Chris Gell
52.It was the view of Mr Gell that the bulk, scale, size, design and landscaping of the proposed development was consistent with objective f) of the CZ6 zone objectives. He gave evidence and tendered simulated images of the proposed development together with images of a rule-compliant two-storey building with six metre setbacks from the site boundaries. Mr Gell provided the following opinion in his statement.
In my opinion, the proposed building is more sympathetic to the streetscape compared to a building footprint with continuous setbacks of 6 metres to all of the block boundaries…a building that has continuous setbacks of 6 metres would create more solid continuous building facades along Dominion Circuit and Franklin Street, similar to other buildings in the area that are built close to the block boundaries…in my opinion, the height of the proposed development is consistent with other existing buildings in the area that have exceeded two storeys.[15]
[15] Exhibit 9 at [35]
53.As to landscaping, Mr Gell said:
The large boundary setbacks and advanced stock plantings will enable the hotel building to sit within a landscape setting, which also consists of existing tall street trees along Dominion Circuit and Franklin Street…the height of the proposed building is consistent with the heights of the tall mature eucalyptus street trees along Dominion Circuit.[16]
[16] Exhibit 9 at [39], [38]
54.The Tribunal notes the above expert opinions and disagrees with the applicant’s assertion that the development is in a residential area or in an area of predominantly domestic design. The buildings along Canberra Avenue, particularly those in section 18 across Franklin Street, are relevant since they form part of the landscape. The circumstance that they conform to a different design regime may explain why they have their particular appearance but that permanent appearance is an important feature when considering the nature of the environment in which they and the proposed development will exist.
55.The subject site is one of a progression of mixed use sites mainly two blocks wide commencing at Canberra Avenue and progressing along National Circuit to Hobart Avenue. There is an interface with domestic residences in Dominion Circuit along its length. No matter what building is built on the subject site, it will probably be of a more industrial appearance (for example, the former Club) in contrast to the homes in Dominion Circuit.
56.In the opinion of the Tribunal, the evidence establishes that there are existing trees and shrubs which will shield the residences from the new development. The height of the hotel is mitigated by its design; by the surrounding streetscape constituted by sections 18, 19, and 12 Forrest; by its landscaped grounds; and by the mature trees in both Franklin Street and Dominion Circuit. The development application includes an attractive landscape plan which has been improved by imposed conditions. The building has a modest footprint on the site allowing for generous landscaping. The design of the building is varied and attractive.
57.In the opinion of the Tribunal, the proposed building is an appropriate response to its setting and to the scale and functions of its use. The Tribunal finds that the proposed development complies with criterion 57(a) and with criteria 58(a) and 58(b) of the Commercial Zones Development Code and is consistent with the definition of desired character and objective f) for the CZ6 Leisure and Accommodation Zone.
Issue 2: is the proposed development consistent with objective d) of the CZ6 Leisure and Accommodation Zone Objectives?
58.CZ6 zone objective d) reads as follows:
d) Protect the amenity of nearby residential areas, with regard to noise, traffic, parking and privacy
59.In relation to the word ‘amenity’ in objective d) above, the applicant has submitted that the impact of the development is evident and that, when considering loss of amenity in relation to the proposed development, the loss of amenity due to existing developmental impact and environmental change should also be taken into account. The Tribunal notes this submission and has considered this in its assessment of the proposal.
60.The applicant submits that the use of ‘protect’ in objective d) in the absence of any qualification such as ‘from unreasonable loss of amenity’ indicates that the intent of the objective is to prevent any interference at all with or loss of the amenity of the residents.
61.The Tribunal does not accept this latter submission. ‘Protect’ is used in the list of objectives in the company of ‘provide for’, ‘encourage’ and ‘ensure’. The planning context indicates that it is being used as meaning to defend, safeguard or look after the interests of, implying that there should be no unreasonable interference with the described amenity. Furthermore, the matters listed in the objective as requiring protection are not absolute concepts capable of being totally avoided if any development goes ahead and if there is human activity on the site. The interpretation suggested by the applicant conflicts with similar objectives in other codes, for example the Community Facility Zone which was dealt with in Glass. Planning is an area in which uniformity of meaning could be expected between the provisions of codes. If that were not the case, then clear words emphasising the difference could be expected.
Zone objective d) – noise
62.In relation to noise, the applicant fears that the operations of the proposed development would inevitably generate a severe but unspecified amount of noise by day and night. The evidence indicates that the developer and the Environment Protection Authority are aware of the possibility that noise generated on the site, particularly in the function room, must be dealt with by soundproofing and acoustic management so as to avoid unreasonable levels of sound which could impact on surrounding residents.
63.At this stage, a condition has been applied to the development approval intended to ensure that local amenity is not unreasonably impacted. The developer is willing to comply with the condition to bring that result about. The Tribunal is satisfied that incorporation of the provisions of a revised noise management plan will ensure that amenity relating to noise would be protected.
Zone objective d) - traffic and parking
64.A component of the applicant’s opposition to the proposed development is grounded in his view that there are existing traffic and parking problems in the vicinity which already impact on the amenity of residents in the area. This concern is exacerbated by a belief that additional traffic generated by the development would worsen these conditions to a significant degree.
65.The expert evidence is to the contrary.
66.The development application was accompanied by a traffic engineering assessment prepared by the Traffix Group and dated August 2016. This report was revised in November 2016 in response to comments received during the consultation process. The updated report considers the impact of traffic generated by morning conferences in the proposed function centre and also traffic generated by the recent occupation of a new office building at 1 Canberra Avenue.
67.The applicant submits that the traffic assessments are flawed in a number of respects. In particular, Mr Morozow notes the failure to refer to the requirements of Part 3.4 of the Parking and Vehicular Access General Code for the safety of pedestrians and cyclists. The applicant also submits that traffic exiting from the development would direct headlights onto the aged persons’ complex at night and create an unsafe situation with traffic travelling at considerable speed in Dominion Circuit.
68.The traffic assessments were prepared by Mr William De Waard, an experienced engineer and transport planner. Mr De Waard gave evidence and was cross examined. It was his opinion that local road intersections would operate satisfactorily under post-development conditions. The inclusion of expected development volumes would bring a marginal increase in delay and queue length at the intersection of Dominion Circuit and Canberra Avenue.
69.As to the safety implications for exiting traffic raised by Mr Morozow, Mr De Waard said that the separation of entry and exit points on Franklin Street and Dominion Circuit was “an appropriate way of distributing vehicular movements to and from the site…that is actually the safest movement out of a site…I have no concerns at all about the ability to provide a safe exit.”[17]
[17] Transcript of proceedings 19 July 2017 page 65, line 38
70.Mr De Waard told the Tribunal that the time of greatest traffic generation by the proposed development would be between 7pm and 8pm which was outside the peak period for general vehicle movements in the area. At this time, there would be queueing on the basement ramp but this would not interfere with other traffic movements closer to the building. Parking demand generated by the development would be accommodated by the on-site parking proposed. Mr De Waard concluded that there was no traffic engineering reason why the proposed development should not be approved.[18]
[18] Transcript of proceedings 19 July 2017 page 64, line 37
71.The Authority also tendered a statement from Timothy Adrian Wyatt who is a manager in the Environment, Planning and Sustainable Development Directorate. Mr Wyatt is an expert experienced in the area of transport management. He gave evidence that the updated traffic engineering assessment had sought to determine whether the additional traffic generated by the development could be reasonably accommodated on the surrounding road network and whether the provision for parking was adequate.
72.In Mr Wyatt’s opinion, the development was unique in providing “additional publicly available parking so we did not have reason to believe that was going to have a significant adverse impact on the existing situation.”[19] This comment aligned with the following conclusion in his written statement:
Based on the additional information received and the subsequent analysis of the supplementary information, including the drawings associated with the development application, I formed an overall view that the development proposal would not have significant adverse parking and traffic impacts which required further remedial measures.[20]
[19] Transcript of proceedings 19 July 2017 page 129, line 28
[20] Witness statement of Timothy Adrian Wyatt dated June 2017 at [14]
73.The Authority also tendered a statement from Mr Jeff Bell who is an operations manager with Transport Canberra and City Services. Mr Bell is suitably qualified and has worked in the field of traffic engineering for more than 17 years. It was his view that there was a legible and well-connected road network around the subject site and that there were sufficient options for traffic to and from the site.
74.Mr Bell advised that computer analysis had confirmed that the proposed development would have a negligible impact on the operation of the intersections at Dominion Circuit/Canberra Avenue, National Circuit/Franklin Street, Dominion Circuit/Franklin Street and Arthur Circle/Dominion Circuit. The proposed development would result in marginal increases in delay and queue length at the National Circuit/Canberra Avenue intersection.
75.In Mr Bell’s view, the proposed development provided adequate on-site parking. He noted that the nearest school was approximately 500 metres from the subject site. It was his opinion that traffic generated by the development would not have a significant impact on school children crossing roads in the area.
76.The Tribunal has already referred to the expert evidence of Mr Chris Gell as to the bulk, scale, size, design and landscaping of the proposed development. Mr Gell gave further evidence in relation to traffic and parking. It was the opinion of Mr Gell that the development “has protected the amenity of nearby residential areas with regard to noise, traffic, parking and privacy and is consistent with objective d) of the CZ6 zone.”[21]
[21] Exhibit 9 at [30]
77.Mr Gell noted the support of TCCS with conditions in relation to traffic movements. In relation to parking, he noted the excess of parking spaces over the calculated requirement and that the “current on-street parking arrangements in the nearby surrounding streets are time limited.” In his opinion “there is unlikely to be any residual impact on the amenity of nearby residential areas due to parking.”[22]
[22] Exhibit 9 at [23]
78.The available evidence acknowledges some impact by the development on traffic movement and parking in the area, but descriptors such as minimal and marginal are used. The Tribunal is satisfied that it is unlikely that there will be a significant impact on local residents’ amenity from increased traffic movements or local parking availability.
Zone objective d) - privacy
79.Mr Gell also gave evidence in relation to privacy. On a plan annexed to his witness statement, Mr Gell marked the distances of the front boundary of the subject site from the nearby houses in Dominion Circuit. He noted the encroachment of some hotel rooms facing Dominion Circuit but noted also that these rooms were more than 38 metres from the houses. Up to 71 metres separated other rooms from the houses. Hotel rooms on higher levels would have their views filtered by trees towards Dominion Circuit. New and existing vegetation would further screen the houses from lower rooms and the function room. His conclusion in relation to privacy was as follows:
In my opinion, the privacy of nearby residential buildings across Dominion Circuit is protected by the existing and new landscaping and the distance separation between the hotel building and the residential buildings.[23]
[23] Chris Gell at [29]
80.The Tribunal accepts the opinion of the experts above and is satisfied that the amenity of nearby residential areas with regard to noise, traffic, parking and privacy will be protected and that the proposed development is thus consistent with objective d) of the CZ6 Leisure and Accommodation Zone.
Issue 3: Does the proposed development satisfy criteria C57(b) and C58(c) of the CZDC?
81.Criterion C57(b) which relates to number of stories provides as follows:
Buildings achieve...reasonable solar access to dwellings on adjoining residential blocks and their associated private open space.
82.Criterion C58(c) which relates to setbacks provides as follows:
Buildings…minimise detrimental impacts including overshadowing and excessive scale.
83.Shadow diagrams have been prepared and are in evidence. These show that there is some impact on the block of flats to the west, however the evidence relating to this topic indicates that this is early in the morning, its duration is relatively brief and any impact on this adjoining site has not been the subject of adverse submission.
84.The evidence of Mr Vivian the architect of the proposed building has already been referred to at paragraph 48. He said that care had been taken to minimise overshadowing of the houses opposite. These houses do not adjoin the subject block and are therefore not covered by criterion C57(b).
85.The Tribunal having examined the diagrams filed and noting the views of Mr Vivian is of the view that shadowing of the houses opposite and their surrounding land would be minimal, of short duration, and confined to a relatively short period of the year.
86.The evidence does not establish any other potential detrimental impacts that could result from the setbacks being exceeded. The evidence establishes that the proposed development is not of excessive scale.
87.The Tribunal is satisfied that the proposed development satisfies criteria C57(b) and C58(c) of the CZDC.
Public Submissions
88.The submissions received were both supportive of and opposed to the proposed development. The views of those opposed to the development were either similar to or the same as the submissions put by the applicant and the resident parties joined. A constructive suggestion made by one of the supportive representors was taken up and further information was provided in response as part of the assessment process. The Tribunal notes the representations made but in the circumstances will not deal with them individually.
Conclusion
89.The Tribunal is satisfied that the proposed development is consistent with the Commercial Zones Development Code for the purpose of section 119 of the Planning Act. The Tribunal is also required by section 120 to consider the objectives for the RZ6 Leisure and Accommodation Zone. Objectives d) and f) have been the subject of evidence and consideration by the Tribunal in the course of the hearing of these proceedings and decision.
90.Of the other objectives, objective c) (…access to public transport) was the subject of evidence establishing that there was a bus stop servicing two routes within easy walking distance of the proposed development and that it was expected that taxis would be available for guests at the hotel. Although not directly raised as an issue in the proceedings, the Tribunal is of the view that the intent of objective e) (…compatible with environmental values) is complied with by the proposed development. The proposed development is consistent with the remaining objectives.
91.For the reasons previously referred to, the Tribunal confirms the decision under review.
………………………………..
Senior Member G Lunney SC
Delivered for and on behalf of the Tribunal
APPENDIX 1
Planning and Development Act 2007
119Merit track—when development approval must not be given
(1)Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with—
(a)the relevant code; and
(b)if the proposed development relates to land comprised in a rural lease—any land management agreement for the land; and
(c)if the proposed development will affect a registered tree or declared site—the advice of the conservator of flora and fauna in relation to the proposal.
Note 1An application cannot be approved if it is inconsistent with the territory plan (see s 50) or the National Capital Plan (see Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), s 11).
Note 2Relevant code—see the dictionary.
(2)Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under section 148 (Some development applications to be referred) unless the person deciding the application is satisfied that—
(a)the following have been considered:
(i)any applicable guidelines;
(ii)any realistic alternative to the proposed development, or relevant aspects of it; and
(b)the decision is consistent with the objects of the territory plan.
(3)To remove any doubt, if a proposed development will affect a registered tree or declared site—
(a)the person deciding the development application for the proposed development must not approve the application unless the approval is consistent with the advice of the conservator of flora and fauna in relation to the proposal; and
(b)subsection (2) does not apply in relation to the conservator’s advice.
120Merit track—considerations when deciding development approval
In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:
(a)the objectives for the zone in which the development is proposed to take place;
(b)the suitability of the land where the development is proposed to take place for a development of the kind proposed;
(c)if an environmental significance opinion is in force for the development proposal—the environmental significance opinion;
NoteEnvironmental significance opinion—see s 138AA. Environmental significance opinions expire 18 months after they are notified (see s 138AD).
(d)each representation received by the authority in relation to the application that has not been withdrawn;
(e)if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications)—the entity’s advice;
NoteAdvice on an application is given in accordance with section 149 if the advice is given by an entity not later than 15 working days (or shorter prescribed period) after the day the application is given to the entity. If the entity gives no response, the entity is taken to have given advice that supported the application (see s 150).
(f)if the proposed development relates to land that is public land—the public land management plan for the land;
(g)the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
121Merit track—notification and right of review
(1)To remove any doubt, if a development proposal is in the merit track, the application for development approval for the proposal must be publicly notified under division 7.3.4.
(2)If there is a right of review under chapter 13 in relation to a decision to approve an application for development approval for a development proposal in the merit track, the right of review is only in relation to the decision, or part of the decision, to the extent that—
(a)the development proposal is subject to a rule and does not comply with the rule; or
(b)no rule applies to the development proposal.
HEARING DETAILS
FILE NUMBER:
AT 20/2017
PARTIES, APPLICANT:
Alexander Morozow
PARTIES, RESPONDENT:
ACT Planning and Land Authority
FIRST PARTY JOINED
Rajeev Jyoti
SECOND PARTY JOINED
Susan Parr
THIRD PARTY JOINED
Sirocco (ACT) Pty Ltd
FOURTH PARTY JOINED
John Michael Kalish
FIFTH PARTY JOINED
Jeremy Riley
SIXTH PARTY JOINED
Desmond Fooks
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
P Walker SC and Kristy Katavic
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
SOLICITORS FOR FIRST, SECOND, FOURTH, FIFTH AND SIXTH PARTY JOINED
N/A
SOLICITORS FOR THIRD PARTY JOINED
Clayton Utz
TRIBUNAL MEMBERS:
Senior Member G Lunney SC (Presiding)
Senior Member R Pegrum
DATES OF HEARING:
18, 19 and 20 July 2017
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