NCCC & Anor v ACT Planning And Land Authority & Anor (Administrative Review) - [2023] ACAT 19

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

NCCC & ANOR v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2023] ACAT 19

AT 46/2022
AT 48/2022

Catchwords: ADMINISTRATIVE REVIEW – planning and land development – change of use to add childcare centre – compliance with criteria in respect of parking, access, and road network capacity
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Planning and Development Act 2007 ss 50, 119, 120, 121, 147A, 148, 149, 162, 409, 419, sch 1

Subordinate

Legislation cited: Parking and Vehicular Access General Code
Parks and Recreation Zones Development Code
Territory Plan

Cases cited:Browne v Dunn (1893) 6 R. 67
Gingell v ACT Planning and Land Authority [2016] ACAT 10
Hipkins v ACT Panning and Land Authority & Ors [2022] ACAT 41
Javelin Projects Pty Ltd v ACT Planning and Land Authority & Anor [2017] ACAT 87
Noahs Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2017] ACAT 44
Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority [2018] ACAT 95
North Canberra Community Council ACT Planning and Land Authority & Anor [2022] ACAT 69
North Canberra Community Council v ACT Planning and Land Authority and Canberra District Rugby League Football Club Limited [2014] ACAT 1
Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail Reit & Ors v ACT Planning and Land Authority [2018] ACAT 38
Villages No 22 Pty Ltd v ACT Planning and Land Authority [2021] ACAT 43

Tribunal:Senior Member B Meagher SC
Senior Member G Trickett

Date of Orders:  24 March 2023
Date of Reasons for Decision:      24 March 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 46/2022

BETWEEN:

NORTH CANBERRA COMMUNITY COUNCIL INCORPORATED
Applicant

AND:

ACT PLANNING AND LAND AUTHORITY
Respondent

AINSLIE FOOTBALL AND SOCIAL CLUB LIMITED ACN 102364321
Party Joined

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 48/2022

BETWEEN:

JAMES CONNOR
Applicant

AND:

ACT PLANNING AND LAND AUTHORITY
Respondent

AINSLIE FOOTBALL AND SOCIAL CLUB LIMITED ACN 102364321
Party Joined

TRIBUNAL:Senior Member B Meagher SC
Senior Member G Trickett

DATE:24 March 2023

ORDER

The Tribunal orders that:

Subject to Order 2, the decision under review is varied as follows:
(a)Condition 2 is amended to insert “(a)” before “That no building work…” and add a new condition as follows:
(b)     The applicant shall lodge with the Planning and Land Authority a revised engineering “Civil Works Plan” C06, based on the relevant drawings submitted as part of the development application showing:
Permeable paving within the tree protection zone consistent with the submitted TPZ encroachment plan sheet 2; and drawing number L801.6 dated 22 March 2022.
Notes:
1. The above information is to be provided to the Planning and Land Authority as satisfying condition of approval under section 156 of the Planning and Development Act 2007.
2.       Information shall be submitted in the Development portal addressing the above conditions. Please ensure plans and supporting information are suitably named (as per the Authority’s naming convention, are clouded for any amendments, such clouding is labelled consistently with items listed on the s165 application form).
3. Any substantial changes to the development required to comply with the above conditions may need to be submitted for the approval of the planning and land authority with an application to amend the approval under section 197 of the Planning and Development Act 2007.
(b)Condition 3 is amended to insert “(a)” before “Documents giving effect to…” and to add before “Please also see the Advisory Notes for additional information on the lease variation”:
(b)     In addition, the approval does not take effect unless and until the Crown Lease variation that was proposed by DA 202038146 and approved by the Tribunal following proceeding number AT 10 of 2022 is registered.
(c)Condition 5 is amended to insert:
(u)     The entry to the land through the new verge crossing be controlled by the Crown Lessee so as to restrict its use to staff, parents, and others visiting the proposed childcare centre between the hours of 6am to 6pm other than on weekends or public holidays.
(v)     In respect of the proposed intended carparks depicted on the Plans and in particular T1130, the design be amended to ensure that the vehicles using them, including B99 vehicles are not required to cross double yellow lines in Angas Street to the satisfaction of ACT Planning and Land Development Authority.
(d)Condition 7 is deleted and replaced with the following condition:
Prior to commencement of the operation of the childcare centre, the lessee must obtain a licence to operate the centre from Children’s Education and Care Assurance (CECA) and provide a copy of the licence to the Authority.
(e)Condition 8 is amended to insert “(a)” before “The development must…”, add “Children’s Education and Care Assurance (CECA)” to the list of entities stated in “(a)”, and insert
(b)     The lessee is to provide written evidence to the Authority confirming that all relevant requirements of CECA have been complied with.
(f)A new condition 11 is added as follows:
LIGHTING
11     External on-site lighting is to be provided to all paths and carparking for the childcare centre and comply with following Australian Standards:
·AS1158.3.1 – ‘Pedestrian Lighting’; and
·AS4282 – ‘Control of the Obtrusive Effects of Outdoor Lighting’.
The parties have leave to make submissions about the form of the variations in Order 1 and any such submissions are to be provided to the Tribunal and the other parties on or before Friday, 7 April 2023. The variations will not take effect until Friday, 7 April 2023 or such later date that the Tribunal may order after any such submissions.

………………………………..

Senior Member B Meagher SC
For and on behalf of the Tribunal

REASONS FOR DECISION

North Canberra Community Council Incorporated (first applicant or the Council) and Mr James Connor (second applicant) have brought separate applications to review the decision of ACT Planning and Land Authority (ACTPLA or the respondent) to approve a Development Application (DA) made by Ainslie Football and Social Club Limited (the Party Joined). The applications have been heard together, and the evidence in one is taken to be the evidence in the other.
The land, the subject of the DA, is known as Ainslie Oval. There have been two earlier applications in respect of the land, which were both opposed by the North Canberra Community Council (the Council).

Standing

The authorised representative of the Council is Mr Marcus Hipkins. The objects of the Council have been provided to the Tribunal.
In an earlier case[1] concerning other land, the Tribunal held that the Council had standing to bring an application to review a DA. Initially, in submissions, it was argued that the Council did not have standing, but that was withdrawn correctly.
[1] North Canberra Community Council v ACT Planning and Land Authority and Canberra District Rugby League Football Club Limited [2014] ACAT 1
The second applicant is a resident of Angas Street. The land is contained between Angas Street, Majura Avenue and Limestone Avenue. Both applicants had made representations to ACTPLA and argued that the development would create a danger to residents and deprive them of some land currently capable of being used by the public for recreation.
Reference has been made to section 409, Schedule 1 and section 419 of the Planning and Development Act 2007 (PDA). The entitlement to bring these applications requires that the second applicant has made a representation (which it and he have) and may[2] suffer a material detriment. Material detriment is defined in section 419. The definition adds a previously unstated qualification “in relation to land”. It has been assumed then that these latter words are to be added to the schedule. The definition also provides that there is such detriment if the decision is likely to have an adverse effect on the entity’s use of the land. It raises the question of whether a changed use (that creates an unacceptable nuisance to a neighbouring landowner but does not impact on its use of the land to be developed) would satisfy the definition. Here it is argued that the development will do both. The respondent did not argue that there was no standing and the Party Joined dropped its opposition. The legislation is unsatisfactory as it uses two cumulative and inconsistent tests “may” and “likely to”; introduces the words “in respect of land” even though they are not referred to in the Schedule and raises an issue of whether an unacceptable nuisance created by the development but not affecting the applicants’ use of the subject land is enough, as it ought to be. In an earlier case,[3] it was accepted that an impact on the land of the applicant might be sufficient. In Noahs Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2017] ACAT 44, the land was assumed to be that of the party opposing the development, not the subject land.
[2] Our highlighting “may” not “would”, as argued.
[3] Gingell v ACT Planning and Land Authority [2016] ACAT 10
If regard is had only to the text, it might be thought that land refers only to the land to be developed, but it is not clear. If regard is had to the context and purpose, it must include the land of the person making the representation.
We agree that the concessions now made by the Party Joined are correctly made and accept that the applicants have standing.

The Development Application and its background

The application was made on 26 October 2021. It comprised a proposal for:
(a)demolition of the existing caretaker’s cottage and other smaller structures at the southern end of the block;
(b)construction of a childcare centre in the same location but with a larger footprint (781.45m² instead of 145.72m²);
(c)associated landscaping, carparking and offsite works, including construction of an internal road linking the childcare centre to the new verge crossing which was the subject of a prior approval (but an appeal was yet to be resolved); and
(d)a variation to the Crown Lease to add childcare as a permitted purpose.
In 2020, an application made by the Party Joined resulted in consent orders that enabled a change to the Crown Lease. The orders are in Annexure D to Mr Patterson’s statement.[4] The application was to allow for an additional verge crossing from the land to Angas Street. There was an existing crossing near the caretaker’s cottage. The purpose was to enable access to parking. The application was approved and removed all access restrictions on access to Angas Street. The application to ACAT resulted in this being modified.
[4] The evidence is described in more detail later. Mr Patterson is an employee of the Party Joined
The consent orders required that all future verge crossings are limited to specific areas along Angas Street, the hours of use are limited, and the maximum number of car spaces is limited for one area. The access to the caretaker’s cottage and community playground was to be varied to delete “for” and add “adjacent to”.
Mr Paterson’s statement attaches the consent order Attachment D and the form of the Variation to the Crown Lease Attachment E. It shows it was registered on 15 December 2020. It has a plan that depicts the place where the new access will be situated, and its use is not permitted between 12am and 6am. It provides for a maximum of 30 car spaces to be accessed. The plan depicts the new crossing as being just around the curve from the Limestone Avenue end.
The second application relates to what is misleadingly described as the verge crossing case. Its history and outcome can be seen in North Canberra Community Council v ACT Planning and Land Authority & Anor [2022] ACAT 69 (NCCC v ACTPLA & Anor) decided on 16 August 2022.
That application was approved on 22 December 2021.
The approval, as later confirmed, is to:
(a)delete the setback requirement in clause 3j of the Crown Lease;
(b)allow a subdivision into 3 blocks;[5]
(c)allow a variation of the Crown Lease to allow for the use as car parking in two of the new blocks;
(d)allow a variation of the Crown Lease to allow access for the three blocks; and
e)allow a construction of the crossing of the verge.[6]

Documentary material provided to the Tribunal.

[5] The oval and the area of the proposed childcare centre are on the same new block. See Exhibit PJ4.
[6] Between the first day of the hearing and the resumed hearing in this matter, this was constructed even though the Crown Lease has yet to be amended to allow it.

The following documents were provided to the Tribunal prior to the hearing commencing. At the start of the hearing, the parties confirmed that this was accurate. We have not given them exhibit numbers as their description is clear, and the documents include both submissions and factual material. The rules of evidence do not apply, but by receiving the documents, we are not making any evidentiary rulings. They are:
(a)T documents numbered 1-1170 (T-documents or T-docs).
(b)Submission of the Council dated 19 September 2022 with attachments:
(i)      Attachment A is a plan[7] superimposed on an aerial photograph of the area from ACT Maps page 25.
[7] With T-docs, page 547
(ii)     Attachment B An aerial photograph of the curve in Angas Street where the verge is with measurements in metres of segments of the road.
(iii)   Attachment C traffic data provided by Roads ACT on 11 August 2020.
(c)Statement of Morgan Ritchings dated 19 September 2022.
(d)Submissions in Reply by Council of 14 November 2022 with attachments:
(i)      Attachment A – T-docs page 349 of the verge crossing case.
(ii)     Attachment B – Extract of Mr Patterson’s witness statement in the verge crossing case.
(iii)   Attachment C – Aerial photography of parking bays near northern end of oval.
(iv)   Attachment D – Active Travel Infrastructure Practitioner Tool – Sydney Avenue.
(v)     Attachment E – page 198, NSW Roads and Maritime Services’ Traffic Modelling Guidelines.[8]
[8] Full text is available at F – page 49, Austroads Guide to Road Design, Part 12, Integrated transport assessments for developments.[9]
[9] Full text is available at Attachment G – NCCC objects and purposes
(viii)   Attachment H – Authority to Act.
(e)Witness Statement of Morgan Ritchings dated 10 November 2022 with links to Youtube videos of Limestone Avenue and Angas Street taken between 8:35am and 8:55am on 31 October 2022 and 3 November 2022.
(f)Reports of Hamish McDonald of 12 February 2020 and 19 April 2022.
(g)Scientific data concerning Child Care Centres and surrounding road density.
(h)Submissions of Dr Connor dated 4 July 2022.
(i)Submissions in reply by Dr Connor dated 11 November 2022.
(j)Statement of Richard Davies, witness for the respondent, dated 18 October 2022. It was accompanied by a Statement of Findings by Graham Sandeman, another official from ACTPLA, dated 19 July 2022 and email traffic between Spacelab, a Town Planning firm, who lodged the Development Application for the Party Joined dealing with traffic safety assessment requirements.
(k)Respondent’s submissions dated 18 October 2022.
(l)Submission of the Party Joined dated 27 October 2022.
(m)Witness Statement of Simon Patterson dated 27 October 2022 with annexures A-G.
(n)Report of Hamish McDonald dated 27 October 2022.
(o)Report of Richard Nash dated 27 October 2022.
During the hearing, additional documents were tendered and were not all immediately given exhibit numbers, but for clarity, we do so here:
(a)A1 – Scientific data surrounding road density of childcare centres in Australia.[10]
(b)R1 – Photos showing the no standing zones in Angas Street adjacent to the Limestone Avenue intersection.[11]
(c)R2 – Witness statement of Tim Wyatt from Transport Canberra and City Services (TCCS).
(d)R3 – ACT Government Separation Distance Guidelines for Air Emissions.
(e)R4 – Draft suggested additional conditions to be added to the approval if upheld.[12]
(f)PJ1 – Plans and photographs (two pages) prepared by Spacelab, the town planner employed by the Party Joined, dated 30 September 2022, submitted to TCCS, and said to be approved.[13]
(g)PJ2 – Austroads Road Design Requirements.[14]
(h)PJ4[15] – Plan showing the new lots in the subdivision and Block C includes the oval and the Caretakers Cottage (the site of the proposed childcare centre).
[10] This decision at [16(g)]
[11] Transcript of proceedings, 14 November 2022, page 36
[12] A more detailed draft variation has since been provided.
[13] Tendered through Mr Patterson – transcript of proceedings dated 14 November 2022 at [41]-[42]. It purports to show sight lines for the verge crossing and satisfy a condition of the verge crossing approval that they be shown to be adequate.
[14] Referred to in the relevant Code.
[15] There is no PJ3.
After the hearing, we received a further draft of additional conditions from the respondent and some additional written submissions from Dr Connor.

Oral evidence

Mr Ritchings and Dr Connor were cross examined, Messrs Patterson, McDonald, Nash, Davies and Wyatt were also cross examined.
We thought all the witnesses were honest and trying to assist the Tribunal in their answers. Some cross examination of Mr McDonald was aimed at painting him as an advocate for his client. When expert witnesses are engaged, they are required to give reports that are independent. There are, no doubt, pressures of perceived loyalty, a wish to justify an expressed opinion, or other factors that make this difficult for any such witness. Mr McDonald was the key witness on the question of traffic and was questioned for over a day. We agree with the description of his evidence by Mr Bird who appeared for the Party Joined. He always explained what he meant in a way that the Tribunal could understand the matter clearly and be in an informed position to reach its own conclusion. He had an impressive grasp of his area of expertise and was a good witness. He made concessions where appropriate and gave a lot of thought to the questions put and his oral evidence enhanced his report. Criticism was made of him by Mr Hipkins in his lengthy written submissions in reply. These criticisms were not put to the witness nor was the groundwork for them as conclusions established. Whilst the rule in Browne v Dunn[16] may not strictly apply, the Tribunal must provide procedural fairness which is the rationale of the case, and we reject these assertions, both because we could not in fairness do otherwise and because our observation of the witness clearly showed them to be unwarranted. That is not to say that we may not disagree with parts of his conclusions if other evidence might require it.
[16] Browne v Dunn (1893) 6 R. 67
The other witnesses were not really the subject of any sustained questioning and were all helpful and credible.
Where relevant, we will describe what was said in oral and written evidence when dealing with particular issues.

Issues

The Council outlined the issues in its submissions. The position of Dr Connor is restricted to the issue of the road network.
The issues are:
(a)Parking and General Access General Code (PVAGC);[17]
(b)Parks and Recreation Zones Development Code (PRZDC);
(c)Community and Recreation Facilities Location Guidelines General Code;
(d)crime prevention through Environmental Design General Code;
(e)status of the land as a sport and recreation reserve;
(f)Crown Lease; and
(g)consistency of plans.
[17] This code is provided for by the Territory Plan and can be found on the ACT Legislation website under Notifiable Instruments 27 of 2008 (NI2008-27).

The land is zoned PRZ2 described as Restricted Access Recreation Zone.
The application is one on the merit track as that is explained in the legislation. A comprehensive explanation of the legislation and its requirements for such an application are set out in the respondent’s submissions.[18] The respondent sets out at paragraph 47 of their submission what they say are the applicable general codes. They say “in the present case, the applicable general codes relevantly include the PVAGC and the Lease Variation General Code (LVGC).[19]

“Gateway” to jurisdiction

[18] Respondent’s submission, pages 7-12
[19] Strictly, this limitation to two general codes is incorrect. The PRZDC is the ‘relevant code’ PRZDC, unlike some other development codes in the Territory Plan, limits the application of general codes. It provides “Any application of a General Code to a development proposal, is identified as part of the relevant rule or criteria.” The rules and criteria in the PRZDC identify more than just two general codes, including the CRFLGC, the CPTEDGC, the AMGC, the CRFLGGC, the ETFGC, the SGC, the WUCGC. However, for this Development, only the two general codes identified by the Respondent are applicable and other general codes are not.

It is contended by the respondent and the Party Joined that some of the arguments raised are not open to the applicants. We shall identify the issues to which they are argued to relate, when explaining the submission on each issue, but the submission requires an understanding of some obscurely worded legislation and the decisions that have endeavoured to explain it.
A right of review for objectors like the applicants is limited in section 121 of PDA as follows:
(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.
The situation is less difficult if there is a rule, and it does not comply.
If there is no rule, the options are explained in Villages No 22 Pty Ltd v ACT Planning and Land Authority [2021] ACAT 43 (Villages)[20]:
65. Greater uncertainty exists about the meaning of the words “is not subject to a rule” in item 3, column 2 materially replicated in section 121(2)(b).
66. At present, the debate has distilled to two propositions:
(a)On review, the Tribunal can consider only whether a development proposal complies with all applicable rules and/or criteria in applicable codes – the so-called ‘code compliance approach’, as explained in Sladic.
(b)On review, if the Tribunal finds that a development proposal complies with all applicable rules and/or criteria, it can then consider the matters in section 120 in the same way that the Authority was required to do – the so-called ‘gateway approach’. This term was coined in Javelin Projects Pty Ltd v ACT Planning and Land Authority & Anor (Javelin), and explained in Noah’s Ark No 1. (citation omitted)
[20] [2021] ACAT 43 at [65]-[66]
The Tribunal in Villages adopted the reasoning in Noahs Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2017] ACAT 44 (Noahs Ark No 1). This case contains an extremely detailed analysis. We agree with the conclusion and reasoning in Noahs Ark No 1. That case was considered again and followed by the same Tribunal in the second Noahs Ark case (Noahs Ark No 2).[21]
[21] Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority [ 2018] ACAT 95 at [32]-[33]
A useful summary of the approach is described in Noahs Ark No 1as follows:[22]
…in order to invoke the jurisdiction of the Tribunal, an entity which has a right to review under Chapter 13 in relation to a decision or part of a decision must:
(a)     identify the decision, or part of a decision, to which the right to review applies; and
(b)     identify the rule to which the development proposal is subject and with which it does not comply; and/or
(c)     to the extent that no rule applies to the development proposal, identify the criterion or criteria that apply to that proposal and with which it does not comply.[23]
[22] Noahs Ark No 1 at [226]
[23] In this case, the introduction to PRZDC explains that the Code will say there is no rule and point to criteria. This gives content to section 121 (2) (b) which is otherwise nonsensical. It may be in other Zones the section may encompass wider considerations due to section 55 of PDA.
If this is demonstrated, the Tribunal then stands in the shoes of the decision maker and conducts a merits review and may consider matters in section 120.[24]
[24] See Noahs Ark No 1 at [227]-[237]
It is not clear what limits there are here. If the rule or criteria are not complied with, then on one view the Code is not followed, and the application must be refused under section 119. In Noahs Ark No 1,[25] it was clear no rule or criteria was said to be in issue, so the considerations in section 120 did not need to be considered. In Noahs Ark No 2, there was non-compliance, but it could be remedied by conditions, and section 120 was then relevant.
[25] Noahs Ark No 1 at [226]
In Noahs Ark No 1, it was said:
If an eligible entity can demonstrate that the requirement of section 121(2)(a) or section 121(2)(b) is met, the role of the Tribunal is to conduct a merit review of the Authority’s decision to approve the DA. At that point, the Tribunal is the decision-maker. It would be inconsistent with this scheme of decision-making to conclude that, at that point, the Tribunal cannot consider the matters listed in section 120 in the way that the Authority, as the original decision-maker, was required to do.[26]
[26] Noahs Ark No 1 at [230]
An example of how that would be so in practice is demonstrated in this case. The relevant part of the PRZDC dealing with traffic safety says there is no rule but there is a criterion (24) and it in turn requires compliance with the PVAGC. What is also important about this case is if the code or criteria is not complied with (but section 119 is not offended), the review is then not limited to that aspect of the rule but is at large and section 120 considerations may be looked at.
Counsel for the respondent explained the section 119 obstacle as a time-based issue. If the original approval was not compliant with a rule (in a Code) or if no rule with criteria, it would not be allowed at all as the Code was not complied with. But if on review, it could be made compliant e.g., by conditions as in Noahs Ark No 2, then the Tribunal can and must take into account section 120 considerations. If it was always compliant, the gateway to section 120 is not reached. If it remained non-compliant the decision must be refused because of section 119.
It is important in considering the codes to see if there is a mandatory rule or a qualitative rule. The codes speak of performance-based criteria as well. This language is obscure but in simple terms a rule might be precise in describing the quality that is to be attained. It might instead say there is no rule but criteria that are quantitative or performance-based meaning that there is a value judgment involved in assessing compliance and the general objects of the Code are used to interpret the requirement in any given situation. It will be seen later that the word “safe” is an example of a conclusion that requires some value judgment.

Submissions[27]

[27] We explain the submissions in more detail in our consideration of the issues.

PVAGC Issue

Applicants’ submissions[28]
[28] Submissions in reply appear later.

The applicants argued that the proposed access to parking from the new verge crossing in Angas Street did not comply with clause 2.3.2 (c) of the Code:
2.3.2 Vehicular access
Access to a car park must meet the following requirements, as applicable:
c) Sight distance
Sight distance for property access should comply with AUSTROADS intersection sight distance standards except for single dwelling or dual occupancy blocks where sight distances are specified in Department of Territory and Municipal Services guidelines.
It is applicable because the General Code applies by reason of criterion 24 of PRZDC.[29]
[29] It can be found on the Legislation website as a Notifiable Instrument NI 2008/27 also.
The Council argued that there is only 61 metres of sight distance available. Objection was made to accepting this on the basis that it was irrelevant as it was dealt with in the earlier decision and given by a non-expert. We agree that Mr Hipkins is not an expert, but he was careful to take Mr McDonald to his drawings and the relevant standards and Mr McDonald agreed that Attachment A to the submissions appeared accurate – at least in part.[30] Attachment A is a document that has superimposed on an official map, the proposal in this application in Plan T547.
[30] Transcript of proceedings, 14 November 2022, pages 102-104
Attachment A has drawn on it a dotted line between a point where a car might start to look left whilst exiting the land via the verge crossing and turning left into Angas Street. It can be seen there is a curve in Angas Street so that the vision around the curve could be affected. It is evident also that there is a tree in the way. The application involves having off street parking in the potential line of vision. It will also encourage parking on the side of the road between the exit from the verge and Limestone Avenue particularly during peak hours Arguably, it adds an angle not available in the verge crossing case where an interior road joins the verge crossing.
In addition to section 2.3.2, the applicants relied on section 3.7.1(b)(i) which reads:
The objectives for the provision of parking and access are to ensure:
…
(b) Safety
…
(i) no traffic hazards are created by the provision of access and parking facilities for a development
It was argued that Condition 5 of the approval, which required a formalised road safety audit of the proposed access and parking arrangements to be submitted for TCCS review as part of the Design Review documentation, did not ensure that the Code or Criterion 24 would be complied with.
Mr Ritchings’ statement
Mr Ritchings says that the assumptions in the traffic report and the findings of the respondent are not supported by his lived experience. He lives in the street and says the street is already busy and has poor motorist visibility due to car parking on the street. He also says that the intersection with Limestone Avenue is already unsafe and pedestrians seeking to access the childcare centre from the other side of Limestone Avenue would find it problematic without further infrastructure including a foot path on the northern side of Angas Street; reducing the speed limit on Limestone Avenue; adding more parking restrictions at the Limestone Avenue end of Angas street to improve visibility and traffic flow; and adding signalling to the intersection with Limestone Avenue.
Dr Connor’s submissions
Dr Connor confined himself to the issue relating to the capacity of the road network which arises under Criterion 25 of the PRZDC Code.
Respondent’s submissions
It was argued that the requirements of the PVAGC was a performance-based code, did not provide for criteria, and therefore, did not pass through the gateway to jurisdiction in section 121(2) of the PDA.
It was also argued that the report of Mr McDonald supported this, and the Condition 5a that required a formalised safety audit was suggested by TCCS after this issue was examined. It says it is entitled to rely on the expert at TCCS. Mr Davies explains in his statement[31] that he understood this audit to relate to construction standard or detailed documentation only and not requiring any substantial redesign of the proposal. Mr Wyatt explained this further in his evidence as being done by a new expert and was mainly directed at the indented parking bays that would become a TCCS asset.
[31] Mr Davies’ statement at [22]
In addition, there was a condition of approval that imposed sightline requirements. This refers to Condition 10 that requires that the mature height of plants within a right angle formed on each side of the driveway with dimensions of 2m along the front boundary and 2.5m along the driveway shall not exceed 700mm (to comply with AS 2890.1).
Submissions of the Party Joined
It submitted, like the respondent did, that the gateway was not available.
It submitted that the issue had already been decided in the “verge crossing case”, and it was not open to relitigate this.
It further submitted that the approval in that case had provided for appropriate sight lines and the compliance with the standards were supported by Mr McDonald. Condition 2 of that approval can be found in Annexure G to the statement of Mr Patterson. The sight lines are described in Condition 2. They say further demonstration is required regarding clear visibility to vehicles from the block. A clear sight triangle must be provided in accordance with Section 3.2.4 of AS. This was done by Exhibit PJ1.
The report of Mr McDonald provided in this case is directed only to the issue of the Road network capacity.
In his report in the verge crossing case, he said:
35. My sight distance assessments indicated that, from the location of the proposed verge crossing, sight distance of more than 200m is available to the north and sight distance of 100m is available to the south, along Angas Street.
36. Section 2.3.2 c) of the Parking and Vehicular Access General Code requires that the proposed verge crossing meet or exceed the intersection sight distance guidelines set out in section 3 of the Austroads Guide to Road Design Part 4A: Unsignalised and Signalised Intersections. On this basis, the proposed verge crossing requires a minimum of 83m of Minimum Gap Sight Distance (MGSD) and a minimum of 89m of Safe Intersection Sight Distance (SISD).
37. In my opinion, there are no continuous obstructions, that exist or are proposed, within the verge that would prevent the pedestrian sight triangles, as defined in Figure 3.3 of AS2890.1:2004 Off-street car parking, from being provided.
38. The proposed verge crossing is located approximately 182m away from the tangent point at the Angas Street / Limestone Avenue intersection. This significantly exceeds the 20m required (for a location downstream of a high-angle left-turn) under section 2.3.2 d) of the Parking and Vehicular Access General Code.
39. Similarly, the proposed verge crossing is located approximately 203m away from the tangent point at the Angas Street / Wakefield Avenue intersection. This significantly exceeds the 25m conservatively required (for a location upstream of possible future traffic signals) under section 2.3.2 d) of the Parking and Vehicular Access General Code.
40. Table 2A of the Estate Development Code specifies minimum carriageway widths of 7m, including staggered on-street car parking, for local access streets and 10m, including onstreet car parking on both sides of the carriageway, for minor collectors.
41. In my opinion, the proposed verge crossing does not pose any safety concerns in relation to the existing width of the Angas Street carriageway.
42. Based on the above assessment and a review of the crash history on Angas Street, it is my opinion that the proposed verge crossing poses no significant safety concerns, whether or not the connecting segment provides access to the subject site. (emphasis added)
In respect of safety relating to indented carparks on Angas Street, it is submitted that we have no jurisdiction as it is public land.

Submissions in reply

The Council criticises the reliance on the TCCS by Mr Davies without presenting the relevant person from TCCS for cross examination. This was remedied and Mr Wyatt gave evidence. It also argued that Mr McDonald had changed his position giving greater distances at first then reducing them and his evidence was not credible.

Consideration of the gateway argument and jurisdiction to consider the issue at all

The gateway requirement does not make this Code irrelevant. The relevant Code specifies a criterion which is this code. If we determine that this Code is complied with, we might not be then permitted to have regard to section 120 considerations, but the issue of compliance must be addressed.
The decision in matter AT 10/2022 found the application before it satisfied Criterion 24.[32] It is not clear what the finding in paragraph 73 encompasses:
As to the applicant’s contention regarding the distance from the tangent point, Mr McDonald gave evidence as to where the distance was to be measured from and said it was the intersection of Limestone Avenue and Angas Street which is approximately 203 metres from the verge crossing. We accept Mr McDonald’s evidence and agree the minimum distance requirement is met.[33] (citation omitted)
[32] North Canberra Community Council v ACT Planning and Land Authority & Anor [2022] ACAT 69 at [53] and [68]-[74]
[33] [2022] ACAT 69 at [73]
It might relate to an argument that is being run here. The “tangent point” is not self-explanatory but the report of Mr McDonald, the traffic expert, is referred to:
there are no continuous obstructions, that exist or are proposed, within the verge that would prevent the pedestrian sight triangles, as defined in Figure 3.3 of AS2890.1:2004 Off-street car parking, from being provided.,,,. The proposed verge crossing is located approximately 182m away from the tangent point at the Angas Street / Limestone Avenue intersection. This significantly exceeds the 20m required (for a location downstream of a high-angle left-turn) under section 2.3.2 d) of the Parking and Vehicular Access… General Code. 39. Similarly, the proposed verge crossing is located approximately 203m away from the tangent point at the Angas Street / Wakefield Avenue intersection. This significantly exceeds the 25m conservatively required (for a location upstream of possible future traffic signals) under section 2.3.2 d) of the Parking and Vehicular Access General Code.[34]
[34] Mr McDonald’s report dated 19 April 2022, pages 11-12
There was some consideration of the evidence available then in respect of a verge crossing unconnected to any internal roads. The application before us has significantly more detail about the proposed connecting roads and enables other measurements to be done from points inside the land and approaching the verge crossing that were not before the Tribunal in the application before it. The Party Joined argues that we are precluded from considering this issue at all. It is accepted that any decision we make cannot amount to an appeal from the earlier decision, but we do not agree that we are precluded from considering the issue at all in respect of this much more detailed application. As will be seen, this application involves changing the streetscape by adding car drop off points in the sightline and encouraging street parking by parents dropping off children to park both on off street parking closer to the intersection with Limestone Avenue and on the street in front of the proposed childcare centre. It also involves providing an effective buffer between the Centre and Limestone Avenue. Having said that, we may consider that these matters do not add factors that cause us to be able to disagree with the earlier decision. We should consider this though, and even if we think that there is no scope for review here, we may still think it is compliant with the criterion.
In addition, the prior approval was subject to a condition that required sightlines to be shown by an additional document. Whilst the Tribunal may have rejected arguments to the contrary, in fact the approval in that case was conditional on additional documentation that satisfied TCCS. Mr Hassall, Counsel for the respondent, in fact, submitted that the prior approval did not decide the sightlines issue, but the subsequent approval by TCCS did and we had no jurisdiction for that reason.

PRZDC Issue

Submissions of the Council

Criterion 25 of the Code is relied on. It states, “The existing road network can accommodate the amount of traffic likely to be generated by the development.” The criterion does not specify any threshold or methodology for calculation of capacity as noted by Mr McDonald in his report.[35]
[35] Mr McDonald’s report dated 26 October 2022 at [22]
The issue was focussed on the capacity of the intersection of Limestone Avenue, Angas Street and Ijong Street which is on the other side from Angas Street. The intersection is controlled by stop signs not by signals. The Council argues that Mr McDonald has not considered the amount of traffic that will be generated by the joining of the verge crossing to internal roads. In addition, to users of the childcare centre, football training would add to the traffic count through the intersection, and that has been understated.
It is argued that he changed his methodology by adopting SIDRA[36] software modelling, because his earlier approach described as “assessing the physical capacity approach” in oral evidence in the verge crossing case would not enable a favourable outcome. In that case, he described physical capacity as the number of vehicles a road could carry if they are moving and tightly spaced with no breaks in traffic. He agreed that this is not a likely event.
[36] See for the brand website. It is also mentioned in the road design guidelines in NSW as the modelling tool.
It is argued that as he had thought right turn bans would be desirable and would alleviate an existing difficulty with the intersection but did not alter his view when TCCS did not agree to them.
He is criticised for not changing his view when he discovered there was a large proportion of road users that were not considered in his first report under the letterhead of Calibre. This increase is more than what was estimated to be the traffic created by residents. The increased users are described as rat runners who are trying to avoid more congested alternatives such as the signalised intersections on Cowper Street and Majura Avenue.
It is argued that the theoretical capacity of 1 cannot be achieved in real conditions because of Mr McDonald’s explanation about what the difference is between practical and theoretical capacity. It is an ideal, and the reason why a Degree of Saturation (DOS) of 0.8 is selected as the practical capacity is it allows for mistakes, such as trucks that take longer to accelerate, lane changing, tail gating, no breaks in traffic, and other common occurrences in road use.
The modelling used RMS Traffic Modelling guidelines and an intersection such as this had a DOS-Degree of Saturation of 0.8 as the target reflecting the practical capacity as a proportion of the theoretical capacity of 1. It is argued that a DOS higher than 0.8 was not adequate, and the road network could not sustain any more road users as it already exceeded 0.8 in the evening peak hour for some turns at the intersection.
Referring to the traffic counts,[37]there will be 0.87 DOS based on the current statistics in 2023. The Council points out that this is without the proposed childcare centre. With the centre, it is 0.92.
[37] Traffic Impact Assessment Report, T-docs, page 167
Also, there were time delays that exceed the recommended wait time (referred to as LOS for Level of Service).
The arguments were put in different ways, and more explanation is discussed in the consideration of the issue.
It is pointed out that the report did not revisit the verge crossing considerations as it was assumed that this was covered by that approval.
During the earlier case, Mr McDonald estimated that 120 vehicles would use the verge crossing for football training, and 50 would use the subject intersection. It is submitted that these vehicle movements will need to be added into the projection of DOS. In the verge crossing case, Mr McDonald explained the meaning of theoretical and practical capacity. The former being the maximum number of vehicles equal the capacity in ideal conditions. The practical capacity reflects the inefficiencies that occur.
In his report in this case, Mr McDonald was asked to assume three scenarios with parking accessed by the verge crossing; one with staff, one with staff and some parents, and one with some footballers as well. It shows the training times and some cross over the peak hour period.
We note that in this case, the evidence of Mr Patterson discounted the use by footballers as there was more conveniently located and greater parking for them in the main car park off Majura Avenue. The point of this crossing is to allow for staff and suppliers to the proposed childcare centre. Some parents might also use it, but there was sufficient space for them in a new area of indented carparking of 17 spaces near the caretakers cottage.
It should be observed here that the main risk of collision being considered is for cars exiting the verge crossing and vehicles on Angas Street coming from Limestone Avenue. This will be a small number of staff when their shifts finish. Some may leave during evening peak hour but need not.
In the verge case, Mr McDonald said that although the additional traffic might add to the volume, 50% of current traffic was due to commuters using Angas Street as a rat run and as that was a choice, it is expected that if delays make it unattractive the volume will self-regulate back to its current position. Criticism is made about that assumption as having no alternative demonstrated.
It is argued that this projection has no evidentiary basis and in the absence of appropriate adjustments to the network the level of DOS must be unacceptable and not comply with the criterion. At present, there is no proposal to add traffic controls that would ensure any rat run was discouraged.

Submission of the Respondent and the Party Joined

We will refer to them in our consideration of the issue.

Community and Recreation Facilities Location Guidelines

General Code

Submissions of the Council

The code in the schedule has as a requirement that a childcare centre be buffered from roads with high traffic volumes and refers to air quality guidelines. It adds that it should be separated from safety hazards such as busy roads.
The Statement Against Criteria on Community and Recreation Facilities Location Guidelines: General Code issued by Spacelab[38] says that the part facing Limestone Avenue is a play area and is separated by substantial vegetative noise screening.
[38] T-docs, page 711
In the same document,[39] the Council point out that the centre has been designed to use low hedging and planting around fences and walls.
[39] T-docs, page 717
Reference is made to the problem with relying on hedging, explained in Hipkins v ACT Panning and Land Authority& Ors [2022] ACAT 41 (Hipkins):
The issue, however, is that in this case, to achieve compatibility with the streetscape, the respondent and the parties joined have relied wholly on the retention of the hedge as a means of screening the basement ramps. What happens if the hedge dies? There is no condition to retain the hedge, nor could there be. Reliance on the retention of the hedge alone to achieve streetscape compatibility is insufficient.[40]
[40] [2022] ACAT 41 at [120]
It is submitted that an appropriate buffer in terms of air quality noise and safety will need to be demonstrated and has not been.
In addition, the Code requires that the Children’s Youth and Family Services Bureau should be consulted about site selection, and there is no evidence it has been.
A paper on the safety of air quality for childcare centres was provided by Mr. Hipkins representing the Council and reference made to it as showing the potential bad results for children if they are exposed to unhealthy air.
Submissions of the respondent
Children’s Education and Care Assurance (CECA) is now the entity that should be consulted, and it was. It supported the proposal sent on 30 March 2022[41] although that refers to an amended application. Its initial advice[42] points out that the Centre will need to conform with the National Standards, and they are very strict. It did not specifically advert to a buffering issue. The approval requires that licensing by CECA is obtained. It also provides Guidelines, and they refer to proximity to industrial sites, not this site. Mr Nash, an expert Town Planner called by the Party Joined, gave evidence that Limestone Avenue was not a main road as was defined in the article and was only busy twice a day during peak hour. It might be added that these are times when the children would be being dropped off or picked up. He was of the opinion that there were no air quality concerns and agreed that there were many children in schools and residences on Limestone Avenue. He gave evidence about other childcare centres in Canberra that were close to much busier roads and were not seen as deleterious to the health of the children attending. The distance from the Avenue was 35m at its closest point.

Status of the land as a sport and recreation reserve

Submissions of the Council
[41] Email from EPD Customer Services dated 30 March 2022 to TCCS, T-docs, page 95
[42] Email from Education to EPD Customer Services dated 15 November 2021, T-docs, page 610

No Code or criterion is pointed to here, but the PDA sections 120(g), 316 and 321-328 and Item 9 Schedule 3 are referred to.
The points made are that there should be a management plan, and there is not. Without one, this new type of use should not be considered. In reply, it was said that the caretaker’s cottage was auxiliary to use for recreation, but the childcare centre is not. It is argued that the use as a childcare centre is inconsistent with the Territory Plan and should be refused. We have taken this to be open to us if the gateway requirement is met but not otherwise.
What has been explained by Dr Connors though in his reply is that the existing community playground will not be fenced off but areas of the reserve that were available will be effectively no longer be accessible.

Crime Prevention through Environmental Design General Code

The Council accepted the respondent’s explanation that this did not apply, and we do not need to consider this issue further.

Crown Lease

The applicants complained that there was no evidence of the current state of the lease. At the commencement of the hearing, that was clarified by counsel for the Party Joined. The Crown Lease at the end of the T-documents has been amended to reflect the agreed outcome of the first case and is in the form of the annexure E to Mr Patterson’s statement. This shows the position of the new access point. However, the Lease has yet to be changed to reflect the decision in the second case. As we explained in the hearing, among other reasons, this is necessary as the proposed 4m setback for this development is not consistent with the required minimum 6m setback in the relevant lease at the time of approval, and the development could not be approved as it would not be permitted with the lease in its current form. However, once the Crown Lease was changed to reflect the approval given in the second case, this problem would be resolved. It is apparent that all parties including the applicants proceeded on the basis that the Crown Lease would be so amended. We indicated that in such circumstances unless it was impermissible, we would take a practical approach and if we approved the development would make it a condition precedent that the lease first be varied to reflect the Tribunal decision made in NCCC v ACTPLA & ANOR. This seemed to be a practical solution as otherwise the contest would not be resolved and after a new application made when the Lease was changed, the arguments would be revived. No party disagreed with this approach or suggested that it was impermissible. To the extent that the other issues needed clarification about the state of the Crown Lease, this is now clear. We have been provided with a draft clause which deals with this point although it adds an alternative dealing with a setback requirement. We will deal with that assuming that we conclude that the approval is not to be refused but varied.

Consistency of plans

The applicants argued that the plans were inconsistent in respect of the plans included in the T-documents[43] relating to the driveway surface of the new access point. One said permeable paving and the other concrete. This was accepted by the respondent and the Party Joined, and it was proposed that there be an additional condition addressing that. Mr Davies, the respondent’s witness, sets out[44] his draft of such a condition. The aim was to have permeable paving in areas where there were encroachments into the tree protection zone. This seems practicable and assuming we otherwise approve the development will add that condition. The Council said it was content with this and added, “Advice may need to be sought from a civil engineer that the connecting segment will have sufficient strength to handle the expected traffic load of the connecting segment.” There is no reason to doubt that any surface material used will be adequate and the condition suggested does not permit otherwise.

Consideration

Sight distances Criterion 24
[43] T-docs, pages 543-552
[44] Respondent’s witness at [43]

The respondent, the Party Joined, its traffic expert Mr McDonald and Mr Wyatt from TCCS all proceeded on the basis that this had been resolved in the verge crossing case. In deference to the considerable work and efforts of Mr Hipkins, we have looked at this issue. We acknowledge we cannot act as an appeal from the earlier decision but there might be some residual scope for reconsidering the effect of it given any relevant new information that is generated by the current application.
Mr McDonald and Mr Davies considered the propositions put to them by Mr Hipkins and did not agree with them. The only aspect of the impact of the traffic using the verge crossing was the distances from or to it and cars approaching from the Limestone Avenue end.
Mr McDonald looked at the issue in some detail for the verge crossing case. In his first report on the letterhead of Calibre, he explained the concepts in some detail. The PRZD Code provides that there is no rule, but there are criteria as contained in the PVAG Code. This Code is described at 1.3 as a performance code and sets out objectives that are required to be met. The relevant objective here is 3.7 which provides in part:
d) Access
i)safe and efficient access by all users, including operational and commercial vehicles
ii)adequate set-down and pick-up points are provided for users
iii)commuter parking needs of occupiers of the development are accommodated on-site consistent with the level of public transport accessibility and other parking opportunities in the vicinity
iv)all other parking needs of visitors and commuters are met in appropriate off-site locations
v)access for emergency vehicles to be provided for health and aged care facilities
Parking generated by a development is generally required to be accommodated on site or in a location consistent with the criteria in section 2
In section 2, it is provided relevantly:
1.3.2 Vehicular access
Access to a car park must meet the following requirements, as applicable.
c) Sight distance
Sight distance for property access should comply with AUSTROADS intersection sight distance standards except for single dwelling or dual occupancy blocks where sight distances are specified in Department of Territory and Municipal Services guidelines.
The AUSTROADS standards are now Exhibit PJ2.
There are two relevant distances: Safe intersection sight distance (SISD) and minimum gap sight distance (MGSD).
SISD is measured form the driver eye height of 1.1m to the top of the approaching vehicle 1.25m. It considers permanent objects that might be in the way such as trees, but not parked cars. The line is from the car approaching on the major road to a point 7m (but a minimum of 5m) back into the minor road. The charts show that for a speed of 50kph and a reaction time of 1.5 seconds the distance should be 90 metres. There was some evidence that cars exceed the speed limit of 50kph in Angas Street, and the standards need to factor that in. Mr McDonald did not believe that this speed was likely at the end of Angas Street nearest Limestone Avenue. While he thought there was scope for more on street parking in Angas Street, he agreed with the observations of Mr Ritchings that cars doubled parked at that end, and this left room for only one car at a time in a 9-metre-wide road. He believed that realistically, the cars on Angas Street would be slower. We had a site view and cars getting through that intersection are required to stop first or negotiate a left turn from the North so for the first part of their entry onto Angas Street they would be expected to be slower than the speed limit even if the cars were not double parked.
The MGSD is taken from the eye height of the approaching car to the front indicator of the car coming from the verge at a point where that car is at the edge of the intersection. The distance required depends on the gap distance selected. Mr McDonald had selected five seconds in his calculations in the verge crossing case.
In the plan Attachment A to Mr Hipkins submissions, the distance recorded is limited by the presence of a tree. Mr McDonald did not think the tree was an issue as at driver eye height the canopy did not obstruct the view. At the site view, we could see cars approaching quite easily but did not take measurements. The tree was not an issue but could become one. Mr Wyatt indicated in his evidence that this tree being on TCCS controlled land can be trimmed, when needed, to ensure ongoing sight distances.
Exhibit PJ1, showing compliance with the condition about sight distances required in the verge crossing case and approved by TCCS, was criticised by Mr Hipkins as being inaccurate. Mr McDonald said he agreed with its conclusions in any event. He thought the angle of the dotted line in Attachment A of Mr Hipkins submissions was wrong as well as the point where the verge crossing starts is at right angles and continues to be for some distance. He also did not accept that the location of the internal paths was precise.
In re-examination, Mr McDonald explained that the tables applied to intersections of roads. This was an intersection of a road with an off-street site. In paragraph 3.4 of the guidelines, it is explained that whilst compliance with the distances in the various tables is desirable, it is not mandated. This is because the tables are designed to deal with high-speed travel on public roads and not off street access. Mr McDonald explained that it is very common for such off-street access points not to meet the precise standards for public road intersections. He expressed the view that even so, the distances required were met as there was about 90 metres distance for both SSID and MGSD.
He said the distance required of public road intersections for SSID was 81m, and for MGSD was 87m.
In summary, the only expert evidence on the topic was that of Mr McDonald, and it had been approved by TCCS whose job it is to check that. Mr Davies had no issue with it, and he has expertise of a more general nature. While Mr Hipkins pointed to useful detail that needed to be considered, Mr McDonald affirmed his view that the sight lines complied with the standards, and hence the Criterion. Assuming we could second guess the Tribunal in the verge crossing case, we have found no reason to do so. As we observed earlier, we accept Mr McDonald as a good witness and in spite of all the propositions asserted by Mr Hipkins put to him, he remained of the view that the criteria were satisfied. We agree.
The presence of street parking is not considered in the guidelines as it only considers permanent structures such as trees or road signs or buildings. Here the only potential obstruction is a tree that in fact does not interfere with the sightlines. The crossing in fact goes back some distance into the subject land at right angles to the road and there is no relevant acute angle as was assumed in Mr Hipkins’ plan Attachment A. The sufficiency of the SSID and MGSD in PJ1 depend on selecting 1.5 seconds as the reaction time. This is open under the guidelines provided, where the drivers are assumed to be alert. It might consider longer reaction times but given the nature of the street at that end with driveways from residences on the other side of the street, parked cars and the experience of negotiating the intersection with Limestone Avenue, there is no reason to think that users won’t be alert even if there is no childcare centre. The plan submitted to TCCS by Space Lab assumed 1.5 seconds reaction time and that was approved by TTCC. The need for reaction time is to consider the likely time needed to apply brakes and will assume a braking distance and different speeds. A simple example is the distance travelled by a car doing 60kph in 1.5 seconds. It is 25.02[45] metres. If the distance allowed is 90 metres the driver applies brakes with another 65 metres to allow him to stop. He would probably just slow down further and maybe brake if the other car was still not clear. If the speed is 50kph, it is about 21m. On the site view, it can be seen that the ability to see cars coming along Angas Street can be greater than that from a position further back from the road than the points selected by the Guidelines and there was nothing that seemed less safe than might be expected. In any event as noted above, the precise times are not mandated for off street access such as this and we accept the opinion of Mr McDonald.
[45] (1000m ÷ 60) x 1.5

We appreciate the time and effort put into this issue by Mr Hipkins, and it certainly helped us understand the issue in a more informed way. However, we do not agree with him that the criterion has not been met. Having considered any potential changes that this development might add to what the Tribunal had to consider in the verge crossing case, we do not think they could change its conclusion and we are not really at liberty to second guess it. In any event we agree with it.

Safety under clause 3.7

There is a second safety issue that needs to be considered under this Code (3.7) regarding the proposed 17 car spaces that will be on public land parked at 90 degrees to the street. On a plan the T-documents,[46] they are shown as commencing where the double yellow lines stop, coming from the intersection with Limestone Avenue. They are on TCCS land and are in front of the existing caretaker’s cottage. Part will be over the existing access to the cottage and that road access will disappear. The advantage of them being off the street is that it will prevent double parking and add spaces not there if parking parallel. The car spaces closest to Limestone Avenue involve some potential safety issues. One point made was a concern that vehicles traveling from Limestone Avenue and turning left into Angas Street might be unsighted, and cars reversing out from this parking may need to be more vigilant than usual. At least one bay, but we think more. nearest to the intersection has a drawing showing the reversing car crossing double yellow lines, and three of them are within the area currently controlled by a no parking sign. This sign is thought to be roughly where the road rules would prevent parking on the street anyway.
[46] T-docs, pages 547 and 1130
These matters were put to Mr McDonald and Mr Wyatt. They expressed no concern that this would generate unsafe situations. It was revealing that Mr Wyatt in answering questions about this as well as the network issue spoke of safety as a relative term. From his perspective, he did not think there any significant risk of serious injury or damage should there be a misjudgement and a collision. It was this parking that he was considering in asking for a design audit report. He saw that as a useful exercise as it would get a new person to address any issue as TCCS were in his words taking over an asset and would be concerned that their new asset was not likely to cause problems He did not see the proposal as being inherently unsafe and saw the report as pointing to any further useful controls that would make it even safer.
We had an opportunity to see similar 90-degree parking in the street further up, and there was a lot of room behind the cars before the street which would add to manoeuvrability and provide a further margin of safety. The area of the land between Limestone Avenue and the cottage was without any obstruction and even with some hedging being added at a point 35m from Limestone Avenue, it did not seem that the potential concern about cars turning left from Limestone Avenue was a problem.
It was submitted by the Party Joined that we cannot consider this as it is public land. This overlooks the fact that to comply with parking needs for the proposed development, this parking was being provided and any potential safety issue arising from the parking was directly attributable to the development application. Nonetheless, we were not persuaded that there is any failure to observe the general requirements for safety provided by the Code. As mentioned before we accept Mr McDonald, and we also accept Mr Wyatt. They were good witnesses and have the expertise necessary. There was no contrary expert evidence.
It may be that Mr Wyatt would require some change on receipt of the audit report. We have reflected on this, and notwithstanding the unconcern of the witnesses including Mr Davies, we have come to the view that a condition needs to be added to require the design to avoid the crossing of double yellow lines. This can be done easily by moving the furthest left-hand bays forward of the double lines and providing some space on the left of the reversing vehicle to give a bigger turning circle off the road. It might be thought useful to position the first bay on the parking side of the current No Parking sign. We will leave the method to the experts and will add a condition requiring a change to the satisfaction of the respondent (and no doubt it will consult with TCCS).

Road Network Criterion 25 of the PRZDC

This issue took up most of the hearing time. The reason it is a significant matter for the residents is the growing concern with the build-up of traffic on Limestone Avenue in peak hour. This is evident from the videos taken by Mr Ritchings. He supported the development otherwise but was concerned about the traffic.
There is no pedestrian crossing provided at the intersection of Angas Street with Limestone Avenue. One submission was that would assist users of the proposed childcare centre.
There was no evidence explaining why the road was so busy in peak hour or for how long it had been. One could speculate that the light rail on Northbourne Avenue deterred motorists, and they sought parallel roads north of the city to commute. We had a view and observed that on either side of this intersection are signalised intersections. To the north, there is Wakefield Avenue that becomes a wide street as it approaches Northbourne Avenue and serves a number of offices and provides access to suburbs on the other side of Northbourne Avenue including Belconnen. It may be unattractive to commuters because it has so many purposes. The Cowper Street crossing appears to be more local.
Signalised crossings provide a degree of certainty for wait times. They may become problematic, if although the lights turn green, the road ahead has not cleared. It seems that what was being urged on us by the applicants was that this was already the case and the road had exceeded its practical and actual capacity.
Mr McDonald explained how the modelling he had done worked, and he had access to data showing traffic volumes (of cars only not bicycles) and found that some aspect of the intersection with Angas Street exceeded practical capacity for peak hour times but did not exceed actual capacity. It was explained that the practical capacity here was 0.8 of actual capacity. This was to take into account missteps by motorists that add to the wait time. It was thought that traffic volumes would increase in time, but this was irrespective of the proposed development.
He responded to questions about not using data from intersections downstream or upstream from this crossing as was suggested in the modelling he was using. He explained that whilst that could be helpful for wider purposes such as providing a long-term fix for the whole network, it was not necessary to assess the impact of this development on the existing network which was directed at this intersection only.
Mr McDonald adhered to the view that whatever the long-term future of the network this development would make no practical difference to the current situation.
He suggested that self-interest would deter rat runners if the traffic became too much. This was criticised as not showing what alternatives such rat runners might take. Mr McDonald explained that unlike some newer suburbs Ainslie had a grid network and there were many entry and exit points that motorists might use. The two signalised intersections one block away on each side were one method. There is no reason to doubt Mr McDonald’s views generally. It may be that TCCS will have to take more steps to provide better infrastructure in time.
The other point made, although not the subject of any focussed submissions or cross examination was the capacity of Angas Street itself. It had been a local road and serves residences along the street among other things. It had had commuter parking that can, at times, lead to parking on both sides of the street. The volume of traffic is not explained by local users but by “rat runners”. It is effectively now serving as a collector road which is one step up in the road hierarchy. Mr McDonald considered these issues in his reports and did not think that this development could not be supported, as the amount of traffic it would generate, would be minimal comparatively, and any long term fix for the network would be because of other factors. He had initially proposed banning right hand turns to the intersection, but TCCS decided that this was not needed for this development and was something it needed to consider as part of an overall strategy when the need became too pressing to ignore and when the resources of his department might enable it to be prioritised in competition with many similar intersections throughout Canberra.
Criticism was made of the modelling as it could not account for bicycle traffic. Mr McDonald accepted this, but it was how modelling was done and he was not aware of any way of factoring it in. Generally, he did not think that this would add significantly to the volumes or wait times. It was pointed out that Angas Street has been designated as a bicycle route in a wider plan and that many cyclists use it. This was an assertion by Dr Connor, but no one challenged it and we assume that it is correct. The report of Mr McDonald shows the cycle route as part of the plan. There is no infrastructure in the street such as a bicycle path or road crossings that enable this purpose. It may be that will occur in the future. The only point that might lead to is that at present the actual capacity of the intersection is not as great as the analysis provided by Mr McDonald. He explained that whatever that situation may be the cause of any actual or potential problem with the network was a growing population and rat runners. The childcare centre did not add to any lack of capacity. At present, the intersection was manageable, and the development would not in his view change that.
Criticism had been made of the respondent for outsourcing its decision to TCCS and not providing the TCCS decision maker for cross examination. That was remedied, and Mr Wyatt gave evidence. He was a good witness. He adhered to the view expressed in the T-docs page 49 which was largely in line with what Mr McDonald said.
This pointed to the analysis by Mr McDonald in Tables 6 and 17 of his report showing DOS at different times for each part of the intersection. Some were more than 0.8 DOS and failed wait times.[47] TCCS then say this analysis shows in a base scenario without the development in 2023, the intersection is operating at the worst conditions where the Letter F is applied, “This is mainly due to vehicles along side streets unable to find a reasonable gap to cross Limestone Avenue.” We should note here that there is a road marking forbidding queuing across the intersection which needs repainting. It generally accepts Mr McDonald’s report. It says that the proposal regarding right hand turns may require further investigations which are not part of this development at a later stage.
Mr Wyatt adhered to these views when cross examined.
Our task is a narrow one. It is not to diagnose and suggest solutions to general traffic problems in the inner North but to decide whether the existing road network can accommodate the amount of traffic likely to be generated by the development.
Mr McDonald explains that the descriptions of DOS and LOS are what is desirable but are not mandated. The increase that might arguably be attributed to traffic accessing the childcare centre in the morning is within DOS practical capacity. In the evening, it is above but less than actual capacity. The intersection movements of interest in the evening are from Ijong Street or turning into Angas Street right from Limestone Avenue.
Dr Connor raises an interesting question of what does accommodate mean in the criterion. Dictionary definitions introduce the notion of sufficiency. What is sufficient involves a value judgment.
The opinion of the two experts, Mr McDonald and Mr Wyatt, is that it can accommodate the increase (even if as high as the conservative estimates of Mr McDonald. There were some differing estimates of the number of vehicle movements that might be generated by the development and the timing of them. The approval allows up to 98 places. This might be less as another issue reveals as the CECA requirements may result in less spaces for children. It is possible that all children will be driven to and from the Centre in separate cars but realistically that is unlikely. There will be a handful of staff and they might have shifts. In non-peak hours there will be occasionally suppliers and waste removal vehicles. Staff might arrive earlier than peak times and if a change of shift that will occur at non-peak times. In non-peak times there is little traffic. Mr McDonald in one of his many reports analysed traffic movement of anticipated users and thought that may would use the intersection as it was giving access to the side of the Centre and made parking easier. Some may walk and not all would use the intersection.
Reference was made to football training. This is not a new use and is not generated by the development application. Because changes have been made to the access to the oval by the verge crossing it is possible that the footballers will adopt that access and theoretically change their current driving route. This is easily avoided and is not wanted by the Applicant, and it is not expected by them to occur.
In the report of Mr McDonald for this case he estimates that there will be 96 extra trips in the morning peak hour and 83 in the evening (ignoring football training). He has assumed that carpark won’t be open after 6pm and because the timetable of training has added numbers for U18 Women training but not U18 Men or Senior players. In the morning, the number remains the same, but in the evening, it becomes 109. In the morning, the intersection remains under practical capacity but in the evening, it exceeds it but remains under 1 the theoretical capacity.
His assumptions err on the side of overestimating the extra users. Not all will drive. Not all will be in separate cars. Not all will use that intersection. The number of spaces for children may well be less.
As the conclusions even assuming some errors because bicycles are not included or upstream and downstream numbers are not modelled, the impact is consistent with the criterion.
Having said that, the development is for the childcare centre, not football training. The approval should reflect that and add a condition that reserves the access point to users of the childcare centre during workdays, but not on weekends and public holidays where there are no peak hour problems. This can be achieved in many ways as was discussed with Mr Patterson in his evidence. We propose to add a condition that this occur and leave it to the method of doing so to be one approved by ACTPLA.
It is worth adding some observations about the obstacles facing individuals objecting to developments. Often it is not possible, because of expense, to obtain an expert report on the topic. None was obtained here, so it would be necessary to get concessions from the experts called against them, to discredit them, or demonstrate by objective evidence why some of their assumptions are faulty and put at risk their opinions. Assuming that does not occur, the Tribunal must accept the expert evidence. Here there were no fatal admissions that assisted the applicants. Cross examination and submissions were aimed at discrediting Mr Nash and Mr McDonald by exploring a financial reason for their opinion. The answers revealed no such motive, and the key question was never put to them. As we have said already, we thought they were good witnesses. The highest the applicants got was postulating propositions which to a non-expert might tend to modify the opinions expressed. They did not.
Whilst we understand the concerns expressed by the local residents and the points made by Mr Hipkins and Dr Connor, we accept the expert opinions of Mr McDonald and Mr Wyatt and find that the criterion is met.
Before leaving the issues of traffic, we can see why the residents in Angas Street are concerned. This does not, in this case, amount to a reason for refusing the development. As we had mentioned, Angas Street has become in effect a collector street. It can cope with that from a traffic point of view for now and the development will not make it worse. What is apparent is the number of non‑residents using the street as a rat run. There are many inexpensive measures that might be taken by TCCS to ameliorate that such as speed bumps, signs preventing turns from offending streets, and other like matters. In addition, in time the intersection with Limestone Avenue will demand prioritising. As Mr Wyatt explained, the solution may not be to change the intersection itself but to change the source of the traffic. The planned bicycle route, if it is to be persisted, is in need of some infrastructure. Thought might be given to parking restrictions to deter parking on both sides of the street and to maximise sightlines for different parts of the road. We are not traffic experts but trust that consideration will be given to improving the traffic in this area.

Community and Recreation Facilities Location Guidelines General Code

As we have already noted, the relevant body, CECA, was consulted. It did not oppose the application but explained in the T-documents[48] the strict requirements of the Education and Care Services National Law (ACT) 2010. The centre will need a licence from CECA. It pointed out some potential issues with the current plans that might require the proposed building to be altered and that could well reduce the number of spaces that can be accommodated. The floor area cannot be increased without further ACTPLA approval. CECA did not specifically address the buffering issue but as Mr Davies said it would be expected to if it was a concern and would raise it during the licensing process if dissatisfied with what was being proposed.
[48] T-docs, pages 610-612
Mr. Patterson gave evidence about noise and vision amelioration by the planting and upkeep of hedging. The children are not likely to be in the play area closest to Limestone Avenue during busy times, and we accept the evidence of Mr Nash that there is no realistic issue about pollution.
As for the hedge not being maintained, CECA will continue to have a role unlike in Hipkins.[49]
[49] [2022] ACAT 41 at [120]
We are satisfied the DA is compliant with this Code.
The timing of the condition of approval that requires the licensing was discussed in the hearing. Mr Davies explained that the current wording will present problems as it prevents the matter from being dealt with in a practical way. Dr Connors wants the change to still prevent work starting until the license is in place. This raises the practical reasons Mr Davies pointed to and we accept Mr Davies advice and will change the condition as he asks. We will vary the approval accordingly. The proposed orders will be addressed later.

Other Matters

As we have found that the rules and criteria in the Codes have been met (although we have added some amendment to the conditions to make the approval more effective), the more general matters arising under section 120 do not arise.
However, we will address this point anyway. The objectives of the Code do not specifically mention childcare, but it is a use allowed in land the subject of the Code. The area in question is almost all a football ground. There is a children’s playground on the Angas Street side. It will remain. It would no doubt be mainly used by nearby residents. There is some unenclosed open green space near the caretaker’s cottage. Some of it will be fenced off to provide security for the children. The areas in question will be play areas for the children attending the centre. The cottage was argued to be subsidiary to the recreational use. It is not used as a caretaker cottage but as an office. No part of its present use provides any direct recreation objects. If it is removed and put to a use that is permitted under the Code any such development is not inconsistent with the Code. Minds might differ about the need for childcare centres, but it is hard to argue that they are not desirable.

If all the land in the blocks was redeveloped so there was no more oval just a use that is not directly recreational but still permitted, it would be a concern. But that is not this case. The small amount of open space that might be used occasionally, principally by local residents or their children is being fenced off to provide a secure area for outdoor activity by children attending the centre. Mr Davies and Mr Nash did not agree with the propositions being put to them by Mr Hipkins. We disagree with his submissions on this point.
It was submitted that the built verge crossing impinged the tree protection zone as it appeared to be partly under a canopy of one tree. We saw the spot on a site visit. It is possible that this is so. To the extent that the approval does not allow this, it is a compliance issue not an approval issue and it is not something we can rule on, even if we had expert evidence on the subject

Conclusion

It follows that we do not set aside the approval. However, during the hearing some matters were identified by the respondent as needing amendment. The tribunal also required an amendment to cater for the need to register the earlier approval.
Draft changes have been provided to us by the respondent and we have used the draft as a basis for the Order we make. There is a new condition 11 to ensure adequate lighting.
We agree with them except on reflection we prefer to amend condition 3 to require the registration of the variation to the Crown Lease and not the alternative of not doing so but complying with the existing set back.
It was faintly argued by Counsel for the Party Joined, that we do not need to consider compliance with the Crown Lease as this is not a consideration mentioned in section 120. With respect, this is putting the cart before the horse. One reason the development applications are made is to ensure compliance with the Crown Lease and this is assumed before one gets to section 120. We are not persuaded by the submission. To make this comment comprehensible, we have added as Annexure A, a copy of the Draft submitted by the respondent. We have also considered the point made by Dr Connor about the need for construction to commence only after the approval by CECA. This would have been the position if no amendment was made but we are advised and accept from Mr Davies that this presents insuperable practical problems, and we consider that it would be unlikely that much money would be spent on a childcare centre that would not meet the requirements of CECA so as to be licenced.
In case we have unwittingly added to the practical problem by the drafting of the proposed variation we have allowed 14 days from publication of these reasons for any submissions on the form of the conditions before making the proposed order.
For these reasons we make the Orders.
……………………….
Senior Member B Meagher SC
For and on behalf of the Tribunal

Date(s) of hearing:	14 November 2022, and 12, 13 February 2023
Applicants:	In person
Solicitors for the Respondent:	ACT Government Solicitor
Counsel for the Respondent:	M Hassall
Solicitors for the Party Joined:	BAL Lawyers

ANNEXURE A

Draft Variations to the Approval submitted by the respondent

(AT 46&48 of 2022)

North Canberra Community Council & Anor v ACTPLA & Anor

Additional/amended conditions of approval proposed by respondent

CONDITION 2 be amended to include a new condition as follows:
(b) The applicant shall lodge with the planning and land authority, a revised engineering "Civil Works Plan" C06, based on the relevant drawings submitted as part of the development application, showing:
Permeable paving within the tree protection zone consistent with the submitted TPZ ENCROACHMENT PLAN SHEET 2 – Drawing number L801.6 dated 22.03.22
to the satisfaction of the planning and land authority.
Notes:
(a) the above information is to be provided to the planning and land authority as satisfying condition of approval under sl65 of the Planning and Development Act 2007.
(b) information shall be submitted in the Development portal addressing the above conditions. Please ensure plans and supporting information are suitably named (as per the Authority's naming convention, are clouded for any amendments, such clouding are labelled consistently with items listed on the s165 application form,
(c) any substantial changes to the development required to comply with the above conditions may need to be submitted for the approval of the planning and land authority with an application to amend the approval under s197 of the Planning and Development Act 2007.
CONDITION 3 be amended to include the following condition:
INSTRUMENT OF VARIATION
(b)In addition, the approval does not take effect unless and until either:
(i) the relevant plans submitted with the DA are amended to show, to the satisfaction of the Authority, that the proposed building does not infringe the setback requirement in clause 3(j) of the crown lease (crown lease set back requirement);
OR
(ii) the crown lease variation that was proposed by DA 202038146 and approved by the Tribunal following proceeding number AT 10 of 2022 (which relevantly had the effect of removing the crown lease set back requirement) is registered.
Please also see the Advisory Notes for additional information on the lease variation.
CONDITION 7 be deleted and replaced with the following condition:
Prior to commencement of the operation of the childcare centre, the lessee must obtain a licence to operate the centre from Children's Education and Care Assurance (CECA) and provide a copy of the licence to the authority.
CONDITION 8 be amended as follows:
COMPLIANCE WITH ENTITY REQUIREMENTS
(a)The development must satisfy the requirements of the following entities as stated in each of their advice.
•      Evoenergy (Electricity);
•      Icon Water;
•      Jemena (Gas);
•      Emergency Services Authority (ESA);
•      Children's Education and Care Assurance (CECA)
Copies of advice from the relevant entities are attached to the Notice of Decision and are relevant to this condition.
(b)The lessee is to provide written evidence to the Authority confirming that all relevant requirements of CECA have been complied with.
(NEW) Condition 11 - LIGHTING
External on-site lighting is to be provided to all paths and carparking for the childcare centre and comply with following Australian Standards:
•AS1158.3.1 – ‘Pedestrian Lighting’; and
•AS4282 – ‘Control of the Obtrusive Effects of Outdoor Lighting’.