Noah's Ark Resource Centre Incorporated v ACT Planning and Land Authority
[2018] ACAT 95
•28 September 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NOAH’S ARK RESOURCE CENTRE INCORPORATED v ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2018] ACAT 95
AT 10/2017
Catchwords: ADMINISTRATIVE REVIEW – planning and land development – development approval for a childcare centre – subject site approximately 100 metres from applicant’s childcare centre – application for review of development approval decision – whether and how proposed development would adversely affect the applicant’s operations and its capacity to fund community programs – whether applicant is an ‘eligible entity’ with standing to bring application – whether applicant is likely to suffer ‘material detriment’ because of the decision to approve the development application – whether application should be approved with revised or additional conditions – whether application should be approved having regard to matters listed in section 120 of Planning and Development Act 2007
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 9, 10, 22P, 84
Planning and Development Act 2007 ss 119, 120, 121, 141, 156, 162, 407, 408A, 419, Schedule 1
Associations Incorporation Act 1991
Land (Planning and Environment) Act 1991
Subordinate
Legislation cited: Community Facility Zone Development CodeCrime Prevention Through Environmental Design General Code
Parking and Vehicular Access General Code
Territory Plan
Cases cited:Baptist Community Services v ACT Planning and Land Authority & Ors [2015] ACTCA 3
Canberra Cruises and Tours Pty Ltd v Minister for Urban Services [1999] ACTAAT 14
Cartier Holdings Pty Ltd v Newcastle City Council [2001] NSWLEC 170
Ergas & Bird v ACT Planning and Land Authority [2004] ACTAAT 18
Fabcot v Hawkesbury City Council [1997] NSWLEC 27Glass v ACT Planning and Land Authority & Anor [2016] ACAT 21
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Kippax Task Force v ACT Planning & Land Authority & Ors [2004] ACTAAT 11
Land Architecture Australia v ACT Planning and Land Authority & Ors [2008] ACTAAT 33
McKenzie v ACT Planning and Land Authority & Ors [2004] ACTSC 80
Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2017] ACAT 44
Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail Reit & Ors v ACT Planning and Land Authority [2018] ACAT 38
Walkington & Ors v ACT Planning and Land Authority [2010] ACAT 81
List of
Texts/Papers cited: Macquarie Dictionary 7th Edition
Tribunal: President G Neate AM
Senior Member G TrickettDate of Orders: 28 September 2018
Date of Reasons for Decision: 28 September 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 10/2017
BETWEEN:
NOAH’S ARK RESOURCE CENTRE INCORPORATED
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
FEDEM PTY LTD
First Party Joined
NIKDIA HUME PTY LTD
Second Party Joined
TRIBUNAL:President G Neate AM
Senior Member G Trickett
DATE:28 September 2018
ORDER
The Tribunal orders that:
1.Being satisfied that Noah’s Ark Resource Centre Incorporated has standing to bring the application for review of the decision to approve with conditions Development Application 201629784, the Tribunal confirms the decision to approve the Development Application but varies the conditions of approval in the terms set out at Attachment A to these reasons for decision.
………………………………..
President G Neate AM
Delivered for and on behalf of the Tribunal
TABLE OF CONTENTS
REASONS FOR DECISION
Introduction
Key issues
A preliminary issue: the operation of section 121 of the P&D Act
Submissions
Consideration and conclusion
The subject site and the proposed development on it
Some possible implications of the proposed development for Noah’s Ark and its programs
Parking arrangements for the proposed development
Proposed parking arrangements: an overview
On-site parking at the proposed childcare centre
Neighbourhood Oval car park
Off-site parking options: implications of the Nikdia Hume childcare centre car parking requirements
Off-site parking options: Neighbourhood Centre car park
Off-site parking options: Noah’s Ark Centre Rivett car park
Noah’s Ark’s submissions
Nikdia Hume’s submissions
Fedem’s submissions
The Authority’s submissions
Consideration and conclusion about parking arrangements
Does Noah’s Ark have standing to bring the application?
Noah’s Ark’s submissions
Fedem’s submissions
The Authority’s submissions
Consideration and conclusion
Compliance with relevant codes and conditions on development approval – an overview
Conditions on development approval
Nikdia Hume’s submissions
Noah’s Ark’s submissions
Fedem’s submissions
The Authority’s submissions
Consideration and conclusion
Pedestrian pathway between proposed childcare centre and Neighbourhood Oval car park
Noah’s Ark’s submissions
Nikdia Hume’s submissions
Fedem’s submissions
The Authority’s submissions
Consideration and conclusion
Operation of section 120 of the Planning and Development Act 2007
Submissions in relation to section 120(a)
Submissions in relation to section 120(b)
Submissions in relation to section 120(g)
Consideration and conclusion
Conclusion and orders
ATTACHMENT A
REASONS FOR DECISION
Introduction
1.On 20 February 2017, the ACT Planning and Land Authority (Authority) decided to approve with conditions under the Planning and Development Act 2007 (P&D Act) Development Application 201629784. That Development Application (DA) was made by Fedem Pty Ltd (Fedem). It proposed the construction of a childcare centre for 110 children on Block 22 Section 28 at Rivett, Australian Capital Territory (the subject site).
2.Noah’s Ark Resource Centre Inc (Noah’s Ark) operates a childcare centre near the subject site. It applied to the ACT Civil and Administrative Tribunal (Tribunal) under the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) for a review of the Authority’s decision. Noah’s Ark submitted that the correct or preferable decision is to set aside the Authority’s decision to approve DA 201629784 and to substitute a decision refusing DA 201629784.
3.In support of that outcome, Noah’s Ark submitted that:
(a)the development on the subject site would reduce the occupancy level of the Noah’s Ark Resource and Child Care Centre (Noah’s Ark Centre Rivett), thereby reducing and probably eliminating the level of surplus derived from that centre’s operations so that Noah’s Ark would not be able to maintain its community programs and meet the cost of supporting children with special needs enrolled in the day care centre, and cessation of the community programs and support the children with special needs in the day care centre would mean the loss of services and benefits presently enjoyed by the community, which loss would not be made good by the operations of the proposed new long day care centre on the subject site; and
(b)because the development proposal does not comply with the Parking and Vehicular Access General Code (in that it will not make adequate provision for parking), part of the parking demand generated by the proposal will result in overflow parking in the Noah’s Ark car park as well as in adjacent streets.
4.Evidence was given in relation to each of those submissions.
5.Fedem, as the Crown lessee of the subject site, submitted that:
(a)the application by Noah’s Ark should be dismissed because Noah’s Ark does not have standing to bring the application; or
(b)if Noah’s Ark has standing, the decision to approve DA 201629784 subject to conditions should be varied to include further conditions at A2 of the decision as proposed by the Authority and amended during the hearing.[1]
[1] Exhibit 12. Transcript of proceedings, 1 November 2017, page 4
6.Nikdia Hume Pty Ltd (Nikdia Hume) is the owner of Block 2 Section 28, Rivett which is approximately 60 metres from the subject site. Nikdia Hume has development approval for the construction of a childcare centre on that land. It is also a party joined to these proceedings. It submitted that DA 201629784 fails to comply with a number of relevant codes, and even if compliance were achieved, the circumstances are unique and raise critical discretionary considerations for the Tribunal which should lead the Tribunal to refuse DA 201629784.
7.The Authority submitted that the application by Noah’s Ark be dismissed because Noah’s Ark does not have standing to bring the application or, in the alternative that the decision under review should be affirmed.[2]
[2] Respondent’s statement of facts and contentions pages 4-5
8.Most of the parties and issues in this case are the same as, or similar to, those in a previous application to the Tribunal for a review of the Authority’s decision to approve the DA for Block 2 Section 28 at Rivett. The previous application was the subject of a decision by the Tribunal as presently constituted in Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor[3] (the previous Noah’s Ark case). Where appropriate, including to avoid unnecessary repetition, reference will be made to parts of the reasons for decision in that case.
[3] Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2017] ACAT 44
9.In final submissions, however, counsel for Noah’s Ark noted that there are different issues in the present case. He submitted that, as a consequence, the rulings in the previous Noah’s Ark case (particularly in relation to the issue of Noah’s Ark’s standing to bring the application) would not apply in the present case.[4]
Key issues
[4] Transcript of proceedings, 1 November 2017, pages 41-42
10.The present application gives rise to the following main issues:
(a)Whether and how the proposed development on the subject site will adversely affect Noah’s Ark.
(b)Whether Noah’s Ark has standing to bring the application.
(c)Whether the proposed development complies with relevant codes under the Territory Plan and, if not, whether the non-compliance can be overcome by the imposition of conditions on development approval.
(d)Whether any other matters are relevant to the Tribunal’s decision.
11.Although the second issue can be characterised as the threshold issue, it can only be determined in light of the evidence about whether and how the proposed development would adversely affect a particular aspect or aspects of the operations of Noah’s Ark. Consequently, it is necessary to consider the evidence and make findings in relation to the first issue before deciding the other issues. That involves considering the nature of the proposed development, the extent of any financial implications for Noah’s Ark of the proposed development, and the parking implications of the proposed development particularly (if at all) for the operations of the Noah’s Ark Centre Rivett.
12.If Noah’s Ark has standing, it will be necessary to consider how the Tribunal’s power should be exercised.
A preliminary issue: the operation of section 121 of the P&D Act
13.After the conclusion of the hearing of the present application, but before the reasons for decision were completed, a differently constituted Tribunal released its decision in Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail Reit & Ors v ACT Planning and Land Authority[5] (Sladic).
[5] Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail Reit & Ors v ACT Planning and Land Authority [2018] ACAT 38
14.In Sladic that Tribunal adopted an approach to the interpretation and operation of section 121 of the P&D Act which was different from that adopted by the Tribunal as presently constituted in the previous Noah’s Ark decision,[6] and from some other decisions of differently constituted Tribunals.
[6] The previous Noah’s Ark case at [192]-[236]
15.At the request of the first party joined and with the agreement of the other parties, the Tribunal convened an additional hearing for the purpose of receiving submissions in relation only to the interpretation of section 121 in light of the decision in Sladic. Each party provided a written outline of their submissions and spoke to those submissions.
16.The written and oral submissions highlighted the different approaches taken by differently constituted Tribunals, and outlined the options for this Tribunal when deciding the present application.
17.Section 121(2) of the P&D Act states:
(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. (Emphasis added)
18.In summary, the Tribunal in Sladic stated that it had “gone back to the ordinary meaning of the words used, their intended purpose and other principles of statutory interpretation.”[7] That Tribunal proceeded on the basis that although the word ‘criteria’ does not appear in section 121(2) it is within what is described by paragraphs (a) and (b) of that subsection.[8] If the starting point of interpretation is the words themselves, then those words provide for code compliance of a development proposal to be reviewed by the Tribunal. That is, the Tribunal may consider whether the requirements of subsection 119(1)(a) are met.[9]
[7] The previous Noah’s Ark case at [69]
[8] Sladic at [71]
[9] Sladic at [72]
19.The Tribunal in Sladic was satisfied that the intention of the P&D Act, and the review provisions in particular, was to place limitations on the scope of review by the Tribunal. This was to be achieved by placing constraints on which third parties would be able to apply to the Tribunal for review, and by limiting the kind and extent of the decisions which could be reviewed by the Tribunal.[10] That Tribunal decided that interpretation of the section 121 words as meaning ‘code compliance’ will achieve that outcome. As a consequence, if an application in the merit track is code compliant and is approved, the Authority’s exercise of the discretion to approve is not reviewable but the findings as to code compliance are reviewable. In other words, if the ‘rules’ (in a more colloquial sense of the word) are met, the development application cannot be refused approval on review by the Tribunal.[11]
[10] Sladic at [93]
[11] Sladic at [100]
20.That Tribunal concluded that the Tribunal’s task in conducting review in that matter was “to consider only whether the proposed development meets the requirements of applicable codes.”[12]
Submissions
[12] Sladic at [103]
21.Counsel for Fedem submitted that the operation of section 121(2) and the Tribunal’s scope of the review was correctly decided in Sladic, and urged this Tribunal to apply that approach in the present proceedings. In Fedem’s submission, the jurisdiction of the Tribunal to review the decision to approve DA 201629784 is limited by section 121(2). Where a development in the merit track has been approved, the jurisdiction of the Tribunal is confined to a ‘code compliance’ exercise. Consequently, the Tribunal may set aside or vary the decision under review only if it is not satisfied that the development complies with the rules and criteria in the Territory Plan. It is not open to the Tribunal to consider the discretionary matters set out in section 120 with a view to refusing the development application. That discretion rests with the Authority.
22.In summary, Fedem submitted that the correct approach to the scope of the Tribunal’s review and jurisdiction is:
(a)the limitation conferred by section 121(2) of the P&D Act is concerned with whether a development proposal achieves code compliance;
(b)the Tribunal may review whether a rule is met or not;
(c)it does not enable the Tribunal to consider the ‘discretionary’ aspects set out in section 120 of the P&D Act; and
(d)whether the requirements of section 119(2) are met is not reviewable by the Tribunal.
23.Fedem submitted that, in this case, the Authority approved DA 201629784 because it was code compliant and the requirements of section 119(2) had been met. The only basis upon which the development might be refused is if code compliance has not been, or cannot be, achieved. Accordingly, Noah’s Ark and Nikdia Hume are only entitled to seek review of matters identified under the Parking and Vehicular Access General Code (PVAGC), Crime Prevention Through Environmental Design General Code (CPTEDGC) and the Community Facility Zone Development Code (CFZDC). In Fedem’s submission, the development achieves the requisite code compliance.
24.Counsel for the Authority agreed with most of Fedem’s submissions, and submitted that if the Tribunal rules that Noah’s Ark has standing the decision in Sladic should be followed. If Sladic is applied, the Tribunal has no jurisdiction to consider issues arising under section 120 of the P&D Act.
25.Counsel for Noah’s Ark submitted that the Tribunal should not follow the construction of section 121 adopted in Sladic. Noah’s Ark advanced a detailed critique of that decision. In summary, it submitted, the Tribunal in Sladic sought to construe section 121 by implying words (especially ‘criteria’) into the text and focussed on ‘criteria’ as being the extremity of discretionary consideration open to the Tribunal (assuming that all other discretionary considerations were closed to the Tribunal). Specifically, it was submitted, the Tribunal in Sladic assumed that:
(a)if a rule was not complied with, its corresponding criterion could not be considered;
(b)if there was ‘no rule’ then the corresponding criterion could be considered; and
(c)section 120 considerations were also closed to the Tribunal.
26.Noah’s Ark submitted that the Tribunal in Sladic failed to note that general codes are not required to, and often do not, contain rules and criteria. Yet section 119 does not allow a development approval to be given for a development which does not comply with ‘the relevant code.’ The effect of that Tribunal’s construction would be to preclude, for example, the PVAGC from the Tribunal’s consideration, even though the PVAGC meets the definition of ‘relevant code.’
27.Counsel for Noah’s Ark also submitted that the approach taken by the Tribunal in the previous Noah’s Ark case suffers from the same flaws and should not be followed.
28.Senior counsel for Nikdia Hume articulated clearly the dilemma facing the present Tribunal. He contended that there is now a state of flux after 9 years of decisions from Mason v ACT Planning and Land Authority & Ors[13] to Sladic, with 3 recent and different decisions by Presidential Members of the Tribunal in Glass v ACT Planning and Land Authority & Anor,[14] the previous Noah’s Ark case and Sladic. The situation cannot be resolved by a single Tribunal but, he submitted, could only be resolved by the ACT Supreme Court (and no one has asked for a referral of the issue under section 84 of the ACAT Act) or by legislation.
[13] Mason v ACT Planning and Land Authority & Ors [2009] ACAT 7
[14] Glass v ACT Planning and Land Authority & Anor [2016] ACAT 21
29.The dilemma so clearly enunciated by senior counsel for Nikdia Hume was expressed by the Tribunal in Sladic in the following statement:[15]
It is on any view an entirely unsatisfactory state of affairs that is, more than a decade after the Planning Act was enacted, there is no certainty as to what is involved in review by the Tribunal of decisions on merit track applications. Review of this aspect of the Planning Act should be given the highest priority.
[15] Sladic at [68]
30.In the meantime in the present case, senior counsel submitted, the only fair thing to do under section 7 of the ACAT Act is to apply the decision in the previous Noah’s Ark case because that was the state of affairs at the start of the hearing of this case. He quoted the following passage at [230] of the previous Noah’s Ark decision:
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.
31.Senior counsel noted that he had prepared for this case on that basis. For reasons of fairness and consistency of decision-making (at least in relation to the Noah’s Ark cases), as well as because the decision in the previous Noah’s Ark case provided the most generous review rights under the P&D Act, he urged this Tribunal to apply the same interpretation of section 121 to this case.
Consideration and conclusion
32.The issue has come before this Tribunal in unusual circumstances. This is not an appeal from the decision in Sladic or any other decision of a differently constituted Tribunal. Unlike a judgment of a superior court delivered at this stage in the proceedings, the decision in Sladic is not binding on this Tribunal. Hence the issue is not whether the decision in Sladic is correct or binding, but whether the present Tribunal should adopt interpretation of section 121 set out in that case or restate and follow the interpretation set out in the reasons for decision in the previous Noah’s Ark case.
33.Having carefully considered the decision in Sladic (which is on appeal to the Supreme Court, though apparently not on this issue), the parties’ submissions, and the stage in the proceedings at which the issue arose, and having reconsidered the approach taken in the previous Noah’s Ark case, we have decided to proceed on the basis set out in the decision in the previous Noah’s Ark case.
34.Accordingly, will consider the issues specific to this case in the order outlined in [10] above.
The subject site and the proposed development on it
35.The subject site is at 9 Rivett Place, Rivett, and has an area of 1,944 square metres. It is vacant and, except for a concrete path that extends across most of the southern side, is undeveloped. The land slopes down to the east with an overall fall of approximately 2.5 metres.
36.It is directly to the east of the car park for the Rivett Local Neighbourhood Centre (Neighbourhood Centre). To the north and northwest of the subject site is the Salvation Army Burrangiri Centre, an aged care facility (Block 9 Section 28). Directly to the east of the subject site is the Rivett Neighbourhood Oval (Block 4 Section 27), with an associated amenities block. Slightly to the north of the subject site is Block 1 Section 60 (the Neighbourhood Oval car park), which is in the shape of an arc and consists of 1 central aisle with 90 degree parking to either side. To the south of the subject site is a narrow block zoned Community Facilities (Block 21 Section 28). The community facilities in the immediate locality of the subject site include the Noah’s Ark Centre Rivett (Block 7 Section 29).
37.The subject site is located in a Community Facility Zone (CFZ) under the Territory Plan. The CFZ objectives and development table in the Territory Plan, as well as the Rivett Precinct Map, apply to the subject site. Consequently the Community Facility Zone Development Code (CFZDC) applies. The CFZ is surrounded by land to the west zoned CZ4 – Local Centre Zone, and to the east by PRZ1 - Urban Open Space.
38.The purpose clause of the current Crown Lease of the subject site[16] states that the land may be used for a number of purposes, including “child care centre”. The Crown Lease contains no gross floor area limitation for the proposed use.
[16] Volume 2232 Folio 77, issued on 18 July 2016
39.Fedem proposes to operate a 110 place childcare centre on the subject site if DA 201629784 proceeds. The CFZ – Community Facilities Zone Development Table prescribes the merit track for the proposed kind of development, “child care centre.”
40.The architect who designed the proposed childcare centre, Hugh Gordon, described how the design complied with a particular Rule and relevant Criteria in the CFZDC, specifically:
(a)C11 – by using high quality materials (timber cladding, face brickwork, render and stone to be located as shown on a plan[17]) to create a façade with visually interesting architectural treatments, and a dramatic entry with high glass and high ceilings and a secondary awing to provide an entry porch at the front of the building;
(b)C13 – by providing elements of the development (particularly the glass) that interface with a street to promote an active streetscape;
(c)C18 – by underground piping of natural stormwater; and
(d)R8 C8 – by installing external lighting that would be shrouded soft lighting so that direct light will not be visible from the adjourning property.[18]
Some possible implications of the proposed development for Noah’s Ark and its programs
[17] See T-documents, pages 416, 422-424
[18] Transcript of proceedings, 19 October 2017, pages 11-13, 23-24
41.As noted earlier, Noah’s Ark submitted that the proposed development on the subject site would have significant adverse financial implications for Noah’s Ark and would inhibit or prevent it from maintaining its community programs.
42.Much of the evidence in respect of this part of Noah’s Ark’s case was given orally and/or in written statements by Dr Brenda Abbey[19] (an expert in early childhood education and the principal of Childcare by Design), Donald McMichael[20] (the Chief Executive Officer and Business Manager of Noah’s Ark), Janice Brennan[21] (the Manager, Early Childhood Program based at the Noah’s Ark Centre Rivett) and Anthony Wilson[22] (a chartered accountant who has prepared annual accounts, and has been auditor, for Noah’s Ark). That evidence largely replicated evidence given by them in the previous Noah’s Ark case. Additional evidence was given by them in the previous Noah’s Ark case in relation to the purpose, programs and financial operations of Noah’s Ark.
[19] Exhibit 2
[20] Exhibit 1
[21] Exhibit 15
[22] Exhibit 18
43.In the reasons for decision in the previous Noah’s Ark case, the Tribunal set out in some detail the evidence about the nature of the operations conducted by Noah’s Ark at Rivett and the likely impact of Nikdia Hume’s development on its childcare business and its potential to deliver a wider range of community services.[23] For present purposes, it is sufficient to repeat in summary the main evidence and findings in that case.
[23] See the previous Noah’s Ark case at [32]-[55], [61]-[63]
44.Noah’s Ark is a not-for-profit entity incorporated under the Associations Incorporation Act1991.[24] Its objects are:
(a)To support the cognitive, emotional, experiential, physical and social development of children and their families.
(b)To support the therapeutic and educational value of play and its role in the development of children through provision of resources, professional support and advice.
(c)To encourage and foster the inclusion of children with special needs into all services and activities of the Association.
(d)To encourage and foster skills and knowledge of those involved in parenting and providing care for children.
(e)To work with all individuals and organisations to further the objectives of the Association.
(f)To seek government and non-government involvement to achieve the above objectives.
[24] The previous Noah’s Ark case at [32]
45.The operating philosophy pursued by Noah’s Ark has been to meet the needs of families in relation to early childhood education and care which are not otherwise met by the government or private sector.[25]
[25] The previous Noah’s Ark case at [33]
46.Since 1973, Noah’s Ark has conducted early learning community programs in furtherance of its objects at various locations in the ACT and Queanbeyan. The only long day care centre operated by Noah’s Ark is the Noah’s Ark Centre Rivett at 79 Bangalay Crescent.[26]
[26] The previous Noah’s Ark case at [34]
47.According to Noah’s Ark:
Those community programs enable families, who would otherwise have difficulty in doing so, to give their children an early learning experience to assist them in later education and development and to obtain support and information generally. The programs provide benefits to participants which are not provided by a long day care program, and, to the extent that some benefits may also be provided by a long day care program, enable families for whom long day care is not suitable to have access to those benefits.(a) [27]
Noah’s Ark promotes its operations, including day care, as having a special needs focus. To that end it is prepared to take on children of any level of need.(b) [28]
The community programs are of benefit to members of the community who participate in them and to the community generally.(c) [29]
[27] The previous Noah’s Ark case at [43]
[28] The previous Noah’s Ark case at [49]
[29] The previous Noah’s Ark case at [45]
48.Ms Brennan gave evidence in the present proceedings that Noah’s Ark provides services to an average of 400 families each week.[30]
[30] Transcript of proceedings 20 October 2017, page 46
49.Noah’s Ark has been operating at 79 Bangalay Crescent, on the site of the former Rivett Primary School, since 1998 under a license agreement with the Australian Capital Territory. The licence to occupy the premises was initially on a month-to-month basis. It was extended to a 12 month term from May 1998, and was monthly thereafter. During the term of its licence, Noah’s Ark’s operations have been relocated to a different part of the school premises, but the change of location was not reflected in the licence.[31] The licence provides less security than a licence for a longer term or a lease of the premises used as the Noah’s Ark Centre Rivett would offer.[32] However, there was no evidence that the licence will not continue to be renewed, as has been the case for about 19 years. Nor is there any evidence to suggest that the ACT Government intends to reopen the Rivett school, rezone the land or sell it. Consequently, we do not consider that the apparent insecurity of the legal basis for Noah’s Ark’s continuing to use those premises constitutes a significant impediment to its use and enjoyment of the land.[33]
[31] The previous Noah’s Ark case at [46]
[32] Clause 6(a) of the licence expressly states that nothing in the licence shall create or be construed as creating any tenancy or shall be construed as conferring upon the licensee any estate or interest in the premises or any part thereof
[33] The previous Noah’s Ark case at [126]
50.In 2009, Noah’s Ark commenced to operate a long day care centre there. Initially the day care centre was licensed for 15 places per day for children between 12 months and 5 years of age. Since 2010 it has been licensed for 89 places, 81 of which are of practical utility. Accordingly, the Noah’s Ark Centre Rivett offers a maximum of 81 places.[34]
[34] The previous Noah’s Ark case at [48]
51.In the previous Noah’s Ark case the Tribunal noted that:
Noah’s Ark commenced to operate the long day care centre in Rivett in 2009, predominantly to provide a continuing source of income so that it could maintain its community programs to provide care for children with disabilities whose family could not otherwise afford it or whose children would not be accepted in other day care centres because of their disability. The income generated by the day care centre operations which is surplus to needs in respect of maintaining the operations of the day care centre is used to subsidise the cost of the community programs. By that means Noah’s Ark is able to keep those programs operating, and also meet the cost of supporting children with special needs enrolled in the day care centre.[35]
[35] The previous Noah’s Ark case at [53]
52.According to the Tribunal in that case:
There was no dispute, and we find, that Noah’s Ark finances and provides (in collaboration with other organisations) a distinctive range of community programs that would not otherwise be available. Those programs are valued by disadvantaged, vulnerable and isolated families and their children in the ACT and Queanbeyan. For that reason, the programs provide a benefit to the community and not just the direct participants. We also find that:
(a) most of those programs receive little or no financial support from governments; and
(b) the financial and other support provided by Noah’s Ark for those programs is critical, if not essential, for their continuation.[36]
[36] The previous Noah’s Ark case at [127]
53.The Tribunal also found that:[37]
(a) the financial support that Noah’s Ark provides to community programs is derived from the income (though not always surplus to expenses) received by the Noah’s Ark Centre Rivett;
(b) to attain and sustain a level of surplus to provide that financial support, the Noah’s Ark Centre Rivett would need an occupancy rate at or above 90%, a rate which it has not sustained in recent years; and
(c) any reduction in enrolments as a consequence of the proposed development reaching fruition would reduce Noah’s Ark’s income and hence the potential for surplus funds and, although not necessarily threatening the viability of the Noah’s Ark Centre Rivett, would reduce further and perhaps eliminate its capacity to support the community programs from its surplus funds.
[37] The previous Noah’s Ark case at [129]
54.During the hearing of the present case, Mr McMichael gave evidence that Noah’s Ark recorded financial losses in 8 of the past 12 years because the vacancy rates have been too high and Noah’s Ark has paid for most of the expenses of external programs from the income derived from the Noah’s Ark Centre Rivett.[38]
[38] Noah's Ark receives a grant which covers some of the costs of running the toy library and it charges people who use some programs “minimal costs” which did not cover the full costs of those programs. (Transcript of proceedings 17 October 2017, pages 27-28, 32)
55.The implications of the proposed development on the subject site for the operation of the Noah’s Ark Centre Rivett, and hence for Noah’s Ark’s other programs, are considered later in these reasons for decision.
Parking arrangements for the proposed development
56.The other main issue raised by Noah’s Ark’s application is whether sufficient parking spaces would be available on-site and off-site if the proposed development on the subject site were to proceed. For present purposes, there are 3 specific parking issues:
(a)Are there sufficient parking spaces on or proximate to the subject site to satisfy the requirements for specific types of parking for a childcare centre of the size proposed?
(b)Does the plan for on-site parking meet the required dimensions for each allocated parking space and, if not, what adjustments would need to be made (on-site and/or off-site) to satisfy those requirements?
(c)Is there evidence that people seeking to use either of the new and proposed childcare centres are likely to use the car park area of the Noah’s Ark Centre Rivett with adverse impact on Noah’s Ark’s use of the land for that Centre?
57.The starting point for answering some of those questions is the PVAGC. It adopts a performance-based approach in setting out the provisions for vehicle access and parking which the development proposal is required to meet. It defines the ‘minimum parking provision requirements’ for permitted development for each zone. These rates are based on empirical evidence, and interstate codes and guidelines.[39]
[39] See PVAGC section 1.3
58.The PVAGC takes account of factors such as availability of public parking and potential shared parking with neighbouring developments. It permits that, where demonstrated by the proponent, the objectives can be met by utilising spare capacity in publicly available on-street or off-street parking. The use of spare capacity is at the discretion of the Authority with regard to the potential for nearby lessees to seek to expand and lay claim to some of the available capacity in these public parking areas.
59.The PVAGC sets out in section 3.6.5 the following requirements for the numbers and types of parking spaces to be provided for a childcare centre in the CFZ:
1 space/centre plus 2 spaces per 15 child care places for employee parking plus visitor parking as follows:
2 spaces: < 30 child care spaces
3 spaces: 30-59 child care spaces
4 spaces: 60-90 child care spacesplus
1 pick-up/set-down bay per 10 child care places
60.The locational requirements set out in section 3.6.4 of the PVAGC for this type of development are:
(a)long stay parking – within 200 metres of the development;
(b)short stay parking – on-site or within 100 metres of the development;
(c)operational parking – on-site; and
(d)visitor parking – on-site or within 100 metres of the development.
61.At section 1.5, the PVAGC defines ‘long stay parking’ as parking provision for generally longer than 4 hours duration, and ‘short stay parking’ as parking provisions for generally up to 4 hours duration.
62.At section 2.2, the PVAGC mandates compliance with the AS/NZ 2890.6:2009 Parking Facilities – Part 6: Off-street parking for people with disabilities.
63.Consistently with the requirements of the PVAGC, the following 33 parking spaces need to be provided for the proposed childcare centre on the subject land:
(a)17 spaces for employee parking (long stay).
(b)5 spaces for visitor parking.
(c)11 spaces for pick-up/set-down (short stay).
Proposed parking arrangements: an overview
64.There was evidence before the Tribunal that:
(a)the proposed development would provide 11 on-site parking spaces, 2 of which are designated as parking spaces for people with disabilities;
(b)the 11 spaces are allocated to the pick-up/set-down needs;[40]
(c)the 17 employee parking spaces would be provided off-site directly to the north of the subject site utilising the parking spaces on the Neighbourhood Oval car park;[41]
(d)DA 201629784 would require the removal of 2 existing parking spaces from the southeast corner of the existing Neighbourhood Centre car park to facilitate the proposed new driveway on the subject site;
(e)other off-site parking would be provided on the Neighbourhood Centre car park.
[40] See T-documents, page 194; Exhibit 5 pages 5, 7
[41] See Exhibit 5 pages 5, 7
65.Noah’s Ark called no witnesses in relation to the parking issue.
66.The Authority relied on the oral and written evidence of Dominic Riches[42] who is a Development Assessment Officer with the Authority. His assessment of the parking was that there are enough parking spaces in the vicinity of the subject site to support existing and future uses.
[42] Exhibit 11
67.Mr Riches noted in his witness statement that DA 201629784 was referred to the Transport Planning Section of the Environment, Planning and Sustainable Development Directorate (EPSDD). That section supported the application with the recommendation that inconsistences with documentation be rectified. Further information was submitted under section 141 of the P&D Act to rectify those inconsistencies.[43] The Transport Planning Section also observed that “a significant number of required car parks are located off-site.”
[43] See T-documents, pages 180ff, especially page 183, Transcript of proceedings, 20 October 2017 pages 7-8
68.We observe that the decision to approve the DA included an advisory note from the EPSDD[44] that the applicant consider providing a pedestrian pathway from the Neighbourhood Oval car park to the subject site. The proposal has to comply with the Crime Prevention Through Environmental Design General Code (CPTEDGC) requirements which are considered later in these reasons for decision.
[44] See T-documents, pages 36, 211-214
69.Transport Canberra and City Services (TCCS) did not raise any issues.[45]
[45] See Exhibit 11, paragraph 57
70.In one respect Mr Riches’ statement varied from the DA as proposed. He stated that the 11 on-site spaces were allocated to staff parking, and that the remaining staff parking spaces as well as the 11 pick-up/set-down spaces could be located in the Neighbourhood Centre car park. Although the location of the further 5 visitor spaces was not addressed in his statement, Mr Riches identified that the Neighbourhood Oval car park would also be relied on by the proponent for parking.
71.Fedem relied on the evidence of Mr Graeme Shoobridge who is a Registered Civil Engineer with experience in traffic engineering and is a Fellow of the Institution of Engineers Australia. Mr Shoobridge provided a report for the DA 201629784 application[46] and a witness statement in these proceedings dated 26 September 2017.[47] He also prepared 2 reports for the DA for the 91 place childcare centre which is under construction for Nikdia Hume on Block 2 Section 28 Rivett.[48]
[46] See T-documents pages 408-413
[47] Exhibit 5
[48] Exhibits 6, 7
72.In preparation for these proceedings, Noahs Ark, the Authority and Fedem carried out site visits to assess the extent of parking spaces and parking usage of the Neighbourhood Centre car park and the Neighbourhood Oval car park. Their findings with reference to the current usage of the car parks were similar.
73.The evidence from Mr Shoobridge was that:
(a)there are 50 parking spaces in the Neighbourhood Centre main parking area, with an additional 7 spaces to the south of the shop loading area, north of Block 11 Section 28;
(b)there are 55 parking spaces in the Neighbourhood Oval car park;
(c)there is further parking space available along Bangalay Crescent.
74.In Mr Riches’ opinion, sufficient parking space is available within 100 metres of the subject site to support 22 off-site spaces for the proposed childcare centre.
75.Mr Riches identified that the new childcare centre being developed by Nikdia Hume on Block 2 Section 28 required 29 parking spaces and that all of these would be located off-site. The combined off-site childcare centre car parking requirements around the Neighbourhood Centre totalled 51 spaces.
76.Mr Shoobridge observed the use of the Neighbourhood Centre parking in 2015, 2016 and 2017. He concluded that some 25 to 30 vacant car spaces in that car park are available during childcare centre peak activity times. The Neighbourhood Oval car park usage is very low until 4:30pm, starting from 30 spaces and increasing to 50 spaces used by 6:00pm.
77.Mr Shoobridge informed the Tribunal that:
(a)the relevant authorities had concluded that pick-up and drop-off parking along Bangalay Crescent was not supported;[49]
(b)the car parking locations were not at present finalised for the off-site parking for the Nikdia Hume childcare development on Block 2 Section 28 and, in particular, that the proposed recessed parking spaces in Rivett Place for that development may or may not be constructed;
(c)it was proposed by the authorities that an additional 5 spaces be utilised from within the existing Neighbourhood Centre parking adjacent to Block 8 Section 28 for the development on Block 2 Section 28.
[49] See Exhibit 7
78.The potential demands on the Neighbourhood Centre car park from the proposed childcare centre need to be considered in light of the demands of others (for example, from shoppers and business owners and employees) and identified demands from the Nikdia Hume childcare centre development. Those demands, the proposed use of the Neighbourhood Oval car park, and the possible consequences for the Noah’s Ark Centre Rivett car park are discussed later in these reasons for decision. Before considering those matters it is appropriate to consider whether the requisite number of pick-up/set-down spaces can be provided on the subject site.
On-site parking at the proposed childcare centre
79.As noted earlier, the proposed development would provide 11 on-site parking spaces for pick-up/set-down needs, and 2 of the spaces are designated for people with disabilities.
80.In addition to the PVAGC requirements already quoted, there was expert evidence that pick-up/set-down places should be near the entrance of a childcare centre. Dr Abbey, an expert in early childhood education, stated that “universally” the parking area adjacent to a child-care centre is for parents dropping-off and picking-up children so that they are safe and the parents can carry things for the children.[50] Mr Shoobridge made a general assertion that it is “much more important” that the pick-up and set-down places be in close proximity to the entrance of the childcare centre,[51] and stated that the intention is that short stay parking demand is likely to be wholly contained within the subject site.[52] However, Mr Shoobridge also stated that set-down and pick-up need not be on the site but could be in the public area at 7 spaces along the frontage to the block.[53]
[50] Transcript of proceedings, 17 October 2017, page 68
[51] Transcript of proceedings, 19 October 2017, page 33
[52] Transcript of proceedings, 19 October 2017, page 56
[53] Transcript of proceedings,19 October 2017, page 52
81.An analysis of the plan for 11 on-site parking spaces raises questions about whether:
(a)adequate dimensions have been provided for each car;
(b)2 spaces for people with disabilities are necessary;
(c)a reconfiguration of the on-site parking might require a reduction in playground area (and potentially the number of child places at the proposed centre) or the relocation of 1 or more car parking spaces to the Neighbourhood Centre car park.
82.In relation to the proposed development on the subject site, Mr Shoobridge confirmed at the end of his oral evidence that:
(a)the on-site parking provided in DA 201629784 was for pick-up/set-down parking and was therefore defined in the PVAGC as short stay parking;
(b)the physical characteristics as set out in the PVAGC in Table 2 Classification of off-street car parking facilities would be for user class 3A requiring full opening of all doors;
(c)the configuration of the on-site parking spaces should comply with Figure 2.2 Layout of angle parking spaces in the PVAGC and that the diagram and table at d) should be applied;
(d)although the on-site parking as proposed in the DA conformed with the PVAGC with respect to the aisle width dimension (6.2 metres) and the parking space depth (5.5 metres), all but 1 of the spaces did not have a complying width of 2.7 metres (as the spaces are documented as either 2.47 metres or 2.5 metres wide); and
(e)2 spaces were made available for people with a disability (potentially 1 for an employee and 1 for other people), although the minimum requirement was for 1 space.
83.It was apparent to Mr Shoobridge that there would not be 11 on-site spaces that comply with the PVAGC that would provide pick-up and set-down or visitor parking. Even if 1 of the 2 spaces for disabled parking is used by other people (because the disabled status is not enforced), the number of spaces available for short stay parking is reduced. If the spaces were redrawn with the required dimensions for class 3A, fewer spaces would be available on site. Mr Shoobridge accepted that the places on the plan are too narrow and that the parking plan could be reworked with the possible loss of 2 spaces. Consequently, up to 4 spaces could be lost to short stay parking (the 2 disabled spaces and the other 2 as a result of increasing the size of individual parking spaces).[54]
[54] Transcript of proceedings, 19 October 2017, pages 95, 102-104
84.On that analysis, Mr Shoobridge understood that rather than 11 complying spaces for pick-up and set-down, there might be 7 or 8 places. Consequently, all the required short-term parking would not be provided on-site. There would be either no visitor parking or at least none which does not overlap with pick-up and set-down uses.[55] It followed that the plan needed to be adjusted to allow for possibly 4 additional parking spaces in the area of the Neighbourhood Centre car park.
[55] Transcript of proceedings, 19 October 2017, page 105
85.In his oral evidence, Mr Riches also concluded that the proposed development does not meet the PVAGC.[56] He referred to the drawing showing the car space widths[57] and said that they were not wide enough to allow car doors to be opened fully so that children could get out of the cars.[58] Mr Riches did not comment on Mr Shoobridge’s suggestion that 1 of the disabled spaces be dispensed with, other than to agree in cross-examination that it might be a solution. It would be necessary to justify the removal of another on-site car parking space, which would need to be relocated within 100 metres of the subject site.[59]
[56] Transcript of proceedings, 20 October 2017, page 3
[57] Exhibit 4 Drawing DA -03.7
[58] Transcript of proceedings, 20 October 2017, page 8
[59] Transcript of proceedings, 20 October 2017, page 18
86.But Mr Riches suggested that another way of dealing with the issue could be to extend the car park to the northeast into an area marked for a playground. He noted that a childcare centre with 110 places would be required to provide 7 square metres for each child. On his calculations, the play area on the plan is 772 square metres. He agreed that it would be difficult to extend the car park into the play area to meet parking specifications while retaining the required play area.[60] On the basis that the design of other aspects of the childcare centre were also at the limit of what is required, he suggested that the car park problem could be resolved by reducing the number of places at the centre from 110 to 105, and hence reduce the required area of playground by 35 square metres. That reduction would also affect the number of off-site parking spaces for employees. He had not discussed that option with the project proponent.[61]
[60] Transcript of proceedings, 20 October 2017, pages 9-10, 18
[61] Transcript of proceedings, 20 October 2017, page 11
87.Mr Riches also suggested that, in order to reconfigure the car park spaces so that they are the requisite size, it might be possible to expand the length of the driveway by about 3 metres toward a tree which is just outside the boundary, and which might require tree protection measures. Despite these notional options, it remained possible that at least 1 and possibly another 2 or 3 car park spaces would need to be found off-site.[62]
[62] Transcript of proceedings, 20 October 2017, pages 68-69
88.Mr Riches said that, although 2 spaces had been provided for people with a disability[63] and he would like to see 2 spaces, 1 would be acceptable to the Authority given that the Code requires 3 per cent of the 33 car parking spaces.[64]
[63] See T-documents page 381 (report of Eric Martin & Associates, Architects) and page 418 (plan)
[64] Transcript of proceedings, 20 October 2017, pages 72-75
89.Another component of Mr Shoobridge’s evidence was his focus on the temporal aspect of parking. He noted, for example, that the demand for short-stay parking is greatest in the early morning and late afternoon periods when children are being dropped at or collected from a childcare centre, and he contended that longer stay visitors will require parking in the time between those periods. Similarly, the peak demand for employee parking would be between 9:00am and 4:00pm.
90.Mr Shoobridge suggested that the 11 spaces on the subject site would meet the pick-up and set-down requirements and be available for time constrained parking between 9:00am and 4:00pm on weekdays. He recommended that the spaces be marked 15 minutes parking only between 7:30am and 9:00am and 4:00pm and 6:00pm, and be marked for 2 hour parking between 9:00am and 4:00pm. In doing so, he made a temporal distinction between visitor parking and pick-up/set-down parking based on his observations and conversations with childcare operators.[65] He suggested that visitors to the childcare centre do not usually remain at the centre during pick-up and drop-off-of times.[66]
Neighbourhood Oval car park
[65] Transcript of proceedings, 19 October 2017, pages 33, 50-51
[66] Transcript of proceedings, 19 October 2017, page 54
91.Both Mr Shoobridge and Mr Riches gave evidence about the number of car parking spaces in the Neighbourhood Oval car park, the numbers of vehicles that are parked there during weekdays, the times of greatest use, and the potential of the car park to accommodate the vehicles of employees at the proposed childcare centre.
92.Mr Shoobridge estimated that the car park can hold 2 rows of vehicles parked nose to curb at 90 degrees. There are approximately 55 car park spaces – 26 spaces on the inner frontage (about 66 metres in length) and 29 spaces on the other frontage (approximately 73 metres in length).[67]
[67] Transcript of proceedings, 19 October 2017, page 32, see also Exhibit 5
93.In his opinion, the Neighbourhood Oval car park would not be suitable for employees or people associated with the Nikdia Hume childcare centre, or staff of the Neighbourhood Centre shops. However, because of its proximity to the subject site, it would be suitable for staff of the proposed childcare centre.
94.In his written evidence,[68] Mr Shoobridge stated that he had observed that there were generally no vehicles parked there during the day. On occasions, when some groups appeared to be attending training for football or cricket on the Rivett Neighbourhood Oval, there were fewer than 10 cars parked before 5:00pm and that number increased to a maximum of 30 at 5:45pm and 50 at 6:00pm.
[68] Exhibit 5
95.Mr Shoobridge noted that the late afternoon demand for parking related to sporting activities increases at the time when childcare staff requirements for parking would be decreasing.[69] He considered that most activity at the Rivett Neighbourhood Oval occurs after 6:00pm and on weekends. The largest number of vehicles he has observed there for cricket matches or practice is 15.[70] Mr Shoobridge was not aware of any other regular demand for parking at the Neighbourhood Oval car park (for example, from the adjoining aged care facility) and described any other demand (for example, from tradesmen’s vehicles) as “very low.”[71] The net result is that “there is always adequate parking available for the demand from the proposed development.”[72]
[69] Transcript of proceedings, 19 October 2017, page 35
[70] Transcript of proceedings, 19 October 2017, page 49
[71] Transcript of proceedings, 19 October 2017, page 37
[72] Transcript of proceedings, 19 October 2017, page 35
96.Based on his observations, Mr Shoobridge concluded that “there appears to be a more than adequate vacancy of unoccupied spaces” between 7:30am and 6:00pm when employees of the childcare centre would also require parking spaces (with their peak demand between 9:00am and 4:00pm).[73] The likely variability in staff demand was confirmed by Dr Abbey’s evidence that childcare centres are likely to operate until 6:00pm and that some staff would leave earlier (possibly each half-hour) as the number of children present at a centre decreases, leaving possibly 2 or 3 staff at the end of the day.[74]
[73] Transcript of proceedings, 19 October 2017, pages 34-35
[74] Transcript of proceedings, 17 October 2017, pages 39, 41, 58, 66, 67
97.Mr Riches gave evidence to similar effect. According to him, there are approximate 50 car parking spaces in the Neighbourhood Oval car park. A table recording observations made on behalf of Noah’s Ark at specified times after 4:00pm on 3 afternoons in August 2017[75] shows the following numbers of spaces occupied on these days, (and the number of vacant spaces if the total number of available spaces is 50).
[75] As set out in Exhibits 11 and 17
Tuesday 1 August 2017 Time Occupied Vacant 4:00pm 3 (47) 4:35pm 7 (43) 5:20pm 29 (21) 5:45pm 29 (21)
Thursday 3 August 2017 Time Occupied Vacant 4:00pm 1 (49) 4:40pm 18 (32) 5:10pm 23 (27) 5:50pm 41 (9)
Thursday 10 August 2017 Time Occupied Vacant 5:50pm 48 (2) 98.The number of potential parking spaces cannot be stated with certainty. As was observed during the hearing, there are no line markings on the Neighbourhood Oval car park and some people might decide to park parallel to the kerb rather than nose in, thus reducing the number of car park places. In addition, if people do not park their vehicles close to others’ vehicles nose to the curb at 90 degrees then there will be fewer than 55 (or 50) spaces available from time to time.
99.However, the Tribunal is satisfied that, having regard to its physical dimensions and the history of the times and extent of its use to date, the Neighbourhood Oval car park would provide sufficient parking spaces for employees of the proposed childcare centre at the times and on the weekdays that they require.
Off-site parking options: implications of the Nikdia Hume childcare centre car parking requirements
100.In addition to the potential demand for off-site parking generated by the proposed childcare centre on the subject land, the nearby Nikdia Hume childcare centre will generate an even greater demand. Evidence given in relation to the parking requirements associated with that development during the hearing of the present application quantifies the nature and extent of that demand, although there was some variation in the figures cited and estimates given.
101.Mr Shoobridge’s written evidence dated November 2015[76] was that the PVAGC parking requirements for a childcare centre with 91 childcare places were 26 spaces comprising:
(a)13 spaces for employees on-site or within 200 metres of it;
(b)4 spaces for short-stay visitors on-site or within 100 metres of it; and
(c)9 pick-up/set-down spaces on-site or immediately adjacent to it.
[76] Exhibit 6
102.There is no provision for on-site car parking for the Nikdia Hume childcare centre on Block 2 Section 28.
103.It would appear that the conditions about car parking that were thought to be attached to the approval of that development might not be implemented because they do not comply with the relevant Australian standards.[77] Consequently, at the time of the hearing of the present case, it was not clear where employees and parents or visitors would park. Although Mr Shoobridge expressed a strong preference for people to park on Bangalay Crescent,[78] he gave evidence about discussions concerning 4 parallel parking places along Rivett Place for set-down and pick-up, and another 5 places in Rivett Place car park for that purpose. He also referred to the possible use of other car parking places in Rivett Place, including 7 places adjacent to the loading area, for the 13 employees of that childcare centre.[79] According to Mr Shoobridge, the TCCS does not propose to allow any changes to signage to provide time restriction in the Neighbourhood Centre car park of Rivett Place for the use of people associated with the Nikdia Hume development.[80]
[77] Transcript of proceedings 19 October 2017, pages 89-90
[78] He seemed to accept that nearby Cordia Place is narrow and not particularly welcoming for on-street parking. Transcript of proceedings, 19 October 2017, page 82
[79] Transcript of proceedings, 19 October 2017, pages 56-58, 66
[80] Transcript of proceedings, 19 October 2017, page 100
104.In his report, Mr Shoobridge estimated that the 91 place childcare centre would generate in the order of 450 to 500 vehicle movements per day and approximately 110 to 120 vehicles per hour during peak activity times. He suggested that the additional vehicle trips each day would be expected to act as a stimulus for local businesses at the Neighbourhood Centre. He also expressed the opinion that the surplus spaces in the Neighbourhood Centre car park would be sufficient to accommodate the additional activity even if all the commercial tenancies are filled[81] because the peak activity times for the shops were not expected to coincide with the peak activity times for the Nikdia Hume childcare centre.
[81] At the time of the hearing all the commercial spaces were tenanted and were trading or would commence trading in the near future
105.Mr Shoobridge acknowledged that people at both new childcare centres would be entitled to use Rivett Place for parking,[82] and agreed that drivers will prefer to park in the closest available free parking space to their intended destination, adding “People are good that way.”[83]
[82] Transcript of proceedings, 19 October 2017, pages 56-58, 65-66
[83] Transcript of proceedings, 19 October 2017, page 42
106.Mr Riches’ evidence (despite some variation in the numbers used) was to the same effect. His written evidence[84] was that the Nikdia Hume development required 29 spaces, all of them off site, comprising:
(a)14 spaces for employees;
(b)5 spaces for visitor parking; and
(c)10 spaces for pick-up/set-down.
[84] Exhibit 11
107.In his oral evidence, Mr Riches agreed that the car park spaces needed for the approved Nikdia Hume development for employees and for short-stay visitors) might be in the Neighbourhood Centre car park, leaving 39 for the customers and employees of local stores.[85]
Off-site parking options: Neighbourhood Centre car park
[85] Transcript of proceedings, 20 October 2018, pages 69-70
108.As will be apparent from the preceding discussion, much emphasis was given to using spaces at the Neighbourhood Centre car park to meet the parking requirements associated with both the Nikdia Hume childcare centre and the proposed childcare centre on the subject site. There were questions about whether that area has capacity to meet those demands (in addition to regular use by shoppers and others who work at or visit the Centre and possibly people associated with the Burrangiri aged care facility).
109.Mr Shoobridge acknowledged that, on the basis that there should be 6 car park spaces for every 100 square metres of gross floor area of shops, there should be 60 spaces in the Neighbourhood Centre car park. There are currently 57 car park spaces. The intention was that parking in the vicinity of the Neighbourhood Centre would accommodate the parking demands generated by that centre.[86] In his opinion, the car park is underutilised and does not appear to be generating a demand at the rate anticipated by the PVAGC minimum provisions.[87]
[86] Transcript of proceedings, 19 October 2017, pages 44-45
[87] Transcript of proceedings, 19 October 2017, pages 98-99
110.In his written evidence,[88] Mr Shoobridge referred to the 57 car parking spaces as comprising 50 in the main car park and 7 on the southern side of the centre along Rivett Place. During 2015, 2016 and 2017 he observed:
(a)between 6 and 27 cars parked there in the period 8:30am to 9:30am (the morning peak activity time);
(b)between 11 and 30 cars parked there in the period 5:00pm to 6:00pm (the afternoon peak activity time); and
(c)that the occupancy rates dropped after 9:15am and after 5:15pm.
[88] Exhibit 5
Based on his observations, there are not fewer than 25 to 30 of the 57 vacant car park spaces available during childcare peak activity times of 7:30am to 9:00am and 4:00pm to 6:00pm on weekdays.
111.Mr Riches provided written evidence[89] of his inspection on 11 September 2017 of the existing parking arrangements of the Neighbourhood Centre (57 spaces) and Oval car park (50 spaces). As noted earlier:
(a)the proposed childcare centre on the subject site would require 22 off-site parking spaces; and
(b)given that there are no on-site parking spaces for the Nikdia Hume development, 29 off-site parking spaces would be required.
[89] Exhibit 11
In his opinion, there are enough parking spaces in both those parking areas to support the 51 additional parking spaces required by those 2 childcare centres. He also noted that DA 201629784 was referred to TCCS, which did not raise any issues about parking.[90]
[90] Transcript of proceedings, 20 October 2017, page 8. See T-documents pages 213-214, Exhibit 11
112.Mr Riches seemed to accept that the Neighbourhood Centre car park might accommodate the car parking spaces required for the Nikdia Hume development, as well as some spaces for people visiting the proposed childcare centre on the subject site and possibly some employees of that childcare centre. Those uses of Neighbourhood Centre car park spaces might be moderated, or some people (including shop employees) might park elsewhere, if TCCS were to regulate parking times for some spaces.[91]
[91] Transcript of proceedings, 20 October 2017, page 71
113.A table recording observations made on behalf of Noah’s Ark at specified times after 4:00pm on 3 afternoons in August 2017[92] shows the following numbers of spaces occupied on those days (and the numbers of vacant spaces).
[92] As set out in Exhibits 11 and 17
Tuesday 1 August 2017 Time Occupied Vacant 4:00pm 19 (38) 4:35pm 21 (36) 5:20pm 14 (43) 5:45pm 17 (40)
Thursday 3 August 2017 Time Occupied Vacant 4:00pm 13 (44) 4:40pm 15 (42) 5:10pm 15 (42) 5:50pm 8 (49)
Thursday 10 August 2017 Time Occupied Vacant 5:50pm 21 (36) 114.Two of the 57 spaces would be removed to accommodate the driveway to the proposed childcare centre. As noted earlier, possibly 17 or 19 of the remaining 55 spaces would be used by employees and others associated with the Nikdia Hume development. It is also possible that, at some times of the year (particularly in winter months), some employees at the proposed childcare centre would park in the Neighbourhood Centre car park rather than walk to the car spaces next to the oval in darkness (see [278]). On that basis, the number of spaces available to people who attend exclusively for the purpose of shopping at the neighbourhood centre would be reduced to about 35 for at least part of each day.
115.Mr Shoobridge observed that such calculations proceeded on a cumulative basis, and contended that they should be considered by reference to a temporal component. For example, when school finishes and the demand for shops increases, some of the shoppers might be people picking up children from the childcare centre. Such visitors are multipurpose users of car parking spaces. Also, the current level of occupancy of shops and use of car park facilities for those shops is much less than the spaces available in the Neighbourhood Centre car park.[93]
[93] Transcript of proceedings, 19 October 2017, page 71
116.In his opinion, the provision of 11 pick-up and set-down spaces on the subject site (even with the loss of 2 parking spaces from the Neighbourhood Centre car park for driveway access to the subject site) would mean there would not be a shortfall of supply over demand for parking.[94]
[94] Transcript of proceedings, 19 October 2017, page 39
117.Mr Shoobridge stated that additional pick-up and set-down spaces are available for the proposed development along the frontage of the subject site, and these could be marked with 15 minute parking restrictions during the periods from 8:00am to 9:00am and 4:00pm to 6:00pm. Additionally they could be marked with 2 hour parking limits between 9:00am and 4:00pm on weekdays for the number of visitor spaces required by the Code.
118.Mr Shoobridge gave opinion evidence that if all 3 childcare centres were operating, he would not anticipate that there would be parking pressure on the Neighbourhood Centre car park. He conceded that, under the scenario put by counsel for Noah’s Ark,[95] “it looks very tight and that there would need to be some extra effort to manage long stay and short stay parking within the local centre to prevent intrusion into the aged care place or church car park or, in fact, Noah’s Ark car park.” However, he believed that there is “still enough to go around” and no need to contemplate parking on Bangalay Crescent. In other words, the need for additional car park spaces for the childcare centre would not “tip the balance of supply versus demand for parking” within the Neighbourhood Centre car park. Based on the current parking demand for commercial space, there was in his opinion “absolutely plenty” of parking to accommodate the additional requirements for the childcare centre.[96]
[95] See [140] to [144] below
[96] Transcript of proceedings, 19 October 2017, page 109
119.Furthermore, he suggested that the increased level of activity from people visiting the childcare centres might increase patronage of the shops there.[97] He contended that the local community has not provided overwhelming support for the commercial development there, and “another magnet” to the Neighbourhood Centre could help the commercial tenancies.[98]
[97] Transcript of proceedings, 19 October 2017, page 38
[98] Transcript of proceedings, 19 October 2017, page 97
120.Mr Shoobridge referred to the need to consider temporal issues involving short-stay and long-stay parking.[99] He suggested that even if there was a problem, that could be resolved by putting time-limited parking restrictions (say for 30 minutes) on spaces closest to the shops between 8:30am and 5:00pm Monday to Friday. Longer parking places (including for the use of shop employees) could be placed further to the perimeter of the car park (and potentially including Bangalay Crescent) if there was a demand from shopkeepers.[100] Such measures would guarantee that the objectives of the PVAGC would be met.[101]
[99] Transcript of proceedings, 19 October 2017, page 45
[100] Transcript of proceedings, 19 October 2017, pages 100-101
[101] Transcript of proceedings, 19 October 2017, page 39
121.Mr Shoobridge stated that although Bangalay Crescent is within 200 metres of the subject site and has potential for long-stay parking, he had chosen not to include it because he was comfortable that there was “a fairly high supply of under-utilised off-street car parking.”[102]
Off-site parking options: Noah’s Ark Centre Rivett car park
[102] Transcript of proceedings, 19 October 2017, pages 99-100
122.Donald McMichael (the Chief Executive Officer and Business Manager of Noah’s Ark) gave evidence that there are car park areas next to the buildings used for the Noah’s Ark Centre Rivett. One part is paved with asphalt and the other part is gravel. Both parts are used by staff of the Centre and by parents who drop-off children there. He did not say that the car park is covered by the month-to-month agreement, nor that Noah’s Ark has exclusive use of it.[103]
[103] Transcript of proceedings, 17 October 2017, page 31
123.In evidence was a copy of a licence agreement between the ACT and Noah’s Ark Toy Library dated 1 May 1998.[104] It was described as “the most recent executed agreement by the tenant.” Under that agreement, the ACT appeared to grant the licencees the right to occupy 364 square metres by arrangement with the school at Rivett Primary School. The area covered by the agreement was apparently shown on a sketch plan annexed to the agreement. That plan could not be located and was not in evidence before this Tribunal.
[104] Exhibit 13
124.The licence agreement was for twelve months from 1 May 1998 until 30 April 1999, and monthly thereafter.
125.An email dated 19 October 2017 from the Manager of the Portfolio Management Team of the ACT Property Group stated that:
(a)the car park on Block 7 Section 29 is ACT Government owned land and not public land;
(b)to the best of the writer’s knowledge, there is no arrangement in place for the Noah’s Ark Centre Rivett to have exclusive use of all or part of the car park.[105]
[105] Exhibit 13
126.The Authority’s position is that Noah’s Ark has a right of occupancy in relation to rooms in the building but no licence arrangement in relation to the adjacent car park area.[106]
[106] Transcript of proceedings, 20 October 2018, pages 15-16
127.The Tribunal proceeds on the basis that:
(a)the Noah’s Ark Centre Rivett comprises premises at the former Rivett Primary School which is subject to an ongoing monthly licence agreement with the ACT;
(b)Noah’s Ark has no licence agreement in relation to the adjoining car park;
(c)with the knowledge and acquiescence of the ACT, employees of Noah’s Ark and people who use or visit the Noah’s Ark Centre Rivett use the car park.
128.Mr McMichael described the convenience of the car park in allowing parents to drop off children “in a safe and secure manner” directly in front of the building. That avoids the need to cross any main roads. He expressed the view that “dropping off children in a safe environment is an extremely important part of it.” If shoppers were parking there, he would enquire whether he could put up a “Noah’s Ark only” sign.[107]
[107] Transcript of proceedings, 17 October 2017, page 32
129.In his evidence about policy requirements for childcare centres, Mr Shoobridge stated that:
for a child care centre it’s much more important that the pick-up and set-down spaces be placed in close proximity to the main entrance to the child care centre to minimise the inconvenience for others, particularly mothers with another sibling child or pram or something like that where they can get conveniently from their parked car, take their child, escort it to the child care centre, without having to cross roads or other impediments like that…[108]
[108] Transcript of proceedings, 19 October 2017, page 34
130.Mr Shoobridge gave evidence that, in preparing his assessments and reports regarding the availability of parking in the area, he took into account the bitumen and gravel parking areas within the block where the Noah’s Ark Centre Rivett is located. His “simplistic” assessment was that a total of about 26 car parking spaces are needed for employees and visitors (including pick-up and set-down bays). He estimated there were 19 spaces on the bitumen and 16 on the gravel. That total of 35 spaces is “far in excess” of what might be required for the Noah’s Ark Centre Rivett,[109] and all the parking demands can be accommodated there.[110] He described the site has “wholly contained, both long and short stay parking on the site.”[111]
[109] Transcript of proceedings, 19 October 2017, pages 36, 92
[110] Transcript of proceedings, 19 October 2017, page 37
[111] Transcript of proceedings, 19 October 2017, page 55
131.Mr Shoobridge speculated that it would be unlikely that someone not associated with Noah’s Ark and coming to the Neighbourhood Centre for the purpose of shopping would park in the Noah’s Ark Centre car park and walk to the shops. Nor would there be such a shortfall of supply of car park spaces that someone would need to do that.[112]
[112] Transcript of proceedings, 19 October 2017, page 40
132.The Noah’s Ark car park is within 100 metres of the Nikdia Hume childcare centre.[113] As noted elsewhere in these reasons, Mr Shoobridge agreed that drivers will prefer to park in the closest available free parking space to their intended destination.[114]
[113] Transcript of proceedings, 19 October 2017, page 91, Exhibit 9
[114] Transcript of proceedings, 19 October 2017, page 42
133.Counsel for Noah’s Ark suggested that employees at the nearby Nikdia Hume childcare centre might seek to park in the Noah’s Ark car park rather than the Neighbourhood Oval car park or the Neighbourhood Centre car park. Mr Shoobridge suggested that as Bangalay Crescent is closer to that childcare centre employees might park there.[115]
[115] Transcript of proceedings, 19 October 2017, pages 78, 80, see photograph Attachment A to Mr Riches report
134.The Noah’s Ark car park is within 200 metres of the subject site, but Mr Shoobridge said that he did not take the capacity of the Noah’s Ark car park into account when considering available long-stay places for the proposed childcare centre, apparently because he did not consider it to be a public car park.[116]
[116] Transcript of proceedings, 19 October 2017, page 92
135.Mr Shoobridge agreed that, if the Noah’s Ark car park land is accessible to the public, it would be appropriate to consider it as providing spaces available for people using the Nikdia Hume childcare centre.[117]
Noah’s Ark’s submissions
[117] Transcript of proceedings, 19 October 2017, page 92
136.Noah’s Ark’s noted that the current Neighbourhood Centre car park of 57 spaces would be reduced to 55 spaces to accommodate the driveway for the development on the subject site, and that the development would generates the need for 33 parking spaces with only 11 provided on site.
137.Noah’s Ark submitted that the development does not comply with the PVAGC as it does not make adequate provision for parking having regard to the retail spaces requiring 60 car parking spaces, the Burrangiri aged care facility needing approximately 10 spaces, the Nikdia Hume development on Block 2 Section 28 needing 22 spaces, and the use of the Neighbourhood Oval car park after 4:30pm on several weekdays. As a result, it was submitted, existing uses already meet or exceed the current supply of public parking, and the demand generated by the proposed development will result in overflow parking in adjacent streets and the car park used by Noah’s Ark.
138.Noah’s Ark noted that the car park adjacent to the Noah’s Ark Centre Rivett, which is used by its families and staff, is within the requisite distance from the subject site set out in the locational guidelines for parking and would be available for that purpose. The likelihood, possibility or probability that there would be parking overspilling into its car park area was canvassed during the hearing. There is a risk that Noah’s Ark might find that it is without parking spaces for its families. That would cause it material detriment.
139.In addition, Noah’s Ark’s families and staff would also use stores in the Neighbourhood Centre. To the extent that parking in the Neighbourhood Centre car park is restricted as a result of the proposed childcare centre, that would have an impact on Noah’s Ark’s enterprise.
140.Noah’s Ark submitted that applying the schedules in the PVAGC to the shops as well as the 2 proposed childcare facilities resulted in a need for 112 car parking spaces. This was 2 parking spaces more than the 110 available in the 2 car parks.
141.Noah’s Ark’s calculations were premised on there being a reduction in the number of on-site car parking spaces from 11 to 9 or possibly fewer, depending on a number of things which remained ‘up in the air’ at the end of the hearing. For the purpose of these submissions, counsel allowed 7 on-site spaces from the 33 spaces required for the proposed development, leaving 26 places to be provided off-site.
369.In Baptist Community Services, the Court of Appeal held that the zone objectives are relevant in interpreting a code (and thereby assessing compliance with it), and that inconsistency with a zone objective does not mandate rejection of a development proposal. The Court also considered that consistency with the zone objectives is properly considered in the exercise of the section 120 discretion to approve a development in the merit track, and that inconsistency with zone objectives may also provide a basis for discretionary rejection of a code-compliant development.[237]
[237] Baptist Community Services 3 at [63] per Refshauge and Penfold JJ, [79] Burns J
370.In this case, the relevant zone objectives are objectives (a) to (c) of the CFZ, quoted at [320] above.
371.Objective (c) is to “protect these social and community uses from competition from other uses.” The ordinary English meaning of ‘these’ (the plural of ‘this’), as defined in the 7th edition of the Macquarie Dictionary, includes “used to indicate a … thing, idea, etc., as pointed out, present, or near, as before mentioned all supposed to be understood.”
372.Starting with that definition, and on the basis that ‘these social and community uses’ in objective (c) refers to ‘social and community uses’ referred to in objectives (a) and (b), the question becomes: What is covered by that phrase?
373.Neither objective (a) nor objective (b) refers expressly to a use or uses. Rather they refer respectively to the provision of accessible sites:
·for key government and non-government facilities and services for individuals, families and communities;
·for civic life;
·to allow community organisations to meet the needs of the Territory’s various forms of community.
374.The language used in objectives (a) and (b) provides no direct correlation between what is described there and the ‘social and community uses’ referred to in objective (c). Rather, objective (c) seems to proceed on the basis that objectives (a) and/or (b) contemplate the use of CFZ land for social and community uses. Accordingly, it is likely that the community uses to which land might be put include meeting the needs of one or more of the Territory’s forms of community. Given that ‘community use’ is defined in the Territory Plan, it is appropriate to refer to that definition, which includes ‘childcare centre.’
375.We have reached the following 3 other conclusions about the meaning and operation of objective (c). First, objective (c) draws a distinction between the relevant ‘social and community uses’ and ‘other uses’ in order to protect the former from competition from the latter. That distinction is between ‘uses’, not between categories of persons or organisations who provide the facilities and services so that the land can be put to one or more of the protected uses.
376.Second, although objective (b) refers to allowing community organisations to meet the needs of the Territory’s various forms of community, that does not indicate (let alone prescribe) that only organisations of that type can provide facilities and services on CFZ land. Commercial entities or community organisations, or both, could provide non-government facilities and services for individuals and families on CFZ land. Consequently, objective (c) does not, in its terms, protect community organisations from competition from commercial operators who use (or seek development approval to use) CFZ land for a defined community use.
377.Third, objective (c) does not operate to preclude a particular form of development on CFZ land merely because there is or could be a development of the same type on differently zoned land in the district. The fact that commercial developers do not need CFZ land to operate childcare centres does not mean that they cannot use CFZ land for that purpose, particularly given that ‘child care centre’ is a specified community use. The commercial viability of doing so in an area where there is (or could be) a “super abundance” of child care spaces is not a code compliance issue.
378.Having considered the evidence in relation to the proposed development on the subject site, and the potential and expected implications of that development for the current uses of neighbouring land, we have concluded, by reference to the relevant objectives of the CFZ that:
(a)social sustainability and inclusion would be facilitated through providing the subject site (which is readily accessible) for development as a non-government childcare centre which will provide services for individuals and families;
(b)the use of the subject site for a childcare centre would be to use it for a community use of a type expressly contemplated for land in this zone and would, in effect, protect that use from ‘other uses.’
379.The subject site is suitable for a development of the kind proposed, and is not rendered unsuitable merely because the proposed development might be done on another block of land that is not CFZ land or because there are 2 other childcare centres within 100 metres of the subject site.
380.If, as we have concluded, the proposed development is not inconsistent with the CFZ objectives and the subject site is suitable for development as a childcare centre, the question becomes whether the Tribunal should exercise its discretion (as described in the Baptist Community Services case) to disallow development approval.
381.We are not persuaded that section 120(g) provides the basis for not approving DA 201629784. In response to the submission advanced by Noah’s Ark, we note that the probable impact of the proposed development does not include environmental impacts of the type referred to in the definition of ‘environment’ in the Dictionary of the P&D Act. Nor does it necessarily follow that section 120(g) should be read as covering the complete range of matters referred to previously under the Territory Plan 2002. There is no explicit adoption or incorporation by reference of the detail in clauses 9.1, 9.2 and 9.3 of the previous Territory Plan. However, that is not necessary for the submission by Noah’s Ark to be sustained. The expression ‘probable impact’ is broad. The reference to ‘probable environmental impacts’ is simply an illustration or example of the type of ‘probable impact’ covered by section 120(g). It does not prescribe the scope of that provision.
382.The evidence about the probable impact of the proposed development for parking and associated land use on and in the vicinity of the subject site is considered in detail earlier in these reasons for decision. As those passages show, we have concluded that the off-site impact of the development can be accommodated on nearby areas of land without substantially adversely affecting access to or usage of that other land.
383.The addition of the proposed development on the subject site might lead to “childcare parents’ heaven” for families in and beyond Rivett, and might affect the profitability or even the financial viability of one or more of the 3 childcare centres in the vicinity of each other. It might result in each childcare centre developing an emphasis or focus on particular aspects of the childcare market. But these are not matters for the Tribunal to decide. Given that economic competition factors expressly do not constitute ‘material detriment’ for the purpose of giving a person standing to seek a review of a planning decision, it is appropriate to give those economic impacts little or no weight for the purpose of section 120(g).
384.The potential, if not probable, loss of the provision of some non-mainstream services by Noah’s Ark beyond the Noah’s Ark Centre Rivett would be a consequence of Noah’s Ark choosing to subsidise those services from the business of operating a childcare centre. The viability of that business is likely to be adversely affected by the proposed development on the subject site. Although the provision of the other community programs is currently linked to the financial operation of the Noah’s Ark Centre Rivett, it need not be. In other words, the 2 are not by their nature inherently linked. The other programs could be (and have been) financed in other ways. In 2009, Noah’s Ark chose to set up the centre to finance the additional services and programs. As competition increased from other centres in Rivett and neighbouring suburbs, that centre became more financially vulnerable. But, as explained earlier, that is not a reason for refusing development approval for a competitor. Nor is the choice as stark as Noah’s Ark submissions suggested. As noted elsewhere (see [242]), the situation in Rivett is not that there would be none of the non-mainstream variety of childcare.
385.The diminishing amount of CFZ land in the Weston Creek area is not a reason to refuse approval of the development in this case, given that the development is consistent with the zoning objectives and Crown lease purpose clause.
386.The provision of another child care centre would not fall within the exceptional circumstances described in the Canberra Cruises case.
387.The proposed development complies (or can be revised to comply) with planning rules and criteria. It is consistent with the applicable code for CFZ land and the Crown lease for the subject site. We are not persuaded that countervailing considerations should result in a discretionary refusal of development approval.
388.In summary, we are satisfied that paragraphs (a), (b) and (g) of section 120 are relevant to the Tribunal’s decision about DA 201629784. Having considered them, and the evidence and submissions in relation to them, we have concluded that:
(a)the proposed development on the subject land is consistent with the objectives of the CFZ, being the zone in which the development is proposed to take place;
(b)the subject land is suitable for a development of the kind proposed;
(c)the probable impact of the proposed development, including in relation to the traffic flow and availability of public parking spaces within 200 metres of the subject land, is not sufficiently adverse to warrant refusal of the development approval.
Conclusion and orders
389.Section 68 of the ACAT Act empowers the Tribunal to exercise any function given to the Authority for making the decision whether to approve DA 201629784. Having reviewed the Authority’s decision, the Tribunal must by order:
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and –
(i) make a substitute decision; or
(ii) remit the matter that is the subject of the decision for reconsideration by the Authority in accordance with any direction or recommendation of the Tribunal.
390.As will be apparent from the reasons above, the Tribunal has decided to confirm the decision approving DA 201629784 but to vary the conditions on which approval was given to accord with the draft revised conditions provided to the Tribunal during the course of the hearing, as set out in Exhibit 12. These draft conditions will be revised to:
(a)recast the condition in relation to on-site car parking to accord with the conclusion reached in these reasons for decision;
(b)recast the condition in relation to the pedestrian path to accord with the conclusion reached in these reasons for decision;
(c)relocate the conditions in relation to lighting, doorways and doors, and directional signage from the conditions During Construction and/or Demolition to the Administrative/Process Conditions, as Further Information to be provided at the design stage (because these matters are relevant to the life of the project not just the construction stage); and
(d)revise the Advisory Notes to delete the reference to the possibility of providing a pedestrian path because the provision of a pedestrian path is now a condition of approval of DA 201629784
391.On that basis, the Tribunal orders as follows:
Being satisfied that Noah’s Ark Resource Centre Incorporated has standing to bring the application for review of the decision to approve with conditions Development Application 201629784, the Tribunal confirms the decision to approve the Development Application but varies the conditions of approval in the terms set out at Attachment A to these reasons for decision.
………………………………..
President G Neate AM
Delivered for and on behalf of the Tribunal
ATTACHMENT A
DA201629784
PART 1
CONDITIONS OF APPROVAL
This application is approved subject to the following conditions being satisfied. Some conditions of approval will require attention before the approved drawings will be released, others before work commences or before the completion of building work.
A. ADMINISTRATIVE / PROCESS CONDITIONS
A1. The development must comply with all relevant entity advice.
A2. FURTHER INFORMATION
Within 28 days from the date of this decision, or within such further time as may be approved in writing by the Planning and Land Authority, the applicant shall lodge with the Planning and Land Authority for approval:
(a)a revised site plan, landscape plan and architectural drawings, based on the relevant drawings submitted as part of the application, showing:
(i)the on-site car park with provision for 11 car parking spaces with the dimensions for each car parking space in accordance with the Parking and Vehicular Access General Code, including the provisions for User Class 3A and parking for people with disabilities;
(ii)the development consistent with the information provided, as part of this application, under s141 of the Planning and Development Act 2007;
(iii)low impact footings/tree protection measures within the Tree Protection Zone of trees T8 and T9, consistent with Transport Canberra and City Services (TCCS) requirements;
(iv)the proposed connection to the water main and the proposed water meter outside of the Tree Protection Zone (canopy plus 2m) and stating that the relocation of the hydrant is to be achieved with low-pressure hydro excavation (1500psi using a fan shaped nozzle) and all exposed roots are to be cut cleanly;
(v)the site specific measures that comprehensively show how trees will be protected during development; and
(vi)a pedestrian path from the site to the Rivett Oval car park (Block 1 Section 60 Rivett) with adequate lighting, access and sightlines - including a site plan consistent with DA03.7 Amendment 7 dated 25/09/17 (part of Exhibit 4 in AT 10/2017) and a site plan consistent with DA15.1 dated 10/25/17 (Exhibit 21 in AT 10/2017);
(vii)all internal lighting to be installed in accordance with AS 1680 - Interior Lighting, and all external lighting to be installed in accordance with AS4282 - The Control of Obtrusive Effects of Outdoor Lighting, in the case of security lighting;
(viii)all doorways and doors to be constructed in accordance with AS1428.1 – Design for Access and Mobility; and
(ix)all directional signage to be installed in accordance with AS1742.10 (1991) Manual of Uniform Traffic Control Devices - Pedestrian Control and protection.
B. PRIOR TO CONSTRUCTION AND/OR DEMOLITION
B1. DESIGN ACCEPTANCE
Prior to construction, design acceptance must be obtained from the Senior Manager, Development Review and Coordination, TCCS. Design acceptance will ensure:
1.The driveway is constructed in accordance with TCCS Design Standards.
2.Existing public footpath and stormwater swale is relocated and appropriate tree protection measures are in place to the satisfaction of TCCS.
3.All excavation required to install the overland flow path and footpath is low pressure hydro-excavation (1500psi using a fan shaped nozzle). All exposed roots are cleanly cut by arborist tools.
4.Waste Management Plan is prepared to the satisfaction of TCCS and submitted at the Design Acceptance stage.
B2. TREE PROTECTION
Tree protection fencing must be erected prior to the commencement of any work on the site. Protective fences need to be in place for the retained trees preferably to the edge of their Tree Protection Zone (TPZ), grouped where possible, or as a minimum at the edge of the dripline.
B3. VERGE MANAGEMENT
This plan is to be approved and implemented before the commencement of any work on the site, and is to be in accordance with the City Management Guidelines for the Protection of Public Landscape Assets Adjacent to Development Works-REF-04.
B4. TRAFFIC MANAGEMENT
A Temporary Traffic Management (TTM) Plan shall be prepared by a suitably qualified person and approved by the Manager, Traffic Management & Safety, Roads ACT, Roads and Public Transport Division, TCCS prior to commencement of any work on the site. This plan is to address, as a minimum, measures to be employed during construction to manage all traffic, including construction traffic, in and around the site, provision of safe pedestrian movement around the site, the provision of parking for construction workers, and associated traffic control devices.
C. DURING CONSTRUCTION AND/OR DEMOLITION
C1. SEDIMENT AND EROSION CONTROL
All unsurfaced entry and exit points must be consolidated with crushed aggregate or similar extending from the road kerb to the building line.
Temporary sediment controls – comprising, as a minimum, geotextile silt fencing along the lowest points of the site and hay bale filters as required - are to be installed and maintained at least daily to prevent sediment from reaching the stormwater mains system.
C2. TREE PROTECTION
The applicant/lessee must protect and maintain all existing trees and shrubs located on the subject site, on adjoining blocks overhanging the subject site, on the verge and unleased Territory land immediately adjacent, except for those specifically identified for removal in the approved drawings and a Tree Management Plan.
C3. VERGE MANAGEMENT
During any work undertaken on the site, all existing vegetation (trees, shrubs and grass) located on the verge and unleased Territory land immediately adjacent to the development must be managed, protected and maintained in accordance with a Landscape Management Plan approved by the Manager, Asset Acceptance, Operational Support, Directorate Services, TCCS
C4. TRAFFIC MANAGEMENT
At all times, the site and surrounds must be managed in accordance with the approved TTM Plan.
C5. WASTE MANAGEMENT
All building waste is to be stored on the site in suitable receptacles and collected regularly. The lessee is to take all reasonable steps to ensure that waste, particularly wind borne litter, does not affect adjoining or adjacent properties.
D. POST CONSTRUCTION AND/OR DEMOLITION
D1. OPERATIONAL ACCEPTANCE
At completion of works, Operational Acceptance must be obtained from the Senior Manager, Development Review and Coordination (TCCS).
E. ADVISORY NOTES
This application is approved with the following advisory notes. It is recommended that careful consideration be given to advisory notes prior to commencing work.
E1. Advice from EPSDD – Major Projects and Transport
The applicant is advised to consider the possibility of providing increased number of bicycle parking rails.
Note:
Refer to Appendix 1 for information about approvals that may be required for construction.HEARING DETAILS
FILE NUMBER:
AT 10/2017
PARTIES, APPLICANT:
Noah’s Ark Resource Centre Inc
PARTIES, RESPONDENT:
ACT Planning and Land Authority
FIRST PARTY JOINED
Fedem Pty Ltd
SECOND PARTY JOINED
Nikdia Hume Pty Ltd
COUNSEL APPEARING, APPLICANT
Mr R Arthur
COUNSEL APPEARING, RESPONDENT
Dr D Jarvis
COUNSEL APPEARING, FIRST PARTY JOINED
Ms K Katavic
COUNSEL APPEARING, SECOND PARTY JOINED
Mr C Erskine SC
SOLICITORS FOR APPLICANT
Elringtons Lawyers
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
SOLICITORS FOR FIRST PARTY JOINED
Colquhoun Murphy
SOLICITORS FOR APPLICANT SECOND PARTY JOINED
Meyer Vandenberg
TRIBUNAL MEMBERS:
President G Neate AM
Senior Member G Trickett
DATES OF HEARING:
18 October 2017
19 October 2017
20 October 2017
1 November 2017
17 May 2018
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