North Canberra Community Council v ACT Planning and Land Authority
[2022] ACAT 69
•16 August 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NORTH CANBERRA COMMUNITY COUNCIL v ACT PLANNING AND LAND AUTHORITY & ANOR [2022] ACAT 69
AT 10/2022
Catchwords: ADMINISTRATIVE REVIEW – planning and land development – subdivision and lease variation in parks and recreation zone – proposed Crown leases with exclusive car park use and oval – existing uses on single block – proposed construction of new verge crossing on unleased Territory land – whether proposed developments inconsistent with applicable codes under the Territory Plan – whether inconsistent with entity advice – absence of public land management plan
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Planning and Development Act 2007 ss 50, 119, 120, 147A, 148, 149, 162
Territory Plan
Subordinate
Legislation cited: Bicycle Parking General Code
Commercial Zone Development Code
Community and Recreation Facilities Location General Code
Estate Development Code
Lease Variation General Code
Parking and Vehicular Access General Code
Parks and Recreation Zones Development Code
Planning and Development Regulation 2008
Cases cited:Chung Yi Developments Pty Ltd v Australian Capital Territory [2020] ACAT 71
Downer Community Association and ACT Planning and Land Authority [2007] ACTAAT 20
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Eldridge v ACT Planning and Land Authority [2020] ACAT 22
Glass v ACT Planning and Land Authority [2016] ACAT 96
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85
Tribunal: Senior Member K Katavic
Member W HawkinsDate of Orders: 16 August 2022
Date of Reasons for Decision: 16 August 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 10/2022
BETWEEN:
NORTH CANBERRA COMMUNITY COUCIL
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AINSLIE FOOTBALL AND SOCIAL CLUB LIMITED
Party Joined
TRIBUNAL:Senior Member K Katavic
Member W Hawkins
DATE:16 August 2022
ORDER
The Tribunal orders that:
1.The decision under review is confirmed.
………………………………..
Senior Member K Katavic
REASONS FOR DECISION
Introduction
1.The development application before the Tribunal relates to the site of the Ainslie Football Club oval, known as Block 19 Section 26 Ainslie (the Subject Site).
2.The Ainslie Football and Social Club, the party joined, anticipates eventually redeveloping the entire site with the oval as a centrepiece. However, the development application, the subject of the Tribunal’s review, relates only to the areas occupying the oval and adjacent car parks and unleased Territory land facing Angas Street.
3.The Development Application sought approval for a variation to the Crown lease for Block 19, subdivision and lease variation to permit car park as an exclusive use for the resulting blocks and the construction of a verge crossing on unleased Territory land to Angas Street. The verge crossing is to be constructed only on the area of unleased Territory land and not within the site itself, at this stage.
4.On 22 December 2021, pursuant to section 162 of the Planning and Development Act 2007 (the Planning Act) the respondent granted approval, subject to conditions, the following:
(a)A variation to the Crown lease by deleting clause 3(j) relating to building setback.
(b)Subdivision of Block 19 Section 26 Division of Ainslie into three blocks.
(c)A variation to the Crown lease of two of the resulting blocks to permit the use of car park as a standalone use.
(d)A variation to the three resulting Crown leases to include access rights; and
(e)Construction of a verge crossing to Angas Street.
5.This is the reviewable decision before the Tribunal. The applicant opposes the approval, citing various inconsistencies with applicable codes under the Territory Plan and seeks orders that substitute the approval with a refusal.
The hearing and the evidence
6.The applicant relied on written submissions and submissions in reply as well as the following documents:
(a)Notice of Decision from the planning authority dated 15 May 2020.[1]
(b)Report from Calibre Professional Services Pty Ltd dated 12 February 2020.[2]
(c)Data from Roads ACT dated 11 August 2020.[3]
(d)Civil Works Report dated 13 September 2021.[4]
(e)Further Civil Work Detailed Plan dated 13 September 2021.[5]
(f)Traffic Impact Assessment Report prepared by Quantum Traffic Pty Ltd dated 29 September 2021.[6]
(g)Traffic Assessment Report dated 29 September 2021, Chapter 2.[7]
[1] Exhibit A1
[2] Exhibit A2
[3] Exhibit A3
[4] Exhibit A4
[5] Exhibit A5
[6] Exhibit A6
[7] Exhibit A7 – This report relates to a separate development proposed elsewhere on the Site, which at the time of hearing had not been decided. The applicant sought to rely upon the whole report however the tender was limited to Chapter 2 only.
7.The applicant did not call any witnesses to give oral evidence before the Tribunal.
8.The respondent relied upon its written submissions and a witness statement of Ms Karen Walker, Assistant Director within the DA Leasing Section of the respondent dated 10 May 2022.[8] Ms Walker also gave evidence before the Tribunal at the hearing.
[8] Exhibit R1
9.The party joined is the Crown lessee and proponent of the development. It relied upon its written submissions and the following evidence:
(a)Witness Statement of Simon Patterson dated 19 April 2022.[9]
(b)Expert Report from Richard Nash, Purdon Planning dated 19 April 2022.[10]
(c)Expert Report from Hamish McDonald, Quantum Traffic dated 19 April 2022.[11]
(d)An aerial photograph of the site marking the outline of the subdivision.[12]
[9] Exhibit PJ1
[10] Exhibit PJ3
[11] Exhibit PJ4
[12] Exhibit PJ2
10.Each of the party joined’s witnesses gave evidence before the Tribunal.
11.The Tribunal also had regard to the T-Documents lodged by the respondent.
The subject site and the development application
12.The Subject Site occupies an area of about 5,569 ha[13] and is boarded by Limestone Avenue, Wakefield Avenue and Angas Street. It comprises carparking, the oval and associated facilities as well as a caretaker cottage near the corner of Angas Street and Limestone Avenue. The Club sits on a separate block facing Wakefield Avenue (the Club Site).
[13] T-Documents page 579
13.The Crown lease[14] permits the site to be used only for the purpose of an enclosed oval and ancillary facilities. It requires the Crown lessee provide and maintain 299 car parking spaces, three bus spaces and 20 bicycle spaces. Vehicular access is only permitted from Wakefield Avenue and on Angas Street in specific locations, which we discuss in more detail below. No vehicular access is permitted from Limestone Avenue.
[14] T-Documents page 579
14.The unsealed car parking areas lie between the blocks facing Wakefield Avenue (including the Club Site) and the oval. Around the oval there is a grandstand, players and coaches facility, a memorabilia pavilion, temporary seating and a canteen/food service facility.
15.A waste and storage enclosure is located behind the Club Site on the Subject Site and is used by the Club. A maintenance shed for the groundskeeper is also located nearby.
16.The Subject Site is located in a Parks and Recreation Zone – Restricted Access Zone (PRZ2) under the Territory Plan and is subject to a public land management overlay. The relevant code with which development proposals in PRZ2 must comply is the Parks and Recreation Zone Development Code.[15] There are of course others.
[15] PRZ2 – Restricted Access Recreation Zone Development Table
17.The development application seeks to subdivide the Subject Site into three resultant Crown leases. One for the oval, which was referred to as Block C and two exclusively for car parking use. The first being the area behind the Club Site towards Angas Street and Wakefield Avenue, called Block B and the second being towards the corner of Limestone Avenue and Wakefield Avenue, called Block A. It also proposes some variations to the terms of the leases.
18.The development application also seeks approval for the construction of a verge crossing to Angas Street on unleased Territory Land only which will eventually link up with an internal section of road on proposed Block C. This became known as the ‘driveway to nowhere’ as the crossing proposed under this development application does not extend beyond the area of unleased Territory Land. The internal link section on the site is the subject of a separate development application which at the time of the hearing had not yet been decided. This additional development application also includes the construction of a new childcare centre on Angas Street closer to Wakefield Avenue. It was lodged with the respondent for assessment in November 2021 and is awaiting decision.[16] It is not the subject of the review before this Tribunal.
[16] Exhibit PJ1 at [35]
19.The parking requirements under the existing Crown lease are to be distributed amongst the resulting leases with Block A to provide 197 car parking spaces and three bus parking spaces and Block B to provide 68 car parking spaces and Block C to provide 34 car parking spaces and 20 bicycle spaces.
Issues for consideration
20.Section 50 of the Planning Act states:
Effect of territory plan
The Territory, the Executive, a Minister or a territory authority must not do any act, or approve the doing of any act, that is inconsistent with the territory plan.
21.Section 119(1)(a) of the Planning Act relevantly prohibits the approval of a development proposal in the merit track unless the proposal is consistent with the relevant code.
22.Further, section 119(2) of the Planning Act precludes a development application in the merit track from being approved if the approval is inconsistent with entity advice.
23.These provisions apply to the Tribunal as it is conducting merits review of the decision and stands in the shoes of the respondent.[17] The Tribunal must:[18]
(a)confirm the decision under review; or
(b)vary the decision under review; or
(c)set aside the decision under review and either substitute it with a different decision or remit the matter back to the respondent to consider in accordance with the reasons given by the Tribunal.
[17] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589; Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 at [10] (Smithers J); see also, Glass v ACT Planning and Land Authority [2016] ACAT 96 at [18]; Downer Community Association and ACT Planning and Land Authority [2007] ACTAAT 20 at [5]; Eldridge v ACT Planning and Land Authority [2020] ACAT 22 at [21]; see especially ACT Civil and Administrative Tribunal Act 2008 section 68(2)
[18] ACT Civil and Administrative Tribunal Act 2008 section 68(3)
24.The applicant contended the development did not comply with the following provisions of the Planning Act and the Territory Plan:
(a)Parks and Recreation Zones Development Code (PRZDC):
(i) Rule 13: Subdivision.
(ii) Criterion 19: Interface.
(iii) Criterion 21A: Location Requirements for Community Recreation Facilities.
(iv) Criterion 22: Pedestrian Movement.
(v) Criterion 23: Bicycle Parking.
(vi) Criterion 24: Vehicle Access and Parking.
(vii) Criterion 25: Traffic Generation.
(viii) Criterion 31: Assessment of Environmental Effects.
(b)Parking and Vehicular Access General Code (PVAGC):
(i) Section 2.
(ii) Section 3.7.
(c)Lease Variation General Code (LVGC):
(i) Criterion 1: Varying Leases – General.
(ii) Criterion 3: Adding uses generally.
(d)Section 120(f) and (g) of the Planning Act.
25.The applicant also raised other issues regarding the contents of the draft Crown leases and the conditions of approval.
Issues under the PRZDC
Subdivision – R13
26.R13 is a mandatory rule. Under this rule, subdivision is only permitted where:
(a)the subdivision is part of a development application for another assessable development;
(b)it is demonstrated that any residual block can accommodate another assessable development designed in accordance with the relevant section of the PRZDC.
27.In Chung Yi Developments Pty Ltd v Australian Capital Territory,[19] (Chung Yi) the tribunal had cause to consider a rule in the Commercial Zone Development Code (the CZDC) of the Territory Plan drafted in the same terms as R13,[20] although it was considering compensation in relation to compulsory acquisition of land. The tribunal held:
103. In our view, although without the benefit of argument and without being determinative, “a development application for another assessable development” contemplates provision of a DA for a proposed development, in addition to the DA applying for the subdivision, with enough information to enable the Planning Authority to assess and determine that the proposed development will comply with the Territory Plan and with the P and D Act generally. For a DA to be ‘assessable’ simply because it has sufficient information to assess it against relevant rules and criteria, regardless of whether the proposal would or could be approved, would render R33 and R27 purposeless. In other words, in order for the subdivision to be approved, R33 and R27 require provision of a development proposal that can be approved on a block arising from the subdivision.
[19] [2020] ACAT 71
[20] Rule 33 of the CZDC
28.The applicant contends that although the application for subdivision was lodged together with an application for a verge crossing and lease variations, the subdivision is not part of those development applications, because, as we understand the applicant’s argument, they are not related to or intrinsic to the subdivision.[21]
[21] Applicant’s submission at [12]-[14]
29.The Development Application seeks approval for a subdivision, construction of a verge crossing and lease variations.[22]
[22] T-Documents page 444
30.R13a does not require the subdivision “to be part of another assessable development” rather it only requires the subdivision “to be part of a development application”. The task in assessing whether this part of the rule has been met is to identify what makes up the development application and whether it includes another assessable development for which approval is required. In other words, the rule contemplates a development application for a development proposal in addition to the development application for the subdivision.[23] There is nothing in the wording of R13a that requires some connection between the proposed subdivision and any other assessable development for which approval is sought in the development application. They can be completely disparate assessable developments under the same development applications. There is however some control found in R13b which we discuss below.
[23] Chung Yi at [103]
31.‘Development’ as defined in section 7 of the Planning Act includes, amongst other things, building a structure on land and varying a lease. ‘Development application’ is defined in the Dictionary to the Planning Act to mean an application in relation to a development proposal made under chapter 7 of the Planning Act. The PRZ2 Development Table identifies varying a lease as an assessable development in the merit track hence requiring a development application under chapter 7. We are satisfied that this part of R13 is met.
32.The applicant contends in respect of R13b, that it has not been demonstrated that the residual blocks can accommodate the proposed car parks on the basis that the variations require a substantial increase and rearrangement of car parking to Block A and some car parking to Blocks B and C will be added or moved.[24]
[24] Applicant’s Submissions at [15]-[16]
33.Mr Nash gave evidence that there were a number of Merit Track Assessable uses permitted in PRZ2, such as aquatic recreation facility, care park, childcare centre, club, communication facility, community activity centre, educational establishment, guest house, hotel, indoor recreation facility, motel, outdoor recreation facility, parkland, playing field and public agency, which could be accommodated on any one of the residual blocks having regard to the shape and size of each block, accessibility of the blocks, ability to separately service the blocks with utilities, and operability as standalone blocks.[25]
[25] Exhibit PJ3 at [17]-[18]
34.Mr Nash concluded, based on this approach, that the size and shape of Blocks A and B were appropriate to accommodate many, but not all, of the mentioned uses, and noted they were already used as car parks.[26] He further noted Block C could accommodate all of the mentioned uses and was already used as an enclosed playing field.[27] Having regard to the other considerations, Mr Nash told the Tribunal, that easements from Block C provided access to Blocks A and B and Block C was accessible from Wakefield and Angas Streets with each having street frontage from which any services infrastructure could be connected thus enabling each residual block to operate as standalone blocks.[28] We accept Mr Nash’s evidence.
[26] Exhibit PJ3 at [19]
[27] Exhibit PJ3 at [19]
[28] Exhibit PJ3 at [20]-[22]
35.Car parking use is permitted on the Site[29] and specified in the existing Crown lease to require the provision of 299 spaces. The residual leases do not propose any change to that total number and distribute the number of spaces across the residual blocks substantially in accordance with the current arrangement on the Site. We accept that this is demonstrated on the Lease Parking Requirements Plan.[30] All that is required is sufficient information to determine whether the residual blocks can accommodate another assessable development, in this case car park use for 299 car spaces and an enclosed oval on Block C, when designed in accordance with the relevant part of the PRZDC. The relevant part of the PRZDC, in relation to car parking is C24, which requires compliance with the PVAGC. C24 is discussed in more detail below, however R13b does not require a full assessment of the car park proposal as the car parks are not actually being constructed. Nonetheless the construction of car parking would be an assessable development and if configured as indicated on the Lease Parking Requirements Plan[31] is likely to comply with the PVAGC. As discussed in Chung Yi, we consider this is all that is required. In terms of Block C, it already accommodates an enclosed oval which is an assessable development.
[29] PRZ2 Development Table
[30] T-Documents page 571
[31] T-Documents page 571
36.We are satisfied residual blocks A and B can accommodate car park use, as demonstrated on the Lease Parking Requirements Plan[32] and that the indicative parking arrangement shown on that plan demonstrates how car parking can be configured and designed to comply with the parking requirements of the PVAGC. We are not required to conduct an assessment as to whether it would or could be approved.
[32] T-Documents page 571
37.R13 has been met.
Interface – C19
38.The applicant contends the proposed verge crossing does not satisfy C19 as it fails to promote an attractive and appropriate streetscape. The applicant claims it is deficient as it does not connect to any internal road and is the middle of an area used for a children’s playground and public exercise equipment. ‘Streetscape’ is defined in the Territory Plan to mean:
Streetscape includes the visible components within a street (or part of a street) including the private land between facing buildings, including the form of buildings, treatment of setbacks, fencing, existing trees, landscaping, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.[33]
[33] Territory Plan 2008 Chapter 13, Part B at page 36
39.The respondent did not make any submissions regarding C19. The party joined submits the verge crossing is not unsafely proximate to the playground and exercise equipment and is in a location consistent with a previously agreed outcome. The party joined further contends that the construction of the verge crossing in the absence of any internal connection road immediately does not offend the streetscape and is a commonplace streetscape feature nonetheless.
40.The proposed verge crossing is approximately 60m, in a straight line, from the playground and exercise equipment.[34] Its location was the subject of an earlier variation to clause 3(d) of the Crown Lease in 2020 (the 2020 Variation).[35] We are satisfied the location of the proposed verge crossing is a sufficiently safe distance from the playground and the exercise equipment and in a location consistent with Area 2 as permitted by the varied Crown lease.
[34] Exhibit PJ1 at [32] and annexure G
[35] T-Documents pages 327 and 336
41.In addition, Mr McDonald gave evidence as to the appropriateness of the location. He said the proposed verge crossing would not generate any additional vehicle movements on the road network; that no road safety issues could be identified; that it would be strategically appropriate for the Angas Street road environment; that there were no continuous obstructions that exist or are proposed within the verge that would prevent the pedestrian sight triangles as defined in relevant standards; its location significantly exceeds the minimum requirement for a location downstream of a high-angle left-turn under section 2.3.2 (d) of the PVAGC; that the proposed verge crossing does not pose any safety concerns in relation to the existing width of Angas Street. Mr McDonald concluded that there were no traffic engineering reasons why the proposed verge crossing should not be given development approval.[36] We accept Mr McDonald’s evidence and consider C19 is satisfied.
Location Requirements – C21A
[36] Exhibit PJ4 at [3]-[12]
42.The applicant contends the proposed verge crossing does not meet the Community and Recreation Facilities Location General Code (the CRFLGC) as required by C21A, specifically sections 3.5 and 4 of the CRFLGC. The applicant contends the location of the proposed verge crossing would reduce residential amenity and reduce the noise separation of the enclosed oval from the residential area.
43.The respondent did not make any submissions regarding C21A. The party joined submits that residential amenity is likely to be enhanced if the verge is constructed and connected by internal road as it will provide access to 30 car park spaces. The party joined also contends that the Crown lease limits the hours any verge crossing can be used.[37]
[37] T-Documents page 334
44.The Tribunal does not accept the applicant’s submission. The 2020 Variation was the product of consent orders made in earlier proceedings in the tribunal seeking to challenge the approval, subject to conditions, of a variation to clause 3(d) of the Crown lease for Block 19 Section 26 Ainslie which removed all restrictions on access on Angas Street.
45.The applicant was a party to those proceedings and entered into an agreement which resulted in the lease being varied to limit any vehicular access from Angas Street to two specific locations: one being permitted adjacent to the existing caretaker’s cottage, known as Area 1 and one being permitted further down away from the caretaker’s cottage towards the Club Site, known as Area 2. Both Area 1 and 2 were identified on a lease plan accompanying the consent order and lease variation. The agreed variation also provided that a maximum of 30 car parking spaces be accessible from any vehicular access in Area 2 and excluded the use of any vehicular access from Angas Street between 12:00am and 6:00am.
46.The verge crossing, the subject of these proceedings, is now being proposed to be constructed in Area 2 consistent with the location agreed in the 2020 Variation. We do not accept its location falls foul of sections 3.5 and 4 of the CRFLGC particularly in circumstances where such a complaint is raised following an earlier agreed mediated outcome in relation to the locations of any verge crossings on Angas Street. We are not reviewing the 2020 Variation, which decided by agreement on Area 2 as the location for any other verge crossing on Angas Street, but rather whether its construction as proposed is compliant. For the purposes of the contention regarding C21A, we consider C21A is satisfied.
Pedestrian Movement – C22
47.The applicant contends that the safe and convenient movement of public transport passengers, pedestrians and cyclists is not provided as stipulated in C22. The applicant contends that this has not been demonstrated particularly in relation to a verge crossing that does not connect to any internal road in the middle of an area that is used for a children’s playground and public exercise equipment.
48.The respondent did not make any submissions with regard C22. The party joined submits that there is nothing unsafe or inconvenient about the proposed verge crossing whether or not it is immediately connected to the internal road and that it is approximately 60 metres from the children’s playground and not proximate to the exercise equipment and that there is presently no road or formed path that connects the verge crossing to the internal road.
49.There is currently no constructed or designated pedestrian or cycling infrastructure along this section of Angas Street that would be affected by or interfered with as a consequence of the construction of the verge crossing. Nothing about the proposed verge crossing detracts from the provision of safe and convenient pedestrian and cyclist movement. We agree with the joined party and consider that C22 is satisfied.
Bicycle Parking – C23
50.The applicant contends an assessment against the Bicycle Parking General Code (the BPGC) has not been undertaken and therefore C23 has not been satisfied. The respondent and party joined contend the criterion is not applicable as there is no proposed development for bicycle parking and the existing bicycle parking is unaffected.
51.Ms Walker, in her evidence, said that an assessment against the BPGC was not undertaken and C23 did not apply as the current provision for bicycle parking in the Crown lease is unchanged and is proposed to be included in Block C and the physical location was also unchanged.[38] Notwithstanding her view that the BPGC did not apply, Ms Walker carried out an assessment against the BPGC.[39] As a result of this assessment, Ms Walker concluded that “while the development in question does not require end of trip facilities or bicycle parking the approval of this proposal does not reduce the existing facilities on site and is consistent with the requirements of the Crown lease.”[40]
[38] Exhibit R1 at [22]-[23]
[39] Exhibit R1 attachment
[40] Exhibit R1 attachment
52.We agree C23 of the PRZDC does not apply.
Vehicle Access and Parking – C24
53.C24 requires vehicle access and parking to comply with the PVAGC. The applicant contends certain aspects of the PVAGC have not been satisfied. These are considered below and for the reasons expressed, C24 is satisfied.
Traffic Generation – C25
54.C25 requires that the existing road network can accommodate the amount of traffic likely to be generated by the development.
55.The applicant contends that it cannot and relied largely upon the Estate Development Code to submit that Angas Street although classified as an ‘access street’ with an acceptable daily traffic volume of 1,000 vehicles per day is according to four Roads ACT traffic surveys carrying from about 124 to 418 vehicles more than this and the 418 more vehicles being from a 2019 survey.
56.The respondent submitted that the criteria related to estate development plan and that the Estate Development Code has no application to the proposed developments the subject of these proceedings.
57.The party joined submitted that the applicant’s submissions were fundamentally flawed. This submission was based on the applicant not adducing any expert evidence in support of its arguments and that the verge crossing will not generate any vehicle movements in and of itself. The party joined also submitted the Estate Development Code does not apply. The party joined relied upon the evidence of Mr McDonald.
58.Mr McDonald expressed the opinion that the construction of the verge crossing itself would not generate any additional traffic movements. He told the Tribunal that any additional traffic generation would occur once it was connected to an internal road. This is the internal road that is not proposed under this development application. Assuming additional traffic may be generated after the proposed verge crossing is connected, Mr McDonald considered Angas Street could comfortably accommodate any additional traffic.
59.The Tribunal is not reviewing what might happen if the verge crossing is ultimately connected to an internal road. To do so goes beyond an assessment of whether this proposal that is the subject of this review satisfies C25.
60.In addition, we do not accept that the Estate Development Code applies. As the party joined submitted, the Estate Development Code sets parameters for calculating expected traffic volume of new roads and associated design requirements rather than capacity. Its use and application in assessing developments which do not involve proposals for new estates is problematic. We consider it problematic to retrofit expected traffic volumes to roads which have existed, and functioned, well before the creation of the Estate Development Code to ascertain whether a road should be assigned a particular classification to test its capacity. This is not a sound basis for determining whether a road is operating at an acceptable capacity based on acceptable traffic volumes. It is not indicative of what constitutes acceptable daily traffic capacity.
61.According to Mr McDonald, based on the tables in the Estate Development Code, Angas Street is 9 metres wide which is more than an access street and less than a minor collector road but has about 1134 daily trips using 2020 data of which 50% are through trips and therefore functioning at volumes expected of a minor collector road.[41] Mr McDonald told the Tribunal that expected traffic volumes associated with the proposed verge crossing, whether or not the connecting road was constructed could be safely accommodated on Angas Street. He based this opinion on his assessment of the physical and environmental capacities of Angas Street and safety components. In relation to whether the levels that he analysed on Angas Street with its current characteristics were within tolerable ranges so as to not impact on amenity, Mr McDonald said the impacts to amenity were not necessarily a black and white threshold but more of a gradual thing and suggested that the existing volumes are well within an appropriate level of traffic for Angas Street.
[41] According to Table 2A of the Estate Development Code a minor collector road has an expected traffic volume of 1001-3000 vehicles per day and is to be designed and constructed to a minimum width of 10 metres.
62.In circumstances where, on the evidence before the Tribunal, the proposed verge crossing alone would not generate additional traffic and having regard to the evidence of Mr McDonald, we conclude C25 is satisfied.
Environmental Effects – C31
63.C31 requires a development application be accompanied by an Assessment of Environmental Effects which addresses a number of specified items. There is no applicable rule.
64.The applicant contends that an Assessment of Environmental Effects was not lodged with the development application.
65.The respondent submits there is some doubt as to whether C31 applied to the development application. Ms Walker gave evidence that during the assessment it was decided the lease variation and verge crossing construction would not impact paragraphs h)-i) of C31 and therefore a further response was not required.
66.The Party Joined since provided an Assessment of Environmental Effects for the purposes of C31 addressing each of the paragraphs contained therein.[42]
[42] Exhibit PJ1 annexure E
67.Whether C31 applies or not, an Assessment of Environmental Effects has since been provided. C31 only required the development application be accompanied by such an assessment. Assuming it applies, C31 has been satisfied.
Issues under the PVAGC
Section 2
68.The applicant contends the requirements of section 2 of the PVAGC have not been fully considered. This is premised upon the contention that the development application requires a rearrangement and addition of the car parking spaces. The applicant specifically contends:
(a)the disabled parking requirements have not been met (section 2.2.4);
(b)street parking supply will be reduced (section 2.3.2d); and
(c)the minimum distance from the tangent point of the kerb return of the closest intersection has not been achieved (section 2.3.2d).
69.In relation to disabled parking rates, the PVAGC relevantly states that parking spaces for people with disabilities are to comprise a minimum of 3% (rounded up to the nearest whole number) of the total number of parking spaces required in accordance with this code.
70.Ms Walker gave evidence as to the requirements for disabled parking under the PVAGC. She said that the PVAGC did not require the provision of any number of car parking spaces for this development. She told the Tribunal that the obligation to provide a certain number of car parking spaces was found in the Crown Lease, not the code. She further said that for car park use in PRZ2 the only applicable parking provision rate was for one space per peak shift employee, referring to Schedule 7 in section 3.7.5 of the PVAGC. In circumstances where there are no employees, no provision of parking spaces is required.
71.We accept Ms Walker’s evidence in this regard and accept that no provision for disabled parking spaces is required.
72.The applicant contended that section 2.3.2d) is not met as only one driveway per property is desirable and the additional verge crossing will reduce street parking supply. However, section 2.3.2d) further states that additional access points for larger sites will be considered and for sites with multiple street frontages one access point for each street may be desirable. Under the current restrictions in the Crown lease for the Site, which has three street frontages, no vehicular access is permitted from Limestone Avenue. The Tribunal also notes it is a large site. We also accept Mr McDonald’s evidence that there is very low demand for on-street parking along Angas Street[43] such that supply is not affected by the construction of the verge crossing. The Crown lease has previously been varied to allow for an additional access point on Angas Street, as discussed above. We do not agree the proposed verge crossing is inconsistent with this section.
[43] Exhibit PJ4 at [19]-[20]
73.As to the applicant’s contention regarding the distance from the tangent point, Mr McDonald gave evidence as to where the distance was to be measured from and said it was the intersection of Limestone Avenue and Angas Street which is approximately 203 metres from the verge crossing.[44] We accept Mr McDonald’s evidence and agree the minimum distance requirement is met.
[44] Exhibit PJ4 at [41]-[43]
74.We are satisfied the relevant parts of section 2 of the PVAGC have been satisfied.
Section 3.7
75.The applicant contended the development application failed to meet the amenity and safety requirements of section 3.7. The applicant submits the verge crossing did not connect with any internal road and was in an area where there is a playground and exercise equipment which could make it unsafe. The applicant further submits that there is potential for future paid parking on the site and that the parking provision rates for a ‘playing field’ have not been assessed.
76.First, the use on Block C is for an enclosed oval, not a playing field and thus the parking provision rates for a playing field do not apply. Secondly, the proposed verge crossing is approximately 60 metres from the playground and equipment which we do not regard as being unsafe and thirdly, Mr Patterson gave evidence that the party joined had no intention of introducing paid parking on-site.[45]
[45] Exhibit PJ1 at [25]
77.We are satisfied section 3.7 of the PVAGC has been satisfied.
Issues under the LVGC
Varying Leases – C1
78.C1 of the LVGC stipulates a lease can only be varied where all of the following are achieved and the varied lease is consistent with the Territory Plan including all relevant codes and the land to which the lease applies is suitable for the development or use authorised by the varied lease. Having concluded above that the development application is compliant C1 is satisfied.
Adding uses generally – C3
79.The applicant contended C3ii) in relation to increased traffic flow had not been satisfied. We refer to our findings in relation to traffic capacity above for C25 of the PRZDC and for reasons stated consider C3ii) is satisfied.
Other matters arising under the Planning Act – section 120
80.The applicant contends the approval had been given contrary to entity advice therefore invoking the prohibition on approval under section 119(2) of the Planning Act. The applicant further contends that entity advice had not been considered under section 120(f) of the Planning Act and therefore the respondent had not complied with section 120(f).
81.The applicant specifically submitted that both the Strategic Planning and the Territory Planning Section, both units within the Environment Sustainable Development Directorate, gave entity advice and did not support the development. It contends that this constitutes entity advice for the purposes of consideration under section 120(f) and prohibited the respondent from approving the development by reason of section 119(2).
82.On 6 April 2021, the respondent referred the development application to various entities for advice, including Strategic Planning, purportedly pursuant to section 148 of the Planning Act.[46] On 8 April 2021 Strategic Planning advised it did not support the development application.
[46] T-Documents page 437
83.On 29 April 2021 the respondent sought comment from Territory Planning and Strategic Planning following the submission of further information from the party joined.[47] The development was not supported.
[47] T-Documents page 378
84.Neither Strategic Planning nor Territory Planning are entities for the purposes of section 148 despite the respondent purportedly referring the development application pursuant to that provision.[48]
[48] Planning Act ss 147A, 148 and 149; Planning and Development Regulation 2008 regulation 26
85.As section 148 does not apply to the comments provided by Strategic Planning and Territory Planning, section 119(2) is not enlivened. Similarly, the requirement to consider entity advice under section 120(f) does not extend to the comments provided by Strategic Planning and Territory Planning.
86.The applicant contended that section 120(g) had not been considered and could not be satisfied as a public land management plan did not exist. A public land management plan for the Site does not exist, whether it should or not is beyond the scope of review. All section 120(g) requires is consideration of one assuming it exists. In any event consideration of the management objectives was undertaken and the proposal does not alter the use of the site for sport and recreation.
87.The consideration under section 120(g) extends only to a plan of management if one exists. In the circumstances there is no basis under section 120(g) to refuse to approve the development.
Conditions and draft leases
88.The applicant raised issues with several conditions of approval, namely A2.a), A2.b), A2.d), A2.e) and A4.2.c). The respondent submits that Condition A4.2c) was required by ACT Fire and Rescue and the remaining required by Transport Canberra City Services as part of the entity advice it gave. The party joined did not cavil with the imposition of any of these conditions.
89.The Tribunal does not propose to interfere with the conditions. The applicant would hope they were more clearly drafted or that it would have some visibility as to how they may be complied with but ultimately it is a matter for the party joined how it responds to the conditions.
90.The applicant raised several issues with the terms of the draft Crown leases. We do not regard the Tribunal’s scope of review to extends to reviewing the terms of the draft leases except to the extent they are substantially in accordance with the variation applied for which is the subject of review. We are satisfied they do. Much of the applicant’s contention relates to whether the party joined will comply with the terms of the leases. The Tribunal cannot assume it won’t and Mr Patterson gave evidence that it would and went so far as to say that some structures will be removed. The Tribunal can do no more than accept the party joined will comply with the terms of the leases.
91.The Tribunal accepts that other issues such as removal of the setback brings the lease in line the requirements of the Territory Plan.
Conclusion
92.For the reasons set out above, the decision under review is confirmed.
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Senior Member K Katavic
Dates of hearing: 24, 25 & 26 May 2022 Applicant: M Hipkins, authorised representative Counsel for the Respondent: N Oram Solicitor for the Respondent: ACT Government Solicitor Counsel for the Party Joined: J Bird Solicitor for the Party Joined: BAL Lawyers
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