North Canberra Community Council v ACT Planning and Land Authority and Anor (Administrative Review)

[2019] ACAT 87

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

NORTH CANBERRA COMMUNITY COUNCIL v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2019] ACAT 87

AT 109/2018

Catchwords:                ADMINISTRATIVE REVIEW – planning and development – development application – application of National Capital Plan – application of Commercial Zones Development Code – whether the existing road network can accommodate the amount of traffic that is likely to be generated by the development – whether sufficient visitor parking – whether buildings are compatible with the desired character of the adjacent residential zone – height of building – setbacks and balconies – lobbies – stairwells – solar access

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 68

Acts Interpretation Act 1903 (Cth) s 7
Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) ss 11, 25, 26
Legislation Act 2001 ss 102
Planning and Development Act 2007 ss 3, 9, 12, 46, 48, 49, 50, 53, 54, 115, 119, 120, 121, 122, 139, 162, 407, 408A, Sch 1, item 4

Subordinate

Legislation:                  National Capital Plan s 4.23

Territory Plan, including
CZ5 – Mixed Use Zone Objectives and Development Table
Inner North Precinct Code R6, R7
Multi Unit Housing Development Code C21, R58, C58, C66, R96, C96, C96A, R97, C97
Northbourne Avenue Precinct Code R10, C10, C10A, R21, R23, C30, C34, C38, R47, R48
Parking and Vehicular Access General Code
Planning and Development (Technical Amendment – Clarification, Relocation and Miscellaneous Amendments) Plan Variation 2012 (No.1) s 1.1, 2.5.1

State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) (NSW)

Cases cited:Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485

Baptist Community Services Pty Ltd – NSW & ACT v ACT Planning and Land Authority [2015] ACAT 67
Esber v Commonwealth (1991) 174 CLR 430
Kourpanidis v ACT  Planning and Land Authority [1998] ACTAAT 229
Paxevanos v ACT Planning and Land Authority  [2008] ACTAAT 20
Repatriation Commission v Keeley (2000) 98 FCR 108
The Sisters Wind Farm Pty Ltd v Moyne Shire Council (2012) 193 LGERA 126

Texts/papers cited:     Pearce, DC and RS Geddes, Statutory Interpretation in Australia (8th edition)

Tribunal:Senior Member R Orr QC (Presiding)

Senior Member G Trickett

Date of Orders:  26 September 2019

Date of Reasons for Decision:     26 September 2019

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          AT 109/2018

BETWEEN:

NORTH CANBERRA COMMUNITY COUNCIL

Applicant

AND:

ACT PLANNING AND LAND AUTHORITY

Respondent

AND

ART PROJECTS NOMINEES PTY LTD

Party Joined

TRIBUNAL:Senior Member R Orr QC (Presiding)

Senior Member G Trickett

DATE:26 September 2019

ORDERS

The Tribunal orders that:

1.The decision of the respondent on 16 November 2018 in relation to DA no. 201733065 to approve the development subject to conditions is varied as follows.

2.Paragraph A9(a)(i) of the conditions of approval is deleted and replaced by the following: “(i) Reduction of the heights of Buildings 4, 5 and 6 fronting Dooring Street so that the maximum heights are not to exceed 12.5m above datum ground level within a setback of 14.2m from the Dooring Street front boundary, and further that the maximum heights west of this setback line  up to 20m from the Dooring Street front boundary  are not to exceed 15.5m above datum ground level. Minor elements such as lift over runs, roof top garden access structures, fall protection structures, and landscaping are permitted above the 15.5m height limitation west of the 14.2m setback line from the Dooring Street front boundary provided that these are located and designed to minimise their visual impact above the height limitation when viewed from Dooring Street.”

3.Paragraph A9(a)(iii) first sentence is amended by the deletion of  “parking provision rate of 0.20 per dwelling” and replacement by “parking provision rate of 0.25 per dwelling”.

4.Paragraph A9(a) is amended by the addition of:

“(vii)The maximum height of Buildings 1, 2 and 3 above datum ground level including rooftop plant and screening of such plant all not to exceed a RL of 598.05 metres.

(viii)Fire-rated windows added to stair well doors at ground level.

(ix)Masonry blade walls and masonry balustrades up to and including level 2, the third floor, are not to extend into the 10 metre setback from Northbourne Avenue.

(x)Levels 6, 7, and 8 in Building 3 have lift lobbies with a minimum dimension of 3m.”

5.Section A9 is amended by the addition of:

“(b)solar access diagrams, or what may also be referred to as shadow diagrams, for each apartment, based on the relevant drawings submitted as part of the application, or such revised site plans, floor plans, elevations, sections and architectural plans as necessary based on the relevant drawings, showing that 70% of apartments receive over two hours of sunlight between 8.00am and 4.00pm at the winter solstice. These solar access diagrams are to take account of all obstructions including but not limited to screening devices and screen walls (as defined in the Territory Plan).”

………………………………..

Senior Member R Orr QC

For and on behalf of the Tribunal

REASONS FOR DECISION

1.North Canberra Community Council (applicant, NCCC or Council) has sought review of a decision of a delegate of the ACT Planning and Land Authority (Authority or respondent) made on 16 November 2018 under section 162 of the Planning and Development Act 2007 (Planning Act) to approve, subject to conditions, a development application (DA no. 201733065) made by Canberra Town Planning Pty Ltd, now Art Projects Nominees Pty Ltd (Art Projects or party joined), for a construction at 61 Karuah Street, Dickson (Block 1 Section 12 Dickson), which sits between Northbourne Avenue and Dooring Street (subject site).

2.The subject site is about 14,477 square metres and is zoned CZ5 - Mixed Use. It is proposed to build six towers of units above ground level, though they will be linked by a shared basement. When the development application was originally submitted the proposal was to construct 409 units. By an amendment to the development application the number was reduced, and by a condition on the approval it was reduced further, so that it will now constitute 370 units (approved proposal). Three of the towers will face on to Northbourne Avenue and are nine storeys and approximately 25 metres high (Buildings 1, 2 and 3). Three of the towers will face on to Dooring Street and are six storeys high, but with the sixth storey set back (Buildings 4, 5 and 6). There will be 554 car parking spaces, 14 motorcycle spaces and 30 bicycle parking spaces. There will be central private gardens and two public walkways from Northbourne Avenue to Dooring Street passing through the development.

Summary of Tribunal decision

3.The main objection of the applicant concerned increased traffic from the development. The requirement under the relevant Northbourne Avenue Precinct Code (NAPC) at C38 is that the existing road network can accommodate the amount of traffic that is likely to be generated by the development. This requirement needs to be read in the context of the relevant planning objectives for an area zoned CZ5 which include to encourage higher density residential development and walking, cycling and public transport patronage.

4.It is clear that the development will create additional road transport in the local area, especially on Dooring Street. The Dooring Street/Wakefield Avenue intersection is already not performing particularly well, nor is the Northbourne Avenue/Wakefield Avenue/Macarthur Avenue intersection. The proposed development will result in residents using these intersections.

5.But the proposal now includes an additional exit directly onto Northbourne Avenue; this will reduce the traffic from the proposed development using Dooring Street. Further, the effect on current ‘rat running’ of increased traffic will probably be to reduce this behaviour, as demonstrated by some of the traffic modelling. The availability of public transport, cycling and walking options will also assist with limiting the increase in traffic. And as the traffic experts suggested, developing issues in the future can be addressed by a range of traffic management initiatives. It was clear that the conclusion of the experts was that while there would be some increase in traffic from the development, this can be managed by the current traffic network.

6.The Tribunal accepts that the existing road network can accommodate the amount of traffic that is likely to be generated by the development and therefore the development complies with the Territory Plan and cannot be refused on this basis.

7.One of the NCCC’s main concerns was the effect of this development, when combined with further developments in the area, on traffic. But the Planning Act regime focusses on the effect of this development. The broader issues are a legitimate concern for the current local residents who will be affected. These issues cannot be properly addressed by looking at one development, or even one street, but needs a broader approach.

8.As part of its traffic concerns, the NCCC also raised the impact of parking on the local roads, in particular on Dooring Street which is a narrow residential street with old trees on both sides and through traffic is already hindered by cars which park on the street. While the Tribunal thinks that the provision for resident parking in the approved application is appropriate given the locality of the development, in its view the provision for visitor parking should be in accordance with the specific provisions in the Parking and Vehicular Access General Code. Otherwise the local residents will bear the inconvenience of overspill visitor parking. This requires visitor parking at the rate of 0.25 per dwelling, and the addition of 15 on-site visitor parking spaces to the development, a total of 93 visitor parking spaces (370 divided by 4). The Tribunal will make provision of this number of visitor parking spaces a condition of approval.

9.The Tribunal raised a range of other issues in relation to the approved proposal. Criterion C10 of the NAPC requires that buildings are compatible with the desired character of the adjacent residential zone. Buildings 4, 5 and 6 on Dooring Street are adjacent to a residential area zoned RZ4. Condition A9(a)(i) of the approval decision required reduction of one storey from Buildings 4,5 and 6 fronting Dooring Street and that the uppermost sixth storey is setback. This is still significantly greater than the height allowed in an RZ4 area and by the relevant R10 in the NAPC. The Tribunal will therefore require a further reduction in height which is more generous than allowed in RZ4 areas and by R10 of the NAPC, but implements the terms of C10.

10.The height of the proposed Buildings 1, 2 and 3 is not consistent with the National Capital Plan (NCP) or the Territory Plan. The Tribunal will impose a further condition that the maximum height of Buildings 1, 2 and 3 above datum ground level including rooftop plant and screening of such plant all not exceed a reduced level (RL) of 598.05 metres (to comply with NCP section 4.23 and NAPC R21).

11.The Tribunal will also impose further conditions that fire rated windows be added to stair well doors at ground level (to comply with NCP section 4.23, and NAPC R23 and C30), that masonry blade walls and masonry balustrades up to and including level 2 are not to extend into the 10 metre setback from Northbourne Avenue (to comply with NCP section 4.23, and NAPC R23 and C30), and that levels 6, 7, and 8 in Building 3 have lift lobbies with a minimum dimension of 3m (to comply with the Multi Unit Housing Development Code (MUHDC) R96 and C96).

12.Criterion C58 of the NAPC provides that daytime living areas have reasonable access to sunlight. This is a very vague requirement. The party joined suggested applying a benchmark informed by R58 that in the development 70% of apartments receive over two hours of sunlight between 8.00am and 4.00pm at the winter solstice. The Tribunal accepts that this benchmark meets C58, but will add a condition to ensure that this benchmark is in fact met by the development.

Decision of the Authority

13.The proposal was considered in the merit track under sections 119-122 of the Planning Act and no issue about this process was raised before the Tribunal. Public notification was undertaken.[1] The Authority received a range of comments.

[1] Exhibit T1, T documents, pages T905-T942

14.In response, Art Projects lodged amended plans and documentation under section 144 of the Planning Act.[2]

[2] Exhibit T1, T documents, pages T171-T434

15.The Authority approved the amended proposal, subject to conditions.[3] It did so under section 162 of the Planning Act which provides in part:

162   Deciding development applications

(1)     The planning and land authority … must—

(a)approve a development application; or

(b)approve a development application subject to a condition; or

(c)refuse a development application.

[3] Exhibit T1, T documents, pages T35-T59

The relevant terms of the decision are discussed below.

16.A decision under section 162 to approve a development application in the merit track is reviewable by the tribunal under sections 407, 408A and Schedule 1, item 4 of the Planning Act.[4] NCCC is an eligible entity which can apply for review of the decision; no challenge was made to its ability to do so.[5] Under section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) the Tribunal may exercise any relevant function given by an Act to the Authority, and must confirm the decision, or vary the decision, or set aside the decision and make a substitute decision, or remit the matter for reconsideration.

Challenge by NCCC

[4] See also section 9 of the ACT Civil and Administrative Tribunal Act 2008

[5] Sections 407, 408A and Schedule 1, item 4, of the Planning Act. NCCC made a representation under section 156, see exhibit T1, T documents page T504

17.By application to the tribunal dated 7 December 2018 (Application) the NCCC challenged the decision principally on the basis of traffic issues. The Council had raised a range of other issues, but these were resolved prior to the hearing. At the hearing the Tribunal raised a number of other issues. The applicant provided an amended written statement and submissions titled Amended material questions of fact and dated 14 February 2019 (applicant’s amended statement) prepared by Geoff Davidson (Mr Davidson) (exhibit A1). Mr Davidson also appeared for the NCCC at the hearing, and gave oral evidence. He also provided some written submissions (applicant’s submissions).

18.The respondent provided a statement of facts and contentions dated 27 February 2019 (respondent’s statement), a witness statement from Christopher Coath (Mr Coath), a traffic expert, dated 27 February 2019[6]  and a statement from Richard Davies (Mr Davies), an officer of the Authority, dated 26 February 2019[7]. Mr Davies also provided a document titled ‘Response to issues raised by the Tribunal’ (respondent’s response to tribunal)[8]. The Authority was represented by the ACT Government Solicitor and Ms Katavic appeared for it at the hearing. Mr Coath and Mr Davies also gave oral evidence. The respondent provided further submissions (respondent’s further submissions) and then submissions on the National Capital Plan issue discussed below (respondent’s NCP submissions). The respondent also provided submissions dated 16 September 2019 on proposed orders.

[6] Exhibit R1

[7] Exhibit R4

[8] Exhibit R5

19.The party joined also provided a statement of facts and contentions dated 27 February 2019 (party joined’s statement), a witness statement from Graeme Shoobridge (Mr Shoobridge), a traffic expert, dated 27 February 2019[9], a witness statement from Brett Smith (Mr Smith), project director of Art Projects, dated 27 February 2019[10], and a witness statement from Pieter Van der Walt (Mr Van der Walt), a director of Canberra Town Planning Pty Ltd, dated 27 February 2019[11]. Mr Van der Walt also provided documents in response to the issues raised by the Tribunal (party joined’s response to tribunal)[12]. Mr Shoobridge, Mr Smith and Mr Van der Walt all gave oral evidence, as did Christopher Millman (Mr Millman), an architect with Cox Architecture. The party joined was represented by Meyer Vandenberg, Lawyers and Mr Walker SC and Mr Buckland appeared for it.

[9] Exhibit PJ1

[10] Exhibit PJ5

[11] Exhibit PJ2

[12] Exhibits PJ3 and PJ4

20.The party joined provided written submissions at the close of the hearing (party joined’s submissions) and then general further submissions (party joined’s further submissions), and then submissions on the National Capital Plan issue (party joined’s NCP submissions). The party joined also provided submissions dated 17 September 2019 on proposed orders.

The relevant law

21.It is necessary to make some preliminary comments in relation to the law which applies to the proposal.

National Capital Plan

22.The Commonwealth Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) (Commonwealth Act) provides for a National Capital Plan. That Act states in section 11(1) that an enactment that is inconsistent with the National Capital Plan has no effect to the extent of the inconsistency, but an enactment shall be taken to be consistent with the National Capital Plan to the extent that it is capable of operating concurrently with the Plan. The Commonwealth, a Commonwealth authority, the Territory or a Territory authority shall not do any act that is inconsistent with the National Capital Plan (section 11(2)). Further, section 26 provides that the Territory Plan made by the ACT Government (see section 25) has no effect to the extent that it is inconsistent with the National Capital Plan, but the Territory Plan shall be taken to be consistent with the National Capital Plan to the extent that it is capable of operating concurrently with the National Capital Plan.

23.Section 48 of the Planning Act provides that the object of the Territory Plan is to ensure, in a manner not inconsistent with the National Capital Plan, the planning and development of the ACT and provide the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation. The Northbourne Avenue Precinct Code itself recognises in C29 that it is to some extent subject to the NCP, though such recognition is not necessary for this to be the position.

24.There is a National Capital Plan made under the Commonwealth Act. The version of this in the form from 5 September 2018 was applied by the Authority in its approval decision. This includes a Main Avenues and Approach Routes Precinct Code (section 4.15). Relevantly it also includes Special Requirements for Territory Land (Part Four (b)), which in section 4.23 sets out requirements for main avenues, and at pages 109–110 this provides for Northbourne Avenue. These requirements concern building height and building setbacks, two issues which are relevant to these proceedings, and are considered further below.

25.The National Capital Authority (NCA) raised issues in in relation to the NCP in an email dated 10 May 2018.[13] The NCA provided further comments in relation to the amended development application which supported some reductions in the basement, but stated that other comments “made by the NCA via email dated 10 May 2018 concerning building façade and massing, and encroachments of building elements (other than the basement area) into the Northbourne Avenue setback are still relevant”.[14]  

[13] Exhibit T1, T documents, pages T466-T467

[14] Exhibit T1, T documents, page T130

26.The National Capital Plan was significantly and relevantly changed by Amendment 91 registered on 4 April 2019. There is an issue as to whether the Tribunal in its decision should apply the National Capital Plan as so amended. The ACT Government Solicitor wrote to the Tribunal on 2 May 2019 and indicated that on the basis of section 7(2) of the Acts Interpretation Act 1903 (Cth) and the decision in Esber v Commonwealth[15] the Tribunal should not apply the Plan as amended by Amendment 91, but should apply the version from 5 September 2018 which the respondent had applied. By letter dated 8 May 2019 Meyer Vandenburg for the party joined agreed with this position. The Tribunal wrote to the parties on 17 May 2019 indicating that there was some disagreement about the correct position concerning such amendments.[16] In response the respondent in its respondent’s NCP submissions and the party joined in its party joined’s NCP submissions both indicated that in their submission Amendment 91 does not apply. On the basis of these submissions the Tribunal accepts that Amendment 91 is not relevant.

Territory Plan

[15] (1991) 174 CLR 430

[16] See Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485; Repatriation Commission v Keeley (2000) 98 FCR 108; The Sisters Wind Farm Pty Ltd v Moyne Shire Council (2012) 193 LGERA 126; Baptist Community Services Pty Ltd – NSW & ACT v ACT Planning and Land Authority  [2015] ACAT 67

27.There is also of course a Territory Plan provided for in Chapter 5 of the Planning Act.[17] The Territory, or a territory authority, must not do an act, or approve the doing of an act, that is inconsistent with the Territory Plan.[18]  

[17] See especially section 46

[18] Planning Act, section 50

28.Under the Territory Plan the subject site is zoned CZ5 – Mixed Use Zone.[19]

[19] Territory Plan, Territory Plan Map

29.Section 119 of the Planning Act provides in part:

119   Merit track—when development approval must not be given

(1)     Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with—

(a)the relevant code;

…

30.‘Relevant code’ in section 119(1)(a) means a code that the relevant development table applies to the proposal;[20] the ‘development table’ means the table in the Territory Plan that covers the zone in which the development or development proposal is to take place.[21]

[20] Planning Act, section 3 and Dictionary

[21] Planning Act, sections 3, 54, 55 and Dictionary

31.A number of codes apply to the site. Section 115 provides that if the code requirements of a precinct code and either a development code or a general code are inconsistent, the code requirements of the precinct code apply to the development proposal, and in a similar vein that a development code has priority over a general code. Later precinct codes, development codes or general codes have priority over earlier such codes.

32.The CZ5 Mixed Use Zone Development Table states that development proposals must comply with the Commercial Zones Development Code (CZDC). But there is also a Northbourne Avenue Precinct Code (NAPC) which says it applies to all developments in the CZ2 and CZ5 Commercial Zones within Northbourne Avenue Precinct, which the subject site is (see pages 1-3). Specific requirements of the NAPC are discussed below.

33.This Northbourne Avenue Precinct Code makes some express provisions in relation to its consistency with other codes. It states:[22]

Additional requirements for Residential Use in commercial areas are included in the Residential Zones Development Code. For multi unit housing refer to part C(5) of the Multi Unit Housing Development Code except for Lyneham Section 55 where part C(3) of the Multi Unit Housing Development Code applies. For single dwelling housing refer to the relevant provisions in the Single Dwelling Housing Development Code.

The Northbourne Avenue Precinct Code overrides any provisions in other codes which may be inconsistent. The City Centre Development Code and the CZ5 Mixed Use Development Code do not apply to land covered by the Northbourne Avenue Precinct Code.

[22] NAPC, page 1

34.The respondent and the party joined contend that this provision has the effect that the CZDC does not apply to the site. This is because the City Centre Development Code and the CZ5 Mixed Use Development Code were replaced with a new Commercial Zones Development Code by the Planning and Development (Technical Amendment – Clarification, Relocation and Miscellaneous Amendments) Plan Variation 2012 (No.1).[23] The purpose of this Variation was said to be to consolidate seven development codes applying to commercial zones into a single code, but with no changes to the underlying policies. This also presented the opportunity to relocate all site specific provisions to the relevant precinct code.[24]

[23] Section 2.5.1

[24] Planning and Development (Technical Amendment – Clarification, Relocation and Miscellaneous Amendments) Plan Variation 2012 (No.1), section 1.1

35.Section 102(1)(b) of the Legislation Act 2001 provides in part that in an ACT law (which the NAPC is), a reference to a law (which includes the City Centre Development Code and the CZ5 Mixed Use Development Code) includes a reference to, if the law has been repealed and remade, the law as remade and as amended from time to time since it was remade (which includes the CZDC). 

36.It seems that the provisions of the City Centre Development Code and the CZ5 Mixed Use Development Code which are now in the CZDC are excluded by the NAPC. There is an issue whether the provisions of the CZDC which came from other codes are also excluded or still apply.[25] But even if this limitation applies, section 102(1)(a) which provides that a reference to a law includes the law as originally made and as amended from time to time since it was originally made, together with section 102(1)(b) may now have resulted in all of the new law, the CZDC, being excluded by the NAPC. This was the position put by the respondent and the party joined, and in the absence of a contrary argument and detailed consideration of the relevant codes, the Tribunal accepts it.

[25] Pearce, DC and RS Geddes, Statutory Interpretation in Australia (8^th edition) at [6.34]

37.However, the Tribunal notes that the party joined in its application[26] and the respondent in its assessment of the development application[27] assumed that it was subject to the CZDC, and took this position at the beginning of the hearing.

[26] Exhibit T1, T documents, page T1033

[27] Exhibit T1, T documents, page T82-83

38.Therefore, while it is true that the provisions of the CZ5 – Mixed Use Development Table states that development proposals must comply with the CZDC, notwithstanding this statement, the operation of CZDC here is subject to the terms of section 115 of the Planning Act. Section 115 together with the terms of the NAPC operate to render the CZDC inoperative in this context. The statement in relation to the CZ5 – Mixed Use Development Table is therefore quite misleading. It appears that the CZ5 – Mixed Use Zone objectives are still relevant to this development by operation of section 120(a) of the Planning Act. Further, under section 53, the objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable code, including in this case the NAPC. Therefore the CZ5 objectives can be relevant to interpreting the NAPC.

39.It appears that the Multi Unit Housing Development Code (MUHDC) also applies to the development. This was certainly assumed by the party joined in its development application and the respondent in its assessment of the application, and for the most part the hearing was conducted on this basis. In its final submissions the respondent argued that it did not apply, but amended this position in its final submissions, and the party joined supported this final view. Mandatory Rule 18 of the NAPC requires that all multi-unit housing is designed to comply with the ‘Residential Zones – Multi Unit Housing Development Code’, which is apparently the MUHDC. Specific requirements of the NAPC and MUHDC are therefore discussed below.

40.On this basis, we now address the issues raised in the hearing.

1.       Traffic issue (NAPC C38)

41.The principal issue which the NCCC raised concerned the effect of the development on traffic in the area. There is no relevant rule in the NAPC but C38 provides:

C38

The existing road network can accommodate the amount of traffic that is likely to be generated by the development.

A related issue was parking at the development, and the effect on parking in surrounding streets, which is dealt with by the Parking and Vehicular Access General Code and discussed at paragraph [73] and following below.

42.The NCCC made a submission during the consultation process and advised of its “serious concerns about the traffic impact on Dooring St and surrounds with five hundred extra cars entering and exiting the site on a regular basis” and this concern was in the context of another development to the north which would add another five hundred cars “which would overload a street not designed to carry this sort of traffic load”.[28] Other objectors had similar concerns. In its submission in these proceedings NCCC continued to articulate this concern that the introduction of a large number of units in this development and “untold numbers of units in other current and planned developments in the vicinity will greatly impact on the traffic flow and noise” and that an extra 3,000 car movements a day “is absurd for a residential area which is already struggling with excessive traffic”. The NCCC also noted that Dooring Street in particular is a narrow residential street with old trees on both sides which was never intended to be a major thoroughfare. The Council commented that a nearby school and day-care centre raised a major safety issue.[29]

[28] Exhibit T1, T documents, letter from Mr Denis O’Brien dated 26 April 2018, page T504

[29] Exhibit A1, applicant’s amended statement, page 1

43.The approval of the development by the Authority was based on a report commissioned by the party joined from SMEC Australia dated 7 December 2017 (SMEC Report) which was at page T1149 and following of the T documents (Exhibit T1). The SMEC Report concerned the development at both the proposed development and a related development to its north (SOHO developments), not just the proposed development at issue in these proceedings.  It estimated that the proposed development (assumed to be 410 units) would generate 158 am trips and 158 pm trips, a total of 316 trips per day. The other SOHO development was estimated to provide 128 trips per day, based on 150 units.[30]

[30] Exhibit T1, T documents, page T1155

44.The SMEC Report used the Canberra Light Rail Stage 1 contract model, which was said to be a ‘VISSIM micro-simulation model’  (VISSIM model), which simulated traffic at the am and pm peak hours in the 2031 year at relevant intersections. This VISSIM model was said to provide the best tool to identify the impacts of a development in a congested road network.[31] The SMEC Report concluded that using this model it was likely that the SOHO developments would have minimal traffic impacts. The SMEC Report acknowledged that the requirement for development traffic to use the rear local streets (that is, not Northbourne Avenue) puts most of the load on Dooring Street, the majority of which then travels to Wakefield Avenue, which is already under stress. The SMEC Report uses Level of Service (LoS) as a simplified expression of the performance of intersections, which ranges from A (best), to C (satisfactory) to E (at capacity) and then F (unsatisfactory with excessive queuing, or failure). The additional traffic will cause the performance at the intersection of the Wakefield Avenue – Dooring Street to drop from LoS C to D in both am and pm periods. And the additional congestion on Wakefield Avenue will also cause increased delay and queues on the left turn from Northbourne Avenue southbound in the am peak period. The Report stated that more generally on Northbourne Avenue, there would be an expected increase of approximately 20 seconds for southbound traffic in the 2031 am peak, while northbound traffic would be unaffected.  However the SMEC Report noted that it was possible that some of the proposed development was already accounted for in the model, and that these likely effects were therefore conservative, that is, overstated.[32]

[31] Exhibit R1 at [7.1.2]

[32] Exhibit T1, T documents, pages T1166 - T1170

45.The report provided detailed intersection performance studies, which were sometimes difficult to understand. The applicant raised particular concerns about them, as did the Tribunal. For example they show that am traffic approaching Wakefield Avenue from Dooring Street to the north and turning right would increase from 42 to 85 vehicles , but that the LoS would improve from D to C. Traffic going through the intersection would increase from 169 to 172 vehicles, and improve the LoS from D to C, and traffic turning left would increase from 59 to 92 vehicles and change the LoS from F to D. In the pm period the average delay at this intersection would increase from 24.5 seconds to 46.4 seconds, and move from LoS C to D.[33] The applicant and the Tribunal queried how it was that increased traffic from the development could in fact improve the performance of the intersections.

[33] Exhibit T1, T documents, pages T1179 and T1183

46.In summary the SMEC Report indicated that traffic along Wakefield Avenue would be particularly affected by the proposed development. Some elements of traffic at the Northbourne Avenue/Macarthur Avenue/Wakefield Avenue intersection were shown already to have a LoS of F, which would be maintained with the development.[34]

[34] Exhibit T1, T documents, pages T1167, T1168, T1178, T1179, T1182, T1183

47.A number of objectors including the NCCC raised issues about the SMEC Report in the consultation process and a document entitled ‘Appendix A SMEC Responses’ was prepared (SMEC Response) and is at page T458 and following of the T documents. This included significant factual material, but we focus on several key points of explanation. As noted, the objectors including the NCCC understandably queried why the impact on key intersections was so limited, and raised in particular the figures for the Dooring Street and Wakefield Avenue intersection noted above. The SMEC Response stated that it is likely that any additional traffic being generated by the developments will in fact displace existing traffic which was choosing routes with less congestion on them, drivers referred to somewhat colourfully in the expert reports noted below as “rat runners”. It was said that the dynamic route assignment used in the VISSIM model allows vehicles to continually update their route choices to avoid congestion and it is likely that the additional development traffic entering Dooring Street causes other vehicles to avoid the intersection.[35]

[35] Exhibit T1, T documents, page T459

48.Importantly, the amended development application provided for an exit ramp leading from the basement of the proposed building directly to Northbourne Avenue. It was said that the introduction of this exit was considered to reduce the traffic pressure on Dooring Street.[36]

[36] Exhibit T1, T documents, page T180 and page T234

49.Somewhat surprisingly this issue is not discussed in the statement of findings of the decision maker;[37] it is referred to in the more detailed assessment report on which the decision was made but this does not address the objections.[38] The notice of decision simply states that the exit to Northbourne Avenue and a further reduction of number of units will result in reduced traffic impact in the surrounding areas.[39] The Tribunal notes that the purpose of the objection process is to allow local residents to voice their concerns, and to have these taken into account in the decision making process. There is little evidence that this occurred in this case. Unsurprisingly therefore, the Application raises the issue of traffic in these proceedings.

[37] Exhibit T1, T documents, page T55

[38] Exhibit T1, T documents, page T77

[39] Exhibit T1, T documents, page T24

50.Mr Coath provided an expert statement and gave oral evidence for the respondent.  He appropriately, usefully and accurately summarised the views of the applicant and other objectors as follows.

1.     Impact of traffic generated by the proposed development on Dooring Street.

2.     Validity of traffic modelling undertaken to understand implications of the additional traffic.

3.     Need for cumulative assessment of developments in the immediate and wider local area.

4.     The appropriateness of access for removalist vehicles to serve the site.[40]

[40] Exhibit R1, page 2

51.Mr Coath’s report deals with a development of 389 apartments (unadjusted figures). In his oral evidence Mr Coath said that in his opinion the approved proposal of 370 apartments would generate 1424 daily car trips, and 142 in the morning peak hour. He thought most of these would use Dooring Street to and from the south of the site (796 trips per day, 68 in the am peak hour, on the unadjusted figures), with 388 trips using Dooring Street to and from the north (38 in the am peak hour) and 314 to Northbourne Avenue (44 in the am peak hour).[41] In the am peak hour of the cars travelling from the site south on Dooring Street (a subset of the 68 total to and from), 22 cars would turn right from Dooring Street into Wakefield Avenue, four would go straight ahead over Wakefield Avenue, and 20 would turn left.[42]

[41] Exhibit R1, pages 29-31; transcript of proceedings 13 March 2019 pages 24-27

[42] Exhibit R1, page 31; transcript of proceedings 13 March 2019 pages 24-27

52.Mr Coath said that the available evidence suggested that Dooring Street carries currently in the order of 2,100 vehicles per day north of Wakefield Avenue. The additional unadjusted figure of 796 vehicles would cause the traffic volume to reach approximately 2,896 vehicles. Mr Coath provided a range of information about the nature of Dooring Street and acceptable traffic. He thought that Dooring Street would be a minor collector road under the ACT Estate Development Code which is a road which carries 1,001-3,000 vehicles per day. (The Victorian and WA planning instruments provide for connector streets with higher usage of 3,000-7,000 vehicles per day.) However, he thought Dooring Street is not currently serving solely a residential access function as highlighted by the signalised intersection with Wakefield Avenue, that it accommodates traffic generated by other sites, it abuts commercial land uses and it has shared paths on either side of the vehicle carriageway for cyclists.  For such a street he concluded that the volume which will be reached is within the guideline capacity and he was therefore comfortable that Dooring Street would continue to fulfil its function once the proposed development is built. He also did not expect that the additional traffic would adversely impact the function or safety of traffic flows on Northbourne Avenue.[43]

[43] Exhibit R1, pages 32-37

53.In summary Mr Coath thought that the proposal could be accommodated by the surrounding road network. While the relative increase in traffic volume may appear significant, he thought that the resulting total traffic volume on key local streets is likely to remain within commonly used traffic volume thresholds. He thought future developments should incorporate local area traffic management studies to mitigate the effects of increased development traffic using local roads.[44]

[44] Exhibit R1, page 36 and page 40

54.Mr Shoobridge also gave an expert statement for the party joined. He agreed with the methodology and conclusions of the SMEC Report. He also provided a letter from SMEC dated 10 September 2018 which stated that while the original SMEC Report did state that the Wakefield Avenue-Dooring Street intersection would be adversely affected during the pm peak period, with the provision of exit only access to Northbourne Avenue in the redesigned proposal, about half the additional traffic is expected to access Northbourne Avenue directly and this will result in a significant improvement in intersection performance.[45] As noted above, some of these discussions are difficult to follow, and while the Tribunal understands the exit only access will help especially in the am peak period, it does not understand how the exit only access will help much in the pm peak period as the letter suggests.

[45] Exhibit PJ1 at [8.1] and attachment B

55.Mr Shoobridge stated that in his opinion the additional traffic that would be generated could be accommodated by the existing road network, and C38 complied with. He stated that traffic conditions on Dooring Street will be able to be maintained at an appropriate level of service, and it will be possible for the traffic conditions in Dooring Street to be monitored and managed by progressive implementation of appropriate strategies including traffic calming, traffic signal phasing/coordination, restrictions on peak period right turns and the like. He noted that future travel and transport patterns, especially along Northbourne Avenue, will be influenced by the light rail and active travel initiatives for cyclists and walkers.[46]

[46] Exhibit PJ1 at [7.2]-[7.4], [8.3] and [8.4]

56.Mr Coath and Mr Shoobridge provided a joint statement to the Tribunal.[47] This stated that they both agreed that the Canberra Light Rail Stage 1 contract model was the best available data and modelling, and that a level of additional growth was included in it. They were of the view that the VISSIM model of intersection analysis which this used is needed to consider operating conditions; in their oral evidence both witnesses agreed that this approach was superior for the issues concerned.[48] They were supportive of the idea that direct egress to Northbourne Avenue will reduce demands on Dooring Street. They noted that there was a current degree of what they called “rat running” occurring throughout the area, but that it was not the responsibility of this development to address this area wide problem, since it is not effective to address such issues on a street by street basis. If there were to be a programme to address this, it would provide greater capacity for future development to occur.

[47] Exhibit R2

[48] Transcript of proceedings 13 March 2019, pages 37 and following. Mr Coath stated at page 44 that the VISSIM model provided for “the dynamic redistribution of traffic through that overall network, depending on the level of congestion and the operational characteristics that are occurring within that model.  So if congestion is being seen on one road, then traffic may be distributed to another road which is considered as … more favourable, whether it’s from a length of journey perspective, [or] from a travel time perspective”

57.The expert witnesses gave oral evidence together. They suggested that the SMEC Report was conservative, in that it made allowance for, and if anything it overestimated, the impact of future development.[49]

[49] Transcript of proceedings 13 March 2019 pages 45-46 and 48-49

58.They also drew attention to the effect of developments such as the Canberra Light Rail. They noted the difficulty in assessing the impact of these but Mr Shoobridge noted the aspiration for a modal shift away from the single occupant vehicle is going to be driven by a number of factors. One is the provision of public transport, that is, the light rail system. Another is management of parking pricing policy at the destination. So if the policy was to double the cost of parking in the city, then that could also be an incentive not to drive. And congestion on the road system will also be another factor that comes into people's thinking before they get into their car. All of that is probably going to drive modal shifts to public transport and/or active travel. Mr Coath agreed that you could reasonably expect that traffic volumes would decrease with the incorporation of the Canberra Light Rail.[50]

[50] Transcript of proceedings on 13 March 2019, pages 53-54

59.Mr Shoobridge thought that allowing traffic to enter the site, as well as leave the site, from Northbourne Avenue would give rise to significant problems.[51]

[51] Transcript of proceedings 13 March 2019, pages 63-65

60.Mr Couth reaffirmed his view that Dooring Street can accommodate the traffic that is generated by the development, but was questioned on the effect of parking on the street. He noted that the role of the development is to provide a suitable amount of parking on-site to cater for the demands of the site. And in his opinion the amount of car parking that is provided on the site was appropriate to cater for those demands. He also noted that there is a role for the relevant transport authority to manage the issue of on‑street car parking, and if on‑street car parking causes other problems, then there is the possibility that restrictions may need to be put in place on the street network to ensure that the flow of traffic is not impeded by car parking on the street.[52] 

[52] Transcript of proceedings 13 March 2019, pages 74-78

61.Mr Shoobridge also stated that he thought that there would be no unmet visitor demand from this development; he noted that there is sufficient on-site parking to meet the need; he did not envisage that there will be sufficient parking demand to cause double‑sided blockage of Dooring Street limiting the passage of two‑way traffic. He was not saying it could not happen, but in the event that it did, for some reason, happen, then parking restrictions would be required, and by implication he thought they would manage the situation.[53] We return to the issue of parking below at paragraph [73].

[53] Transcript of proceedings 13 March 2019, pages 83-84

62.In terms of inconvenience for the neighbourhood from traffic, Mr Coath summarised the position as that there was not going to be anything of real significance to people and, indeed, traffic may be diminished by rat running vehicles going elsewhere, and alternate public transport or active transport options within the vicinity of the site.[54]

[54] Transcript of proceedings 13 March 2019, page 86

63.A significant amount of the oral evidence of the experts was about so-called ‘rat running’, namely people taking the most convenient route, such as Dooring Street, even though it is not the most major road. In summary, the evidence was that if the street gets more traffic from the development, a portion of rat runners will stop using the street because it will no longer be such a convenient method of travel. And that if the road was widened so as to make it easier to progress down Dooring Street, you would expect a greater number of rat runners to come into the street.[55] Mr Shoobridge explained that if we add, for example, 50 more vehicles into the current traffic stream, then that becomes less attractive to the rat runners if there is an increased congestion, so in fact, what is likely to happen, is that Dooring Street will lose some traffic. The Tribunal notes that this is why some of the predicted figures in the models show that even with the additional development, some traffic conditions may improve. Mr Shoobridge noted that this is a complex issue, and if there continues to be a problem after the development, then he suggested that it is then that it could or should be addressed, such as by, for the southbound traffic on Dooring Street as it meets Wakefield Avenue in the morning, installing a right turn ban between 8.00am and 9.30am.[56]

[55] Transcript of proceedings 13 March 2018, pages 79-80

[56] Transcript of proceedings 13 March 2019, page 70

64.Both witnesses thought the traffic position would be consistent with the CZ5 zone objectives.[57] Both witnesses thought that the existing network can accommodate the traffic that is likely to be generated by this development.[58]

[57] Transcript of proceedings 13 March 2019, page 88

[58] Transcript of proceedings 13 March 2019, pages 101-2

65.One of the applicant’s major concerns was the cumulative effect of this development and further and subsequent developments on the traffic situation. The other parties argued that other future developments were irrelevant to the decision on this development. Over their objections, Mr Davidson was allowed to ask questions on this issue, in particular who was responsible for looking at the forward developments and impacts of traffic, and Mr Coath responded:

I think there is a role in the future for our relevant road authorities to play in considering that issue of rat-running, to provide the greater headway for development to continue to occur within this precinct as is anticipated by the codes and the height limits that could be expected along this Northbourne Avenue precinct.  So I think there is a role for TCCS to look at the precinct as a whole to consider that rat-running issue to make sure that the headway is created to allow development to occur.

Do I believe that there is capacity within the existing road network to accommodate the development that is before us now?  Yes, I do.  There's some work to be done to continue to protect that for future development to occur.  Where is the limit?  It is a difficult one to actually say because our road networks are continually changing and, indeed, the augmentation with light rail coming into place - you know - may significantly change.  The number of people wanting to use the motor vehicle along this network as well again changing the issue of the amount of cars on roads and what that future means in terms of lesser traffic on the roads, along Dooring Street or along Northbourne Avenue as well.  But in respect of this development I think it can be accommodated within the existing road network.[59]

[59] Transcript of proceedings 13 March 2019, page 110

66.Mr Davidson asked the experts about whether removalist and garbage trucks servicing the development will have an impact on traffic in the neighbourhood. Mr Coath said that there were appropriate facilities to deal with these services.[60]

[60] Transcript of proceedings 13 March 2019, page 111

67.In summary, the relevant criterion is C38 of the NAPC which requires that the existing road network can accommodate the amount of traffic that is likely to be generated by the development. As the party joined argued, this requirement has to be read in the context of the Code and other relevant aspects of the Territory Plan. In particular the CZ5 – Mixed Use Zone Zone Objectives include “(a) Encourage higher density residential development in locations with convenient access to transport corridors, and commercial and employment centres”, “(f) Promote active living and active travel” and “(h) Provide a mixture of compatible land uses and integrate suitable business, office, residential, retail and other development in accessible locations so as to encourage walking and cycling, and maximise public transport patronage”. As these objectives make clear, the goal is to encourage higher density living; this development provides much higher density. The people living in these higher density environments will require transport infrastructure. But the goal is also to promote walking, cycling and public transport patronage, rather than the use of cars. The fact that the development is near the major work and entertainment hubs of Civic and Dickson, and the provision of new public transport and active travel infrastructure, will do this to some extent.

68.It is clear that there will still also be additional road transport from the development, especially onto Dooring Street. All the parties acknowledged this. As to how much, there were significant difficulties in understanding the SMEC Report and some of the expert evidence. It is clear that there will be some increase in traffic especially at the Dooring Street/Wakefield Avenue intersection. This intersection is already not performing particularly well, and will see more traffic and in some cases a decline in performance measured by the LoS.[61] Similarly the Northbourne Avenue/Wakefield Avenue/ Macarthur Avenue intersection is currently not performing well; in the morning this has a LoS at F; and will have additional traffic with the development.[62]

[61] Exhibit T1, T documents, pages T1167, T1168, T1179 and T1183

[62] Exhibit T1, T documents, pages T1167, T1168, T1178, T1182

69.The additional exit from the development directly onto Northbourne Avenue will however clearly assist with managing this. The effect on current rat running of increased traffic will probably be to reduce this, as demonstrated by some of the modelling. The availability of public transport, cycling and walking options will also assist in limiting the increase in traffic. The availability of parking in the development will limit the effect on-street parking, subject to the discussion below of this issue. And as the traffic experts suggested, developing issues in the future can be addressed by a range of traffic management initiatives.

70.It was clear that the conclusion of the SMEC Report and the experts who gave evidence to the Tribunal was that while there would be some increase in traffic, this can be managed by the current traffic network. The Tribunal accepts this evidence.

71.As noted, one of the NCCC’s main concerns was the effect of this development and then further developments on traffic. The NAPC including C38 focusses on the effect of this development.[63] But the broader issues are a legitimate concern for the current local residents who will be affected by the traffic from this development and then the further developments which implement the relevant objectives of the planning regime. As Mr Shoobridge noted these issues cannot be properly addressed by looking at one development, or even one street, but needs a broader approach. The NCCC will need to pursue these issues at a broader level.

[63] Kourpanidis v ACTPlanning and Land Authority [1998] ACTAAT 229; Paxevanos v ACTPlanning and Land Authority [2008] ACTAAT 20 at [102]-[103]

72.The Tribunal accepts that the existing road network can accommodate the amount of traffic that is likely to be generated by the development which therefore complies with the Territory Plan and cannot be refused approval on this basis.

2.       Parking issue (Parking and Vehicular Access General Code)

73.As part of its traffic concerns, the NCCC also raised the impact of parking on the local roads by those living in or accessing the proposed development. The Application noted that Dooring Street is a narrow residential street with old trees on both sides and through traffic is already hindered by cars which park on the street because of the existing lack of off-street parking. As discussed above, there was consideration of parking issues in the report of Mr Couth, and discussion of it in the hearing.

74.The report by Mr Couth looked at the earlier proposal for 389 apartments which provided a total of 448 car parking spaces. The Parking and Vehicular Access General Code (Parking Code) required 635 spaces, including 538 resident spaces and 97 residential visitor spaces.[64] However, Mr Couth noted that the Parking Code stated that in cases where the physical constraints of a site make on-site provision impracticable, or the Territory may consider it undesirable for efficiency, traffic operation, pedestrian amenity or other reasons for the specified parking to be provided totally on-site, special arrangements may be negotiated or requirements may be waived. Mr Couth assessed the proposal for parking in relation to the objectives of amenity, safety, efficiency, access, equity and non-commercial use. He had regard to the light rail corridor, the proximity to Dickson, the availability of Northbourne Avenue as an active transport corridor, the availability of electric shared bikes, the provision for dedicated car share vehicles, the provision of bicycle parking, the existence of traffic congestion and other factors. He was of the opinion that the development represents an opportunity to reduce car parking for two bedroom dwellings to encourage the use of sustainable transport opportunities and support the aspirations of the Northbourne Avenue corridor. He generally considered the proposal reasonable.[65]

[64] Exhibit R1 at page 16; exhibit T1, T documents, page T93

[65] Exhibit R1 at pages 15-19 and 45

75.The approved proposal provides for 370 units, with 554 car spaces, involving parking for 480 vehicles for residents, and 74 vehicles for visitors. The Parking Code requires 582 car spaces, more than the 554 to be provided. This requirement includes 508 spaces for residents and 93 for visitors. But as noted the Code allows for flexibility in this regard, and the factors supporting this remain in place. Mr Coath stated in oral evidence that his overall conclusion had not changed and that in his opinion, considering the matters set out by the Parking Code and the relevant objectives, a provision of 554 spaces is suitable to account for the car parking demands of the development itself. He also thought the five accessible parking spots acceptable and in line with code requirements.[66]

[66] Exhibit R1, pages 15-19 and 45; with transcript of proceedings 13 March 2019 pages 24-25

76.The Tribunal accepts this evidence in relation to the resident car spaces for the approved proposal. The factors considered by Mr Coath in his report as they apply to the approved proposal do suggest that the spaces suggested by the Parking Code for the two bedroom apartments can be reduced, in particular in light of the light rail corridor, the proximity to Dickson and Civic, the availability of Northbourne Avenue as an active transport corridor, the availability of electric shared bikes, the provision for dedicated car share vehicles, the provision of bicycle parking, and the existence of traffic congestion and other factors.

77.But the Tribunal is of the view that the concerns of the NCCC in relation to the effect of on-street parking by visitors to the complex are legitimate. The statement by the NCCC that through traffic on Dooring Street is already hindered by cars which park on the street was not disputed. Both the traffic experts noted the possible need for regulation of on-street parking with the development which will have an effect on the local residents.

78.There was little evidence of the relevance of the factors considered by Mr Couth to visitor parking. He noted that coming enhancements to public transport could reduce demands for visitor parking. But while people who live in the proposed development will have easy access to the light rail, Civic, Dickson, active transport options and share vehicles it seems unlikely that visitors to the proposed development who will presumably come from around Canberra and elsewhere will routinely be in the same position. Mr Couth assessed the proposal in relation to the objective of amenity. However, his allowance and perhaps preference for visitors to park in the street is counter to the Parking Code objective which is to ensure no regular overspill of parking occurs in neighbouring residential areas which detracts from the amenity of these areas (section 3.2.1(a)). His evidence was that 20 spaces were available on the street and 58 would be provided on-site.[67] This is still 15 spaces short of the rate set out in the Parking Code. Adopting the number of visitor parking spaces as identified in the Code will in the opinion of the Tribunal make some reduction to on-street parking adjacent to the development and address to some extent the concerns of the applicant. Both section 3.3.5, schedule of parking provision rates for commercial CZ5 mixed use zone, and section 3.2.5, schedule of parking provision rates for commercial zones, of the Parking Code state that the rate is to be as per Residential Zone Schedule; this rate is one visitor space per four dwellings or part thereof.[68] The Tribunal accepts that the Parking Code will be complied with by the addition of 15 on-site visitor parking spaces to the development, a total of 93 visitor parking spaces (370 divided by 4), and thinks that this would be appropriate. The Tribunal will make provision of this number of visitor parking spaces a condition of approval.

3.       Compatible with desired character of the adjacent residential zone on Dooring Street (NAPC R10, C10, C10A)

[67] Exhibit R1, page 19

[68] Section 3.1.5

79.The Tribunal raised with the respondent and the party joined the issue of compliance with R10, C10 and C10A of the NAPC, which the parties agreed applied to the development as it faces east onto Dooring Street. These provide as follows:

2.1    Height

R10

This rule applies to front boundaries that are adjacent to residential zones.

Within 20m of the front boundary the maximum building height is 12m.

C10

Buildings are compatible with the desired character of the adjacent residential zone.

C10A[69]

This criterion applies to land where a lawfully erected building exceeds the maximum building height specified in the previous rule. Rebuilding may be permitted provided all of the following are achieved:

a)     a building height no greater than the previous building

b)     consistency with the desired character of the adjacent residential zone

c)     no increase in the extent of shadow cast over any residential block.

[69] There is no applicable rule

80.The party joined and respondent agreed that R10 was not met. It was said that C10 was met.[70]

[70] Exhibit PJ3; exhibit R5

81.The proposal which was assessed provided for Buildings 4, 5 and 6 which will face Dooring Street to have seven storeys, with the seventh set back, and then a rooftop garden.

82.Condition A9(a)(i) of the approval required reduction of one storey from Buildings 4, 5 and 6 fronting Dooring Street and the uppermost sixth storey is setback in the same manner as the revised drawings and integrated with the overall aesthetics and building design to be to the satisfaction of the Authority.[71] This then provides for six storeys, with the sixth set back. The balcony of the sixth floor which forms the roof of the fifth floor is said to be approximately 14m high, the sixth 16.8m high.

[71] Exhibit T1, T documents, page T37

83.‘Desired character’ in C10 is defined to mean “the form of development in terms of siting, building bulk and scale and the nature of the resulting landscape that is consistent with the relevant zone objectives, and any statement of desired character in the relevant precinct code”.[72] The term  ‘building height’ is used in R10 and the related term ‘height of building’ is defined to mean “the vertical distance between datum ground level to the highest point or points of the building”.[73] ‘Building’ is defined to include “a structure attached to a building and a part of a building.”[74]

[72] Territory Plan, Part 13, Definitions page 32

[73] Territory Plan, Part 13, Definitions page 33

[74] Territory Plan, Part 13, Definitions page 31

84.The adjacent area across Dooring Street is subject to the Inner North Precinct Code (INPC) and is zoned RZ4, and there are relevant zone objectives. For the INPC these objectives include to conserve the garden city character of the area (objective (a)), optimise residential land use adjacent to the Northbourne Avenue corridor (objective (b)),  retain and enhance a healthy and attractive residential environment for existing and new residents to the area (objective (c)), and ensure orderly redevelopment of blocks within sections (objective (g)). For the RZ4 zone the objectives include to provide for the establishment and maintenance of residential areas where the housing is medium rise and predominantly medium density in character, particularly in areas that have very good access to facilities and services and/or frequent pubic transport  (zone objective (a)), provide for opportunities for redevelopment by enabling changes to the original pattern of subdivision and the density of buildings (zone objective (b)) and provide for a wide range of affordable and sustainable housing choices that meet changing household and community needs (zone objective (c)). Additionally the INPC Element 2 provides that building and site controls’ intent includes to allow sufficient space for existing and future tree plantings at the front and rear of development blocks.

85.The INPC mandates a 6m minimum front street setback including building or design elements (R6 and R7). The RZ4 area is subject to a height restriction of 12.5m.[75] This is a mandatory requirement. R21 of the MUHDC provides for a maximum number of storeys as three, but there is a criteria in C21 which is that buildings achieve consistency with the desired character and “the appearance from the street of not more than three storeys for that part of the building facing the street”.

[75] MUHDC, R24

86.Mr Van der Walt stated that the proposal for Buildings 4, 5 and 6 had siting, bulk and scale compatible with adjoining land, as demonstrated by drawings provided by the party joined. He stated that:

The proposed building … is compatible in its form, scale presentation, materiality, use, treatment of ground level interface/courtyards and public access within the streetscape of an RZ4 zone.

87.Further it was said that setbacks are compatible, and courtyards and planting in the setbacks, resolution at ground level would not be dissimilar in an RZ4 zone with townhouses having ground floor open space and landscaping treatments.[76]

[76] Exhibit PJ3 at [9]-[11]

88.Mr Van der Walt in his oral evidence stated that in his view the proposed graduation of the buildings going from Northbourne Avenue through to Dooring Street and into the adjacent residential area met the criterion. He thought that there appeared to be harmony in how these graduations of heights work across the streetscape. He referred to matters such as the visible components that includes the private land between the buildings facing the street from the buildings, treatments of the setbacks, fencing and the like and considered the proposal under review and what might be developed across the road on the eastern side would be very similar and compatible with what a medium density streetscape would be like.[77]  Mr Millman in his oral evidence confirmed this view and stated that he thought the proposal is in “absolute harmony with the desired character of the adjacent residential zone.” He stated that the “whole idea of RZ4 is to densify that area, and that will happen over time …[and there] will be no doubt a series of buildings which will be around the 12 metre mark, and sit quite nicely adjacent to our building which steps down to Dooring Street.”[78]

[77] Transcript of proceedings 14 March 2019 page 132

[78] Transcript of proceedings 15 March 2019 page 213

89.Mr Van der Walt noted that the City to Gateway Urban Design Framework “provides for heights of 18m to Dooring St.”[79] The Framework apparently has no legal effect; it is a general policy document. No reference is given to this comment, but we assume that it is based on the diagram at page 44 which shows a small area of Dooring Street south of the proposed development and adjoining Wakefield Avenue as 18m in height. Whatever this means it cannot change the mandatory requirement in R24 of the MUHDC which provides for a maximum height of 12.5 m. This limit applies in the area opposite the development.

[79] Exhibit PJ3

90.The respondent noted that C10 does not require the replication of RZ4 on the subject site, but relates to compatibility. It noted that it had imposed condition A9(a)(i) to reduce the height to achieve compatibility and by implication ensure compliance with C10. It referred to the graduated increase in height which illustrates the change in zones to the subject site which is higher in density than RZ4 but not excessively high. It was said that the higher elements of the subject site are directed to the middle of the site and setback from Dooring Street.[80]

[80] Exhibit R5

91.However, the Tribunal has significant concerns that the approved proposal, even though it contains a reduction of one storey to six storeys, with the sixth setback, does not meet the terms of C10 of the NAPC when read as it must be in light of the INPC and the MUHDC which apply to the adjacent residential zone. It is necessary to first say a bit about the actual physical characteristics of the approved proposal in this respect. The ground slopes gently down to the north. The front street façade of Building 5 extends approximately 1.1m above the datum ground level (DGL) RL571.2m (refer to contour line 571.0) at the northern end of the street façade. The ground floor units at RL572.3 (floor level) have courtyard walls and the second level (third floor) units have balconies both of which extend up to 3.5m from the street front boundary. Buildings 4 and 6 have similar courtyard walls and second level balconies as well as mostly blank full height walls facing the street at their end which are sited 4.75m and 4.2m from the street front boundary respectively. The elevations and sections depict parapet walls facing the street to the roof of the fourth level (fifth floor) on Buildings 4, 5 and 6 which are not dimensioned however they appear to be approximately 0.9m high. Each storey has a floor to floor dimension of 2.8m and there are five levels facing directly on to Dooring Street, giving a total of 14m. Using the figures set out in this paragraph, the maximum height of the front street façade of Building 5 at the northern end is approximately 1.1 + 14 + 0.9 = 16m above DGL. The ground floor to Buildings 4 and 6 as well as the southern end of Building 5 appear to be only a few 100mm above DGL. The height of the façades to Buildings 4 and 6 facing directly on to Dooring Street are approximately 15m above DGL.

92.The western half of each building extends another storey in height. A line drawn 20m west of and parallel to the Dooring Street front boundary shows approximately half of each of the western units or 25% of the depth of each building at their level five (sixth floor) is located forward of this line. The DGL is either similar or slightly higher across the site away from Dooring Street at the western side of the buildings. The buildings each have built-up roof-top gardens above the sixth floor units surrounded by low-level walls set back from the building edge. The height of the buildings at the upper most level building façade facing towards the street is one level higher, 2.8m, less the 0.9m height of the parapet on the level below, that is 1.9m. The height of Building 5 at this level is approximately 16 +1.9 = 17.9m. The height of Buildings 4 and 6 at this level are approximately 15 +1.9 = 16.9m. The trafficable roof gardens are each accessed from both a lift structure and a stair structure. Each stair and lift structure is at the eastern edge of the roof gardens towards Dooring Street and within the 20m setback set out in R10. Each stair structure is approximately 2.8m higher than the roof and each lift structure is approximately 4m higher than the roof. The maximum height of each building (as defined) within 20m of the front boundary is the height of the lift structure above DGL. For Building 4 the DGL is determined from the spot levels at the front boundary and the inner garden which is the same level at RL 573.275; the roof level which is shown as 590.100, and the height of the lift structure above the roof of 4m. The maximum height of Building 4 is therefore approximately 20.8m.  For Building 5 the DGL is determined from the spot level at the front boundary RL571.57 and the inner garden RL 572.275 = RL571.9; the roof level which is shown as 589.100, and the height of the lift structure above the roof of 4m. The maximum height of Building 5 is therefore approximately 21.2m.  For Building 6 the DGL is determined from the spot level at the front boundary RL570.88 and the inner garden RL 571.275 = RL571.07; the roof level which is shown as 588.100, and the height of the lift structure above the roof of 4m. The maximum height of Building 6 is therefore approximately 21m. 

93.The amended proposal therefore differs from the desired character of the adjacent residential zone in that the RZ4 maximum building height is 12.5m and the INPC mandates development be sited so that it is set back at least 6m from the front street boundary with a resulting landscape which does not include building or design elements such as courtyard walls and balconies within this 6m zone. 

94.Generally the height of the façade facing directly onto Dooring Street for the three buildings is 2.5m and up to 3.5m greater than the mandatory height for the residential zone adjacent, while the buildings are sited closer to the street than 6m. The heights of the façades set back from Dooring Street at the upper level for the three buildings but within the 20m setback is another 1.9 m above these levels at 4.4m and up to 5.4m greater than the mandatory height for the residential zone adjacent. The maximum height of Building 4 is approximately 20.8m, for Building 5 it is approximately 21.2 m, and for Building 6 it is approximately 21m where these Buildings are forward of 20m from the front boundary. In relation to the 12.5m mandatory maximum height permitted in an RZ4 area Building 4 is approximately 20% higher facing directly onto Dooring Street than the mandatory maximum height; it is approximately 35% higher at  the upper most level building façade facing to the street, and the maximum building height is 66% higher. Building 5 is approximately 28% higher facing directly onto Dooring Street than the mandatory maximum height; it is approximately 45% higher at  the upper most level building façade facing to the street, and the maximum building height is 68% higher. Building 6 is approximately 20% higher facing directly onto Dooring Street than the mandatory maximum height; it is approximately 35% higher at  the upper most level building façade facing to the street, and the maximum building height is 68% higher. In the Tribunal’s view therefore the height of proposed Buildings 4, 5 and 6 will not be compatible with the desired character of the adjacent residential zone. The party joined argued that because the proposed Buildings 4, 5 and 6 were moving towards the RZ4 requirements when compared with the taller buildings on Northbourne Avenue that this made them compatible with the RZ4 zone. This may be a relevant factor, but in our view the concept of compatibility requires more than this. Compatible means “capable of existing together in harmony; capable of orderly, efficient integration with other elements in a system”.[81] Being in harmony with, or integrated with, the RZ4 requirements requires more than just being closer to those requirements than the Buildings on Northbourne Avenue are.

[81] Macquarie Dictionary

95.In the Tribunal’s view it is also appropriate to look to the terms of R10 of the NAPC in determining what is acceptable under C10. In the current proposal the buildings adjacent to Dooring Street are 3m and up to 4m greater than the requirement in R10 of the NAPC, and again the overall height of the buildings forward of 20m from the front boundary are greatly in excess of the 12m height. In the Tribunal’s view therefore the height of Buildings 4, 5 and 6 are not compatible with C10 when read in the light of R10.

96.In the Tribunal’s view it is also relevant to look at the objectives for the adjacent residential zone, set out at paragraph [84] above. These clearly indicate an objective to optimise residential land use with medium density housing in the area. The specific requirements discussed implement this objective. We do not think that these objectives would be met by developments well outside the specific requirements, nor that the desired character of this area would be something well outside these specific requirements. 

97.The Tribunal will therefore impose a condition that the maximum height of Buildings 4, 5 and 6 facing onto Dooring Street are not to exceed 12.5m above DGL for a depth of 14.2m from the Dooring Street front boundary (which is the outside face of the building wall line at the location of grid line H), and further that the maximum height of Buildings 4, 5 and 6 west of this line for a further 5.8m are not to exceed 15.5m above DGL. The approved proposal for these Buildings included a rooftop pool and gardens. In submissions from the respondent and party joined in relation to a draft order providing for an amended condition to implement this height limitation, they argued that the proposed amended condition should accommodate a rooftop pool and gardens by allowing minor elements, such as lift over runs, roof top garden access structures, fall protection structures, and landscaping above the 15.5m height limitation, provided, in the respondent’s submissions, that these are located and designed to minimise their visual impact above the height limitation. It was said that these features would add to the amenity of the Buildings, would be minor, would not add to the bulk and scale of the Buildings but rather would soften the roofline, and would be lost without such a provision. The Tribunal accepts these submissions, and the new paragraph A9(a)(i) of the conditions provided for in the orders will follow the terms proposed by the respondent in its submissions. The Tribunal notes that the implementation of all the requirements in A9 of the conditions require the approval of the respondent so this does not need to be restated in paragraph (a)(i). This height limitation is still a more generous requirement than that in R10 of the NAPC (which provides a limit of 12m for 20m). This is also a more generous requirement than the INPC and MUHDC (which provides a general limit of 12.5m and only three storeys, or at least the appearance of three storeys, and a setback of 6m). But it makes a real effort to comply with the terms of C10 which in our view the current approved proposal does not.

4.      Height of building (NCP 4.23 and NAPC R21)

98.The NCP relevantly provides at section 4.23 in relation to Northbourne Avenue that the requirement for a Development Control Plan has been met by the passage of Variation No. 96 to the Territory Plan. As to building height it provides that buildings adjacent to Northbourne Avenue are not less than three storeys, that plant and equipment must be enclosed and integrated with the form and design of the building and any rooftop plant must be contained within maximum limits, and that generally the parapets of buildings adjacent to Northbourne Avenue are not higher than 25m above natural ground level.

99.The maximum height as provided for in the NAPC discussed below is 25m. As discussed below the proposal exceeds this for Buildings 1, 2 and 3. Further, the proposal does not seem consistent with this aspect of the NCP concerning the height and rooftop plant.  

100.The National Capital Authority drew this to the attention of the respondent in an email of 10 May 2018 where it noted the requirement and then stated that “the drawings show a 0.9 metre encroachment of ‘rooftop plant area’ above the 25 metre maximum height,” and then asked for further information as to how the plant will look.[82] The respondent characterised this as suggesting that there was some flexibility in the height limit. We think this is an unduly optimistic reading of the comments. This is especially where the National Capital Authority later confirmed its comments.[83] And there is no basis for any such flexibility in the text of the NCP. In our view the proposal is clearly required to comply with the height limit in the NAPC, picked up by the NCP, and that this height limit as so picked up includes plant, as specified by the NCP. The respondent proposed a condition to address this, and this is discussed at paragraph [105] below.[84]

[82] Exhibit T1, T documents, pages T466-7

[83] Exhibit T1, T documents, page T130

[84] Respondent’s NCP submissions

101.The party joined acknowledged that the NCP provided that rooftop plant needed to be contained within the maximum height limits and that this was directly inconsistent with the NAPC which allowed rooftop plant to exceed the maximum height limit, which therefore did not operate. The party joined agreed that this could be managed by the condition discussed below.[85]

[85] Party joined’s NCP submissions

102.Rule 21 of the NAPC provides:

R21

For new buildings

a)     The minimum height of building is 3 storeys

b)     The maximum height of building is a horizontal plane 25m above datum ground level  measured at the Northbourne Avenue front boundary

For this rule height of building excludes rooftop plant provided they are set back and screened.

This is a mandatory requirement.

There is no applicable criterion.

103.As discussed above, it appears that the provision that height of building excludes rooftop plant is inconsistent with the NCP.

104.Even leaving this issue to one side, the party joined agreed that the height requirement of 25m above the datum ground level was not met for Buildings 1, 2 and 3. The respondent also agreed, and gave no explanation of how they came to approve the development on this basis.[86]

[86] Exhibit PJ3; exhibit R5

105.The party joined proposed a further condition in their further submissions, and then amended that in their further NCP submissions, so that the proposed amended condition read: “(vii) the maximum height of Buildings 1, 2 and 3 above datum ground level including rooftop plant and screening of such plant all not exceed a RL of 598.05 metres”.[87] The respondent agreed with this proposal.[88]

[87] Party joined’s further submissions; party joined’s NCP submissions

[88] Respondents further submissions; respondent’s NCP submissions

106.As discussed above when determining the height of Buildings 4, 5 and 6, Buildings 1, 2 and 3 each has a roof that is accessed from both a lift structure and a stair structure. ‘Height of building’ is defined in the Territory Plan to mean “the vertical distance between datum ground level to the highest point or points of the building”.[89] ‘Building’ is also defined to include “(b) a structure attached to a building; and (c) a part of a building”.[90] The height of the structures above each roof level is not dimensioned, however they appear to be approximately 2.8m higher than the proposed roof level. The Tribunal thinks that the rooves to the stair and the lift structures therefore form part of the building.

[89] Territory Plan, Part 13, Definitions page 33

[90] Territory Plan, Part 13, Definitions page 31

107.The Tribunal will therefore include in its decision a requirement for the addition of the condition proposed.

5.      Setbacks and balconies (NCP 4.23, NAPC R23, C30)

108.The NCP provides at section 4.23 that “for Northbourne Avenue, ensure building setbacks are 10 metres,” except in an area which is not relevant. It goes on to state that “minor encroachment by balconies, awnings and porticos may be considered if the materials and designs are such that the visual integrity of the building line is retained.” As discussed below, the NAPC has a similar requirements in R23 and C30, and a condition was proposed during the hearing which responded to these requirements. The respondent argued that this proposed condition also responded to the requirement in the NCP.[91] The party joined similarly argued that the proposed condition was sufficient, and that any encroachments not covered by the proposed condition fitted within the exception in section 4.23 of the NCP itself for minor encroachments.[92]

[91] Respondent’s further submissions; respondent’s NCP submissions at [9]

[92] Party joined’s NCP submissions  at [15]-[17]

109.R23 of the NAPC provides:

2.2    Front Setbacks –Northbourne Avenue

R23

Unless stated elsewhere, new buildings facing Northbourne Avenue have a 10 m building line setback to the Avenue.

This is a mandatory requirement. There is no applicable criterion.

110.C30 provides:

C30

Balconies and awnings may extend up to 1.5 m within the minimum setback provided they are lightweight in appearance and predominantly transparent.

Note: this criterion does not apply to Lyneham Section 55

There is no applicable rule.

111.The respondent argued that R23 was met, and that this was recorded in the decision at T documents pages T75-76. It was said that C30 in effect permits balconies and awnings to 8.5m setback from Northbourne Avenue, that the materials do not appear to represent a light weight material appearance however a balcony needs some bulk, the balconies proposed are not excessively bulky or large and are “considered a reasonable expectation of the Code”, the façade behind the balustrade and balcony remains a significant feature of the street presentation, but the balconies are not such a dominant feature as to overwhelm the 10m setback and the glass balustrade will provide the light weight appearance and will be predominantly transparent.[93]

[93] Exhibit R5

112.The party joined also argued that R23 was met, and that in relation to C30 that the protruding elements are to be constructed using transparent and non-transparent elements and in design these present as lightweight in the façade resolution.[94]

[94] Exhibit PJ3

113.However, the party joined proposed a new condition that “masonry blade walls and masonry balustrades up to and including level 2 are not to extend into the 10 metre setback from Northbourne Avenue”. It was said that this condition also ensured compliance with section 4.23 of the NCP.

114.The Tribunal has serious doubts that R23 and C30 are currently met. The Tribunal has assessed the drawings at annexure A to exhibit PJ5, the statement of Mr Smith. The application proposes 17 two-storey units on the ground floor facing onto Northbourne Avenue. Each has front courtyards set back 8m from the front boundary. Each courtyard has stepped two-storey high side dark grey brick walls that extend a minimum of 5.6m up to the underside of the 2^nd floor (third level) uninterrupted balconies with balustrades constructed with the same dark grey brick. Building line is defined in the Territory Plan to mean “a line drawn parallel to any front boundary along the front face of the building or through the point on a building closest to the front boundary.” [95] Where a balcony is more than 1.5m above the adjoining finished ground level it shall be “deemed to be part of the building.” [96]

[95] Territory Plan Part 13, Definitions page 31

[96] Territory Plan Part 13, Definitions page 31

115.Excluding the front lower level of the stepped walls which partly enclose courtyards and are permitted up to a height of 1.8m by R42A of the MUHDC, the brick walls and the uninterrupted brick balustrade to the balconies above the walls at the 2^nd floor locate the development building line at 9.3m. This is an encroachment into the mandatory setback of 700mm for the full length of the 23 walls of the 17 units at the ground and 1^st floor and the full length of the development on the 2^nd floor excluding two units in Building 2. The Tribunal has determined that the building line and the 700mm encroachment do not meet mandatory R23. The Tribunal thinks that the brick walls and brick 2^nd floor balustrade are not lightweight in appearance and predominantly transparent and do not meet C30.

116.The Tribunal will therefore impose the condition proposed.

6.      Vehicle entry and egress (NAPC R48)

117.R48 of the NAPC states:

All vehicles are able to leave and enter Northbourne Avenue in a forward direction.

118.It is unclear what this mandatory rule means. A broad reading is that all vehicles, no matter what their size, must be able to leave or enter Northbourne Avenue from the site, and in addition they must be able to do so in a forward direction. The context and purpose of the NAPC suggests that this is not the correct reading; such a reading may create significant problems for the flow and safety of traffic along Northbourne Avenue. An alternative narrow reading is that where vehicles are able to leave and enter Northbourne Avenue, they must be able to do so in a forward direction. This seems a more appropriate requirement addressed to safety of movement for cars, bikes and pedestrians between  the development and Northbourne Avenue.

119.The respondent argued that this rule is met because vehicles enter Northbourne Avenue from the basement and this is the only proposed point of egress from the development onto Northbourne Avenue. It is difficult to see how these features alone result in compliance.[97]

[97] Exhibit R5

120.The party joined acknowledged that because entry of vehicles from Northbourne Avenue was not proposed, the proposal may not be compliant with R48.

121.The party joined also argued that R48 was inconsistent with  section 4.15.4 of the NCP which provides that:

Traffic is to be managed to ensure the continued effective function of the Main Avenues and Approach Routes. The Main Avenues will provide access to fronting buildings where practicable, and where traffic safety and flows are not adversely affected.

122.There does seem a strong argument that a broad reading of R48 is inconsistent with the NCP and generally inappropriate. The Tribunal therefore prefers the narrow reading, and as the proposal will only allow vehicles to leave the development onto Northbourne Avenue, and this will be in a forward direction, the requirement is met.

7.      Extensive continuous glass (NAPC C34)

123.C34 of the NAPC provides:

Extensive areas of continuous glass façade are not permitted.

There is no applicable rule.

124.The respondent indicted that condition A6 had been imposed to address this requirement. This condition states that a materials board with examples of material finishes must be provided and be to the satisfaction of the Authority prior to the commencement of construction. The Tribunal does not see how this condition necessarily assists with compliance with C34. The respondent also noted that while the façades do use glass significantly, it was not “extensively continuous” and the areas of glass are broken up and adequately separated in the façades of the development.  It was noted that this requirement had to work with C66 of the MUHDC and C30 of the NAPC.[98]

[98] Exhibit R5

125.The party joined indicated that in its view the design, having regard to changing materials and articulation, does not present with an extensive glass façade.[99]

[99] Exhibit PJ3

126.The Tribunal agrees with the party joined and believes the requirement in C34 is met.

8.      Loading and unloading (NAPC R47)

127.R47 of the NAPC provides:

Onsite provision is made for the loading and unloading of vehicles, with adequate manoeuvring space so that vehicles can enter and leave the site travelling in a forward direction.

Note: Loading, unloading and associated manoeuvring area is in addition to minimum parking requirements.

This is a mandatory requirement and there is no applicable criterion.

128.The party joined argued that R47 relates to the operation of light vehicles and removalist vehicles attending the site, and that the design permits the forward entry and exit of such vehicles. It was argued that the management of waste services is not considered under R47. Rather it is dealt with in the Development Control Code for Best Practice Waste Management in the ACT. This is referred to in R73.

129.On this basis the Tribunal believes the requirement in R47 is met.

9.      Lobbies (MUHDC R96 and C96)

130.As discussed above the respondent and party joined argued that the CZDC does not apply to the development. For the reasons stated above the Tribunal accepts the position of these parties, especially in the absence of argument to the contrary.

131.In submissions the respondent suggested that the MUHDC also did not apply. However, in written submissions the respondent and party joined noted mandatory Rule 18 of the NAPC which states that all multi-unit housing is designed to comply with the Residential Zones – Multi Unit Housing Development Code. The Tribunal accepts that the MUHDC applies to the development.

132.R96 and C96 of the MUHDC provide as follows:

10.2         Access to lifts or stairs

R96

No more than 9 apartments on each floor are accessible from a single common lift or stair lobby.

C96

Convenient access to apartments is achieved.

One or more of the following matters may be considered when determining compliance with this criterion:

a)     whether there is a high level of public amenity and safety in common lobbies

b)     whether spaces are well-proportioned with clear sightlines

c)     whether there is a high proportion of dual aspect apartments

d)     whether there is a high proportion of apartments with northern orientation

133.The respondent argued that level 1 in all Buildings, levels 2, 3, and 4 in Buildings 1, 2, 5 and 6, and level 5 in all Buildings meet the rule. Levels 6, 7 and 8 in Buildings 1 and 2 also meet the rule. While they did not meet the rule, it was suggested that levels 2, 3 and 4 in Buildings 3 and 4, and levels 6, 7 and 8 in Building 3 met the criterion. It was said that in Building 3 at levels 2, 3 and 4 there is no single common lift or stair lobby, rather there are two lift cores, and therefore R96 does not apply to them. At any rate C96 is satisfied.[100]

[100] Exhibit R5

134.In relation to those floors which were subject to C96 it was said that the number of occupants would contribute to the public amenity, lift lobbies in each floor are likely to be secure, some of the units in areas with greater than nine apartments are single bedroom dwellings, the corridors and lobbies are of standard configuration suitable for their purpose with suitable sightlines and proportions, and the number of dwellings using either two or one lift depending on the floor is not excessive.[101]

[101] Exhibit R5

135.The party joined acknowledged that the rule was not met in some limited cases. It was argued in effect that convenient access was provided, with high amenity lobbies, in and around the lift cores, wide corridors, and safety is afforded to all common areas with access control and surveillance along corridors.[102]

[102] Exhibit PJ4 ; transcript of proceedings 14 March 2019 at pages 165-168

136.Although it has some doubts, the Tribunal accepts that generally R96 and C96 are met where they apply. But the Tribunal thinks that as agreed by the respondent and the party joined that R96 is not met for levels 6, 7 and 8 in Building 3, and the Tribunal has particular concerns that C96 is also not met for levels 6, 7, and 8 in Building 3.

137.Building 3 does not comply with R96 on levels 6, 7, and 8 as there are greater than nine apartments on each floor that are accessible from a single common lift or stair. The meaning of C96 (c) and (d) are unclear. Is a high proportion of dual aspect or northern orientated apartments a negative or positive with respect to accessibility to the number of apartments? The three floors have no lobbies provided, only corridors which are shown as 1.7m wide. It is difficult to say therefore that there is a high level of public amenity and safety in the common lobbies (C96(a)). The corridor widths are structural widths not finished widths and as such the corridors will be slightly narrower than 1.7 m. The lifts are located adjacent to the right angle turn of the corridors and as such the sightlines are not clear nor are the relatively narrow spaces outside the lifts and stairs well-proportioned (C96(b)). A consideration of the relevant considerations in paragraphs (a) and (b) suggests that C96 is not therefore met, and that convenient access to apartments is not achieved.

138.A lift lobby was provided to level 8 with an approximate minimum dimension of 3m in the earlier development application while levels 6 and 7 had greater floor plates compared to those now proposed and included two common lifts and stairs with lobbies.[103]  As the Tribunal does not consider that convenient access to apartments is achieved for all the approved proposal, it will therefore impose a condition that levels 6, 7, and 8 in Building 3 are to have lift lobbies with a minimum dimension of 3m.

10.     Stairwells (MUHDC C96A)

[103] Exhibit T1, T documents, page T1455

139.C96A of the MUHDC provides:

10.3 Stairwell features

There is no applicable rule.

C96A

Stairwells achieve all of the following:

a)     are open or visually permeable to facilitate natural surveillance

b)     are accessible and encourage physical activity by providing an attractive alternative to lifts

c)     are located in a position more prominent than lifts.

Note:This criterion applies to all new developments, major alterations and/or extensions to existing buildings but does not apply to extensions of a size 50% or less of existing floor area.

140.The parties and the Tribunal had difficulty with understanding how this requirement sat with the primary purpose of stairs for safety in the event of fire, and the relevant requirements flowing from this purpose. As the respondent noted, the stairwells are enclosed to ensure compliance with egress in the Building Code, and windows are not likely to be permitted as this would constitute a risk for protection from fire from a different part of the building. The party joined similarly noted that stairwells are not provided for occupant amenity or convenience, rather they are provided for the safety of occupants, and some of the features in C96A are precluded by the Building Code. It was said that paragraph (c) would none-the-less be met. It was implied that paragraph (b) will be complied with to the extent allowed by building regulations. It was said that paragraph (a) could be complied with with significant fire engineering and further inputs from an engineer and a building certifier.[104]

[104] Exhibit R5; exhibit PJ4; transcript of proceedings 15 March 2019 at pages 182-184

141.The party joined indicated that if a condition was required, one would be that “fire-rated windows be added to stair well doors at ground level”. This would provide some level of compliance with paragraph (a). The Tribunal thinks it is appropriate to add this condition in its decision.

11.     Solar access (MUHDC R58, C58)

142.R58 and C58 of the MUHDC provide as follows:

R58

This rule applies to apartments.

The floor or internal wall of a daytime living area of not fewer than 70% of apartments on a site is exposed to not less than 3 hours of direct sunlight between the hours of 9am and 3pm on the winter solstice (21 June).

Note: Where a development comprises a mixture of apartments and other multi-unit housing, this rule will apply to the apartments.

C58

Daytime living areas have reasonable access to sunlight.

143.These requirements were the subject of significant consideration in the Tribunal.  The party joined provided further information that of the 370 apartments, 190 or 51% would receive under three hours of daylight between 9.00am and 3.00pm at the winter solstice, and 180 or 49% over three hours of such daylight. However, in the period 8.00am to 4.00pm, 231 or 62% of apartments would receive more than three hours of daylight, and 259 or 70% of apartments would receive over two hours of daylight.[105]

[105] Exhibit PJ 6

144.The party joined argued that these figures indicated that C58 was met, especially in the context of the site geometry and address to solar north provisions requiring buildings to address the corridor and be of a certain scale, the twin building double loaded corridor design typology, the desire to create apartments with wide façades and ventilation opportunities as well as sun protection and private open space provisions. It was argued that the design seeks to balance various design matters within the changing planning policy to increase density along the transport corridor, and that in this context the level of sunlight met the requirement of C58.[106]

[106] Exhibit PJ4

145.The respondent argued that the criterion was satisfied because reasonable access is not confined to the winter solstice, or for any length of time during the day. As noted, looking at extended hours of solar access indicates that a much larger volume of dwellings have significant solar access. The north/south orientation of the block and other site constraints were said to limit opportunities for a high volume of dwellings having a northerly aspect and therefore high solar access.[107]

[107] Exhibit R5

146.R58 refers to direct sunlight while C58 refers to sunlight. The Territory Plan does not define either term. The party joined suggested that there was a different emphasis intended by the drafting and that daylight might be an appropriate term similar to sunlight, and that this might be adopted for the intent of the criterion. The Tribunal notes that the NSW Planning and Environment SEPP65 (residential apartment development) definitions provide that sunlight is the direct beam radiation from the sun whereas daylight consists of sunlight and diffused light from the sky.[108] Daylight changes with the time of day, season and weather conditions.

[108] State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65)

147.If there was any intended significant difference between the terms direct sunlight in R58 and sunlight in C58 this could easily have been specified in the provisions. In the absence of any indication as to what the difference is the Tribunal is of the view that there is no difference in the term direct sunlight used in the R58 and sunlight used in the C58. They are both referring to direct beam radiation from the sun.

148.The Territory Plan does not define the word ‘reasonable’ even though it is used extensively in Element 6 of the MUHDC. ‘Reasonable’ is a relative term and has meanings such as fitting, just, rational, ordinary, usual. However, the Tribunal considers it to mean in this context ‘appropriate for a particular situation’. What is appropriate for a particular situation may change over time.

149.It is unclear whether the purpose of these requirements is energy efficiency or general amenity or both. Within the MUHDC the provisions are under Element 6: Amenity. Such headings can be used to interpret provisions.[109] ‘Amenity’ is not defined in the Territory Plan so it takes its general meaning of “agreeable features”, “features, facilities, or services of a house … which make for a comfortable and pleasant life”.[110] The other matters considered under Element 6 are privacy, principal private open space, separation between external walls, balustrades, storage, natural ventilation and noise attenuation. This context suggests that amenity, that is providing agreeable and comfortable housing, is a purpose of these provisions, including C58.

[109] Legislation Act 2001, sections 126 and 140

[110] Macquarie Dictionary

150.Having said that, there are also indications that environmental considerations in particular energy efficiency and sustainable development may also be purposes. Section 48 of the Planning Act provides that the object of the Territory Plan is provide the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation, and section 49 that the Territory Plan must give effect to its object in a way that gives effect to sustainability principles. These principles are not defined but section 9(1) and (2) of the Act defines sustainable development to include the intergenerational equity principle; namely that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations. Section 12(3) further requires that “the planning and land authority must exercise its functions in a way, as far as practicable, gives effect to sustainable development”. The CZ5 objectives include to create an efficient and sustainable urban environment and provide for a diversity of living, working and recreation opportunities (objective (b)) and maintain and enhance environmental amenity and undertake development using best practice environmentally sustainable development principles (objective (c)). In view of this it seems likely that C58 also has the purpose of providing solar access to promote passive solar design and active solar technology, and improve energy efficiency.

151.It seems appropriate therefore to take the view that R58 and C58 are seeking to both enhance the general amenity by requiring solar access and enhance passive solar design with the intent of improving energy efficiency by reducing the level of heating needed.

152.The Tribunal does not agree with the submissions that the site geometry and address to solar north provisions requiring buildings to address the corridor and be of a certain scale are design constraints on solar access. The opposite is the case. Northbourne Avenue extends in a north/south direction and the three hour provision would appear to be specifically aimed at buildings with this east and west facing design outcome. The twin building double loaded corridor design typology is a design decision adopted by the party joined and there was no evidence before the Tribunal that it is a requirement of the Territory Plan.

153.Reading C58 on its own could convey that all of the daytime living areas in all of the apartments are to have reasonable access to sunlight. We have not read it that way and rather read the criterion in light of the rule requirement. R58 only requires that not less than 70% of apartments is exposed to the required sunlight, and is an appropriate benchmark for the criterion. By the same reasoning we do not agree with the respondent that the position in winter, and in particular at the winter solstice, is irrelevant, and have taken the view that the position at the winter solstice is relevant and an appropriate benchmark.

154.The amended development application dated 28 August 2018 (amended development application) included floor plans with each apartment given a number representing the total number of hours of sunlight the party joined calculated entered the apartment to address C58.[111] At T documents page T84 the assessment officer stated that 43% of the units received solar access for three hours, 29% received two hours, and 23% received less than two hours or no solar access and concluded that this was considered reasonable. It is not clear whether this was considered a reasonable percentage or that the living areas had reasonable access to sunlight, presumably both.

[111] Exhibit T1, T documents, pages T376-T380

155.Section 139(2)(d) of the Planning Act states that an application for approval of a development in the merit track must “be accompanied by information or documents addressing the relevant rules and relevant criteria.” The assessment officer relied on the nominated hours discussed at paragraph [154] above for each apartment without assistance of documents such as shadow diagrams or solar access diagrams which would depict in a three dimensional form the sunlight falling on the internal walls or floor of each apartment. The Tribunal enquired as to the assessment of some of the apartments, including the number of hours of access to all of the ground floor apartments to Northbourne Avenue given there were full-height walls perpendicular to Northbourne Avenue and balconies over them, and of the east facing apartments on level 6 and 7 on grids B-C at 6-8 and 11-13 given that they would be overshadowed by northern apartments and privacy screens, and of a number of apartments on level 8 where every apartment achieved three hours.[112]

[112] Transcript of proceedings 15 March 2019 at pages 202-205

156.The party joined provided revised floor plans with hourly numbers designated for each apartment near the end of the hearing to address C58.[113] These clarified that the earlier drawings for the amended development application had proposed skylights to the rooves of level 8, however the Tribunal notes that these were not included on the roof plan nor noted in the documents. We consider that the amended development application information assessed was overly optimistic as to the number of hours apartments will receive solar access between 9.00am and 3.00pm. The revised documents included additional skylights to the other top floor units and by adopting a period of access to sunlight from 8.00am to 4.00pm instead of 9.00am to 3.00pm and reducing the number of hours of sunlight from three to two the documents indicated that the development could achieve 70% compliance. This was equivalent to one hour of access to sunlight between 9.00am and 3.00pm for many apartments.

[113] Exhibit PJ7

157.Mr Millman for the party joined indicated that an east orientated apartment would receive sunlight at the time the occupant would be preparing for work in the morning and that this justified the extension to 8.00am.[114] He did not indicate how this would be advantageous to a similar occupant of a west orientated apartment nor to what extent the low position of the sun to the horizon at 8.00am or 4.00pm would admit the sunlight given the topography and built form.

[114] Transcript of proceedings 15 March 2019 at pages 191 and 199

158.The Tribunal has serious doubts as to whether C58 is complied with. However there is significant lack of clarity about the criterion, and uncertainty about what is required, and as there was no evidence offered by the applicant the Tribunal will accept that the party joined’s proposed benchmark of 70% of apartments receiving over two hours of sunlight between 8.00am and 4.00pm at the winter solstice is appropriate to meet C58. But the Tribunal is keen to ensure that this benchmark is actually met. It will therefore make it a condition of the approval that solar access diagrams or what may also be referred to as shadow diagrams are provided for each apartment. These diagrams are to take account of all obstructions including but not limited to screening devices and screen walls. The diagrams are to show that the floor or wall of a living area to no less than 70% of apartments receive two hours or more of sunlight between 8.00am and 4.00pm on June 21.

159.The  detailed drawings, (including sections depicting the true thickness from the top of the roofing finish, with the true allowance for roof fall, to the underside of finished ceiling to each skylight location type), will need to show that the installation of clear glazed skylights both permits two hours of sunlight to hit a wall (not glazing) or the floor of each top floor apartment between 8.00am and 4.00pm on June 21; and that the required clear glazed skylights to the rooves proposed as accessible gardens and pool area of Buildings 4, 5 and 6 are fully screened for privacy by solid screens so that there is no overlooking into the apartments below from a person with an eye height of 1.5 m standing on the roof. The shadows cast by the solid privacy screens are to be included in the above solar access diagrams.

12.     Natural ventilation (MUHDC C66)

160.C66 of the MUHDC provides:

There is no applicable rule.

C66

For buildings containing 3 or more dwellings, dwelling layouts are to ensure natural ventilation is provided to habitable rooms by cross or stack effect ventilation by maximising separation between opening windows.

161.The respondent argued that the large use of windows has enabled natural ventilation. It is noted that cross or stack ventilation is not defined in the Plan, but it was said that it is where a breeze could enter the dwelling from one window and flow through the dwelling to potentially exit through a separate window. It was said that ideally the breeze would flow through the building in the same direction, but that this was not necessary; the distance between windows is simply to be maximised. It was stated that the stepped design will permit cross-over or cross-through apartment ventilation, and that 325 dwellings will have such a window configuration, and 45 will have a single or flat frontage. Mr Davies for the respondent said he was satisfied that the development met C66.[115]

[115] Exhibit R5

162.Mr Van der Walt for the party joined indicated that in excess of 90% of apartments are afforded natural ventilation by virtue of being corner apartments and incorporating stepped façades, while the remaining units have a flat façade. The flat façade apartments are designed to have operable windows and doors separated from each other to promote ventilation, while the depth of the units is reduced to provide ventilation performance for all units. The amendments resulted in the amount of corner and stepped façade apartments increasing while the unit count reduced, thus improving the performance in respect of C66.[116]

[116] Exhibit PJ4

163.For the reasons given by the respondent and the party joined, the Tribunal is of the view that that requirements of C66 are met.

13.     Ground floor commercial use (MUHDC R97, C97)

164.R97 and C97 of the MUHDC provide:

11.1 Ground floor commercial use in commercial zones

R97

This rule applies to all of the following:

a)     commercial zones

b)     blocks nominated in a precinct code for ground floor commercial use

c)     buildings containing one or more dwellings

d)     the building line for any ground floor dwelling is less than 6m

The ground floor finished floor level to finished ceiling level height is not less than 3.6m.

Note: Noise attenuation provisions in part A may also apply.

C97

In commercial zones, buildings afford the opportunity to accommodate non-residential uses, including office and retail, at the ground floor.

165.The respondent argued that R97 does not apply here because all of paragraphs (a) to (d) are required to be met before the obligation arises, but are not in this case. The Tribunal has some doubt about this, but at any rate C97 is satisfied, because all ground floor units facing Northbourne Avenue have external street access and can accommodate non-residential use.

166.The party joined acknowledged that the design does not comply with the rule. But it was said that the two-storey units addressing Northbourne Avenue will be constructed with an internal fitout system that allows the adaption of these units to a high ceiling commercial unit. The units on Dooring Street are also designed to allow for small office, shop or retail use for future residents. It is noted that the NAPC in effect restricts commercial opportunities on the site,[117] and that the initial development proposal included more explicit commercial ground floor opportunities, but this was not supported by the Territory and therefore abandoned.[118]

[117] See R7

[118] Exhibit PJ4

167.The Tribunal is of the view that for the reasons put forward by the respondent and the party joined that C97 is met.

Conclusion

168.Therefore the decision of the respondent to approve the development subject to conditions will be varied. The main objection of the applicant was that the existing road network cannot accommodate the amount of traffic that is likely to be generated by the development. The Tribunal accepts that the existing road network can accommodate the amount of traffic that is likely to be generated by the development and therefore the development complies with the Territory Plan and cannot be refused on this basis. However, the Tribunal will require more visitor parking.

169.The Tribunal will also require that proposed Buildings 4, 5 and 6 facing Dooring Street be reduced in height to comply with the requirement that they be compatible with the desired character of the adjacent residential zone.

170.Further, the Tribunal believes that the height of Buildings 1, 2 and 3 in the proposed development needs to be reduced to comply with NCP 4.23 and NAPC R21; fire rated windows need to be added to stairwell doors at ground level to comply with NCP 4.23, and NAPC R23 and C30;  masonry blade walls and masonry balustrades up to and including level 2 should not  extend into the 10 metre setback from Northbourne Avenue to comply with NCP 4.23, and NAPC R23 and C30; and levels 6, 7, and 8 in Building 3 should have lift lobbies with a minimum dimension of 3m (to comply with MUHDC R96 and C96). Appropriate conditions will be imposed to meet these requirements.

171.To comply with C58 of the NAPC the Tribunal accepts that 70% of apartments should receive over two hours of sunlight between 8.00am and 4.00pm at the winter solstice; the Tribunal will add a condition to ensure that this benchmark is in fact met by the development.

172.The Tribunal will therefore vary the decision of the respondent by amending the relevant conditions and providing for further conditions.  The Tribunal provided draft orders, including amended and further conditions, to the parties and sought their submissions on the terms of these draft orders. The respondent and party joined submitted that the amended height limitation for Buildings 4, 5 and 6 of 15.5m  should provide for an exception for minor elements, such as lift over runs, roof top garden access structures, fall protection structures, and landscaping (see paragraph [97] above). The Tribunal’s amended condition generally accepts these submissions, and for the most part adopts the formulation of the condition proposed by the respondent.

……………………………….

Senior Member R Orr QC

For and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:

AT 109/2018

PARTIES, APPLICANT:

North Canberra Community Council

PARTIES, RESPONDENT:

ACT Planning and Land Authority

PARTIES, PARTY JOINED

Art Projects Nominees Pty Ltd ACN 610 529 452

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

Ms K Katavic

COUNSEL APPEARING, PARTY JOINED

Mr P Walker SC

Mr WDB Buckland

SOLICITORS FOR APPLICANT

N/A

SOLICITORS FOR RESPONDENT

ACT Government Solicitor

SOLICITORS FOR PARTY JOINED

Meyer Vandenberg, Lawyers

TRIBUNAL MEMBERS:

Senior Member R Orr QC

Senior Member G Trickett

DATES OF HEARING:

13 March 2019

14 March 2019

15 March 2019

20 March 2019