Oberoi v ACT Planning and Land Authority (Administrative Review) - [2015] ACAT 65

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

OBEROI v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2015] ACAT 65

AT 14/97
Catchwords: ADMINISTRATIVE REVIEW – planning –heritage guidelines – site coverage – impact on heritage values – garden setting – extension to home to accommodate needs of family – human rights to be taken into consideration – whether alternative building plans are realistic – conditions on landscaping to lessen impact on heritage values

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Heritage Act 2004 ss 27, 59, 60, 61
Human Rights Act 2004 ss 30, 40, 40B
Planning and Development Act 2007 ss 48, 50, 113, 119, 120, 162, 193, 407, sch 1

Subordinate
Legislation: Blandfordia 5 Garden City Heritage Precinct Guidelines

Cases cited:Baptist Community Church v ACT Land and Planning Authority & Ors [2015] ACTCA 3
Bat Advocacy NSW Inc v Minister for Environmental Protection, Heritage and the Arts [2011] FCAFC 59
Castles v Secretary to the Department of Justice & Ors [2010] VSC 310
Guttav ACT Planning and Land Authority [2013] ACAT 63
Smith v Hobsons Bay City Council [2010] VCAT 668
Thomson v ACT Planning and Land Authority [2009] ACAT 38

Tribunal: Ms M-T. Daniel – Member (Presiding)
Mr R. Pegrum – Senior Member

Date of Orders:  25 September 2015
Date of Reasons for Decision:      25 September 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL           AT 14/97

BETWEEN:
SABEENA OBEROI
Applicant

AND:
ACT PLANNING AND LAND AUTHORITY
Respondent

TRIBUNAL: Ms M-T. Daniel – Member (Presiding)

Mr R. Pegrum – Senior Member

DATE:25 September 2015

ORDER

The Tribunal orders that:

The decision under review is varied to approve development application No. 201425272 subject to compliance with the conditions set out in these orders.

CONDITIONS

Within 28 days from the date of this decision, or within such further time as may be approved by the ACT Planning and Land Authority, the applicant/lessee shall lodge with the Authority for approval:
a) a plan prepared by a qualified landscape architect showing the proposed landscape design for the area between the house and the front property line, and for other areas of the site visible from the street. The design must be to provide the garden setting contemplated in the Heritage Guidelines. The plan must show existing and new plantings of shrubs and suitably advanced trees (indicating types and sizes), new or changed paths and paving, and the extent of areas for car standing and manoeuvring. Accompanying diagrams or calculations must show that the area available for landscape planting occupies not less than 40% of the area of the subject site;
b) a detailed plan showing that the proposed extension projects no further to the south from the existing house than the southern wall of the existing master bedroom and including dimensions provided by the surveyor for the distance of the proposed extension to the nearest points on the south boundary of the site; and
c) drawings of amended elevations and cross sections showing that the new bedroom wing will have an eaves projection on three sides that matches the existing eaves projection.
All building and landscaping work must be undertaken in accordance with the approved plans and drawings submitted for Condition 2 above.
No services are to be dug within the tree protection zone of the regulated elm next door (opposite the main bedroom).
The building work must not proceed beyond floor level until submission of written certification from a licensed surveyor to the ACT Planning and Land Authority that the new work is wholly within the boundary clearances mentioned in Condition 2(b) above.
The landscaping work must be completed before, or within 3 months after, the issue of a certificate of occupancy.

………………………………..
Ms M-T. Daniel - Member

For and on behalf of the Tribunal

REASONS FOR DECISION

The applicant, Ms Sabeena Oberoi, has sought review of a decision by the ACT Planning and Land Authority (Authority) not to approve a development application in relation to her house at Block 8 Section 13 Griffith (45 Flinders Way) (subject site).
The stated purpose of the development was to provide more suitable housing for the applicant’s family of seven adults, which would accommodate the care for aged relatives in the home with regard to their physical, religious, cultural and privacy needs. The Authority refused approval because of concerns about the heritage impact of the proposed development, the subject site being located within the Blandfordia 5 Garden City Heritage Precinct (the precinct).
This matter raised issues for the Tribunal about the correct application and interaction of the Planning and Development Act 2007 (Planning Act) (sections 119 and 120 in particular), the Heritage Act 2004 (Heritage Act) and the Heritage Guidelines made under that Act, and the Human Rights Act 2004 (Human Rights Act).
Background Facts
1.1 The original cottage and current house
The house on the subject site is only partly original. There was a Federal Capital Commission cottage built c. 1927, which was the subject of brick additions by previous owners in 1968 and more substantial architect-designed renovations by the current owners in around 1998.
It was the evidence of the applicant that the 1998 renovations were carried out with a view to meeting the family’s anticipated needs but also to be consistent with the heritage characteristics of the precinct.
The 1998 renovations resulted in a house roughly double the size of the original cottage, and a site coverage or plot ratio of just over 37%[1]. At that time the Heritage Guidelines for the precinct allowed a maximum 35% site coverage, nonetheless the development application for those renovations was approved at the relevant time.
[1] Statement of Ms Jamaly dated 2 February 2015, paragraph 9
The residence as a result of the 1998 renovations now has five bedrooms, a bathroom shared between bedrooms two and three, a further three ensuite bathrooms of varying sizes, a guest powder room, a study, kitchen, separate kitchenette, library and three distinct living areas (family, dining and sun rooms).
1.2 Development Application of March 2014
The development application the subject of these proceedings, DA 201425272 (the DA), was submitted by Architects Ring & Associates on behalf of Ms Oberoi on 21 March 2014. The DA sought approval of the “demolition and construction of specific internal walls of residence [and] construction of extension to the southern side of the house.”[2]
[2] T-Documents page 265
The DA proposed to project part of the existing exterior wall of bedroom 3 and the adjacent shared bathroom (a combined length of about 5.37 metres on the southern side of the house) towards the southern side boundary by approximately 4.8 metres. This larger space would be reconfigured internally to create a sixth bedroom with an accessible ensuite bathroom and a separate ensuite bathroom to the existing bedroom two.
The house as a result of the proposed development would therefore have six bedrooms and five ensuite bathrooms. The other internal aspects of the house would remain unaffected.
The proposed extension would provide additional floor area of 28.5 square metres. The existing gross floor area (GFA) was calculated at 393.2 square metres. The evidence on behalf of the Authority in this matter, which was preferred on this point, put the measurements slightly differently at a total GFA of 424.4 square metres[3]. The subject site has an area of 1068 square metres[4]. The DA if approved would result in a plot ratio of 39.73%.
[3] This included a small garden shed of 3m2 as a part of site coverage
[4] Statement of Ms Jamaly, table B
1.3 The Original Decision by the Authority
The DA was assessed in the merit track under section 113(2) of the Planning Act. The Authority sought and obtained entity advice from the ACT Heritage Council (Heritage Council) and the Conservator of Flora and Fauna (Conservator). Public notification commenced on 17 April 2014 and ended on 5 May 2014. No written responses were received during the public notification period.[5]
[5] T-Documents page 241
On 11 June 2014 the delegate of the Authority refused the proposal (the original decision). The Notice of Decision included Reasons for the Decision as follows:
The Development Application (DA) has been refused because it did not comply with the legislated requirements for merit track applications pursuant to section 119 of the Act.
Consistent with Rule 44 of the Single Dwelling Housing Development Code of the Territory Plan, the DA was referred to the ACT Heritage Council (Council). The development proposal was not supported by the Council for the following reasons:
The development proposal is inconsistent with the mandatory requirements 2.1d and 2.1f of the Heritage Guidelines for the Blandfordia 5 Housing Precinct (Heritage Guidelines).
Clause 2.1d of the Heritage Guidelines states:
Site coverage of built development (including the area of any dwelling, garage, carport, outbuilding or other roofed area but excluding driveways and unroofed paved areas) on a residential or commercial block with an area less than or equal to 1600m² shall not exceed 27.5% of the area of the block.
The development proposal would substantially exceed the maximum site coverage of 27.5%.
Clause 2.1f of the Heritage Guidelines states:
Not less than 40% of the area of a residential block shall be retained as planting area. Planting area means an area of land within a block that is not covered by buildings, vehicle parking and manoeuvring areas of (sic) any other form of impermeable surface and that is available for landscape planting.
The proposed development would not comply with the planting area requirement of no less than 40% of block area.
The ACT Heritage Council concluded that the proposed development will have a detrimental impact upon the heritage values of the place.
The planning and land authority considered the proposal against the Heritage Guidelines including the importance of protecting the Heritage character of this area. Consequently the planning authority agreed with the Council’s conclusion & pursuant to section 119(2) of the Act the DA has been refused. [6]
The Notice of Decision went on to quote the advice provided to the Authority by the Heritage Council on 6 May 2014 which was as follows:
The proposed development will have a detrimental impact upon the heritage values of the place on the basis of the attached heritage assessment, and to prevent such impact would require change to the fundamental nature or concept of the development.
…
While the Council sympathises with the lessee in their endeavours to assist their relatives, the existing development has substantial breaches of mandatory requirements that are intended to maintain generous garden settings for each dwelling in the precinct and the Council cannot support additional encroachments into the potential or existing garden area.[7]

1.4 Reconsideration of Decision

[6] T-Documents page 184

[7] T-Documents pages 185 and 186

On 6 August 2014 Ms Oberoi sought reconsideration of the original decision. On 7 October 2014 the Chief Planning Executive of the Authority confirmed the original decision (the reconsideration decision). The notice of decision on reconsideration gave the following reasons for the decision[8]:
[8] T-Documents page 62
The applicant contends there are exceptional circumstances surrounding the application that require the further addition to the existing dwelling. Given the sensitive nature of the proposal and the issues surrounding it, the application for reconsideration was referred to the Executive Policy Committee (EPC) for consideration.
The committee discussed the Human Rights issue as raised by the applicant. The applicant states that her situation is unique because of her cultural background where it is one’s duty to care for the elderly and adult children stay at home until they are married. The applicant contends the refusal of DA201425272 is a violation of Section 27 – Rights of Minorities of the Human Rights Act 2004. It is recognised that such rights may be limited as to achieve a balance between individual rights and the protection of public interest, pursuant to Section 28 of the Human Rights Act 2004.
The application was accompanied by evidence such as medical certificates and an occupational therapist’s home assessment to support the application and confirms that the proposal is the only option to accommodate elderly sick relatives in the house. The evidence provided substantiates the need for the proposed house extensions. However it is considered that a decision to refuse the proposed development would not contravene the Human Rights Act 2004.
The [executive policy] committee discussed whether the applicant’s circumstances could be considered exceptional and whether all other options to accommodate the family within the existing space had been considered. There were further discussions on the potential impact including possible precedent an approval of the application would have on the Blandfordia 5 Housing Precinct.
The EPC concluded a precedent to further depart from the heritage site coverage requirement should not be set and therefore the original decision to refuse the development application should be confirmed.
…
On 8 September 2014 advice was received from the ACT Heritage Council in relation to the proposal. The advice states:
The proposed development will have a detrimental impact [original emphasis] upon the heritage values of the place on the basis of the attached heritage assessment and to prevent such impact would require change to the fundamental nature or concept of the development.
…the applicant states that the current site coverage was approved by the Council. This was approved before the current Heritage Guidelines for the Blandfordia 5 Housing Precinct and consequently met the Guidelines that were applicable at that time. The Council does not expect that the applicant should reduce their site coverage to the current maximum of 27.5%, but will object to any additional site coverage that further breaches the current Heritage Guidelines.
The Council notes that the proposed additional development will further compromise the ability to provide a generous garden setting for the development on the site, which is the underlying objective for mandatory requirement 2.1d. This is due to the proposed development encroaching on the area that remains where trees and shrubs can be planted to provide a garden setting.
The existing development on the site also results in less than 40% of the block being retained as planting area, breaching mandatory requirement 2.1f of the Guidelines. The proposed addition will further reduce opportunities for planting on the block as areas currently paved will be less likely to be converted to planting area…The Council does not consider… concrete pavers or red granite to be an area that is available for landscape planting. Consequently, areas covered by concrete pavers and red granite cannot be included in the planting area.
The applicant has noted that recent development has been undertaken on Block 7 Section 13 Griffith that exceeds the allowable site coverage. The Council has not supported any development on that block that exceeds the allowable site coverage.
The combination of the excessive site coverage and inadequate planting area does not meet objective 2.1 of the Guidelines “To conserve and reinstate the historical arrangement of dwellings across the precinct and the provision of a generous garden setting for each dwelling”. The existing development on the site is already a substantial breach of the allowable site coverage and the Council does not believe it is appropriate to allow additional encroachments into the garden setting.
Application for ACAT Review
On 3 November 2014 Ms Oberoi applied to the ACT Civil and Administrative Tribunal for review of the reconsideration decision.
Ms Oberoi argued that the correct or preferable decision would be to approve the DA, either as originally put forward or subject to additional conditions in relation to landscaping, because:

a)the Heritage Guideline requirement of a site coverage of 27.5% or less did not apply to properties which already exceeded that site coverage due to prior approval;
b)there were no realistic alternatives to the DA (the term ‘realistic’ involving a consideration of feasibility and practicality with regard to the individual circumstances);
c)the proposed extension would have no adverse effect on the heritage values of the precinct;
d)the DA either meets the requirement for 40% of the site being available for planting, or could be made subject to a condition that this requirement be met; and
e)a decision to refuse the DA would impact on the human rights of the applicant and her family members.

The respondent submitted that the correct or preferable decision was to refuse the DA, because:
a)adverse advice had been provided by the Heritage Council;
b)the DA did not meet the site coverage requirement under the Heritage Guidelines;
c)permitting a departure from the Heritage Guidelines would create a ‘perverse planning outcome’;
d)there are at least two realistic alternatives to the DA (the term ‘realistic’ being interpreted in a planning context rather than “so subjectively that it detracts from achieving a planning outcome”); and
e)a decision to refuse the DA would not affect any human rights because it was simply a decision in a planning context about construction of an extension to a building, a decision “that a dwelling cannot be expanded or change its character not how the occupants of that dwelling live”.[9]

3. The Hearing

[9] Respondent’s written submissions paragraph 93

The matter was heard on 18 and 19 February 2015. Ms Oberoi was self-represented at the hearing and Counsel appeared for the Authority. The hearing commenced with an inspection of the subject site and existing residence and adjacent properties attended by the Tribunal, the parties, some witnesses, and the parties’ representatives.
The Tribunal had before it the documents provided by the Authority relevant to the decision under review (the T-Documents) together with statements of facts and contentions submitted by the parties and witness statements and other documents tendered in evidence during the hearing.
Ms Oberoi gave evidence and also called evidence from Mr Eric Martin and Mr Matthew Smith. Mr Martin is a qualified and practising architect, with expertise in disability access and architectural and heritage conservation, and is a former chairman of the ACT Heritage Council. Mr Smith is an experienced builder and director of Gold Ruby Homes, who had been retained by the applicant to undertake the building work if the DA was approved.
The Authority called evidence from Mr Duncan Marshall, a registered architect who has worked in heritage and conservation management for more than 30 years. Mr Marshall was chairman of the ACT Heritage Council at the time of both the assessment of the DA and the reconsideration of the decision to refuse approval. The Authority also called evidence from Mr David Hobbes who is an architect registered in New South Wales with expertise in heritage matters and in residential alterations and additions.
The Authority also called evidence from Ms Rumana Jamaly who is a merit assessment coordinator with the Authority and who had supervised the officers assessing both the development application and the application for reconsideration. At the request of the Tribunal, Ms Jamaly obtained and tendered floor plans of the original house together with approved drawings and a certificate of use and occupancy for the 1998 additions and alterations.

The Tribunal will address the relevant evidence of each witness in the context of those issues which arise in the review of the reconsideration decision.
The legal framework
The reconsideration decision was made pursuant to section 193(1)(b)(ii) of the Planning Act and is therefore a reviewable decision as defined in section 407 and detailed in schedule 1 of that Act.
The ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) applies to the Tribunal in undertaking that review. The role of the Tribunal in conducting the review is to decide whether the reconsideration decision made by the Authority is the correct or preferable decision, and at the end of the review the Tribunal may make orders confirming, varying or setting aside the reconsideration decision.[10]
[10] Section 68 of the ACAT Act
In conducting the review of an administrative decision, it is often said that the Tribunal ‘stands in the shoes of the decision maker’, it must observe the same constraints as applied to the original decision maker and it has all their powers to the extent that those powers are related to the making of the decision under review.[11]
[11] Section 68 of the ACAT Act
Section 193 of the Planning Act enables the Authority on reconsideration to exercise the discretionary power provided under section 162 of the Planning Act to approve or refuse to approve a development application. The discretion provided by section 162 is not unfettered, but is subject to a number of constraints contained in the Planning Act and in other legislation.
4.1 Planning Act
Sections 119 and 120 of the Planning Act provide requirements for the assessment of development applications in the merit track:
Section 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; and
(b)if the proposed development relates to land comprised in a rural lease—any land management agreement for the land; and
(c) if the proposed development will affect a registered tree or declared site—the advice of the conservator of flora and fauna in relation to the proposal.
(2) Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under division 7.3.3 unless the person deciding the application is satisfied that—
(a)     the following have been considered:
(i)   any applicable guidelines;
(ii) any realistic alternative to the proposed development, or relevant aspects of it; and
(b)     the decision is consistent with the objects of the territory plan.

Section 119 of the Planning Act is often approached as a ‘threshold’ which must be satisfied before the decision-maker proceeds to consider fully a development application. The items set out in subsection 119(1) are comparatively straightforward (consistency with relevant code; land management agreement; registered tree), but the matters in subsection 119(2) require more detailed consideration by the decision-maker of the relevant guidelines and realistic alternative proposals, plus satisfaction that approval would be consistent with the objects of the Territory Plan.
Section 120 of the Planning Act sets out matters to be considered when deciding whether or not to approve a development application in the merit track:
Section 120 Merit track— considerations when deciding development approval
In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:
(a)     the objectives for the zone in which the development is proposed to take         place;
(b)     the suitability of the land where the development is proposed to take place      for a development of the kind proposed;
(c)     each representation received by the authority in relation to the application      that has not been withdrawn;
(d)     if an entity gave advice on the application in accordance with section 149      (Requirement to give advice in relation to development applications)—the        entity’s advice;
(e)     if the proposed development relates to land that is public land—the plan         of management for the land;
(f)      the probable impact of the proposed development, including the nature,         extent and significance of probable environmental impacts.

The decision-maker is also bound by section 50 of the Planning Act which provides that a Territory authority must not do any act, or approve the doing of an act, that is inconsistent with the Territory Plan. The challenge of identifying what is encompassed by the concept of ‘inconsistency with the Territory Plan’ was recently considered by the Court of Appeal in Baptist Community Church v ACT Land and Planning Authority & Ors[12], which commented:
inconsistency with the Territory Plan must depend on the status and operation given to particular parts of the Territory Plan’s contents, either by the Territory Plan itself or by the associated legislation.

4.2 Heritage Act
[12] [2015] ACTCA 3 [43]

The Heritage Act provides for the giving of written advice in relation to a development application and specifies what should be included in that advice. Section 59 of the Heritage Act provides that the advice of the Heritage Council “must be considered by the planning and land authority in approving or refusing to approve a development application referred to the council.” There is no requirement that such advice be adopted or preferred by the Authority in the exercise of its discretion, nor is there a prohibition on the Authority taking an action inconsistent with that advice, provided the Authority is satisfied that the requirements of section 119(2) of the Planning Act have been met.
4.3 Human Rights Act
The Human Rights Act enumerates a number of human rights in force in the Australian Capital Territory and by section 30 provides that, so far as it is possible to do so consistently with its purpose, ACT legislation should be interpreted in a way that is compatible with those rights. This interpretive principle applies to the legislation referred to in this matter.
In addition, the Authority, and the Tribunal in conducting the review of the reconsideration decision, is a ‘public authority’ for the purposes of the Human Rights Act.[13] Under section 40B it is unlawful for a public authority to act in a way that is incompatible with the rights contained in the Human Rights Act, or to fail to give proper consideration to a relevant human right in making a decision, unless that act is done or decision made under a law which expressly requires that approach and cannot be interpreted in a human rights consistent way.

4.4 What is the nature of the decision to be made within this legal framework?
[13] Section 40 of the Human Rights Act; Thomson v ACT Planning and Land Authority [2009] ACAT 38

The decision to approve or not to approve a development application in the merit track, whether or not adverse advice has been provided by a relevant entity, is a discretionary decision with mandatory considerations. Some of these considerations go to the substance and effect of the development application, while others go to the process to be followed in making the decision.
What is involved in ‘consideration’ of a matter has been the subject of much judicial comment and it is well accepted first, that consideration of a matter must be substantive rather than merely cursory and secondly that it is usually for the decision-maker to attribute appropriate weight to competing factors in the context of the legislation and facts of the case:
The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration (see Tickner v Chapman (1995) 57 FCR 451 at 462 and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [105]). However, in the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for the decision-maker to determine the appropriate weight to be given to them. The failure to give any weight to a factor to which a decision-maker is bound to have regard, in circumstances where that factor is of great importance in the particular case, may support an inference that the decision-maker did not have regard to that factor at all. Similarly, if a decision-maker simply dismisses, as irrelevant, a consideration that must be taken into account, that is not to take the matter into account. On the other hand, it does not follow that a decision-maker who genuinely considers a factor but then dismisses it as having no application or significance in the circumstances of the particular case, will have committed an error. The Court should not necessarily infer from the failure of a decision-maker to refer expressly to such a matter, in the reasons for decision, that the matter has been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision. Whether that inference should be drawn will depend on the circumstances of the particular case (see Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438 at [58]-[59]).
Once a matter has been identified as a mandatory relevant consideration, it is the salient facts that give shape and substance to the matter that must be brought to mind. These are the facts which are of such importance that, if they are not considered, it could not be said that the matter has been properly considered (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 61).[14]
Exercise of the discretion to approve or not approve the DA in the current case.
5.1 Are the requirements of Section 119 of the Planning Act met?
[14] Bat Advocacy NSW Inc v Minister for Environmental Protection, Heritage and the Arts [2011] FCAFC 59 [44-46]
Both parties submitted that the DA met the requirements of section 119(1) and paragraph 119(2)(b) of the Planning Act. Dispute between the parties centred on consideration by the Tribunal of the matters set out in paragraph 119(2)(a).
Notwithstanding the agreement between the parties, it is necessary for the Tribunal to be independently satisfied as to whether the DA meets the requirements of the legislation.
The Tribunal considers approval of the proposed development would comply with the requirements of subsection 119(1) of the Planning Act as follows:
(a)s 119 (1)(a) – (consistency with the relevant codes) – the proposed development complies with the relevant rules of the Single Dwelling Housing Development Code - R1 maximum 50% plot ratio; R2 maximum 2 storeys; R5 maximum building height 8.5 metres; R7 sun angle; R12 side and rear setbacks; R37 solar access; R38 private open space; R44 heritage; R45 tree protection. The proposed development complies with the relevant rules of the Residential Zones Development Code including R61 and R62 requiring referral of the development application to the Heritage Council and to the Conservator of Flora and Fauna. The proposed development complies with the requirements of the Parking and Vehicular Access General Code for the provision of 2 car parking spaces. The proposed development is not inconsistent with the Territory Plan or the National Capital Plan.

(b)s 119 (1)(b) – (land management agreement) - not applicable.

(c)s 119 (1)(c) – (consistency with advice of the Conservator of Flora and Fauna) – it was not disputed that advice provided by the Conservator in connection with a regulated elm tree in the adjoining property could be included as a condition of approval.

In relation to subsection 119(2), approval of the DA would be inconsistent with the advice given by the Heritage Council. This means that the DA cannot be approved unless the Tribunal is satisfied (for paragraph 119(2)(a)) that it has considered (i) the applicable guidelines and (ii) any realistic alternatives to the proposed development. For the reasons that follow the Tribunal is so satisfied.
The Tribunal is also required by paragraph 119(2)(b) to be satisfied that a decision to approve the DA would be consistent with the objects of the Territory Plan. The object of the Territory Plan is broadly stated in section 48 of the Planning Act as being “to ensure that the planning and development of the ACT provide the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation”. The Tribunal is satisfied that a decision to approve the proposed development will be consistent with this stated object.
In conclusion, the Tribunal considers that the limits upon approval of a DA in the merit track as set out in section 119 of the Planning Act are met in this case.

5.2 Consideration of matters as required by the Planning Act and the Heritage Act

The parties’ arguments in relation to the matters set out in section 120 of the Planning Act focused on the consideration of the advice from the Heritage Council. There was no suggestion on behalf of the Authority that a consideration of the other matters listed in section 120 would lead to refusal of approval. Nonetheless is it important that the Tribunal itself consider the following matters in relation to the DA:
(a)s 120 (a) - (zone objectives) – the subject site is in the RZ1 Suburban Zone. The Tribunal has considered the objectives for the RZ1 zone and is satisfied that the proposed development is consistent with these objectives. The Tribunal notes in particular that objective c) in the RZ1 zone is to “provide for a wide range of affordable and sustainable housing choices that meet changing household and community needs”.
(b)s 120 (b) – (suitability of the land) – the Tribunal is satisfied that the land is suitable for the proposed development.
(c)s 120 (c) – (environmental significance) – not applicable
(d)s 120 (d) – (representations) – section 193 of the Planning Act provides that the application for reconsideration need not be publicly notified; no representations were received within the original period for public notification; no further notice to adjoining lessees was required; the Tribunal has no representations to consider.
(e)s 120 (e) – (entity advice) – considered below
(f)s 120(f) (plan of management in relation to public land) - not applicable.
(g)s 120 (g) – (probable impact) – the Tribunal considers that there are no probable adverse impacts of the proposed development, including environmental impacts, from the proposed development or impacts on neighbours, other than the impact on the heritage significance of the precinct which we consider in more detail below. The Tribunal also considered the impact of the proposed development on the applicant and her family, and noted the evidence that the development would result in a higher level of amenity given the particular medical, religious and cultural needs of the occupants.

The Heritage Guidelines for the Blandfordia 5 Housing Precinct (s 119(2)(a)(i))

The entry of the Precinct to the ACT Heritage Register nominates a number of features as “intrinsic to the heritage significance of the place”. A statement of significance describes the values of the precinct in representing the philosophy of Garden City planning as applied in the early years of Canberra. Specific requirements have been identified to “retain and conserve the intrinsic features of the precinct”. These specific requirements are the Heritage Guidelines applying to the Precinct.
The intent of the Heritage Guidelines is to retain and conserve the intrinsic features of the precinct:
•    for their ability to demonstrate historical values including ‘Garden            City’ planning principles and architectural and landscape design from     the initial period of urban development within Canberra;
•    for the aesthetic unity of the streetscapes arising from the harmonious       integration of low-density built forms within a mature landscape    setting, and high proportion of landscape space and trees; and
•    for the social values associated with the retention of communal      landscaped reserves and community facilities;
     whilst managing change to meet the contemporary requirements of           residential usage.

The Heritage Guidelines are divided into five Parts:
1)conservation of the Garden City subdivision and urban infrastructure;
2)conserving landscape and streetscape values;
3) conserving the unity of built form within the streetscape;
4) additional requirements for identified significant buildings; and
5) demolition.
Neither Ms Oberoi nor the Authority contends that the proposed development will impact on Part 1 above (conservation of the Garden City subdivision and urban infrastructure) nor that the proposed development would in any way damage the layout of roads, street trees, street furniture or public parks. The Tribunal notes that the proposed development satisfies part 1 of the Heritage Guidelines.
Part 5 of the Heritage Guidelines is headed ‘Demolition’ and states its objective at clause 5.1 “to retain original dwellings”. This is no longer possible for the subject site, the original dwelling being significantly changed by past renovation, and therefore of little relevance to this decision.
The Authority contended that parts 2, 3 and 4 of the Heritage Guidelines are not met by the proposed development. The Tribunal must look to the objectives of each of these parts, and the underpinning requirements, to assess how the proposed development may or may not meet the Heritage Guidelines.
Part 3 of the Heritage Guidelines states its objective at clause 3.1:
To conserve the unity of built form within the streetscape by ensuring that additions to existing dwellings and new dwellings that are visible from the street or adjacent public domain reflect and complement the scale, form and materials of the identified original dwellings in the street.
Ms Oberoi gave evidence that the proposed extension would use the same materials as already present on the exterior of the house and that the roof overhang and eaves details would be exactly the same as existing.[15]
[15] Transcript of Proceedings 18 February 2015 page 15
As noted earlier, the current house has a significantly larger floor area than the original cottage. Objective 3.1 above seeks to minimise the visual impact of additions and alterations to the houses when seen from the street or adjacent public areas by requiring the use of similar building forms and complementary external materials and finishes. Although the floor area of the house would be increased even further with the proposed additions, the Tribunal is not convinced that this increase will be apparent from the street. It seems to the Tribunal, with the benefit of a view of the subject site, that the proposed extension, if built, will have the effect of screening from street view the actual depth of the premises and therefore to some degree its bulk or scale. Visibility of the premises from the street is low, due to the significant hedge. With appropriate landscaping, the visual impact of the extension will be negligible. The Tribunal considers that, subject to submission of building plans for approval showing matching external materials, roof overhangs and profiles, the proposed development satisfies part 3 of the Heritage Guidelines.
Part 4 of the Heritage Guidelines provides its objective at clause 4.1 “to maintain the form of the identified dwelling as the dominant built form on the block when viewed from the street or adjacent public domain”. The house on the subject site is an ‘identified dwelling’ but was dramatically altered when the house was extended in 1998. The original facade and roofline was lost and the extent of the original dwelling is no longer apparent when viewed from the street. The Tribunal repeats its comments above in relation to the importance of the street perspective and the proposed finishes, and considers the proposed development would nevertheless satisfy, in part, the intent of part 4 of the Heritage Guidelines by using matching materials and roof profiles and articulated forms recessed behind the front face of the building.

The greater part of the hearing, and consequently the consideration by the Tribunal of the compliance or otherwise of the proposed development with the Heritage Guidelines for the Precinct, has necessarily focused on part 2 of the Guidelines (conserving landscape and streetscape values) and particularly on the objective at clause 2.1 - “to conserve and reinstate the historical arrangement of dwellings across the precinct and the provision of a generous garden setting for each dwelling”.
Objective 2.1 has two separate and not totally connected parts - “to conserve and reinstate the historical arrangement” etc and to provide a “generous garden setting for each dwelling”. In its advice to the Authority dated 8 September 2014, the Heritage Council did not distinguish between the two parts of objective 2.1. A natural reading suggests that the first part of the objective relates to the overall Precinct while the second part is confined to consideration of individual dwellings and their garden settings. It was nevertheless not contended before the Tribunal by either Ms Oberoi nor the Authority that the proposed development would in any way conflict with the first part of that objective - “to conserve and reinstate the historical arrangement of dwellings across the precinct” and the Tribunal agrees with this interpretation. The issue before the Tribunal in relation to objective 2.1 is therefore only the second part of that objective – “provision of a generous garden setting for each dwelling”.
The Guidelines identify a series of specific requirements to achieve compliance with objective 2.1. Six of these are called mandatory requirements and use the words ‘shall’ and ‘must be complied with in any development’. Mandatory requirements 2.1a, 2.1b and 2.1c relate to parking of cars behind the building line; building not closer to the front boundary than the original building line; and a minimum setback of 1.8 metres from the side boundary. The proposed development complies with each of these mandatory requirements.
Mandatory requirement 2.1e relates to sites with an area greater than 1600 square metres and is not relevant in this case.
Mandatory requirements 2.1d and 2.1f are relevant to the proposed development and are related in their intent:
2.1dSite coverage of built development (including the area of any dwelling, garage, carport, outbuilding or other roofed area but excluding driveways and unroofed paved areas) on a residential block or commercial block with an area less than or equal to 1600 sq m shall not exceed 27.5% of the area of the block.
2.1fNot less than 40% of the area of a residential block shall be retained as planting area. Planting area means an area of land within a block that is not covered by buildings, vehicle parking and manoeuvring areas of (sic) any other form of impermeable surface and that is available for landscape planting.

Advice from the Heritage Council quoted in the decision under review was that “the proposed additional development will further compromise the ability to provide a generous garden setting for the development on the site, which is the underlying objective for mandatory requirement 2.1d [site coverage]”. The Council advice goes on to say that “the existing development on the site also results in less than 40% of the block being retained as planting area, breaching mandatory requirement 2.1f of the Guidelines”.
Mandatory requirement 2.1d
The applicant submitted that mandatory requirement 2.1d should not apply to the subject site, and that in giving consideration to that requirement the Authority had taken into account an irrelevant consideration. The applicant submitted that the language of mandatory requirement 2.1d lent itself to an interpretation whereby it was applicable only to properties with a present site coverage less than 27.5 %.
The Tribunal is not persuaded by this argument and considers that mandatory requirement 2.1d is applicable in the circumstances of this case. There is no dispute, and the Tribunal is satisfied, that the existing development does not meet the site coverage requirements of mandatory requirement 2.1d. The proposed development would exacerbate that situation, by increasing the site coverage from just over 37% to almost 40%.
In considering the effect of failure to meet this mandatory requirement, the question of a suitable comparator arises. If the comparator for considering the effect of failure to comply is 27.5%, then it cannot be denied that the impact on heritage values of allowing the DA would be significant, at least in theory. However, it is in a sense artificial to take as the comparator a 27.5% site coverage, which does not currently exist, and has not existed since before the 1998 extension. In its advice to the Authority of 7 October 2014, the Heritage Council made it clear that the applicant should not be required to comply with the 27.5% rule by reduction of the existing footprint of the premises.
If the correct comparator is the current site coverage, it might be argued that the current premises so significantly fails to comply with the mandatory requirement that there would be no noticeable additional effect on the heritage value of the subject site or the precinct by approving the DA with an increase in site coverage of only 3%. The Tribunal is concerned that if this reasoning is adopted, there is the potential over time for incremental loss of heritage values. The matter of whether approval of the development application in this case would set a precedent for applications in apparently similar situations in the future is considered separately by the Tribunal.
Mandatory requirement 2.1f
The Heritage Council did not set out in its advice to the Authority the evidence or process undertaken to support its assertion that approval of the DA would result in a planting area that would be less than 40% of the site area, and this became a matter of factual dispute at the hearing before the Tribunal.
In his evidence to the Tribunal, Mr Martin found it ‘interesting’ that the Heritage Council should define ‘generous garden’ as ‘40% soft landscaping’. The word ‘soft’ is not used in mandatory requirement 2.1f. Nevertheless, in his opinion, this requirement “is or can be met with the proposed design”.[16] Mr Martin gave evidence that the proposed extension “did not contravene any of the guidelines except for the plot ratio” and that it met “all the guidelines that would normally apply to an extension to a house within a conservation area”.[17]
[16] Transcript of Proceedings 18 February 2015 page 48
[17] Transcript of Proceedings 18 February 2015 pages 26-27
A contrary opinion was given by Mr Marshall, who gave evidence of “an admittedly rough process” by which he had marked an area equal to 40% of the subject site on to an aerial image from ACTMAPi and then overlaid this with existing planted areas and “those [parts of the block]…which were not already planted”. Using this “low-tech means of scissors and tape”, Mr Marshall told the Tribunal that he had ”reached a figure of about 30% or 31% as the possible outcome of existing planted areas and proposed planted areas”. Mr Marshall also gave evidence that, independently of his work, ACT Heritage had undertaken a separate exercise and it was his understanding that “they reached a similar sort of figure”.[18]
[18] Transcript of Proceedings 19 February 2015 pages 114-118
The Tribunal’s inspection of the subject site revealed that a considerable part of the site between the front property line and the front façade of the house was covered with crushed rock or masonry pavers. In reference to the words ‘planting area’ in mandatory requirement 2.1f, Mr Marshall said that the Heritage Council stressed the words ‘and that is available for landscape planting’ as a necessary part of the definition. In his opinion, permeable gravel or paving does not meet the definition of ‘planting area’ because it is not ‘available for landscape planting’. Ms Oberoi had submitted a written opinion from a landscaper that such material is to be considered ‘permeable’. The Tribunal prefers the interpretation adopted by Mr Marshall, and considers that a paved or gravel surface, such as observed at the subject site, whether permeable or otherwise, is not to be considered ‘planting area’ as it is not ‘available for landscape planting’.
Mr Marshall gave evidence that it is common for the Heritage Council to require a landscape plan to be submitted with development applications “in order to make sure that the mandatory requirement is met”.[19] In cross examination, Ms Oberoi asked Mr Marshall whether “his concerns about the generous garden setting” would be met if she were to give an undertaking that she would meet the 40% requirement of 2.1f, to which Mr. Marshall replied “well, that requirement, yes, would be met”.
[19] Transcript of Proceedings 19 February 2015 page 129
The interest of the Heritage Council and the Authority in the landscaping of the subject site is not new. An application for a second driveway crossing to the southern side of the property was made on 22 May 2001 and was not approved. Plans provided to the Tribunal by Ms Jamaly include a plan of landscape stamped “approved” and dated 23 October 2001.[20] A number of conditions are attached to the approved landscape plan including that “the extent of driveway paving is to be reduced to increase the amount of soft landscaping”. The Tribunal has compared this plan to the ACTMAPi aerial photo of the site[21] and concludes that the area of the driveway as built is markedly larger than shown on the approved plan. The approved landscape plan shows the area between the front of the house and the hedge at the front boundary to be principally ‘new lawn’ but from the site visit it is apparent that this is in fact principally gravel.
[20] Exhibit R7
[21] T-Documents page 217
The Tribunal is satisfied that the DA does not comply with Heritage Guideline 2.1d or 2.1f. However, in the opinion of the Tribunal, the proposed development is otherwise consistent with objective 2.1 of the Heritage Guidelines for the Precinct and may, by imposition of conditions as to landscaping, be able to satisfy the planting area requirements at 2.1f. Having had the advantage of a site visit, the Tribunal is of the opinion that the proposed increase of less than 3% in site coverage could not reasonably support the conclusion of the Heritage Council that this would have “a detrimental impact upon the heritage values of the place” in anything other than a nominal way. On the contrary, by the imposition of conditions as to landscaping a positive contribution to heritage values may be achieved.
The advice provided by the Heritage Council to the Authority (s 120(e))
Section 27 of the Heritage Act provides that advice given by the Heritage Council must be in accordance with relevant heritage guidelines:
Section 27 Application of heritage guidelines

(1)A function under this Act that relates, directly or indirectly, to the conservation of a place or object must be exercised in accordance with any applicable heritage guidelines.

(2) Subsection (1) applies, in particular, to the following functions:
(a)the giving of advice to the planning and land authority under section 60 (Advice about effect of development on heritage significance), particularly in relation to ways of avoiding or minimising the effect of a development on the heritage significance of a place or object;

…

Sections 60 and 61 of the Heritage Act provide requirements for the provision of advice by the Heritage Council on development applications:
60Advice about effect of development on heritage significance
(1)This section applies if the council is satisfied on reasonable grounds that a development would affect—
(a)the heritage significance of a registered place or object; or
(b)a nominated place or object that, in the opinion of the council, is likely to have heritage significance.
(2)The council may give the planning and land authority written advice in accordance with section 61 about its decision.

61Requirements for council’s advice about development
(1)This section applies if the council gives advice—
(a)under section 60 about the effect of a development on a place or object that has, or is likely to have, heritage significance; or
(b)under the Planning and Development Act 2007, section 149 in relation to a development application.
(2)The council’s advice must include the following:
(a)an outline of the effect of the development on the heritage significance of the place or object;
(b)advice about ways of avoiding or minimising the impact of the development on the heritage significance of the place or object.
(3)Without limiting subsection (2), the advice may set out proposed conditions on any approval of the development, including conditions requiring compliance with 1 or more of the following:
(a)if it is not reasonably practicable for the development to avoid harming the place or object—the reasonable steps that must be taken to minimise the extent of the harm;
(b)conservation requirements under applicable heritage guidelines;
(c)a conservation management plan approved by the council.

Mr Marshall said in his evidence that the role of the Heritage Council “in development applications of this sort” is as “an advising body”. The Tribunal has considered the advice given by the Heritage Council to the Authority in the light of sections 27, 60 and 61 of the Heritage Act as above. The Tribunal is mindful that the Heritage Council must give such advice “in accordance with any applicable heritage guidelines” and this was done in this case.
The Tribunal notes also that advice about the effect of a development on a place must include “an outline of the effect of the development on the heritage significance of the place” together with advice about “ways of avoiding or minimising the impact of the development on the heritage significance”.
The development application does not seek approval for the existing buildings but for two new rooms with a total floor area of 28.7 square metres, and this would increase the site coverage by less than 3%. For the written advice to assert, without further explanation, that this minor increase in site coverage will have “a detrimental impact upon the heritage values” of the Precinct is not particularly helpful to the decision maker and does not constitute ‘an outline of the effect’ as contemplated by paragraph 61(2)(a). Even after the Tribunal had the benefit of oral evidence from Mr Marshall, the Tribunal was unable to identify how the detrimental impact of the DA upon the heritage values of the precinct was established, other than in theory. On the contrary, the Tribunal could see the potential for a positive impact upon heritage values of the precinct by the imposition of conditions in relation to landscaping which might go some way to reinstating a generous garden setting, at least as viewed from the street.
The Heritage Act is silent on a situation where a development which substantially complied with heritage guidelines at the time of its construction does not meet guidelines introduced at a later date. Section 61 of the Heritage Act provided the opportunity for the Heritage Council to recognise this paradox and provide constructive comment, which could only have been of benefit to the Authority. The Heritage Council wrote to the Authority in the following terms:
The application proposes a new addition for bedroom and en-suite bathroom accommodation. The existing development on the block has a site coverage of approximately 37.25%. This is already a substantial breach of the maximum site coverage of 27.5% under mandatory requirement 2.1d of the Heritage Guidelines for the Blandfordia 5 Housing Precinct (the Guidelines). The proposed addition will increase the site coverage to 39.89%...the Council does not expect that the applicant should reduce their site coverage to the current maximum of 27.5% but will object to any additional coverage that further breaches the current heritage guidelines.

The advice of the Heritage Council is consistent with the requirements of the Heritage Act in that the Act requires the Council to apply the relevant guidelines, which do not distinguish between what is proposed to be built and what was built and approved more than 15 years ago. It must be expected that ideas about heritage conservation will change again in the future, and this issue will continue to arise. Currently, when considering a DA it is for the Authority to determine the weight to be given to heritage factors in a particular case in the exercise of its discretion. If greater certainty is required as to the application of current guidelines to non-complying development applications approved under previous guidelines, so as to remove the possibility of incremental loss of heritage values, it may be that amendment of the legislation is necessary.
Consideration of realistic alternatives to the DA (S 119(2)(a)(ii))
The Planning Act at section 119(2)(a)(ii) requires the Authority to consider “any realistic alternative to the proposed development, or relevant aspects of it”. The notice of decision dated 7 October 2014 said that the evidence provided by Ms Oberoi “substantiates the need for the proposed house extensions” and that the executive policy committee of the Authority had discussed “whether all other options to accommodate the family within the existing space had been considered”. However the notice of decision does not outline what those options were considered to be at that time.
The existence or not of a ‘realistic alternative’ to the proposed development assumed some importance at the hearing, because the respondent submitted first that there was an onus upon the applicant to show that there were no realistic alternatives to the DA, and secondly that “approval cannot be given because...the mandatory requirements are not met and a realistic alternative, in a planning sense, exists.” Neither of these submissions correctly states the approach to be taken under the legislation. There is no onus or requirement that the applicant satisfy the Authority that there are no realistic alternatives to a proposed development, approval of which is inconsistent with entity advice. Further, section 119(2) of the Planning Act does not prohibit approval where a realistic alternative exists, but rather mandates consideration of any realistic alternatives before approval may be given.
The respondent submitted that while the word ‘realistic’ has its ordinary meaning of “concerned with, or characterised by, a practical view of life; having or showing a sensible and practical idea of what can be achieved or expected”, the term ‘realistic alternatives’ should be interpreted more objectively in a planning context rather than with regard to the needs of the individual family. The applicant submitted that whether or not an alternative is ‘realistic’ in the context of a particular development application may legitimately include a consideration of the individual circumstances of the applicant, as well as broader planning considerations.
The Tribunal is of the view that the word ‘realistic’ when used in section 119 takes its general meaning as having a sensible and practical idea of what can be achieved. The Tribunal is of the view that personal circumstances which necessitate features of the proposed development (e.g. size, dimension, function) are legitimate concerns for consideration by the decision maker, together with more objective factors.[22] It seems to the Tribunal that the use of the word ‘realistic’ means that it is not necessary for an ‘alternative’ to be identical to the DA in size, functionality, cost, and all other respects. It is enough that on a practical view of things it can be regarded as an alternative.
[22] To the extent that the Tribunal’s decision in Guttav ACT Planning and Land Authority [2013] ACAT 63 was cited as authority for the contrary interpretation, this Tribunal does not interpret that case as standing for that proposition

The evidence before the Tribunal was that over time there had been raised a number of proposed alternatives to the DA. The parties were at odds over how ‘realistic’ these alternatives were. Given the particular personal and medical conditions raised by the applicant, the Tribunal considers it is not realistic to suggest to the applicant that she explore the feasibility of an attic for occupation by the elderly relatives and the respondent did not press that proposal at the hearing.
The respondent’s statement of facts and contentions says at paragraphs 37 and 38:
The respondent contends that the applicant’s personal circumstances regarding family arrangements and caring obligations:
(a)are not relevant considerations for the purposes of the Blandfordia 5 Guidelines;
(b are temporary or at least likely to come to an end in the foreseeable future, in particular university studies will conclude; and
(c)do not provide a sufficient basis for the respondent to depart from the requirements of the Blandfordia 5 Guideline.
The respondent contends that a reasonable alternative is available to accommodate the applicant’s needs without infringing mandatory requirement 2.1d of the Blandfordia Guidelines. This would involve shifting and rearranging of rooms and sizing of rooms. The respondent relies upon the statement of David Hobbes in support of this contention.

The Authority called evidence from Mr David Hobbes, an associate with Philip Leeson Architects, who are contracted by Heritage Unit Environment ACT to provide an advisory service for lessees of properties listed on the ACT Heritage Register. The Authority tendered a memorandum headed ‘Development Enquiry’ prepared by Mr Hobbes and dated 13 November 2012.[23] The memorandum provides the following advice:
The block contains a Federal Capital Commission cottage built in c 1927 which was extensively altered and extended in 1997. The owners sought advice about the feasibility of a small addition to accommodate members of the extended family who have medical conditions and require a high level of care and family support. We advised that the specific requirements of the Heritage Register entry for Blandfordia 5 apply. A mandatory requirement is the maximum site coverage of 27.5%. It appears that the existing house exceeds this limit, having been approved under former rules. The ACT Heritage Council will not approve further encroachment. We suggested that the owners examine ways to improve the current floor plan or explore the feasibility of an attic addition. The roof over the original part of the house may accommodate attic rooms but would need to be checked.
[23] Exhibit R5

The Authority also tendered a statement by Mr Hobbes dated February 2015[24] in which Mr Hobbes stated he had “been asked to respond to the claim that “there is no reasonable and prudent alterative (sic) (emphasis added) for the provision of an accessible bedroom and bathroom other than the addition proposed…” In the preparation of his report, Mr Hobbes said he was aware of background material and medical reports provided by Ms Oberoi. His report states he is familiar with the Living House Design Guidelines used by ACT Housing for adaptable and aged care housing and believes these are applicable for bedroom accommodation in this case.
[24] Exhibit R2
Mr Hobbes prepared sketch plans showing four possible rearrangements of rooms and spaces within the existing house to provide a new bedroom of an appropriate size and shape. Mr Hobbes states he was not given a layout of furniture for the proposed additional bedroom and bathroom. He conceded that each of his alternative solutions may have disadvantages for Ms Oberoi and her family. He had not prepared estimates of costs for any of these options. In his opinion “converting the guest bedroom is the most feasible and converting the master bedroom is the second most feasible”.
Examined by Counsel at the hearing, Mr Hobbes confirmed that he had not visited the house when he prepared the memorandum of November 2012 nor before he wrote the report of February 2015 and prepared his sketches. With the benefit of having seen the subject site in the presence of the Tribunal on the morning of 18 February 2015, Mr Hobbes now believed that the most appropriate room for conversion to an accessible bedroom and bathroom was the master bedroom, mainly by virtue of the level access available externally. This would necessitate moving the applicant and her husband to the guest bedroom.
Under cross-examination Mr Hobbes conceded that moving the applicant and her husband into the guest bedroom would not give them a “level of equivalence” with their existing accommodations.[25] When asked whether he had taken into account the religious requirements of an elderly lady for “a separate kitchen on certain days of the week”, Mr Hobbes said no “because we were only made aware of the kitchenette’s existence in the last couple of days” but he believed “the kitchenette could go in place of one of the walk-in robes”. Mr Hobbes also conceded that his plans did not accommodate the needs of the other elderly and disabled resident for a separate bathroom.
[25] Transcript of Proceedings 18 February 2015 page 63
Evidence was given by Mr Matthew Smith, the applicant’s builder, as to the practicalities and costs of rearranging existing internal planning to provide the facilities sought by the applicant. Of the suggestion to move the applicant and her husband into the guest bedroom, Mr Smith reminded the Tribunal that this would greatly reduce their amenity and result in the loss of the visitor powder room and the second kitchen. Floor plans which removed the existing study or demolished expensive timber bookcases were criticised and Ms Oberoi said that any alternative plan must provide privacy and accessibility for elderly family members.
Having considered each of the alternatives proposed by the respondent, it is difficult to conclude with certainty, on the evidence available, that any of these proposals are ‘realistic’ alternatives. The difficulty of certain of the renovations, and costs associated, made some proposals too far removed to be considered a practical alternative to the DA. Other proposals did not sufficiently meet the undisputed needs of the family living within the home to be considered a practical alternative. Whether or not these alternatives fall within the meaning of the term ‘realistic’, nonetheless the Tribunal spent much time at the view, at the hearing, and subsequently, reflecting upon what was involved in implementing each of the alternatives and the sufficiency of each alternative to meet what might be termed the ‘design brief’ or necessary features of the proposed DA.
5.3 Preliminary Conclusion
On the evidence available to the Tribunal, the Tribunal concludes that the DA meets all of the requirements of the Territory Plan and Planning Act for a merit track development except for adverse entity advice in relation to the impact on the heritage values of the precinct. All of the mandated considerations weigh in favour of approval, but for the heritage impact. There is no suggestion that approval of the DA would be an act or approve the doing of an act contrary to the Territory Plan.
Neither the existing development nor the development as extended can comply with the site coverage requirements in the Heritage Guidelines. However, it is possible to comply with the requirement that “not less than 40% of the area of a residential block shall be retained as planting area”. The Tribunal is satisfied from the evidence that in real terms the impact on the heritage value of the precinct of allowing the greater site coverage is minimal, although it is in theory a large departure from the presently permitted maximum. The Tribunal is of the view that some heritage value for the precinct can be restored by requiring landscaping to be undertaken which will from the street provide a better impression of a generous garden setting than the current landscaping.
In weighing up of the impact on heritage values of the subject site and the precinct, together with all of the other considerations listed in the Planning Act and the Heritage Act, on balance the Tribunal is of the view the correct decision is to approve the DA with conditions. In this context, the Tribunal accepts the opinion of Mr Martin that “in this particular case in this particular design in this particular area of the site” the objectives of the Heritage Guidelines would be achieved “despite the fact it is contrary to the mandatory requirement”.[26]
5.4 Consideration of human rights
[26] Transcript of Proceedings 18 February 2015 page 34
The preliminary view of the Tribunal has been reached not because of the personal circumstances of Ms Oberoi and her family or the human rights implications of same, but on the basis of a commonsense assessment in a planning context of the relatively minor impact of the proposed development on the Precinct.
At the commencement of the hearing, Counsel for the Authority submitted that the parties had agreed that human rights were not an issue in the matter. The Tribunal advised the parties that the Tribunal in conducting review of an administrative decision as a ‘public authority’ was obliged by section 40B of the Human Rights Act to give consideration to human rights engaged by the facts of the decision under review, irrespective of the views of the parties and not to act incompatibly with those rights except in certain circumstances.
The Tribunal invited the parties to provide written submissions, and envisaged the submissions of the parties would encompass:
a)            what rights were engaged in the circumstances of the case;
b)            how the Tribunal should ‘consider’ those rights in the decision-making              process;
c)            the extent to which approval or refusal to approve the DA would be                 ‘incompatible’ with those rights (ie. what does ‘incompatible’ mean);                   and
d)            if approval or refusal was incompatible, whether that outcome was   expressly required by a law which could not be interpreted in a way   that was consistent with human rights.
The written submissions filed covered the above points only incompletely.
The applicant submitted that rights under sections 11 (protection of the family) and 14 (freedom of religion) were engaged in the circumstances of the matter, and that these rights should be taken into account by the Tribunal in interpreting the phrase ‘realistic alternatives’, when determining the question of whether there were ‘realistic alternatives’ to consider, and in considering whether or not to approve the DA.
The respondent submitted that no rights were engaged by the decision because the applicant and her family would not be prohibited by the decision from living as a family unit or observing their religious or cultural beliefs. No authority was provided for this submission. The submission seemed to be predicated on the Tribunal reaching the conclusion that internal modifications to the dwelling to meet the medical and religious needs were possible.
In relation to what is involved in ‘proper consideration’ for the Human Rights Act the respondent drew the Tribunal’s attention to the decision of Emerton J in Castles v Secretary to the Department of Justice [2010] VSC 310 at paragraphs 185-186:
The requirement in s 38(1) to give proper consideration to human rights must be read in the context of the Charter as a whole, and its purposes. The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a ‘common or garden’ activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration need not involve formally identifying the ‘correct’ rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.
While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.
Notwithstanding the reference to Castles it was submitted on behalf of the respondent that this matter “involves a planning decision; it does not involve an adjudication of how one particular family lives. The issue is whether, in the context of the statutory planning framework, this development application should be approved.”
The respondent’s submissions, and the approach taken at the hearing, suggested a reluctance to grapple with the question of human rights in the context of a planning matter. This was surprising, given that the original decision and the decision on reconsideration both addressed the human rights issues expressly. It is well accepted in other Australian jurisdictions that human rights may be engaged in planning decisions, and a jurisprudence is emerging as to how a decision-maker may approach the task of ensuring compliance with the equivalent of section 40B.[27]
[27] See for example Smith v Hobsons Bay City Council [2010] VCAT 668
Enhancing how people live in the ACT is at the centre of the objects of the Territory Plan. So far as is consistent with their purpose, the Territory Plan and the Planning Act must be interpreted in a way that promotes human rights. When a DA for a family home is submitted, that planning decision will impact on how that particular family lives. An awareness of the rights that may be engaged in the particular case is necessary, and consideration of those rights is mandated. This examination of the subjective aspects of a DA cannot be avoided simply because the decision is a ‘planning’ decision and therefore involves rules of broader application or consideration of competing public interests. On the contrary, scrutiny of a decision at the subjective level should become, as Emerton J noted, a ‘common or garden’ activity for all decision-makers who are public authorities.
It would not be appropriate for the Tribunal to attempt to reach concluded views on the human rights aspects of this matter without further, more comprehensive, submissions from the parties. Given the preliminary conclusion which the Tribunal has reached, that exercise would seem to be unnecessary.

5.5The question of precedent

The notice of decision on reconsideration included the statement that there had been discussions in the Executive Policy Committee of the Authority of “the potential impact including possible precedent an approval of the application would have on the Blandfordia 5 Housing Precinct. The EPC concluded a precedent to further depart from the heritage site coverage requirement should not be set”.[28] However, as noted above, the highly discretionary nature of the decision to be made limits the ‘precedent value’ of any decision to approve or refuse a particular DA. On the other hand, there is a need for consistency in decision-making and awareness of previous decisions on like facts can assist in achieving consistency.
[28] T-Documents page 69
Mr Marshall told the Tribunal there was a danger that “we will end up with the death of a thousand cuts and that many small changes will, over time, just gradually erode the qualities of these precincts”.[29] This is a concern that the Tribunal shares.
[29] Transcript of Proceedings 19 February 2015 page 122
Mr. Martin conceded that “incremental risk is a real factor” but the Tribunal noted his response to the question of precedent:
when you are dealing with heritage issues and heritage places, no two are the same, they are actually quite individual, and the circumstances that present themselves for each case need to be assessed on what are the issues before you on an individual basis.[30]
[30] Transcript of Proceedings 18 February 2015 page 50
The Tribunal notes that the combination of persons and events in this place and at this time is unique and establishes no precedent for future planning decision in the Precinct or elsewhere.
Conclusion
After consideration of the matters set out under the Planning Act and Heritage Act, the Tribunal reached the preliminary conclusion that the correct decision is to approve the DA with conditions. In reaching that decision the Tribunal has considered in detail the advice to the contrary from the Heritage Council, the relevant Heritage Guidelines and the potential for alternatives to the DA.
The conclusion could only be the same or strengthened by consideration of the applicant’s or her family members’ human rights in this matter, based on the information available to the Tribunal.
Accordingly, the Tribunal has come to the view that the correct or preferable decision is to approve the DA with conditions about landscaping and construction designed to lessen the impact of the development on the heritage values of the precinct.
The DA should be subject to a condition requiring the lessee to submit for approval a plan of landscaping prepared by a qualified landscape architect showing the proposed landscape design for the area between the house and the front property line and for other areas of the site visible from the street to provide the impression of a garden setting suggested in the heritage guidelines. Such plan should be accompanied by diagrams or calculations showing that the planting area occupies not less than 40% of the area of the subject site.
The Tribunal is concerned that previous landscaping has not been completed in accordance with approved plans. Accordingly, a further condition of approval would require that the landscaping work be completed in accordance with the submitted plan within 3 months of issue of the certificate of occupancy.
For completeness, conditions will also be imposed to ensure the extension projects no further to the south than the existing wall of the master bedroom, and the eaves projection is also consistent with the current eaves projection.
………………………………..
Ms M-T Daniel - Member
For and on behalf of the Tribunal
HEARING DETAILS

FILE NUMBER:	AT 14/97
PARTIES, APPLICANT:	Sabeena Oberoi
PARTIES, RESPONDENT:	ACT Planning and Land Authority
COUNSEL APPEARING, APPLICANT	Self-Represented
COUNSEL APPEARING, RESPONDENT	Ms K. Katavic
SOLICITORS FOR APPLICANT	Self-Represented
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Ms M-T Daniel – Member Mr R. Pegrum - Senior Member
DATES OF HEARING:	18 & 19 February 2015