Old Narrabundah Community Council Inc. and Anor and Act Planning and Land Authority and Ors
[2008] ACTAAT 14
•13 May 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:OLD NARRABUNDAH COMMUNITY COUNCIL INC. & ANOR AND ACT PLANNING & LAND AUTHORITY & ORS [2008] ACTAAT 14 (13 MAY 2008)
AT07/66 & 67
Catchwords: Land and planning – development application for supportive housing on community facilities land – three story building – setbacks – bulk and scale – compatibility with adjoining areas – parking – private open space – energy ratings – access to sunlight and daylight.
Lease – inconsistency with existing lease purpose – interpretation of lease - how lease purpose may be changed – requirement that lease restrict occupants of proposed complex to those with special needs.
Australian Capital Territory (Planning and Land Management) Act 1988 (Cth), s 29
Land (Planning and Environment) Act 1991, ss 8, 230, 245
Leases (Special Purpose) Ordinance 1925-1936
Planning and Development Act 2007, s 12
Tree Protection Act 2005
Cherry & Rounds and ACT Planning and Land Authority [2004] ACTAAT 36 (24 September 2004)
Tribunal:Ms P O’Neil, Senior Member
Mr R Nichols, Member
Mr J Ashe, Member
Date:13 May 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT07/66 & 67
LAND AND PLANNING DIVISION )
RE: OLD NARRABUNDAH
COMMUNITY COUNCIL
INC.
Applicant in AT07/66RE: NATALIE DI ANNE
SMITH
Applicant in AT07/67AND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: WILLIAM KEOWN
STUART GILMORE
SALVATION ARMY
(NSW) PROPERTY
TRUST
Parties Joined in AT07/66
DECISION
Tribunal : Ms P O’Neil, Senior Member
Mr R Nichols, Member
Mr J Ashe, Member
Date : 13 May 2008
Decision :
The decision under review is set aside and remitted for re-consideration in accordance with these reasons for decision.
…………………………
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT07/66 & 67
LAND AND PLANNING DIVISION )
RE: OLD NARRABUNDAH
COMMUNITY COUNCIL
INC.
Applicant in AT07/66RE: NATALIE DI ANNE
SMITH
Applicant in AT07/67AND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: WILLIAM KEOWN
STUART GILMORE
SALVATION ARMY
(NSW) PROPERTY
TRUST
Parties Joined in AT07/66
REASONS FOR DECISION
13 May 2008 Ms P O’Neil, Senior Member
Mr R Nichols, Member
Mr J Ashe, Member
Section 28 of Narrabundah lies between Kootara Crescent and Boolumba Crescent, running from the Narrabundah neighbourhood shops north-west to Bundeena Street. Within Section 28 are public tennis courts, a community garden and Karangal Court, a Salvation Army property providing accommodation for about 28 residents.
2. This review concerns a development proposal for Block 1 of Section 28 Narrabundah. It is 2,858m2 in size, roughly rectangular in shape and lies at the intersections of Bundeena Street with Kootara Crescent and Boolumba Crescent. Thus Block 1 has three street frontages, its fourth boundary being contiguous with that of the community garden to the rear. The lease of Block 1 has been held by the Salvation Army (New South Wales) Property Trust (“the lessee”) since 1952 and it contains several buildings, including a church. The lessee proposes to demolish the existing buildings and construct one new building to be used for supportive housing.
3. The review was sought by the Old Narrabundah Community Council Inc. and by Natalie Di Anne Smith, supported by two parties joined, William Keown and Stuart Gilmore (“the objectors”). The lessee was also joined as a party supporting the decision of the ACT Planning Authority (“the respondent”) to approve the development application with conditions. At the hearing of this matter in early April 2008, Mr Stan Bevanda, an architect, gave evidence for the objectors and Mr Simon Hawke, an (acting) Senior Development Assessment Officer in its Development Services Branch, gave evidence for the respondent. The lessee did not present any evidence in support of its proposed development at the hearing.
The relevant law
4. Block 1 lies within the Community Facility Land Use Policies at Part B4 of the Territory Plan 2002 (“the Plan”) in force at the date of application. The Land (Planning and Environment) Act 1991 (“the Land Act”), also in force at that date, was repealed and replaced by the Planning and Development Act 2007 on 31 March 2008, when a new Territory Plan also came into effect. However transitional provisions require this application to be considered under the Land Act and the version of the Territory Plan in force at the date of the development application. A decision cannot be made that is inconsistent with the Territory Plan (section 8 Land Act).
5. The Objectives of the Community Facility Land Use Policies are to:
a)ensure that adequate sites are available to meet community needs for community services and facilities in appropriate and accessible locations;
b)enable the efficient use of sites by allowing a broad range of uses appropriate for the location on sites;
c)provide sites for adaptable and affordable housing for people in need of supportive housing and residential care;
d)provides sites for emergency services which are within response times in the areas of coverage;
e)safeguard the amenity of surrounding residential areas against unacceptable adverse impacts due to the operation of community facilities, such as traffic, parking, noise, or loss of privacy.
6. “Supportive Housing” is defined in Part D of the Plan as follows:
Supportive housing means the use of land for residential accommodation for persons in need of support, which is managed by a Territory approved organisation that provides a range of support services such as counselling, domestic assistance and personal care for residents as required. Although such services must be able to be delivered on site, management and preparation may be carried out on site or elsewhere. Housing may be provided in the form of self contained dwellings.
7. Supportive housing is listed as a permissible use in Schedule 1 of Part B4, but the Land Use Restrictions at clause 3.1 impose the following controls in respect of supportive housing:
a)the occupation of individual dwellings in the supportive complex is restricted by the lease to person with special housing needs for reasons of age or disability; and
b)the site has not been identified by the Authority as being required for community use; and
c)all dwellings are designed to meet the relevant Australian Standard or Building Code for Adaptable Housing, or other guidelines adopted by the Authority for adaptable housing and the relevant Code in Appendix III; and
d)the land is held as a single undivided parcel. Subdivision of the lease to provide separate title to individual dwellings, including subdivision under the Unit Titles Act 2001, shall not be permitted.
8. Appendix III.2 to the Plan, the Design and Siting Code for Multi-Dwelling Developments, is the relevant Code (“the Code”). Performance controls referred to this development proposal include those dealing with residential scale, access to daylight and sunlight and adequacy of private open space, found under the headings “1 - Building height”, “3 - Interface between dwellings”, “4 - Private open space” and “7 - Interface between dwellings”.
9. Relevant Guidelines which are required to be carefully considered under Part A3 of the Plan include the Narrabundah Neighbourhood Plan, the Parking and Vehicular Access Guidelines and the Location Guidelines for Community and Recreational Facilities.
10. Schedule 2 to Part B4 is a Community Facility Land Use Control that applies to this proposed development. It imposes the following Performance Criterion:
Building Setbacks and Height:
The setback and height of community facility buildings are restricted to minimise their impact on adjacent residential areas.
The corresponding Acceptable Standards are:
Minimum setback to boundary of blocks adjacent to Residential Land Use Policy areas:
6 metresMaximum height of buildings within 30m of blocks in Residential Land Use Policy areas:
2 storeys.
11. Clause 10 of Part A3 of the Plan deals with environmental assessment and energy conservation. Clause 10.2 reads:
Development applications for all new dwellings must be accompanied by an energy efficiency rating statement prepared in accordance with the Territory’s prescribed Energy Ratings System for Residential Buildings. Where less than a four star rating is achieved, the relevant authority shall refuse to approve the application unless the applicant can demonstrate that special circumstances apply.
“Residential building” is not defined in the Plan, but “residential use” is defined to include supportive housing. We take clause 10.2 to apply to this development, and the contrary was not argued.
12. The issues in contention between the parties in this case are: the impact of the proposed development on the neighbourhood caused by its bulk and scale, as indicated by setbacks and height of the building, the amenity of the residents of the proposed development, including access to sunlight and daylight, private open space and energy ratings. Also in contention were the parking arrangements and the provisions of the Crown lease.
Impact on the neighbourhood
13. The respondent pointed out the suitability of the lock for its intended purpose by reference to some elements dealing with retirement complexes in the Location Guidelines for Community and Recreation Facilities. It is located:
· within 400 metres of shops along a maximum gradient of 1:20,
· within or adjacent to residential areas,
· near community health centres, medical centres and public transport to health facilities and hospitals.
14. We accept that the location is well suited for the proposed use, and the objectors have not argued otherwise. The objectors did contend that the bulk and scale of the proposed development was out of character with the surrounding residential area and would have an adverse impact on the adjacent residential areas. To the north on the opposite side of Kootaral Crescent is a sports oval adjoining the Narrabundah primary school. Across the street on Boolimba Crescent there are older two storey residential duplexes, well separated from each other and set back from the street. Otherwise the surrounding dwellings are single storey residential, including the Singleton Gardens complex for older people which is located directly opposite Block 1 in Bundeela Street.
15. In relation to the height of the building, the objectors opposed the third storey element because it would result in a building higher than any other in the neighbourhood and more than 1.5m higher than the 8.5m Performance Measure set out in the Code. The relevant Performance Objective is:
To provide an appropriate residential scale within a locality.
The related Performance Criterion reads:
Buildings to be limited in height to ensure compatibility with adjacent development.
16. In relation to height of the building, we accept the submission of the respondent that the particular Control in Part B4, identified above, permits a maximum height greater than two storeys on blocks over 30m from Residential Land Use Policy Areas. It is not disputed that the proposed building would be located more that 30m from the nearest residential block.
17. The building as originally designed had a pitched roof and, being 12m high, was higher than that approved by the respondent. The respondent required the proposal to be changed by removing the “attic” and pitched roof and substituting a third storey with a flat roof so as to reduce the height of the building. The third storey has an increased setback from the lower storeys so that it would be less visible. It meets the Performance Measure of 7.5m for upper floor level setback in the Code. Because Block 1 is within a community facility area we do not accept a proposition that the height of the roof should match those existing or permitted in adjoining residential areas. The Plan requires compatibility and we consider that the particular building form proposed is not inconsistent with that requirement.
18. The objectors relied on Cherry & Rounds and ACT Planning and Land Authority [2004] ACTAAT 36 (24 September 2004) in which a development application for a two storey residential development in Narrabundah was not approved for reasons, among other things, of its high density as indicated by plot ratio. This case differs in that it relates to development of Community Facility Land Use Policies land as opposed to Cherry & Rounds which dealt with residential land. The Land Use Policy relevant here contemplates approval of a building three storeys or more high, so long as it is located at least 30m from residential land and set back 6m from adjacent residential blocks. Thus a very high plot ratio could be achieved. There are a number of permissible uses on Community Facility Land Use Policies that are residential in character such as residential care accommodation, retirement complex and supportive housing. The Plan appears to anticipate that such development may be more intense than other residential development, so long as the impact on adjacent residential areas is minimised and other provisions of the Code are met.
19. The second floor setbacks do not meet the Performance Measures in the Code, which is 6m for a lower floor and 7.5m for an upper floor facing the street. Neither for Bundeena Street frontage nor the Kootara Crescent frontage is the upper floor setback in the Code absolutely met. On Bundeela Street, the upper floor setback is between 6m and 8m. On Kootara Crescent, the upper floor setback is between 5.4m and 9.6m. The Code allows one side of a corner block to have an upper floor setback of 6m. The Boolimba Street frontage, the shortest of the three street frontages, is setback 6m, so it complies with the Performance Measure.
20. While there is some departure from the Performance Measures relating to setbacks, there is no evidence of any adverse impact on the adjacent residential areas caused by the building’s setbacks and height. Block 1 does not immediately abut any residential uses but rather is separated by roads more than 20m in width. This distance eliminates any question of overshadowing and minimises any potential impact of overlooking or loss of privacy. Nor is there any reason to find that the amenity of residents of the proposed building would be adversely affected by the reduced setbacks. The proposed building would be prominent, but attempts have been made to reduce the appearance of bulk by significant articulation of the facade, the use of contrasting materials and colours, and setback of the third storey. Trees on the verges will help screen the building and provide a unifying element in the streetscape. The Boolimba Crescent streetscape is described in the Narrabundah Neighbourhood Plan as significant, which we take to be by virtue of its mature pin oak trees (Quercus palusustris). These are intended to be supplemented by additional plantings of the same species along the Boolimba Street verge as part of the approved landscape plan for the proposed development. Mr Hawke, who has a degree in landscape architecture, confirmed that this deciduous species is known for its late leaf fall, so that leaves persist on the trees into the winter months.
21. We find that the Community Facility Performance Controls in Schedule 2 of Part B4 of the Plan are met, as are the Controls in Appendix III.2 dealing with building height and street setback to the extent that they apply.
Parking and related issues
22. A report by Bill Guy and Partners was available dealing with the traffic impact, parking needs and related issues including ramp design. Performance Measure D5.2 in Appendix III.2 requires that between 44 and 48 parking spaces are required, given the number and size of the units in the proposed development. There are 36 parking spaces in the basement car park. The evidence is that there are only a small number of cars regularly parked at Karangal Court.
23. It is proposed that additional parking will be provided by indented parking spaces on Kootara and Boolimba Crescents. Similar parking bays are already located further along Boolimba Crescent close to the shops. The objectors opposed the provision of new on-street car parking bays, but there is no evidence that the proposed bays or on-street parking generally would create traffic problems or otherwise detrimentally affect the neighbourhood or its residents.
24. Some objection was raised to the proposed location of the bays on the basis that they would interfere with street trees and existing street lighting. We are satisfied that the proposal by the respondent that six parking spaces to Kootara Crescent and two spaces to Boolimba Crescent could be implemented in conjunction with a condition to protect trees as required by the Tree Protection Act 2005. If a light pole needs to be moved, this would be a cost to the lessee.
25. We accept that the parking provisions are adequate for the purposes of this development. We accept also that the arrangements for waste collection meet the usual requirements of the Department of Territory and Municipal Services and that the driveway design meets the necessary standards.
Amenity of the residents of the proposed building
26. The evidence shows that some of the residential units would have balconies smaller than the Performance Measure set in D4.2 of the Code, being a minimum width of 1.8m. It was proposed by the lessee and the respondent that a condition to any approval could be imposed to overcome this deficiency. We are content with this outcome.
27. Although acceptable energy rating efficiency statements for all units were initially submitted, when the proposal was amended to reduce the height of the building three of the units failed to meet the required 4 star energy rating. They are units 7, 19 and 24. The respondent conceded that three units do not achieve the 4 star rating required by clause 10.2 of Part A3 of the Plan, although no reference was made to this deficiency in the respondent’s statement of Findings on Material Questions of Fact, nor was a condition imposed to rectify the failure at that time. (Mr Hawke’s evidence is that a higher 5 star rating may by required to satisfy the requirements of the Building Code of Australia).
28. The respondent, supported by the lessee, proposed that a condition to any approval could now be imposed requiring a revised energy rating statement for each unit, demonstrating that each unit in the proposed development achieves at least a 4 star energy rating under the ACT Energy Rating Scheme. Revised architectural drawings incorporating any amendments to the plans required to meet the 4 star energy rating would, in consequence, also need be provided as a condition of approval, although Mr Hawke’s evidence was that the required 4 star energy rating would likely be achieved by such means as the use of double-glazing, pelmets and curtains. The objectors submitted that it was inappropriate for the respondent to approve the development application without having first satisfied itself that the minimum energy rating could be achieved. To do so was contrary to the requirement, expressed as mandatory, in clause 10.2 of Part A3. Nor is it certain, the objectors submitted, that a 4 star energy rating could now be achieved without significant amendments to the design.
29. There is some uncertainty as to which part of Appendix III.2 provides the relevant guidance for assessing access to daylight and sunlight in multi-dwelling buildings such as this one. Both witnesses referred to clause 3 - buildings in relation to side and rear boundaries and clause 7 - interface between dwellings. The relevant objectives and criteria therein read:
O3.1To site buildings to meet projected user requirements for privacy and daylighting.
O3.2To site and design buildings to promote energy efficiency and access to sunshine.
P3.2Dwellings to be sited to enable their northern facades to receive adequate sunshine in winter.
P3.3Dwellings to be sited to ensure good sunlight access to their main private open space.
O7.1To ensure that the occupants of dwellings can maximize the advantages of sunlight and daylight.
P 7.1The dwellings to be designed and located to receive adequate daylight and sunlight.
30. Submissions were received dealing with the “three hour rule” regularly relied upon by the respondent in other cases. Derived from AMCORD, the Australian Model Code for Residential Development, it requires access to sunlight for three hours between 9am and 3pm in mid-winter. The respondent has relied upon its policy of applying the “three hour rule” when considering overshadowing of neighbouring properties, rather than internal overshadowing such as would occur here.
31. The respondent conceded that a number of the residential units receive limited direct access to sunlight and daylight in mid-winter. They are units 1, 10, 11, 12, 15, 25 and 32: about one in five of the total number of units in the proposed development. While this deficiency was attributed to the constraints on the site caused by its orientation and its three street frontages, Mr Hawke accepted that it was also a consequence of the design of the building on the site and the number of units the lessee wished to build. The problem is compounded because the shadow diagrams suggest that public spaces in the building including the communal courtyard and community lounges would have no access to sunshine for most of the day in mid-winter. We received no evidence as to number of days in the year this circumstance would persist.
32. The lessee and respondent proposed changes to the floor plans of units 1, 12 and 15 aimed at allowing more of the units to receive adequate sun in mid-winter. Some consequential changes intended to reduce the possibility of overlooking arising from the changed floor plans were also proposed. Architectural drawings were provided showing how these changes could be achieved. Unfortunately, these drawings were not produced until after the evidence of the witnesses had been completed, so that we have not had the benefit of hearing oral evidence from the witnesses about them. The objectors submitted that the revised drawings confirmed that many units would still not receive adequate sunlight in mid-winter. The proposed changes, the objectors submitted, increased the need for screening to some units which would reduce their outlook.
33. The respondent’s decision-making process was not rigorous in applying the requirements of the Plan aimed at ensuring the amenity of the residents of the proposed development, nor of promoting energy efficiency. In the Tribunal’s experience, new developments of a residential character are rarely, if ever, approved in the absence of satisfactory energy rating requirements. Some access to winter sun is also a requirement of the Plan that the respondent now concedes was not adequately addressed. Without the need to apply the “three hour rule”, it is accepted by all parties that the sunlight and daylight access in mid-winter to seven or so units is inadequate. We see no reason why the residents of these proposed supportive housing units should receive less consideration or enjoy a lesser amenity than that required by the respondent as a minimum for other residents of new developments in the ACT. In respect of access to sunlight and daylight, we observe in particular that, in dealing with the retirement complexes, the Location Guidelines for Community and Recreation Facilities recommend that “gardens and/or balconies should have north or north-easterly aspect for good solar penetration”. These are the same guidelines that the respondent relied upon to demonstrate the suitability of the block for its intended purpose (see paragraph 13 above).
34. Further evidence that this application was not adequately assessed on its merits and according to law may be seen in the treatment of the lease.
The lease
35. The 99 year lease was granted by the Commonwealth to the lessee under the Leases (Special Purpose) Ordinance 1925-1936 on 12 November 1953. The purpose clause of the lease is:
(h) To use the said land for the purpose only of erecting the buildings hereinbefore referred to and to use each building erected on the said land only for the purpose stated in the statement referred to in sub-clause (c)(ii) of this clause as the purpose for which the lessee proposes to use such building or for such other purpose as may be approved in writing by the Commonwealth or the Minister on behalf of the Commonwealth;
36. Clause (c) reads:
(c) ….. the lessee will within twelve months from the commencement of the said term or within such further time as may be approved in writing by the Commonwealth or the Minister on behalf of the Commonwealth for that purpose submit to the Commonwealth or the Minister on behalf of the Commonwealth a compete building scheme for the said land including:-
(i)a plan or plans showing all buildings (including a church) which the lessee proposes to erect on the said land and also the approximate positions on the said land in which such buildings are to be erected:
(ii) a statement in respect of each building shown on such plans of:-
(a) the minimum cost at which it is proposed to erect such building;
(b) the purpose for which the lessee proposes to use such building;
(c) the respective times within which it is proposed to commence to erect and complete such building;
37. In October 1953, the lessee had submitted a statement together with some of the other documents required by the lease. The proposed buildings were described in the statement as an all-purpose Hall, an Officers’ Residence and garage and a Brick Citadel. There may have been some building changes over time, but the lease itself has not changed, nor apparently have the purposes for which the buildings have been used. Yet in the Statement headed “Findings of Material Questions of Fact” in support of its decision dated 26 October 2007, reads at Clause 1.5:
The proposal is not inconsistent with the provisions of the Crown lease.
That statement is not correct. The lease does not allow the use of the land for the purposes of supportive housing as defined in the Plan.
38. The “Findings of Material Questions of Fact” further state at clause 1.6.1 that the development proposal “is consistent with” the Controls in Part B4, which include requirements in clause 3.1. That statement is also incorrect, since clause 3.1(a) under the heading “Supportive Housing” requires that supportive housing:
May only be permitted where:
a)the occupation of individual dwellings in the supportive housing complex is restricted by the lease to persons with special housing needs for reasons of age or disability; and
……….
There is no such provision in the lease.
39. The proposal was discussed between representatives of the lessee and the respondent at a meeting in November 2006. The record of that meeting shows that the lease was recognised then as not permitting the proposed use. Yet when the development application was lodged in April 2007, it was accompanied by an e-mailed letter which reads in part:
In response to ACTPLA’s telephone advice please find attached the following additional information in support of DA application 200605500-Block 1-Section 28-Narrabundah:
1. Revised Application Form – part 4 now clarifies that the application seeks approval for scheme under Section 1(c) of Crown Lease.
2. Leasing Letter and Drawings from Colliers.
40. That “Leasing Letter” letter reads:
We have been instructed by our client, the Crown Lessee, to provide details of the building scheme for Block 1 Section 28, Narrabundah. The lessee is a non profit organisation and the proposed development of the site will benefit the community by providing housing and community care to those with special needs. The existing Crown Lease commenced on 12 December 1952 for a term of 99 years and requires the lessee to make submission to the Minister for approval.
The following information has been provided to satisfy the requirements of Section 1(c) of the Crown Lease.
(i) A copy of the building plans have been attached for your reference. The plans show an area for a community lounge/chapel with a central position on the ground level.
(iii) (a) The minimum cost of the development is estimated at $8,000,000 exclusive
of GST.
(b)The lessee proposes to use the building for supportive housing, community care and place of worship purposes.
(c) The timing of the development process is estimated as follows:
- Commencement within three (3) months of development approval
- Completion within twenty four (24) months of commencement
41. Notwithstanding the two references to religious usage in that letter, we note that the only provision for such use shown on the plans is a small internal area marked “lounge/chapel” which, it seems, is unlikely to be accessible to the public.
42. No reply was sent to that letter, but it may have triggered a finding by the officer responsible for the leasing check on the development application prior to public advertisement that the “Proposal is consistent with all clauses in the Lease”. It appears that it was that document that the decision-maker relied upon in stating that the development was not inconsistent with the lease. It does not explain how the decision-maker found that clause 3.1(a) under the “Supportive Housing” in Part B4 was satisfied.
43. It is clear that the proposed development is inconsistent with the existing approved lease purpose and with the Control in Part 4 requiring a restriction by the lease to residents to those with special needs. So much was conceded by the respondent at the hearing of this matter. The proposed development should not have been approved without these constraints having being addressed.
44. Section 29 of the Australian Capital Territory (Planning and Land Management) Act 1988 (C’th) gives responsibility for the management and administration of estates in Territory land to the ACT Executive and section 12(1)(g) of the Planning and Development Act 2007 now gives the Authority the function of granting, administering, varying and ending leases on behalf of the Executive. It follows that, if any powers persist under the terms of the lease to approve different buildings with different purposes from those originally approved, those powers may be exercised by the Authority.
45. The respondent submits that such powers do persist and that it is open to the Authority, clause 1(c) having been spent upon the completion on the “complete building scheme”, to give approval in writing to extend the purposes permitted by the lease by reliance on the final words of clause 1(h) which are:
To use the said land … for such other purpose as may be approved in writing by the Commonwealth or the Minister on behalf of the Commonwealth.
46. Accordingly, the respondent submitted, the preferred course is for the Tribunal to approve the development subject to a condition that:
This approval does not take effect unless the Authority has provided approval in writing pursuant to clause 1(h) of the Crown lease of the use of the land for the purpose of supportive housing subject to the proviso that the occupation of individual dwellings in the supportive housing complex is restricted to persons with special housing needs for reasons of age or disability.
47. The lessee supported the interpretation of the lease provisions of the respondent that clause 1(h) gives an unfettered discretion to approve or not approve, and hence to approve on any condition such as, for example, money. A change of use charge could be required. The lessee submitted that clause 1(h) should not be interpreted so as to allow a change of use of a building only, since the differential placement of the word “only” in the phrases “for the purpose only” and “only for the purpose” suggested a distinction drawn by the draftsman. Had it been intended that the land was to be used only for the initial purpose, the expression “only for the purpose” would have been used both times.
48. The objectors, while not opposing the use of the land for the purpose of supportive housing, submitted that it was not open to the Authority to approve a use of the land for a new building scheme but only the “complete building scheme” referred to in clause 1(c). Since it was agreed that clause 1(c) is not available, then a new building scheme for supportive housing could not be approved unless a new or varied lease permitting such a use was granted.
49. The respondent conceded that it would be possible for the lease to be varied if the lessee submitted a fresh development application for that purpose. However, the respondent argued that such a course was neither necessary, because clause 1(h) of the existing lease could be used, nor desirable because it would require the making of a fresh development application under the legislative scheme now in force, resulting in both cost and delay. We note that this situation has arisen not because of any position taken by the objectors or the Tribunal, but because the respondent and the lessee failed to take action to include an amendment to the lease purpose in the current development application when the need was identified 18 months ago.
50. The disadvantage of changing the purpose of the lease merely by exchange of private letters, as the respondent proposes, is clear. It is contrary to the principles of openness and accountability that should now inform all public administration, particularly in relation to interests in land. Nevertheless, we are inclined to view that the wording of the lease may permit variation of the purpose in the manner proposed by the respondent. It is not necessary for us to form a concluded view on the matter, since section 230(4) of the Land Act allows an application to be approved notwithstanding any inconsistency with the lease, although the approval must not take effect until the lease is varied to permit the proposed development. Section 230(4) reads:
If the relevant authority approves an application to undertake a development that includes an activity that is not permitted by a lease of the land where the activity is to be carried out, the approval must not take effect in relation to that activity until the lease is varied to permit the activity.
51. Thus it is not necessary for the Tribunal, as the relevant authority, to make a decision at this time as to the manner in which the lease purpose may be changed and we do not accept the need to impose a condition in the terms proposed by the respondent dealing with the manner in which the lease purpose is to be changed. This is a matter that may be left to the lessee and those responsible for lease administration. We do however recommend that, if the lease purpose is changed by reliance on clause 1(h) of the existing lease, the approval in writing by the Authority should in some way be maintained so as to be readily available to any person seeking information about it.
52. It would be a necessary condition, imposed under section 245 of the Land Act, that any approval not take effect until the lease restricts the occupation of individual dwellings in the supportive housing complex to persons with special housing needs for reasons of age or disability. Such a condition would meet the requirement in Control 3.1 (a) covering supportive housing in Part B4 of the Plan. Without such a condition the development application would be inconsistent with the Plan and not approvable and, in consequence, section 230(4) would be inapplicable. We consider that the use of the words “restricted by the lease” in Control 3.1 would allow the restriction to be incorporated into an approval under clause 1(h) of the lease if that path were to be followed.
Conclusion
53. This proposed development fails to meet a number of requirements of the Plan. It should not have been approved in the form in which it was approved. It is inconsistent with those parts of the Plan dealing with energy ratings, lease restrictions, access to adequate private open space, sunlight and daylight. Of these, only the issue of private open space can be easily remedied by the imposition of a condition to a development approval. The respondent and lessee submitted that both the inadequacy of the energy ratings and access to daylight and sunlight could also be resolved by imposition of conditions, but meeting such conditions could have flow-on consequences to the design of the building that are not immediately apparent. Moreover the lease, about which the respondent also proposed conditions of approval, raises complex legal and policy issues which may not yet have been fully resolved.
54. We find that the development approval should be set aside for inconsistency with the Plan. We are mindful, however, that any new development application would need to be assessed under the new legislative scheme. In our view that would be undesirable as it could lead to unnecessary delay. Accordingly, we will set aside the decision and remit it for reconsideration by the respondent, in particular in respect of energy ratings (at clause 10 of Part A3 of the Plan) and the land use restrictions relating to supportive housing (at clause 3.1 of Part 4 of the Plan). Those restrictions include requirements that the lease restrict occupancy of the dwellings to those with special needs (at sub-clause (a)) and compliance with design and siting controls relating to private open space and access to sunlight and daylight (at sub-clause (c)). In any revised plans to deal with the issues raised above there shall be no increase in the external dimensions of the proposed building.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NOS: AT07/66 & 67
APPLICANTS: OLD NARRABUNDAH COMMUNITY COUNCIL INC.
NATALIE DI ANNE SMITH
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTIES JOINED: WILLIAM KEOWN; STUART GILMORE; SALVATION
ARMY (NSW) PROPERTY TRUST
COUNSEL APPEARING: APPLICANTS: MS R NICHOLAS
RESPONDENT: MR D MOSSOP
PARTIES JOINED: MS R NICHOLAS (FOR W KEOWN & S GILMORE)
SOLICITORS: APPLICANTS: NICHOLAS DIBB SOLICITORS
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTIES JOINED: NICHOLAS DIBB SOLICITORS
OTHER: APPLICANTS:
RESPONDENT:
PARTIES JOINED: MR P CAMPBELL (FOR SALVATION ARMY (NSW) PROPERTY TRUST)
TRIBUNAL MEMBER/S: MS P O’NEIL, SENIOR MEMBER
MR R NICHOLS, MEMBER
MR J ASHE, MEMBER
DATE/S OF HEARING: 1-3 APRIL 2008 PLACE: CANBERRA
DATE OF DECISION: 13 MAY 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
0