Paxevanos and Act Planning & Land Authority
[2008] ACTAAT 20
•19 August 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:PAXEVANOS AND ACT PLANNING & LAND AUTHORITY & ORS [2008] ACTAAT 20 (19 AUGUST 2008)
AT07/52
Catchwords: Land and planning – review of decision to approve a lease subdivision for multi-unit residential purposes and for a place of worship and religious associated use – compatibility of proposal with existing streetscape – number of storeys of multi-unit development – side boundary setbacks – private open space of units – overshadowing – overlooking – access and mobility – traffic – parking.
Administrative Appeals Tribunal Act 1989, s 37
Land (Planning and Environment) Act 1991, ss 7, 8, 230, 245, Div 2.3
Legislation Act 2001, ss 6, 14, 139
Tree Protection Act 2005
Tree Protection ( Interim Scheme) Act 2001
Kourpanidis v ACT Planning and Land Authority [1998] ACTAAT 229
Tribunal:Mr M H Peedom, President
Ms P O’Neil, Senior Member
Mr R Nichols, Member
Date:19 August 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/52
LAND AND PLANNING DIVISION )
RE: ROB PAXEVANOS
ApplicantAND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: THE EXECUTIVE
COMMITTEE OF
UNITS PLAN 1165
KEVIN BRUCE
EVERYL ELLIS
EDNA HAMILTON
MACEDONIAN
ORTHODOXCHURCH INC.
OLD NARRABUNDAH
COMMUNITY
COUNCIL INC.
Parties Joined
DECISION
Tribunal : Mr M H Peedom, President
Ms P O’Neil, Senior Member
Mr R Nichols, Member
Date : 19 August 2008
Decision :
The decision under review is set aside and substituted by a decision that approval of the development application be refused.
………………………………
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/52
LAND AND PLANNING DIVISION )
RE: ROB PAXEVANOS
ApplicantAND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: THE EXECUTIVE
COMMITTEE OF
UNITS PLAN 1165
KEVIN BRUCE
EVERYL ELLIS
EDNA HAMILTON
MACEDONIAN
ORTHODOXCHURCH INC.
OLD NARRABUNDAH
COMMUNITY
COUNCIL INC.
Parties Joined
REASONS FOR DECISION
19 August 2008 Mr M H Peedom, President
Ms P O’Neil, Senior Member
Mr R Nichols, Member
The decision under review
The applicant in this case has applied for the review of a decision of a delegate of the respondent made on 28 September 2007 pursuant to sections 230 and 245 of the Land (Planning and Environment) Act 1991 (“the Land Act”). The decision was to approve a development application subject to conditions.
The development application
2. The development application was made in respect of a parcel of land known as Block 11 Section 100 Division of Narrabundah (“the subject land”).
3. The subject land is irregularly shaped and has an area of 16,940m2. It has an elevated position with frontages to Goyder Street, Leahy Close and Hindmarsh Drive, although it is separated from the Goyder Street carriageway by a wider than usual verge, apparently a service easement for electricity services and to allow for future road improvement.
4. The existing development on the subject land comprises a Macedonian Orthodox Church building which has a domical system of roof construction. The building is a recognisable landmark within the Narrabundah community. It is located on a knoll and is visually prominent from lower lying areas, particularly from Hindmarsh Drive when travelling either towards the east (Fyshwick) or west (Woden).
5. A multi unit residential development known as ‘The Regent’ is located on the adjacent Block 12 to the west of the subject land. This development comprises ten single storey units that address a central internal driveway. Block 12 was sold at auction in October 2000. The lease conditions allowed a maximum number of 10 units to be developed on site and a maximum permitted height of two storeys. The Planning Control Plan for Block 12 dictated the development of a small, compact housing form with a substantial landscape zone in the southern portion of the site (that is, visible from Hindmarsh Drive).
6. To the east of the subject land, also within Section 100 and on the same (southern) side of Goyder Street, is a single storey retirement housing complex operated by the Salvation Army (‘Mountain View’). This development and the neighbouring development further to the east (Jindalee nursing home) are low density campus-style developments in landscaped settings. Other community facilities are located on large sites on the south side of this section of Goyder Street (Buddhist Society, Polish Catholic Centre, Narrabundah Business Centre and Marymead Child and Family Care Centre).
7. Immediately to the south of the subject land in Leahy Close is a multi unit residential development (“Greengate”) that is two and three storeys in height. Some of the closest units to the subject land are two storeys in height and feature habitable rooms at ground level that have an outlook to the north, towards the proposed residential development on the subject land.
8. Opposite the subject land on the northern side of Goyder Street, the existing development is predominantly single storey detached dwellings.
9. Goyder Street has a continuous canopy of mature trees. There are additional plantings within well established private gardens of residences on the northern side of the street.
10. The development application seeks approval to:
(a)subdivide the subject land (16,940 square metres) into two separate parcels – a church site (6,700 square metres) and a multi-unit residential site (10,240 square metres);
(b)a variation to the subsequent Crown leases to vary the purpose clauses to allow:
(i)the church site to be used for a place of worship and religious associated use; and
(ii)the multi-unit development site for residential purposes limited to not more than 56 dwellings;
(c)(Stage 1) – establish the National Headquarters for the Macedonian Church in Australia on the church site including the construction of a new community hall, a bell tower, a new Bishop’s residence, Baptismal pool, cladding the existing dome of the church with new copper sheets, parking associated with the church and the community hall;
(d)(Stage 2) – construction of a multi-unit residential development comprising 56 units with associated car parking; and
(e)associated landscaping, paving and other site works.
The hearing
11. At the hearing of the appeal, which was held on 18-20 March, 3 June, 17 and 18 June and 28 and 29 July 2008, the applicant and the parties joined who were objectors to the appeal (“the objectors”) were represented by Mr C Erskine, SC. The party joined, the Macedonian Orthodox Church Inc. (“the Church”), was represented by Mr P Walker, of counsel and the respondent was represented by Mr D Mossop, of counsel.
12. Evidence was given on behalf of the objectors by Ms C Middleton, Mr G Shoobridge, Mr S Bevanda, the applicant and Mr T de Takach-Tolvay. The written statements of Ms E Ellis, Mr K Bruce, Major R Garven and Mr J Lynch were also admitted in evidence on their behalf. Evidence was given on behalf of the Church by Mr A Adams, Mr B Baxter and Mr J Randall. Evidence was given on behalf of the respondent by Mr E Streatfeild. A number of documents were tendered in evidence on behalf of the parties and the Tribunal also had before it the respondent’s statement of reasons for the decision under review and other material required to be provided to it by section 37 of the Administrative Appeals Tribunal Act 1989 (“the T documents”). The Tribunal also undertook an inspection of the subject land and the surrounding area in the presence of the parties and/or their representatives and heard the submissions made by the representatives of each of the parties.
13. The objectors opposed the giving of approval to the development application on a number of grounds. The principal grounds of objection are set out below together with our conclusions in relation to them and the relevant planning policies on which those conclusions were based.
Applicable planning policies
14. Under the Land Act, approval is unable to be given to a development application that would be inconsistent with the Territory Plan (see section 8 Land Act).
15. The subject land is subject to the Part B1 Residential Land Use Policies of the Territory Plan (“the Residential Land Use Policies”). Permitted uses of land subject to the Residential Land Use Policies include single dwelling housing and, subject to restrictions, multi-unit housing and community activity centre.
16. The restrictions on multi-unit housing require a lapse of 5 years since the original dwelling was certified as completed where the lease is expressed to require the erection of a single dwelling and, for a proposal for dual occupancy housing, the plot ratio of any additional new dwelling that does not directly front a public road from which vehicular access is permitted shall not exceed half of the permissible plot ratio of all development on the block or 17.5%, whichever is the lesser.
17. “Community activity centre” is defined in Part D of the Territory Plan to mean:
the use of land by a public authority or a body of persons associated for the purpose of providing for the social well being of the community.
The restrictions on a community activity centre are requirements that it be demonstrated that the use will not have a significant adverse impact on surrounding residential development and the building form and materials have a domestic character and scale compatible with the locality.
18. The Residential Land Use Policies (clause 3.6) also contain specific objectives applicable to “suburban areas”, a term which is defined so as to include the subject land. The specific objectives are:
To ensure development respects characteristic features of existing attractive streetscapes such as building scale, height and setbacks, landscape character and architectural style and is compatible with adjoining development.
To retain a limited level of flexibility to accommodate a variety of additional housing to meet changing community needs and preferences.
19. In addition, the following control is applicable to development in suburban areas:
c)Proposals involving subdivision or consolidation of blocks must be accompanied by information that demonstrates how the proposed development fits in with the existing suburban character of the area.
20. Within areas subject to the Residential Land Use Policies area specific policies also apply to sub-areas. The subject land and most of the land in Section 100 with frontage to Goyder Street is subject to Area A3: Residential/Community Sites area specific policies (“the A3 policies”) which provide:
a) Land use
Add to Schedule 1:· COMMUNITY USE. Existing school buildings may be used for offices of sporting, cultural, social or other ACT Government or non-profit community based organisations.
21. “Community use” is defined as:
a child care centre, a community activity centre, a community theatre, a cultural facility, an educational establishment, a health facility, a hospital, a place of worship, and/or a religious associated use.
“Place of worship” means:
the use of land for the primary purposes of religious worship and associated activities by a congregation, religious group or members of the public whether or not the premises are also used for religious instruction, tuition, meetings, training and other community activities.
“Religious associated use” means:
the use of land for the activities conducted by religious organisations other than for worship or for offices and may include residential accommodation by ministers of religion.
22. The Residential Design and Siting Code for Multi-Dwelling Developments Appendix III.2 of the Territory Plan (“the Code”) applies to the subject land. Clause 9.1(d) of Part A3 Territory Plan Administration Policies provides that a proposal in a residential area cannot be approved if it is inconsistent with the relevant provisions of the Code.
23. Clause 9.2(b) of the Part A3 policies also provides that in relation to development applications the relevant authority must carefully consider any relevant planning guideline or interim guideline contained in the Register of Planning Guidelines. The Narrabundah Neighbourhood Plan, the ACT Planning Guidelines for Access and Mobility 2004, the Parking and Vehicular Access Guidelines and the Draft Noise Management Guidelines are such guidelines.
24. The Narrabundah Neighbourhood Plan under the heading “Future Character of the Suburban Areas”, states that the “Suburban Area” of Narrabundah is the residential area that will change the least over time. It acknowledges that over time existing dwellings in the area will be renovated or redeveloped as single or dual occupancy developments to modernise or adapt to contemporary ways of life. However, it envisages that the low density character will remain. Under the heading “Future character of the A3 Area” the Narrabundah Neighbourhood Plan recognises this area contains a mix of residential/community sites managed by the government or non-profit community based organisations and includes the “low density single storey” Regent townhouse development. Under the heading “Future character of the Medium Rise Residential Development Areas (B1 Area)” the Narrabundah Neighbourhood Plan does not propose an extension of the B1 Area in Narrabundah.
Development context
25. The objective and control referred to in paragraphs 18 and 19 above require that consideration be given to the compatibility of the proposed development with the existing streetscape features while retaining limited flexibility to accommodate a variety of housing to meet changing community needs and preferences. Evidence was given in relation to the issue on behalf of the objectors by Ms Middleton and Mr Bevanda and for the parties joined by Mr Adams and Mr Baxter.
26. Ms Middleton is a qualified and practising town planner. She holds a Bachelor of Town Planning Degree (UNSW), a Master of Planning Degree (UTS) and a Graduate Diploma of Population Health. She is a Fellow of the Planning Institute of Australia and a Certified Practising Planner.
27. In her evidence Ms Middleton gave her opinion that the proposed development failed to meet the requirements of a number of applicable planning policies. She said that the proposed development was apparently designed to match the three storey development on the adjoining development on Block 35, which was permitted by the B1 policies that applied to that site and other development in Leahy Close to the south of the subject land, rather than respond to the less intensive scale of residential development that existed within suburban residential areas where the applicable development control included a maximum height of buildings of two storeys. She agreed that the proposed residential development on the subject land and the adjoining development of Block 35 would be similar in character but considered that it would be inconsistent with the predominantly single storey residential development on the northern side of Goyder Street and the low rise one to two storey development on the southern side of Goyder Street which was contained within landscaped open space. She accepted, however, that the view of the residential development would largely be confined to that obtained from Hindmarsh Drive where the applicable speed limit was 80 kilometre per hour and that the most relevant perspective of the proposed development would be from Leahy Close. From that perspective, the proposed residential development would be similar in scale and character to the existing development in Leahy Close which was subject to Area B1 Area Specific Policies which permitted three storey development.
28. In relation to the proposed community hall, Ms Middleton noted that it was to be 811m2 and that in response to objections to the development application the Church had provided the following further information regarding its use:
The bar and dance floor are ancillary to the use of the Community Hall and have been included to ensure that the community hall can be used for official Church and cultural functions.
The main pastoral care and religious activities to be held at the Community Hall include Sunday School, church choir practice, wakes according to Macedonian Orthodox traditions, assembly of the Diocese, gathering and celebration of the church patron’s day St Kliment, and assembly of all Macedonian Churches in Australia.
To maximise the use of the Community Hall, it is intended that it is [sic] also be used for Community Development Activities and Macedonian and English classes. Community development activities include Macedonian women’s group activities (charity and fund raising), Macedonian Australian Humanitarian Organisation meeting, settlement information nights, health information sessions and workshops, legal information sessions and workshops, and information sessions and workshops for youth. Macedonian and English classes include classes in Macedonian language, history and culture, adult English classes, and a library with Macedonian and English books, journals, magazines and newspapers.
29. She considered that,, having regard to its proposed size and use the community hall should be regarded as a “Place of Assembly”, a use not permitted in a residential land use area. “Place of Assembly” is defined in Part D of the Territory Plan as:
the use of land for gatherings of people to attend functions whether or not for the purposes of gain.
30. She also considered that the hall and the associated Bishop’s residence and parking for 61 cars would be out of character with the low rise building forms, landscape character and architectural style of existing development in the A3 area of Goyder Street and the suburban residential areas opposite.
31. Mr Bevanda is a qualified and registered architect. He holds a Bachelor of Architecture degree from the University of Canberra. He has had over 15 years’ experience as an architect, specialising in design and documentation of energy efficient passive solar residential architecture. His current work as an architect primarily involves designing new houses and extensions to older houses.
32. Mr Bevanda expressed the opinion that, to the extent to which the proposed development appeared to have been designed to match the adjacent “mass and bulk” of the development on Block 35, it was out of step with the less intensive character of the established adjoining A3 suburban area blocks.
33. He said that the documentation provided with the development application offered little information to demonstrate how the proposal “fits” in with its suburban neighbours. The context plan did not accurately represent the close relationship the proposed development would have to adjoining development and their respective private outdoor spaces. There were no long site sections or elevations to document the physical relationship between the proposed development and adjacent developments. There were no perspectives to show how the units were intended to appear in relation to the neighbouring dwellings.
34. Mr Adams is a qualified and practising town planner. He holds a Bachelor of Applied Science in Applied Geography. He is a Certified Practising Planner and Member of the Australian Planning Institute. In regard to the context of the development he said that he could think of no sound planning reason as to why development should be visually compatible in response to statutory boundaries. From the perspective of the “man in the street” the statutory boundaries are irrelevant, what he or she is seeking is a pleasantly appearing streetscape, regardless of statutory boundaries. He considered the material provided with the development application including the context plan and the discussion of adjacent land use and neighbourhood relationships and street character included in the design response report allows a judgement to be made as to whether or not the proposed development fits in to its local environment. Mr Adams considered the proposed development was compatible within its local setting.
35. Mr Baxter is an architect and urban designer. He holds a Bachelor’s degree in Architecture and a Bachelor of Planning and Design. He has been a registered architect since 1988. In his evidence he described the character of the different adjoining developments and concluded that the existing character of the area is an eclectic mix of different building types and heights. He considered therefore that an appropriate way of achieving compatibility with the existing context is for the proposal to mediate between adjoining disparate elements. He concluded that the proposed development fits in with the existing suburban character of the area.
36. The evidence of the various witnesses is that the character of the adjoining development is variable. Most of Leahy Close to the east is characterised by 2 and 3 storey apartments and town house buildings. On the side of Leahy Close opposite the subject land are the large scale, but generally low rise institutional buildings of the Salvation Army housing complex. These are set at a much lower level than Leahy Close. The residential component of the proposal is to be well separated from the single storey residential development on the north of Goyder Street and Ms Middleton agreed that its primary visual impact would be in Leahy Close. The subject land and area are currently dominated by the existing church building. There was no evidence to suggest that the streetscape of Leahy Close was an attractive streetscape or had any particular characteristic features. It was not said that the context of the subject land has any cohesive suburban character. The single multi-unit development to the south of the church was developed in 2000 and Ms Middleton advised that at the time two storey development was permitted by the development conditions.
37. The view was put to the Tribunal by Ms Middleton and Mr Bevanda that the character and scale of the development should not reflect that of the adjoining development in the B1 area but rather should reflect those controls which govern residential redevelopment in an A3 area. The Tribunal does not accept this view. The proposal is not residential redevelopment and therefore is not bound by the controls which affect redevelopment. The plan requires consideration of the existing streetscape and existing character rather than “zoning” boundaries. In so far as the Bishop’s residence and hall are concerned these are already permissible under the provision of the existing lease.
38. Given the mixed character of the streetscape and adjoining development the Tribunal finds there is no inconsistency with the requirements of the Territory Plan in regard to the proposal’s respect for characteristic features of the existing streetscape or compatibility with adjoining development.
39. In relation to the community hall, we consider that the use proposed for it by the Church would involve a religious associated use and, hence, be permitted as a community use under the A3 policies. There is nothing in the design of the hall or the context in which it is proposed that would suggest otherwise.
Attics
40. The plans of the development application for the proposed residential site of the subject land show six buildings (Blocks A-F) containing a total of 56 self-contained residential apartments. Blocks A, B, C, D & F comprise 3 floor levels. Each third level is described in the plans as an attic level and contains self-contained apartments. Access to the apartments at each level, including the attic level, is obtained from a stairway with a landing at each level. Each stairway is contained within an enclosed stairwell that is constructed partially forward of the front face of each block and partially recessed within it. At the top of the stairs leading from the ground floor level to the first floor level there is a full length return platform to the foot of the stairs from the first floor level to the attic level landing. There is a void above the staircase and landing outside the entrance to the third floor level apartment.
41. The main roof of each block is pitched at 35 degrees. The external component of each stairwell is capped by a roof pitched at 35 degrees and at right angles to and slightly lower than the ridge of the main roof.
42. Elevation drawings of the rear face of the 3-level blocks show a dormer style window and a balcony for each apartment. Each balcony is contained within the line of the roof. Entrance to the balcony is from a sliding glass door opening from a living area. The front of each balcony is enclosed by a vertical wall to balustrade height on the interior side. On the external side the tiled roof slopes 35 degrees from balustrade height to the guttering level below. Either side of the balcony is enclosed by vertical walls angled from balustrade height at the front to ceiling height at the rear.
43. A roof pitched at 3 degrees from the main roof ridgeline extends approximately 0.6m above the balconies of the apartments in Blocks A, B & C. It is shown to extend 1.9m above the balcony of the apartments in Block D. We are unable to locate any drawing which depicts the roof overhang of the balconies of the apartments in Block F.
44. Control 3.4 of the Code is entitled “Number of Storeys”. It provides that, with exceptions not applicable in this case, “buildings shall not contain more than two storeys. Subject to clause 3.6, a basement and/or an attic, may also be permitted”. (Clause 3.6 is not relevant).
45. “Storey” is defined as:
a space within a building that is situated between one floor level and the floor level next above, or if there is no floor level above, the ceiling or roof above but does not include an attic or a basement.
46. “Attic” is defined as:
any habitable space contained wholly within a roof pitched at not more than 36 degrees above the ceiling line of the storey immediately below, except for minor elements such as dormer windows and the like.
47. A Development Application and Design Response Report prepared by architects on behalf of the lessee was relied upon by the objectors in support of their contention that the proposed development would contravene clause 3.4. It stated that:
The building height is mainly 2 storeys with the units facing Leahy Close to have a third storey in the loft space of the pitched roofs. This will match the height of the existing adjoining development in “Greengate”.
48. The adjoining Greengate development is located in an area which is designated as Area B1 and subject to controls which permit a maximum of three storeys building height.
49. In giving her evidence Ms Middleton said that, in her opinion, the external stairwell structures were not consistent with the definition of “attic” as they were not contained wholly within the roof form and was not a minor element. The stairwell appeared to have been designed as an architectural feature. She was shown a revised plan of the stairwells (Drawing No A505C). She said that she would need to consider more detailed plans but the drawing appeared to remove the prominence of the roof over the stairwell at the upper level and reduced their impact. She considered it to result in the stairwell being a minor element and no longer a feature.
50. Mr Bevanda gave evidence that the elements of the buildings which included the top of the three storey high stairwell, each with landings and/or lobby/hallway spaces were not habitable space contained wholly within the roof and could not be considered as an attic. He also considered that the balcony of each unit which was exposed and not covered by a roof could not be considered as wholly within the roof and should be considered as a storey. Further, he considered that the balconies, bathrooms and laundry spaces were not habitable spaces or rooms and did not, therefore, comply with the definition of “attic”.
51. It was suggested to Mr Bevanda in cross-examination that, to the extent to which the partial covering of the balconies might result in them being regarded as a “storey”, the removal of any roof overhang would result in them not being a “storey”. In response, Mr Bevanda said that because of the exposure of the balconies to the sun and the absence of any cross ventilation within the affected apartments, the absence of any roof overhang would make them unliveable.
52. Mr Baxter considered that the balconies were visually unobtrusive as they had been “cut out” of the main roofline. The dormer windows, in his view, were of traditional expression consistent with the definition of the “attic” in the Territory Plan for minor elements not contained within the roof. He considered that the revised plans for the stairwells provided a better architectural solution and resulted in them being able to be regarded as minor elements similar to a traditional dormer window bay that projects from the main roof.
53. Mr Adams considered that the use of the third floor level for modest scale apartments would tend to add to the variety and improve the affordability of housing options in the area thereby meeting important planning objectives. He disagreed with Ms Middleton’s view that the apartments were not contained wholly within the roof. He considered that the stair elements were not floor space and that their location external to the pitch of the roof was not relevant to the definition of “attic”. He also considered that the stairwell as depicted in the revised plans should be regarded as a relatively minor element. In his view those plans showed that the stairwell servicing the loft apartments was not dissimilar to a dormer window and was compatible with the definition of “attic”. He considered that there should be eave protection for the balconies but this did not result in them being a storey because they would not be covered by a roof.
54. The planning policies to which reference has been made in these reasons for decision are contained in the Territory Plan. The Territory Plan is an instrument made under the Land Act (see definition of “instrument” section 14 Legislation Act 2001 and Division 2.3 Land Act). While the views of the expert witnesses who were called to give evidence on behalf of the parties as to the meaning of Clause 3.4 may be informative, the policies are required to be interpreted by the application of relevant provisions of the Legislation Act except so far as those provisions are displaced (see section 6 Legislation Act).
55. Section 139 of the Legislation Act requires that an interpretation that best achieves the purpose of the provision of the statutory instrument in question is to be preferred.
56. Clause 3.4 of the Residential Land Use Policies is one of a number of controls that identify the purposes for which land may be used and which impose requirements that apply to proposals to undertake development (see clause 3 Guide to the Territory Plan). The purpose of Clause 3.4 is to be determined primarily by reference to its terms. The imposition of a restriction on the number of storeys of a building has the practical effect of limiting the height, albeit without imposing a restriction determined by measurement. Together with other planning controls that affect setback distances from boundaries and, in some cases, the plot ratio of development, a restriction as to the number of storeys of a building affects the bulk and density of development to which it applies. It may also achieve a level of compatibility of adjoining and nearby development, the extent of overshadowing that is cast and have other impacts.
57. Having regard to what we discern to be the purpose of Clause 3.4 we find nothing to prevent its terms being given their ordinary meaning.
58. Each of the attic level balconies is contained within a space that has been cut into the main roof of the building within which it is located. Each balcony is fully enclosed on only one side and covered by a small section of roof overhang that affords protection of the kind given by eaves. The balconies, in our view, do not form part of the interior part or inside of the buildings in which they are located and are not “space(s) within a building”. Accordingly, they do not constitute a “storey”, as that word is defined, and do not involve any contravention of Clause 3.4.
59. During the course of the hearing it was proposed that the eaves overhang of each balcony be removed so as to make it more clear that there was no roof above their floor. The evidence before the Tribunal, particularly that of Mr Bevanda, is that the removal of the eaves would be an unacceptable design outcome. In light of the conclusion which we have reached that the balconies are not spaces within a building, such a design revision is unnecessary.
60. In relation to the stair well, it is, we consider, arguable that the platform return at the first floor level is of sufficient dimension to be regarded as a floor so as to make the space below it a separate storey within that space of each building. The landing outside the entrance door way of each attic level apartment is, however, only approximately 2 metres in width and of insufficient dimension to be capable of being regarded as a floor. It is unnecessary, therefore, to determine whether the stair well is excluded from the definition of “storey” on the basis that it is an “attic”.
61. In our view, neither the balconies nor the stair wells fail to comply with the requirements of Clause 3.4. We note, however, that a number of the expert witnesses regarded the alternative design proposal contained in drawing No. A505C as a preferable design solution. That design replaces the upper staircase with a return staircase that reduces the size of the stair well above the first floor level and replaces the pitched roof with a sloping roof consistently with the slope of the main roof. Were the development application to be approved, we consider that there should be added a condition that would allow approval to be given to that option.
Side Boundary Setbacks
62. Mr Bevanda gave evidence that, in his opinion, the proposal did not comply with the requirements of Appendix III. 2 of the Territory Plan in relation to side boundary setbacks from the north-western boundary adjoining the proposed Bishop’s residence. The relevant Performance Criteria of the Code are:
P3.1 The privacy of dwellings and private outdoor spaces to be protected.
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.
P3.4Buildings to be sited to minimise overshadowing of northern facades of adjacent dwellings and private outdoor spaces.
63. A related performance measure is D3.1 which specifies 9 metres for the side boundary clearance from an upper floor level for the “outer walls of unscreened decks, balconies and external stairs over 12 metres behind the Upper floor level building line”.
64. Mr Bevanda identified the first floor levels of units in Block F (units 42-56) as being a minimum dimension of 4 metres from the side boundary as compared with the 9 metres minimum of Performance Measure D3.1. Each unit is at an angle to the common boundary and has an upper level balcony typically about 4 metres distance from the boundary at its closest point. The apartments being to the south do not overshadow the bishop’s residence, nor was there evidence that the Bishop’s residence limited sunlight to the units or their open space.
65. Although the proposed setbacks do not meet the relevant performance measure, there is no basis for a conclusion by the Tribunal that this would result in a failure to meet performance criteria P3.2, P3.3 or P3.4. We have addressed the issue of privacy, to which performance criterion P3.1 is directed, below.
Private Open Space
66. Mr Bevanda identified a number of ground floor units that failed to have the minimum dimension of 6 metres set out in Performance Measure D4.2 of the Code. He did not give evidence of a failure to meet the relevant Performance Criteria or Objectives.
67. The plan provides in Appendix III.2 Performance Measure D4.2:
D4.2 Location and dimensions of private open space:
•For each attached or detached house, provision of at least one area of useable private open space that is screened from public view, directly accessible from an indoor daytime living area and meets the following minimum area and dimension requirements: Minimum Area 10% of the average block area per dwelling, Minimum Dimension 6 metres
• Minimum dimension of private open space on balconies: 1.8 m
68. The relevant Performance Criteria of the Code is P4.2:
Part of the private open space to be capable of enabling an extension of the function of the dwelling for relaxation, dining, entertainment, recreation and children's play, and be directly accessible from the dwelling.
69. Mr Streatfeild pointed out that the condition of approval 9(b)(v) required the 6 metre dimension to be achieved for units 1,2,7,8,13 and 14. In relation to units 19,21,22,26,27,31 and 32, Mr Streatfeild was of the view that the Objectives and Performance Criteria of the Code were met. He considered that although these units appeared to have a dimension in one direction of about 5 metres, nevertheless, the overall configuration and northern orientation together with direct access to the large central communal open space ensured they provided a reasonable level of amenity. The Tribunal accepts Mr Streatfeild’s view that the open space provision for these units is not inconsistent with the Plan.
70. A further issue raised during the hearing was whether the private open space of the units facing Leahy Close was adequate because of the slope resulting from the difference in levels between the buildings and the courtyard wall. This would be affected by the nature of construction of the courtyard walls and the extent of fill placed to obviate excessive slope and would vary from unit to unit. Mr Baxter provided some diagrams showing how different areas might be dealt with. He was of the view that it was not necessary to have a large flat area.
71. Ultimately different occupants of the units may choose to use these open space areas in different ways. It is not necessary at the point of construction to determine a detailed allocation of these spaces but rather to be assured that the area is capable of their designated use. No evidence was given that the slope of the areas prevented the criteria being met and as the performance measure was met the Tribunal does not find an inconsistency with the Territory Plan.
Overshadowing
72. Shadow diagrams show that Block F of the proposed residential development would cast shadow onto part of the nearest house to the east on mid-winter mornings. That is the applicant’s house within the Regent’s Park complex. On 21 June shadow would fall onto the main bedroom and living room façade prior to 9am, but would be gone from the yard entirely by 10am. The family/kitchen area of the house and the children’s play area outside of it would not receive shadow from the proposed residential development at any time and would retain access to sunlight throughout the day in mid-winter. No other units in the Regent’s Park complex would be affected by overshadowing.
73. The shadow diagrams also show that shadow would be cast by Block D of the proposed residential development in the afternoons onto the nearest unit within the Milson complex to the east. Shadow would enter the private open space outside the unit at about 2pm and reach the facade of the building by 3pm. The units on either side would be less affected.
74. While any overshadowing in winter is undesirable, that extent of overshadowing is not excessive in the context of adjacent multi-dwelling developments. The Territory Plan at Appendix III.2 does not require overshadowing to be non-existent, but to be minimised. The overshadowing does not result from a failure to meet side setback measures in the Territory Plan. We do not find that the proposed development fails to satisfy the requirements of the Territory Plan in this regard.
Overlooking
75. In addition to overshadowing, the applicant expressed concern about overlooking from the windows and balconies of Block E of the proposed residential development. Block E complies with the prescribed side and rear setbacks in the Code. It does not have attic level apartments, and the only possible overlooking is from the first floor units. There are four such units within Block E, but two of them are located more than 30 metres from the boundary closest to the applicants’ land, so that any overlooking is so ameliorated by angle and distance as to be of no concern in planning terms. Limited overlooking could occur from the bedroom window and balcony of proposed unit 41 on the first floor, and to a lesser extent from those of unit 40 next to it. The respondent has required that the balustrade be of solid material, as opposed to transparent material in some other units, and that the bedroom windows have external shutters fixed over them. These features are designed to reduce the possibility of overlooking. Noting that the proposal meets the performance measures for these side setbacks, we do not find that it fails to satisfy requirements of the Territory Plan in this regard.
76. A more significant setback issue arises in relation to distance between Block F on the north-west boundary of the proposed residential development and the proposed Bishop’s residence on the church land. The performance measure in the Code, as noted above, stipulates a 9 metre setback from the boundary for upper floor balconies. The balconies of the 8 first floor units facing the Bishop’s residence are between 4 and 8 metres from the boundary, while those of the two attic level units in Block F are 8 metres from the boundary. Thus they do not meet the relevant performance measure. The Bishop’s residence is in turn only 3 metres on the other side of that boundary. The balconies face north-west and are the designated, and indeed only, private open space for the 6 upper floor level units in Block F. Some would have a clear view into the rooms marked as “study” and “kitchen” and the rear yard of the Bishop’s residence.
77. Revised plans were submitted on behalf of the Church to the Tribunal which showed Block F containing units 42-56 further away from the side boundary so that the first floor levels were set back 9 metres from the boundary. Whilst the revised plans resolved the setback issue, Mr Streatfeild indicated they would not be supported by the respondent because they introduced other problems including an entrapment zone along the side boundary and potential interfacing problems between units 9 and 56 and also between units 7 and 52. He was also concerned that moving the building may have implications for vehicular accessibility for the basement and that this had not been assessed.
78. Mr Streatfeild referred to the terms of the approval which had a condition 9(c)(iii) that: “privacy to the Bishop’s residence and rear yard from Block F balconies on the multi unit site be demonstrated by diagrams”. Diagrams indicating how privacy could be protected by awnings and a pergola were submitted in evidence. Mr Walker in his final submission suggested that the Tribunal could add a condition of approval which required further amendment of the plans in the way indicated. These would specifically require awnings and a pergola on the Bishop’s residence to negate loss of privacy from overlooking. The Tribunal accepts that such a mechanism would be sufficient to ensure the performance criteria were met.
Trees
79. There are three Eucalyptus Blakelyi located near the Leahy Close frontage. They are regulated trees as defined in the Tree Protection Act 2005. At the time of the earlier development application over this land, the trees were assessed under the Tree Protection (Interim Scheme) Act 2001. The Conservator of Flora and Fauna approved the removal of one of the trees on the grounds that it was a danger to public safety, while the remaining two trees were required to be protected during the construction phase. That approval had lapsed, so that there was no approval extant for the removal of one tree nor for construction work in the root protection zone of the other two trees when the application was approved. The respondent imposed a condition dealing with that matter.
80. The Conservator’s approval was predicated upon the earlier plans and, moreover, the tree protection legislation has changed in the intervening period. During the course of the hearing, fresh approvals from the Conservator for the removal of one tree and for groundwork within the tree protection zone of the other two trees was granted under the Tree Protection Act 2005. The respondent and the Church both proposed conditions relating to tree protection which required that no damage be caused to a protected tree and that no prohibited ground work be carried out otherwise than in accordance with an approval given by the Conservator of Flora and Fauna under the Tree Protection Act 2005. We believe the conditions proposed by the respondent to be appropriate.
Access and mobility
81. The Church tendered in evidence two letters from Eric Martin & Associates, architects, the effect of which was to assert that, subject to attention being given to a number of specified matters, the proposed development met the requirements of the ACT Planning Guidelines for Access and Mobility and AS4299 Adaptable House Class C.
82. Mr Bevanda was of the view that the letters did not document full compliance with the Guidelines and the Standard and drew attention to what he considered to be the resolution of a number of issues not to a high standard. Nevertheless, he was disposed to accept the assurances given by Eric Martin & Associates that the minimum standards could be met.
83. In response to questions asked at the hearing, Mr Streatfeild agreed that levels shown on the ground floor plan made it apparent that the landing of unit 55 was 1.73m higher than the ground level at the foot of the stairs leading to it. He accepted that it would be necessary to change the approach of the pathway leading to unit 55 or provide lift access to it so as to achieve compliance with the access and mobility guidelines. A similar solution would be required for adjoining units 50 and 51.
84. It is clear that, as presently depicted, the plans in respect of which approval is sought do not demonstrate compliance with access and mobility requirements. The evidence of Mr Streatfeild satisfies us, however, that compliance is capable of being achieved and we consider that the condition proposed by the Church, as follows, should be imposed on any approval of the development application:
Delete condition 8.1 and 9(f) proposed by the respondent and substitute:
4.That within 28 days from the date of this decision, or within such further time as may be approved in writing by the Planning and Land Authority, the developer shall lodge with the Planning and Land Authority for approval:
(a)a revised access and mobility report and plans demonstrating compliance with the ACT Guidelines for Access and Mobility; and
(b)revised plans A-01 Issue C, A-07 Issue F, A-50 Issue D, A-51 Issue D, A-52 Issue D, A-53 Issue D, A-54 Issue D, A-55 Issue D and Drawing 303 (landscape plan) showing access to Units 50, 51 and 55 clarified with regards to levels adjacent to the entry from the footpath to ensure that an unimpeded path of travel, in accordance with the ACT Guidelines for Access and Mobility.
Traffic
85. Evidence was received from Mr Paxevanos, Mr Stan Bruce, Ms Everyl Ellis and Mr Tomas de Tokach-Tolvay, all of whom are residents of the area, of their experience of traffic delays and parking problems. Expert evidence was heard from Mr Graeme Shoobridge of Hughes Trueman for the objectors, Mr John Randall of Bill Guy and Partners for the Church and Mr Paul Isaks of the Office of Transport in the Department of Municipal Services for the respondent.
86. This part of Narrabundah/Red Hill has been recognised as having traffic problems for many years. In 2000 the then Department of Urban Services commissioned Maunsell McIntyre Pty Ltd to develop a master plan, in light of the history of relatively high vehicle speeds and traffic volumes and accident history contributing to a deficiency in residential amenity in the study area. The conclusion to Goyder Street Local Area Traffic Management Study Report 2001 (“the Maunsell Report”) reads:
Goyder Street has long been recognised as a street with a very high proportion of through traffic, high traffic speeds (downhill), restricted visibility over crests and traffic volumes that make it difficult for pedestrians to cross roads and residents to enter and exit their driveways.
Although daily traffic flows have been slowly declining over the past 20 years the road is still carrying excessive volumes and speeds of traffic. Recent planning decisions have resulted in further increases in traffic along Goyder Street. Traffic noise is also a concern to residents, especially from heavy vehicles using the road as a through route.
87. The Maunsell Report at Figure 3-2 shows land uses within the study area at the time, from which it appears that further medium density residential development has occurred in the Leahy Close/Goyder Street in the intervening years.
88. The Maunsell Report recommended that a master plan be implemented in two stages for traffic management in the area. The Goyder Street, Narrabundah Local Area Traffic Management Evaluation of Stage 1 Works by the Department of Territory and Municipal Services found that much of the Stage 1 work had been undertaken, resulting in an improvement but not resolution of the adverse traffic effects. The work undertaken included redesign of the intersection of Goyder Street with Dalrymple Street and changes at the intersection of Hindmarsh Avenue and Dalrymple Street. Two traffic calming measures proposed have not been implemented.
89. The combination of works was believed by the author of the Maunsell Report to have had the effect of reducing the extent of “rat-running” and thereby the reduction in recorded traffic volumes, although speeds still remain higher than desired. It was agreed by the experts that in peak hour there was a substantial delay at the intersections. Photographs were tendered showing queues of traffic on Dalrymple Street at peak hour. Moreover, both Mr Randall and Mr Shoobridge gave evidence that the intersection of Goyder and Dalrymple Streets recorded high minor accident rates.
90. The traffic volume count in Goyder Street was estimated by the Office of Transport at 4,030 vehicles per day in April 2007, taking into account adjustments made by Mr Isaks for reductions during school holiday periods. This is the most recent count available to the Tribunal, and is consistent with the counts for the years since the road works were undertaken, being 4,050 in 2004 and 4,128 in 2006 (no count is given for 2005). For the five years preceding the redesign of the Goyder Street/Dalrymple Street intersection and the implementation of traffic management measures following the Maunsell Report, the traffic volumes had been measured at between 4,300 and 4,800 vehicles per day. In earlier years traffic volumes had reached 5,000 and 6,000 vehicles per day.
91. In summary the evidence shows that Goyder Street traffic is in excess of that recommended by the Maunsell Report; Dalrymple Street south is over capacity; Dalrymple Street north is just under capacity; while Leahy Close is at capacity and in excess of capacity at peak hour. The proposed residential development would generate approximately 340 vehicle movements per week day which would exit onto Leahy Close. Leahy Close is classified as an Access Street C. It exits onto Goyder Street, near the intersection with Dalrymple Street. It already carries all traffic from the large number of residential units there, for which it provides the only street access.
92. There is no disagreement among the experts as to the accuracy or interpretation of the traffic data. Their disagreements revolve around such questions as whether Goyder Street should be treated as a major collector street or a minor collector street. That is a clear point of disagreement between Mr Randall and Mr Shoobridge. Mr Randall considers that Goyder Street acts as a major collector street, as is indicated by the volumes of traffic it has carried over many years, and that accordingly 6,000 vehicle movements per day is its upper limit. His Traffic Impact Statement for the development was based on that premise. He considered that the development could be approved because the traffic volume in Goyder Street would meet that standard. Mr Shoobridge’s position was that Goyder Street is classified as a minor collector street, the traffic management measures have been devised on that premise and that it properly fits the description of a minor collector street. For a minor collector street the upper limit is 3,000 vehicle movements per day. Mr Shoobridge’s evidence was that whether a street is a major or minor collector is a reflection of its function within the street hierarchy, not the traffic volume it carries. Streets such as Goyder Street may carry traffic volumes greater than they should if they are used not only as collectors for local traffic, but for “rat-running”. For example, Goyder Street is used by traffic travelling between south Canberra and Woden. Accordingly, Mr Shoobridge did not think the proposed development should be approved, absent the implementation of additional traffic management measures.
93. Mr Randall opined that since the proposed development lies within the local area it should be approved, since the problem is one created mainly by through traffic rather than internal traffic. However he agreed in cross-examination that whether traffic is internal or external does not affect the perception of loss of amenity of residents. He did not disagree with the purpose or the conclusions of the Maunsell Report, based on a need to improve the amenity of residents and aimed at reducing volumes in Goyder Street from the then existing levels in the order of 4,5000 vpd. Amenity in the traffic context was accepted by Mr Randall to include traffic noise, air pollution, vehicle and pedestrian safety, and difficulty in access to and egress from the road network.
94. We do not think that where Goyder Street sits in the ACT street hierarchy is a matter we need to resolve. It is acknowledged that street hierarchy definitions devised for new areas are not readily superimposed onto older areas where road systems were designed on different criteria. It was not disputed that the Stage 1 traffic measures aimed at reducing the traffic volume in Goyder Street to 4,000 vpd were appropriate. The latest traffic measures show that it is just marginally above that objective. A volume of 3,000 vpd being the indicative two-way traffic volume for a minor collector street would, the experts agree, be preferable from the point of view of the amenity of residents. That is the criterion stated at C117 in the ACT Planning and Land Authority document “Future Urban Areas Residential Subdivision Code March 2008”, as the maximum desirable traffic volume for streets fronted by dwellings. Both Dalrymple Street and Goyder Street are fronted by dwellings and carry well in excess of 3,000 vpd.
95. Mr Isaks’ view is that Goyder Street has the capacity to absorb the additional traffic, in conjunction with the progressive implementation of recommended traffic management measures aimed at reducing through traffic. His oral evidence, however, was that there are no current plans to proceed with two traffic calming measures proposed in the Maunsell Report that have not been implemented nor had he been able to ascertain whether, and if so when, they would proceed. Rather it seems that work in other suburbs now has priority. He also confirmed his opinion, first recorded in 2006, that if the development were to proceed a small number of residents on Goyder Street should be provided with a reversing area to allow them to access and depart their blocks in a forward direction. That suggestion has not been taken up.
96. With regard to Leahy Close, the evidence is that the additional traffic movements generated by the development would render it over its capacity at peak hours. The data shows that Leahy Close is already at capacity at peak hours causing delays in exiting for residents. Further delays could be expected at the Leahy Close/Goyder Street intersection at peak hours if the development were approved. No measures to ameliorate this potential problem were advanced by its proponents.
97. Section 7 of the Land Act states the object of Territory Plan as follows:
(1)The object of the plan is to ensure, in a way not inconsistent with the national capital plan, that the planning and development of the ACT provides the people of the ACT with an ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation.
(2)The plan must set out the planning principles and policies for giving effect to its object.
(3)For giving effect to the object of the plan and the principles and policies mentioned in subsection (2), the plan may—
(a) set out specific objectives and policies; and
(b) specify purposes for which land may be used; and
(c)identify land for subdivision 2.3.4, specifying in addition the principles and policies for its development; and
(d)for division 5.7—identify an area of land as public land and reserve it for a purpose specified in section 193; and
(e)provide for other matters relevant to the exercise of the powers of the Territory, the Executive or a territory authority under a territory law, or the administrative review of the exercise of those powers; and
(f) provide for other matters that are necessary or convenient.
98. Attention was drawn to Part A3 clause 9.3 of the Plan (Plan Administration Policies) which requires careful consideration of, among other things:
The amount of traffic likely to be generated and its impact on the movement of traffic on the road system.
99. The Residential Land Use Policies at Part B1 of the Plan include the objective to:
d)safeguard amenity, safety and special qualities …. of established residential areas while carefully managing change in suitable locations .
100. There is evidence of long-standing adverse impact of traffic on the amenity of the neighbourhood sufficient to stimulate the ACT Government to commission the Maunsell Report in 2001 and implement most of its recommendations. Additionally there is evidence of residents before the Tribunal of more recent experience of traffic delays. There is evidence that the development, if approved, would increase existing delays at the Leahy Close intersection and that the recognised environmental capacity of that street would be exceeded. Some hundreds of vehicle movements per day would be added onto other nearby residential streets, in particular Goyder Street and to some extent Dalrymple Street. Both already experience traffic volumes in excess of those considered appropriate for new residential areas. There is evidence that Mr Isaks recommended some years ago that residential development on this land should preferably be accompanied by measures to allow some residents of Goyder Street to exit their properties safely. There is no evidence of any attempt to require any such measures or to manage the additional traffic. Rather, the evidence is that no further works on the road system in the neighbourhood are planned.
101. The objectors submitted that it was a function of the planning system to ensure that infrastructure was provided consistent with development and land use changes. Accordingly it followed that subdivision of the church land and change of use of part of it for 56 residential units should not occur when the evidence demonstrated that the road infrastructure would be inadequate. The respondent and the Church submitted that the evidence did not establish that there would be significant adverse impact of traffic movement on the road system. We have carefully considered the evidence of the impact of the additional traffic on the road system servicing the proposed residential development but do not agree that it would be insignificant.
102. Reliance was placed by the Church on Kourpanidis v ACT Planning and Land Authority [1998] ACTAAT 229, where traffic impact of a proposed development in the Dickson Group Centre was in issue. In that case the Tribunal did not consider that a development should be refused despite evidence of traffic problems in the area. There the evidence was that the increase in traffic caused by the development would be only one of a number of contributors to increased traffic congestion. Other identified contributors were in particular the development of Gungahlin but also other proposed developments in the Dickson area. This case also differs in that it is in a residential not a commercial area, where the Territory Plan specifically requires that the effects of traffic volume on the amenity of the established residential areas be considered.
103. We believe it would be inappropriate to add to it a further 340 or more traffic movements to Goyder Street in the absence of any evidence of a further downward trend in traffic volume or of identified additional traffic engineering solutions being implemented. We have regard to the fact that the additional 340 vpd would return traffic levels on Goyder Street close to those recorded before the Maunsell Report and the expenditure of government funds on traffic reduction, which work was endorsed by the expert witnesses. We note that the evidence shows that not only Goyder Street but also Dalrymple Street and Leahy Close experience traffic stress and also Mr Isaks’ opinion that works to provide safer egress for some residents of Goyder Street would be beneficial. We prefer Mr Shoobridge’s approach to that of Mr Randall, whose view was that development should not be constrained even if traffic standards are not met. We can find no basis for that approach in the Territory Plan.
104. Complaints about the potential for residential development to cause traffic problems are not uncommon, but this proposed development differs from other larger residential development proposals by virtue of its location. Its only street access would be onto Leahy Street, a small street already at or over capacity and with only one exit. The traffic would then flow onto other residential streets that have been demonstrated to have traffic problems and in part through intersections already congested at peak hour, before it reached arterial roads. In the absence of any proposals by the respondent or the Church to deal with the impact of the additional traffic that would be generated by this proposed development, and the evidence that the implementation of recommendations to remove recognised pre-existing problems in the local area remains indefinitely incomplete, we find that Objective (d) of the Residential Land Use Policies is not satisfied.
Parking
105. The proposed residential units would require 84 parking spaces for residents and 14 for visitors according to the ACT Parking and Vehicular Access Guidelines (“the Parking Guidelines”). One hundred and one have been provided. The Bishop’s residence has two parking spaces. According to the Parking Guidelines, the church would require 33 parking spaces. Sixty-one have been provided for both the church and the community hall, on the basis that the two buildings would not be in use at the same time. It is not disputed that the parking for both the residential component of the development and the church is adequate.
106. The major area of difficulty lies in relation to the number of parking spaces needed for the hall proposed to be erected on the church site parallel to Leahy Close. This would be a single storey building with a GFA of 897m2, containing a commercial size kitchen and various other meeting rooms in addition to the main hall with a seating area of about 400m2, a fixed stage and a dance floor. Disagreement exists as to the basis on which the parking needed for this building should be calculated. The Parking Guidelines provide different methods for assessing parking needs for different uses. A church or theatre requires one parking space for every four users. A community hall requires four parking spaces for every 100m2.
107. Information provided by the Church described the potential use of the hall as including wedding receptions, 21st birthday celebrations and the like. In its first report, Bill Guy and Partners had placed the hall in the same category as the church. That is consistent with the proposed lease purpose of “religious associated use”. Four hundred users were anticipated, with a resultant need for 100 car spaces plus 10 for staff. In Bill Guy and Partners second report it was reclassified as a community hall. As well as changing the category, the number of users was reduced to 240, so that only 36 car spaces were required. No provision was made for staff parking. Mr Randall’s evidence was that the change of numbers was as a result of changed instructions from the client. The outcome of the changes was to allow the proposed development to meet the parking requirements in the Parking Guidelines, whereas hitherto it had not, yet neither the building scale nor its uses had changed. Mr Randall and Mr Baxter referred in oral evidence to other church halls with limited parking, but it was argued on behalf of the objectors that the church halls selected for comparison did not have parking arrangements typical for church buildings in Canberra. Mr Bevanda also gave evidence of the use of the hall/function room at All Saints Church in Ainslie. He had been informed that it was less than 200m2 and no more than 120 seats were provided. He thought that was a reasonable usage.
108. The respondent’s decision accepted 36 spaces as the appropriate number. However, in evidence it also advanced the proposition that if the number of parking spaces on site was inadequate, nearby public land could be used. There is a substantial area of public land on the verge between the church site and the Goyder Street carriageway which includes an electrical easement. Mr Streatfeild gave evidence that in his experience it was common and relatively easy for organisations to obtain a temporary licence from the relevant part of the Department of Territory and Municipal Services to use nearby public land for overflow parking for special events attracting a greater than usual number of cars. In his opinion the public land along Goyder Street could be so used and would hold about perhaps 60 cars, thereby overcoming any shortfall of dedicated parking on the premises. While we do not question Mr Streatfeild’s knowledge and experience in these matters, there is no evidence from the relevant authority indicating that it would approve the use of the verge land for parking. Mr Randall gave evidence that he was aware of, although not personally involved in, negotiations with the authorities to get approval for verge parking, but so far as he knew the matter was unresolved. The T documents show that the ACT Planning and Land Council, in considering the proposal in 2006, specifically stated that “all car parking associated with the community facilities should be contained within the church site”.
109. Mr Adams agreed with the view that the parking rate given in the Parking Guidelines for a place of assembly, being four spaces per 100m2 of GFA, was appropriate. As the hall is proposed to be 897m2, 36 car spaces would be required. He said that he was sure that the 61 planned parking spaces would be more than enough. He considered the capacity of the hall by reference to the Building Code of Australia (“the BCA”), which he said was concerned with issues such as safety. The BCA allows one person per one m2. As the hall would be roughly 400m2, it could accommodate up to 400 people, requiring 100 car spaces at the rate of one space per four people. He quoted a rate advertised by the Westin Hotel in Sydney for function rooms accommodating one person per 1.9m2. In his view that would be a more appropriate rate, but it is unclear to us why the Westin Hotel in Sydney would be considered comparable. In cross-examination he agreed that 400 people could be seated on theatre style seating in rows facing the stage for a performance or assembly, although he thought that would be unusual.
110. Mr Shoobridge said that assessing parking needs on the basis of the “number of bodies”, that is the number of seats, gives a more direct connection than relying on floor area. He thought that the rate of one car park per four persons for church use was probably based on the needs of a family of four. In his opinion it was not necessarily safe to assume the church and hall use would not overlap. He saw nothing to justify the change from 110 to 36 parking spaces. In the event of a shortfall he foresaw the use of the Goyder Street verge in the first instance, followed by parking on Leahy Close and Goyder Street. He agreed that the latter might only occur in exceptional circumstances, would be unlikely in peak hours and that parking overflow is acceptable for events beyond the 95 percentile.
111. Notwithstanding Mr Shoobridge’s reservations, we are inclined to proceed on the assumption that church and hall use will not overlap, so that their parking needs would not be cumulative. We think it unlikely that a church service would be held at the same time as the other kind of functions identified for the hall. However we accept his opinion that for a building of this type the number of seats gives a better correlation with the number of users than does gross floor area. We are concerned about the significant decrease in the projected maximum number of users from 400 to 240, given the lack of justification for that significant decrease and the fact that there has been no associated proposal to reduce the scale of the hall. On the other hand, 400 is likely to be a maximum that might be reached very occasionally so as to fall outside that for which on-site parking must be provided.
112. As to verge parking, we note that this is a new development proposal and that the Church has available to it nearly 17,000m2 of land. Sound planning would dictate that a development should not be approved on the expectation that public land will necessarily be available for overspill parking, other than for exceptional events. We note the views of the Planning and Land Council in that regard. We make no assumption as to the availability of overflow parking.
113. The question before us is whether 61 parking spaces would be adequate in most circumstances. If Mr Adams is correct and 1.9 persons per m2 is realistic, then there would be about 216 people in the hall, requiring 54 parking spaces. Mr Bevanda quoted with approval the use at All Saints Ainslie of 120 seats per 200m2, a rate of 1.66 persons per m2. That would suggest 240 people could comfortably be accommodated and we think provides a better comparison than the Westin Hotel in Sydney. It agrees with the revised 240 maximum of the Church and results in a requirement for 61 spaces. Only if additional parking were needed for function staff would there be at most a small shortfall in parking. On that basis, we are prepared to accept that parking provision of 61 spaces is sufficient to satisfy the requirements of the Territory Plan.
Conclusion
114. The development application in this case comprised a number of separate components. It was submitted on behalf of the Church that each component constituted a separate decision which was required to be considered on its merits. Each of the components identified in written submissions made on behalf of the Church contained as one of its ingredients, approval to the construction of a multi-unit dwelling with or without the specification of a maximum number of units. Having regard to the conclusion which we have reached as to the impact that approval of additional multi-unit dwellings would have on traffic, it would not be appropriate to approve any component of the development application.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT07/52
APPLICANT: ROB PAXEVANOS
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTIES JOINED: THE EXECUTIVE COMMITTEE OF UNITS PLAN 1165; KEVIN BRUCE; EVERYL ELLIS; EDNA HAMILTON; MACEDONIAN ORTHODOX CHURCH INC; OLD NARRABUNDAH COMMUNITY COUNCIL INC.
COUNSEL APPEARING: APPLICANT: MR C ERSKINE SC
RESPONDENT: MR D MOSSOP
PARTIES JOINED: MR P WALKER (FOR MACEDONIAN ORTHODOX CHURCH INC.)
MR C ERSKINE SC (FOR OTHERS)
SOLICITORS: APPLICANT: NICHOLAS DIBB SOLICITORS
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTIES JOINED: CLAYTON UTZ (FOR
MACEDONIAN ORTHODOX
CHURCH INC.)
NICHOLAS DIBB SOLICITORS
(FOR OTHERS)
OTHER:APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
MS P O’NEIL, SENIOR MEMBER
MR R NICHOLS, MEMBER
DATE/S OF HEARING: 18-20 MARCH; 3, 17 &
18 JUNE; 28-29 JULY 2008 PLACE:CANBERRA
DATE OF DECISION: 19 AUGUST 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
5
0
0