Peraic v ACT Planning and Land Authority - [2019] ACAT 118

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

PERAIC & ANOR v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2019] ACAT 118

AT 36/2019
Catchwords: ADMINISTRATIVE REVIEW – planning approval – ‘Mr Fluffy’ block – proposal for dual occupancy, RZ1 – refusal of initial proposal – review of approval on reconsideration – procedural fairness, entitlement of persons affected by decision to have reasons for decision – consideration of the RZ1 zone objectives – consideration of setbacks, solar access, landscaping, principal private open space and separation between dual occupancy dwellings – consideration of criterion 56A of the Multi Unit Housing Development Code applicable to ‘Mr Fluffy’ surrendered residential blocks – with additional conditions, reconsideration decision confirmed

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Planning and Development Act 2007 ss 50, 119, 120, 121, 162, 193, 194, 196

Cases cited:Deakin Residents Association v ACT Planning and Land Authority [2015] ACAT 37
Downer Community Association and ACT Planning & Land Authority & Anor [2007] ACTAAT 20
Gingell v ACT Planning and Land Authority [2018] ACAT 62
Javelin Projects v ACT Planning and Land Authority [2017] ACAT 87
McGrath v ACT Planning and Land Authority [2018] ACAT 100
Osmond v Public Service Board [1984] 3 NSWLR 447
Public Service Board of NSW v Osmond [1986] HCA 7
Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority [2018] ACAT 38

Subordinate
Legislation cited: Multi Unit Housing Development Code rr & cc 29, 30, 31, 40, 47, 56A, 57, 59, 61, 62, 73, 77
Territory Plan 2007 definitions

Tribunal:Presidential Member G McCarthy

Date of Orders:  19 December 2019
Date of Reasons for Decision:      19 December 2019
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 36/2018

BETWEEN:
DANNY PERAIC
First Applicant
ROSS DAVIES
Second Applicant
FIONA STEVENS
Third Applicant
KEVIN SWAIN
Fourth Applicant
EDWARD WATSON
Fifth Applicant

AND:
ACT PLANNING AND LAND AUTHORITY
Respondent

AND:

DEMPSEY 56 PTY LTD
Party Joined

TRIBUNAL:Presidential Member G McCarthy

DATE:19 December 2019
ORDER

The Tribunal orders that:

The reconsideration decision dated 2 April 2019 is varied by adding the following conditions of approval:
(x)having regard to condition (vi), relocate the two clothes lines;
(xii)consistent with the Plant Schedule, place an additional Bradford pear tree on the plans in the forward boundary area of the guest/rumpus room of dwelling B,
(xiii) all Bradford pear trees to be planted as “semi-mature stock”;
(xiv)indicate advanced stock hedge of a species endorsed by Evoenergy and the ACT Planning and Land Authority, which may or may not include a fence endorsed by Evoenergy and the ACT Planning and Land Authority, on the boundary line between dwellings A and B grown and/or constructed from the eastern boundary of the subject block, across the electrical easement to the north-eastern corner of the living area of dwelling A;
(xv)indicate a fence, gate, hedge or screening of a kind to be approved by the ACT Planning and Land Authority…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] ACAT 118
Decision Date: 19 December 2019

CaseChat Overview and Summary

In the matter of Peraic v ACT Planning and Land Authority, the dispute revolved around the approval of an amended development proposal, subject to certain conditions, by the ACT Planning and Land Authority. The applicants challenged this reconsideration decision, arguing that the proposal was a "very bad design" due to various issues such as the property's incongruity with the existing streetscape, parking constraints, heating and solar access concerns, and limited outdoor space for residents. They sought to have the reconsideration decision set aside and the development approval refused. The legal issues before the court were whether the amended proposal sufficiently addressed the reasons for the refusal of the original development application and whether it complied with the relevant codes and criteria set out in the Territory Plan.

The court held that the Authority's reconsideration decision was subject to correction under section 196 of the Planning and Development Act 2007. The court noted that the amendment did not change the actual development approved or its conditions. The applicants' challenge to the reconsideration decision hinged on the argument that the amended proposal did not adequately address the reasons for refusal of the original proposal. The court acknowledged that the decision to approve or reject a development proposal must be based on compliance with the relevant codes and criteria in the Territory Plan. However, the court found that the amended proposal did address the reasons for refusal of the original proposal and complied with the relevant codes and criteria. Therefore, the reconsideration decision was confirmed, with certain conditions attached to the approval.

The final orders of the Tribunal were as follows: the reconsideration decision dated 2 April 2019 was varied by adding specific conditions of approval, including relocating the two clothes lines, planting additional Bradford pear trees, and ensuring greater separation between the dwellings. The reconsideration decision was otherwise confirmed, and the amended proposal was approved subject to the specified conditions.

Orders

Orders of the court

The Tribunal orders that:

The reconsideration decision dated 2 April 2019 is varied by adding the following conditions of approval:

(x) having regard to condition (vi), relocate the two clothes lines;

(xii) consistent with the Plant Schedule, place an additional Bradford pear tree on the plans in the forward boundary area of the guest/rumpus room of dwelling B,

(xiii) all Bradford pear trees to be planted as “semi-mature stock”;

(xiv) indicate advanced stock hedge of a species endorsed by Evoenergy and the ACT Planning and Land Authority, which may or may not include a fence endorsed by Evoenergy and the ACT Planning and Land Authority, on the boundary line between dwellings A and B grown and/or constructed from the eastern boundary of the subject block, across the electrical easement to the north-eastern corner of the living area of dwelling A;

(xv) indicate a fence, gate, hedge or screening of a kind to be approved by the ACT Planning and Land Authority between the hard stand car parking space and the PPOS of dwelling B;

(xiv) remove of the WC area of dwelling B adjacent to Bedroom 4 to achieve greater separation from dwelling A;

(xv) remove of the area marked “HS + Bench” in the WIP area of dwelling B to achieve greater separation from dwelling A;

(xvi) reconfigure the hallway (circulation area) adjacent to Bedroom 1 in dwelling A and (consequentially) Bedroom 1 in dwelling A to increase the distance of the exterior wall of dwelling A from dwelling B by 400mm to achieve greater separation from dwelling B;

(xvii) reconfigure the living area of dwelling A, particularly the north-eastern corner, to ensure that no part of the living area is closer than 1.2 m from the outermost surface of the external wall of dwelling B to achieve greater separation from dwelling B.

The reconsideration decision dated 2 April 2019 is otherwise confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On 2 April 2019, the Authority approved the amended proposal subject to conditions (the reconsideration decision). By letter dated 2 May 2019, Ms R Jamaly, an officer with the Authority, wrote to Mr Hunter (representing Dempsey 56) acknowledging that the reconsideration decision had incorrectly described the proposal as two single storey dwellings rather than one single-storey dwelling and one two-storey dwelling. The Authority advised that, in accordance with section 196 of the Planning and Development Act 2007 (the P&D Act),[2] the proposal would be described as follows:the construction of a dual occupancy development consisting of one single-storey and one two-storey dwelling, each with an attached single garage and a car parking hardstand, additional new verge crossing off Rounsevell Street, landscaping and other associated site works.[2] Section 196 of the Planning and Development Act 2007 permits the Authority to correct a formal error in a development approval. The actual development approved on 2 April 2019 and the conditions of approval remained unchanged. By application dated 10 May 2019, the applicants applied to the Tribunal for review of the reconsideration decision. They described the amended proposal as a “very bad design” and made the following broad submission as to why:The property will not fit in with existing dwellings or streetscape and [will] be unsightly taking up too much space on the block. There will be parking issues with very limited car parking available for a property with so many rooms and very minimal parking on the block. There will be serious heating and solar access issues for Dwelling A. Residents of the new dwellings will have very little outdoor space and will be living under each other’s noses having to stay inside most of the time with the heating turned up high (Dwelling A residents). It would be advised that any new development application has one driveway down the side of the block and only use the 35% building envelope. The applicants relied upon many specific aspects of the amended proposal that, they said, show why the reconsideration decision should be set aside (meaning development approval should be refused). The applicants appropriately accepted that neither the Authority nor the Tribunal on review can decide a development application by reference to global subjective opinion. Whether to approve or reject a development proposal must be determined according to whether it complies with each of the relevant codes that form part of the Territory Plan, even if some aspects of compliance (particularly compliance with relevant criteria) entail some qualitative judgement. For this reason, the applicants put their case by reference to the reasons why the original development proposal was refused and submitted that the amended proposal did not sufficiently address the reasons for refusal.[3] On this basis, they submitted that the amended proposal should be refused. I deal with each issue in turn. Section 120(a) of the P&D Act provides that “in deciding a development application for a development proposal in the merit track, the decision-maker must consider ... the objectives for the zone in which the development is proposed to take place”.