Peraic v ACT Planning and Land Authority
[2019] ACAT 118
•19 December 2019
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 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.
………………………………..
Presidential Member G McCarthy
REASONS FOR DECISION
The party joined, Dempsey 56 Pty Ltd (Dempsey 56), is the Crown lessee of a residential block in Rounsevell Street, Kambah (the subject block). Mr Stephen Jennaway and his wife, Ms Anka Jennaway, are the directors of Dempsey 56.
The subject block is zoned Residential RZ1 Suburban Zone and has an area of 1,037m².
The previous Crown lessee surrendered the lease over the subject block to the ACT Government under the so-called ‘Mr Fluffy’ buyback scheme. This occurred because the house then on the subject block contained asbestos. The house was demolished. The subject block was then remediated and sold to Dempsey 56.
Plan Variation No 343 allows unit title dual occupancy development of residential blocks in the RZ1 Suburban Zone that are surrendered under the buyback scheme and have an area greater than 700m².
On 11 April 2018, Dempsey 56 applied for approval to construct a dual occupancy on the subject block comprised of one single storey dwelling and one two storey dwelling, each with an attached single garage, landscaping and associated works.
On 21 November 2018, the ACT Planning and Land Authority (the Authority) refused the application because the proposed development would not have complied with the zone objectives of the RZ1 zone, the Residential Zones Development Code (the RZ Development Code)[1] or the Multi Unit Housing Development Code (the MUHDC).
[1] For a dual occupancy, rule 2 of the Residential Zones Development Code requires compliance with the MUHDC
On 22 December 2018, Dempsey 56 applied for reconsideration of the decision to refuse its development application (the reconsideration application). The application included amendments to the design of both dwellings to address the reasons why the Authority refused the original application (the amended proposal). On 12 February 2019, the Authority accepted the reconsideration application upon payment of the necessary fee.
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.
Compliance with RZ1 Suburban Zone objectives
[3] Exhibit A1
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”.
With reliance on the Authority’s decision in relation to the original proposal, the applicants contended that the amended proposal fails to comply with objectives (d) and (g) for development in the RZ1 Suburban Zone.
Objective (d) provides:
Ensure development respects valued features of the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties.
Objective (g) provides:
Promote good solar access.
The original decision-maker concluded that neither objective was met.
On reconsideration, Ms Jamaly noted several features of the subject block including that dual occupancy is permitted on the subject block, the area of the subject block, and that a 50% plot ratio is permissible on the subject block. Ms Jamaly concluded “the zone objectives have been reconsidered and noting the above, the amended proposal is considered to be not inconsistent with the RZ1 objectives.” The features to which Ms Jamaly referred had not changed from when the original decision-maker decided the objectives were not met. Why she reached a different view was not stated.
The applicants maintained that the original decision should be preferred. As a point not addressed by Ms Jamaly, they said, “the development has a relatively large building footprint compared to the existing dwellings.”[4] The applicants also contended that the amended development does not comply with criterion 56A of the MUHDC, and does not provide sufficient solar access because of shadows cast by structures.
[4] Exhibit A1 document 10
At present, the prevailing view is that, pursuant to section 121(2) of the P&D Act, the Tribunal does not have jurisdiction to consider issues arising under section 120: its role is confined to consideration of whether applicable rules and/or criteria of relevant codes are met. In Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority[5] (Sladic) after conducting a review of relevant earlier Tribunal decisions, the Tribunal said by way of summary:
The Tribunal considers that its task on review of a merit track decision is to consider the questions of code compliance only (section 119(1)(a)). The Tribunal cannot review the decision in relation to other parts of section 119, the broader considerations listed in section 120, or any other matters which may have been relevant to the discretionary decision.
[5] Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority [2018] ACAT 38 at [6]
In Gingell v ACT Planning and Land Authority[6] (Gingell) the Tribunal followed Sladic, ruling that the Tribunal does not have jurisdiction to examine the discretionary matters raised by the applicants (in that case) beyond consideration of code provisions.
[6] Gingell v ACT Planning and Land Authority [2018] ACAT 62 at [39]-[42]
I am not persuaded, on the arguments put in this matter, that I should depart from the statements of principle in Sladic and Gingell. I am prepared, however, to make some comment about compliance with the objectives.
Regarding objective (d), to “respect” valued features of a neighbourhood does not require those features to be replicated. In Downer Community Association and ACT Planning & Land Authority & Anor[7] (Downer) the (former) ACT Administrative Appeals Tribunal, per President Peedom and Senior Member O’Neil, made the following observation in the context of a zone planning objective that a proposed development “respects existing streetscapes and adjoining development”:
It does not follow from the fact that a development proposes an observable difference to the existing style of development that it fails to respect it.
[7] Downer Community Association and ACT Planning & Land Authority & Anor [2007] ACTAAT 20 at [17]
Also, objective (d) recognises that a development can have a negative impact on neighbouring properties, for example loss of adjoining open space or construction of an adjoining two-storey house. The question is whether the negative impact is unreasonable. To a large degree, that should be determined by reference to compliance or not with the relevant codes of the Territory Plan.
Regarding objective (g), promotion of good solar access can and must be assessed by reference to whether the proposed development meets the applicable rules and criteria on the subject, as discussed below. In my view, if those rules and/or criteria are met, so too is objective (g).
Front boundary setback
Rule 29 and table A5 of the MUHDC require (for the subject block) a minimum front boundary setback of 6m.
The original decision-maker noted that the porch of dwelling B encroached into the front boundary setback by approximately 870mm contrary to rule 29. The original decision-maker therefore considered whether the development complied with associated criterion 29, which entails a qualitative assessment of whether the front boundary setbacks achieve “consistency with the desired character” (as defined), “reasonable amenity for residents” and “sufficient space for street trees to grow to maturity”.
‘Desired character’ is defined in the Territory Plan, Definitions, as follows:
Desired character means the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code.
The original decision-maker concluded that criterion 29 was not met.
Dempsey 56 did not try to argue otherwise. Instead, it submitted revised plans that remove the 870mm encroachment, with the result that rule 29 is met.[8]
[8] Ms Jamaly notes an encroachment of 2mm at the rear of the block, noting that the rear boundary constitutes a ‘front boundary’ for the purpose of the Territory Plan because it fronts unleased Territory land, but regards that encroachment is negligible. I agree, and the applicants did not suggest otherwise.
The applicants contended that, notwithstanding compliance with rule 29, the amended proposal still did not achieve consistency with the ‘desired character’ of the area. They referred, for example, to the hardstand car parking extending to each of the side boundaries and the small separation between the two dwellings.
With respect, the applicants’ argument is misconceived. As stated in the Introduction to the MUHDC:
Proposals in the merit track and impact track must comply with each rule or satisfy its associated criterion, unless the rule is mandatory (ie. has no related criterion). Where a rule is fully met, no reference to the related criterion needs to be made. (emphasis added)
In other words, regarding front boundary setbacks, if rule 29 is met, there is no need to consider associated criterion 29. In any event, for reasons discussed in relation to criterion 56A of the MUHDC, I would not have been persuaded that criterion 29 is not met.
Side boundary setback
Rule 30 and associated criterion 30 of the MUHDC provide for minimum side and rear boundary setbacks. They state:
Table A6, referred to in rule 30(a), relevant to the subject block identifies a minimum setback of 3m from the side and rear boundaries for the subject block.
The original decision-maker noted that dwelling A encroached into the side boundary setback on the southern side by 1m, contrary to rule 30, and concluded that associated criterion 30 was not met.
The amended proposal removes the 1m encroachment, with the result that rule 30 is met. It is therefore not necessary to consider compliance or otherwise with associated criterion 30.
The applicants nevertheless referred to the increased length of dwelling A from 32.92m to 33.71m, and the worsened impact on the adjoining neighbour’s visual amenity. Again, these factors arguably respond to criterion 30, but need not be considered where the amended proposed development complies with rule 30. I add that the adjoining neighbour’s visual amenity arising from long buildings extending most of the length of the subject block are, to a reasonable degree, addressed by the additional landscaping conditions discussed below.
Landscaping
There is no rule regarding landscaping. There is only criterion 40 of the MUHDC which states:
Landscape and site design achieves all of the following:
a) planting of trees of semi-mature stock
b) planting of trees with a minimum mature height of 4m
c) a contribution to energy efficiency by providing substantial shade in summer, especially to west-facing windows and open car-parking areas, and admitting winter sunlight outdoor and indoor living areas, especially to the north
d) reasonable residential amenity
e) reasonable visibility along paths and driveways
f) visual interest in pavement materials and finishes
g) species with appropriate growth habits and mature height in relation to site conditions
The Introduction to the MUHDC states:
[W]here a criterion only applies, the onus is on the applicant to demonstrate that the relevant criterion is satisfied, through supporting drawings and/or written documentation.
The original decision-maker observed that tree planting on-site is “minimal” in comparison to the area of the block and in comparison to the existing landscape character of the neighbourhood. He also commented that the landscape plan is “inadequate” in providing information regarding landscape treatment. He also noted the large amount of hard paved area without adequate plantation for shade in summer. He concluded that the proposal “failed to demonstrate” compliance with criterion 40.
In her reconsideration decision, Ms Jamaly stated only:
Additional landscaping had been proposed to comply with C 40 of the MUHDC
Ms Jamaly gave no explanation for why the additional landscaping achieved compliance. This, and Ms Jamaly’s succinct statements, without explanation, that many other criteria in the MUHDC were met, where the original decision-maker found they were not met, led one of the applicants (Mr Davies) to state the following:
Can I just make a general statement … it’s very difficult to understand how a professional person … from the EPA or EPD … can knock something back and refuse it then, when only a few of the things that have [caused it to be] knocked back … have actually been corrected, … [Ms Jamaly] overturns [it] and … says now it is acceptable.
And a lot of the statements that she makes are just, “In my view”…. She doesn’t refer … and a lot of the points made by [the original decision-maker] are not addressed by [Ms Jamaly] in the approval. They are not addressed at all … So we fail to see how then it can be passed.[9]
[9] Transcript of proceedings 1 August 2019, page 68, lines 22-38
I regret to say that I have considerable sympathy with the applicants’ frustration. As discussed below, and in relation to the zone objectives, Mr Davies’ observation is true regarding many criteria that the original decision-maker found were not met, that Ms Jamaly then found were met. Written in the passive tense, the reconsideration decision does not even identify who came to the different view.
It is with respect, not sufficient simply to assert compliance with a relevant rule or criterion (or non-compliance, depending on whose interests are adversely affected), especially where views can reasonably differ. The need for explanation is particularly true where, on reconsideration, a view is reached that differs from that of the original decision-maker. Those with a legitimate interest in the outcome have a right to know why.
In Osmond v Public Service Board, the NSW Court of Appeal, per Kirby P explained the benefits of providing reasons. His Honour said:
[F]irst, the assurance which a reasoned opinion provides that the decision has been properly thought out. Tribunals, such as the Board in the present case, presumably have reasons for their decisions. The obligation to think out and articulate those reasons, justifying them in a public way, is likely to provide a discipline that will ensure that the decision is better as a consequence. Secondly, if the person has a right to appeal, the facility of reasons will enable him to determine whether he should do so, and on what basis. Thirdly, reasons will make the tribunal more amenable to the supervisory jurisdiction of the courts and provide assurance that it has acted within its limited powers. Fourthly, reasoned decisions will help promote public confidence in the administrative process. Reference is made by Dr Flick to the comment in Re Poyser and Mills’ Arbitration [1964] 2 QB 467 at 478, that, if a party is not given reasons he may be left with the real grievance that he was not told why the decision has been made. In the words of Chilwell J in Connell v Auckland City Council, the failure to provide reasons will, in a modern community, result in a litigant who is not only “disappointed” but also “disturbed” (at 634): cf Bisson J in Baker v Public Service Appeal Board [1982] 2 NZLR 437 at 447. The fifth value of reasons suggested by Dr Flick is that they constitute a check on the exercise of discretion, prevent arbitrary action and provide guidance for future cases. [10]
[10] Osmond v Public Service Board [1984] 3 NSWLR 447, 463
On appeal to the High Court, Gibbs CJ said:
Most people would agree that it is desirable that bodies exercising discretionary powers of the kind now under consideration should as a general rule give reasons for their decisions.[11]
[11] Public Service Board of NSW v Osmond [1986] HCA 7 at [13]. See also L & B Linings Pty Ltd v WorkCover Authority of NSW [2011] NSWSC 474 at [108] affirmed on appeal in L & B Linings Pty Ltd v WorkCover Authority of NSW [2012] NSWCA 15
However, on review by the Tribunal, the applicants’ legitimate right to know why a rule or criterion is met, or Dempsey 56’s right to know why it is not met, must take into account the Tribunal’s process. The task of the Tribunal is to consider the issue afresh, based on the evidence before it.[12] In other words, even if the Authority’s reasons for why a relevant rule or criterion is met (or not) are unclear or unknown, it is for the Tribunal to decide whether it is met (or not) on the evidence before it having regard to the submissions made by those at the hearing.
[12] ACT Civil and Administrative Tribunal Act 2008, section 68
In this respect, Ms Sheikh Lana, an assessing officer with the Authority, gave evidence explaining why, in her view, the additional landscaping proposed in the revised plans achieved compliance. She answered questions, on oath, arising from her views. She did likewise in relation to other rules and/or criteria that were in issue, as addressed below. I found Ms Lana to be an honest and reliable witness. Having regard to Ms Lana’s evidence, for reasons that follow, I was satisfied that criterion 40 is met.
A comparison between the original landscape plan[13] and the revised landscape plan[14] shows significant landscape revision. Three sugar maples at the front of the block now need to have a mature height of 4m, rather than 1.8m, and a fourth (also 4m) needs to be planted in the primary courtyard area between the two dwellings. Significant mulching is required at the front of the block between the two access driveways. I did not accept, therefore, the applicants’ claim that “no landscaping change to the front of the block has occurred.”
[13] T documents, page 507
[14] T documents, page 324
The revised landscape plan also shows additional hedge plantings over a distance of approximately 12m on both side boundaries up to the hardstand single car parking areas on each side of the block.
Condition of approval (vi) requires a revised Landscape Plan and other associated plans to show a further extension of the hedging along the northern and southern boundaries eastwards to the edge of the electrical easement, and for the hedging along the whole of the southern and northern side boundaries at planting to be “advanced stock or fast-growing type”. I agree with that condition.
Ms Lana pointed out that condition (vi) will require the clothes lines for both dwellings, presently located on opposite side boundaries, to be relocated. As Ms Lana said, it is for Dempsey 56 to produce revised plans showing the relocated clothes lines. She noted that both dwellings have sufficient area in their open spaces for this to be done.[15] I agree, and will include the relocation of the two clothes lines as an additional condition of approval.
[15] Transcript of proceedings 1 August 2019, page 18, lines 10-15
The plant schedule to the revised landscape plan states that there will be nine Bradford Pear trees, but the plan shows the location of only eight of those trees. After consideration of the original landscape plan that shows the placement of three Bradford Pear trees in the area of the front boundary, I presume the ninth is intended to be forward of the guest/rumpus room of dwelling B. All these trees, at planting, should be “semi-mature stock.” I will add additional conditions of approval accordingly.
Regarding paragraph (b) requiring “planting of trees with a minimum mature height of 4m”, I note that the revised landscape plan provides for four Sugar Maple trees, each to have a mature height of 4m. I am satisfied that paragraph (b) is met.
Regarding paragraph (c), I note that three of the Sugar Maple trees are to be planted across the front of the block, facing west, which will make a “contribution to energy efficiency”, and that the site design achieves solar access from the north. The fourth Sugar Maple tree, to be planted in a mulched open area midway between the dwellings, will add to residential amenity. I am satisfied that paragraph (c) is met.
I note that compliance with paragraphs (d)-(g) is, appropriately, not disputed.
The applicants contended, nevertheless, that there is still a large amount of hard paved areas without adequate plantation for shade in summer, which was one of the reasons why the original decision-maker concluded that criterion 40 was not met. With respect, I disagree. The revised plans show a significant reduction of what were the paved principal private open space (PPOS) areas to the north of each dwelling, and the additional approval conditions require extensive additional hedge plantings on both side boundaries.
The applicants also complain about a “probability of a large number of cars parking at the front of the block”. This is not an issue arising from consideration of criterion 40, although it is an issue I deal with below.
On the evidence, having regard to the revised plans and the additional conditions of approval, I was satisfied that criterion 40 will be met.
Solar access
Rule 57 of the MUHDC requires that:
The floor or internal wall of a daytime living area of the dwelling is exposed to not less than 3 hours of direct sunlight between the hours of 9am and 3pm on the winter solstice (21 June).
This is a mandatory requirement. There is no associated criterion.
The original decision-maker found that the shadow diagrams submitted with the development application failed to demonstrate compliance with rule 57 for the living area of dwelling A.
Dempsey 56 lodged a revised design for dwelling A, which Ms Jamaly concluded provided adequate solar access to the daytime living areas. With reference to the revised design, Ms Lana stated that the living areas of dwellings A and B will receive solar access that complies with rule 57.
The applicants rely on an undated and unsigned letter which I presume to be from Kevin Swain who contended that the shadow diagrams provided to the Authority are inaccurate. He indicates, in red, areas that will be shaded at 12 noon and 3:00pm on the winter solstice that are not so indicated on the diagrams provided to the Authority.
The applicants contended that because of overshadowing, dwelling A will be “a very cold dark place”[16] requiring much more heating than normal.
[16] Exhibit A1
Mr Swain, who I accept is a builder with appropriate knowledge, pointed out that the shadow diagrams have been prepared as if the buildings did not have any roofs or eaves. He submitted, and I accept, that the shadow diagrams were therefore inaccurate. Ms Lana agreed, but stated that the effect on the alfresco area of dwelling A “would be very minor”.
Mr Hunter, who prepared the shadow diagrams on behalf of Dempsey 56, agreed that no allowance has been made for the eaves but stated that the oversight had no material consequence. He said “So there’s probably not even a 100 mil difference in terms of the shadow cast.”[17] Regarding dwelling A, Mr Hunter agreed, allowing for the oversight, that there would be further shading of the alfresco area that is not presently shown in his shadow diagrams, but said it would not affect the PPOS for dwelling A.[18]
[17] Transcript of proceedings 1 August 2019, page 58, lines 41-43
[18] Transcript of proceedings 1 August 2019, page 59, lines 16-19
Ms Lana also noted that for the PPOS of dwelling B, condition (iii) of the conditions of approval requires the roof to be changed to pergola, slats or a partially transparent roof to allow for additional solar access to the living areas.
Mr Swain referred to discrepancies regarding the finished floor levels, but Ms Lana pointed out that condition (viii) requires revised plans showing the correct finished floor levels and that, with the corrections, the required solar access would still be met.[19]
[19] Transcript of proceedings 1 August 2019, page 29, lines 45-47; page 33, lines 30-32; page 37, lines 1-4
In the context of compliance with rule 57, I am obliged to agree. Rule 57 concerns solar access to living areas. The primary living areas for dwelling A (kitchen, dining and living) are all to the rear of the block.
On the evidence, I was satisfied that, following compliance with the conditions, the revised plans will comply with rule 57.
Principal private open space
Rule and criterion 61 of the MUHDC provide:
PPOS is defined in the Territory Plan, Definitions, as follows:
Principal private open space means private open space that is directly accessible from a habitable room other than a bedroom.
Referring to rule 61(b), table A9 to the MUHDC sets out minimum areas and dimensions for the PPOS, depending on the zone and the number of bedrooms. In this case, dwelling A is a three-bedroom dwelling, and dwelling B is a four-bedroom dwelling, meaning that for dwelling A the minimum PPOS area required for rule compliance is 36m². The minimum for dwelling B is 45m². In the case of each dwelling, the minimum dimension (in any direction) of the PPOS for rule compliance is 6m.
No one contended that rule 61(b) is met in relation to either dwelling. The question was whether the proposed PPOS for each dwelling met criterion 61.
Regarding dwelling A, the original decision-maker concluded that it did not because the rear part of dwelling A and part of dwelling B would overshadow the proposed PPOS for dwelling A.
Regarding dwelling B, the original decision-maker concluded it would not because the western side boundary fence and the proposed roofing over the alfresco area would overshadow the PPOS for dwelling B.
Ms Jamaly opined that the revised design will comply with criterion 61, but said nothing as to why.
For the purpose of determining whether criterion 61 is met, I begin by considering the extent of the departure from rule 61. In Javelin Projects v ACT Planning and Land Authority[20] (Javelin Projects), the Tribunal commented on compliance with a corresponding criterion:
Where terms such as ‘proportionate’ and ‘reasonable’ are used in criteria, the Tribunal consider it useful to consider the ‘minimum ideal’ as set out in the related rule as a useful guide. Whilst clearly ‘something less’ than the rule requirements may be approved, the degree of divergence from the rule requirement is a matter that will help guide the Tribunal in its consideration of the evidence provided in support of satisfying criterion.
[20] Javelin Projects v ACT Planning and Land Authority [2017] ACAT 87 at [73]
In Javelin Projects, the Tribunal referred to an earlier decision in Deakin Residents Association[21] where the Tribunal commented on the relationship between rules and corresponding criteria in the MUHDC:
Context is an important tool in statutory interpretation and the requirements in C 36 should be informed by the terms of R 36. In effect C 36 allows a lesser separation than 4 metres but requires this to be justified. Both R 36 and C 36 implement a particular purpose and policy, and this purpose and policy should inform the interpretation of C 36.
[21] Deakin Residents Association v ACT Planning and Land Authority [2015] ACAT 37 at [35]
In McGrath v ACT Planning and Land Authority (McGrath),[22] the Tribunal endorsed the comments in Javelin Projects and Deakin Residents Association. I will follow Javelin Projects in this case.
[22] McGrath v ACT Planning and Land Authority [2018] ACAT 100
Referring to the PPOS on the reconsideration site plan,[23] the departures are not great.
[23] T documents, page 111; exhibit R3
Regarding dwelling A, the PPOS is well in excess of 36m². The departure is in the minimum dimension on one axis because of the alfresco area, which reduces the PPOS on that axis to approximately 5m, rather than 6m required under the rule. I do not regard that departure to be significant where the alfresco area is itself an outdoor area and where grass and hedges will surround the alfresco area on two sides.
A difficulty arises however concerning compliance with criterion 61(e) – reasonable privacy. The revised landscape plan shows only grass at the rear of the subject block on all sides surrounding both dwellings to the boundaries. Nothing divides the grassed areas on dwellings A and B, or protects the privacy of the PPOS for dwelling A. Ms Lana gave evidence that a further change should therefore be made to improve the privacy and amenity for both dwellings. She suggested an advanced stock hedge of a species endorsed by Evoenergy and the Authority, which may or may not include a fence also endorsed by Evoenergy and the Authority, on the ‘unit title’ boundary line between dwellings A and B. The hedge and/or fence should be grown and/or constructed from the eastern (rear) boundary of the subject block, across the electrical easement extending to the north-eastern corner of the living area of dwelling A.
The changes would improve, in particular, the privacy of the PPOS for dwelling A. I agree with the further condition. I will add it as an additional condition of approval.
Regarding dwelling B, I calculate the PPOS area to be 36m², noting that the provision for hedging on the northern boundary may be included as part of the PPOS. This is 9m² less than the requirement under the rule for a four-bedroom dwelling. Nevertheless, I regard the departure as acceptable. The PPOS has a minimum dimension of 6m in all directions, it is directly adjacent to the living area, it has a northerly aspect and it provides good access to the hardstand car parking space.
The applicants nevertheless submitted that Mr Swain’s “3D images” showed that there is “very little space for anybody to spend [time] outdoors happily on this property.”[24]
[24] Exhibit A1 document 1
I am not able to proceed by reference to qualitative opinions about whether there is sufficient space to “happily” enjoy the outdoor areas of a property. What is or is not sufficient space for residents must be determined objectively by compliance or otherwise with rule or associated criterion 61. Also, many people for different reasons prefer a small but enjoyable and accessible outdoor space.
In my view, with the additional conditions proposed by Ms Lana which Dempsey 56 did not oppose, criterion 61 will be met in the case of both dwellings.
Streetscape character
Criterion 56A of the MUHDC applies to dual occupancy dwellings on ‘surrendered residential blocks’ in an RZ1 zone. It provides:
A “surrendered residential block” is defined in the Definitions to the Territory Plan as meaning, in summary, a residential block that has been surrendered under the ‘Mr Fluffy’ buyback program. Compliance with criterion 56A is, perhaps, the most contentious aspect of this development. It is a criterion of such high subjectivity that it is difficult to determine with any confidence whether it is met.
The original decision-maker said:
The proposed development fails to promote high quality design with both dwellings fronting street with minimal separation between buildings. Part of dwelling B encroaches into the front setback. The proposed development is not visually harmonious to the existing streetscape and detracts from the existing character.
By contrast, in relation to the reconsideration application, Ms Jamaly said:
The proposal is partially two-storey with modern architectural treatments. In addition, with increased setbacks and landscaping, the revised proposal is considered to provide variety and visual interest to the streetscape. It is considered that the revised proposal meets C56A.
At the hearing, Ms Lana said that in her opinion the revised development complies with criterion 56A. In her witness statement,[25] commenting on why she held that opinion, Ms Lana said:
47 The materials and the articulation incorporated within the building ensures a high quality architectural standard. The roof styles [and] overall building design complements the surrounding existing developments and is considered to be visually harmonious to the streetscape character.
48 Composite Streetscape demonstrate[s] that the development is not a continuous façade covering the whole frontage. There are two hard stand parking spaces provided on either sides of the subject block [which] creates a 3m setback for the buildings from the side boundaries.
49 In my opinion, the bulk and scale of the proposed development is low impact, and will not have an adverse visual impact on the streetscape.
50 The character of the development will blend in with the existing streetscape character and will contribute to a visually harmonious streetscape.
[25] Witness statement of Sheikh Lana dated 16 July 2019
Criterion 56A is about streetscape yet, as best I can ascertain, the only design changes relevant to the presentation of the dwellings to the street are to bring dwelling B back to the front boundary line to remove the 870mm encroachment and to increase the mature height of the Sugar Maple trees from 1.8m to 4m, presumably by planting a different species of the tree. Why, then, should one opinion about compliance with criterion 56A be preferred to the other?
Mere assertion is neither appropriate nor sufficient. My research did not identify any extraneous material that assists in deciding whether compliance with criterion 56A has been achieved. The explanatory statement to Plan Variation 343 on this issue states only that “design criteria will require the blocks to be redeveloped in harmony with the surrounding residential amenity”[26] and that a “design criterion … has been included to maintain and support amenity of existing areas.”[27]
[26] Explanatory Statement, paragraph 1.2
[27] Explanatory Statement, paragraph 1.6
I began with an examination of the words used in criterion 56A. The focus is all upon respect for streetscape character. I note, however, President Peedom’s comments in Downer, with which I agree, that to respect a streetscape does not necessarily mean replicating it. In McGrath,[28] the Tribunal noted, and agreed with, the observation of Ms Bindon of counsel regarding the operation of criterion 56A:
It's about high‑quality architectural standards that contribute to a visually harmonious streetscape character. It's harmonious, it's not consistency, and so it's not about being the same. I'm not a musician, but, as I understand harmony, it's about different chords that work together. So difference in and of itself is not a bad thing, that's a good thing as long as it's harmonious.
[28] McGrath v ACT Planning and Land Authority [2018] ACAT 100 at [85]
McGrath, to the best of my researches, is the only decision in which criterion 56A has been considered, but in that matter it was unnecessary to decide whether the design complied with criterion 56A because planning approval was set aside for other reasons.
In the absence of a frame of reference for determining compliance with criterion 56A, I have formulated some factors which, in my view, should be taken into account:
(a)Compliance is about streetscape design of proposed dwellings, not their use.
(b)Compliance sets a ‘two limb test’: a design that:
(i) encourages high quality architectural standards that contribute to a visually harmonious streetscape character with variety and interest; and
(ii) [is] not detrimental to, or overtly detracting from the existing streetscape character.
(c)Compliance with criterion 56A requires, as the key point of reference, careful consideration of the existing streetscape to determine whether a proposed development will be ‘harmonious’ with it, or detract from it. Some streets in different parts of Canberra display high levels of integrity, whether it be common architectural design, common colours or materials, established avenues of common street trees, homogenous front boundary plantings, homogenous building size, homogenous building envelopes and the like. Compliance with criterion 56A should be approached by reference to such homogenous streetscape features, compared to a street with a conglomerate of different house styles or designs or different streetscape plantings.
(d)Compliance or not with criterion 56A must be determined in the context of the planning provisions that apply to surrendered residential blocks, especially where they do not apply to other blocks on the street. In particular, compliance must respect the Crown lessee’s entitlement to unit title dual occupancy; to build with a plot ratio up to 50% where both dwellings directly front the street; and to have two storeys for both dwellings. Construction in accordance with these planning entitlements will invariably produce a development of a higher density than existing single dwellings in an RZ1 Suburban Zone, but higher density cannot be treated, by itself, as a basis for determining non-compliance with criterion 56A. To do so would defeat the planning entitlements on a surrendered residential block.
(e)Compliance with criterion 56A requires a consideration of design referenced to the streetscape. The design must “encourage” high quality architectural standards. The test is not that such standards are encouraged per se or in their own right, but that they are such standards that contribute to a visually harmonious streetscape character. It follows that a design might comply with criterion 56A in relation to one streetscape, but the same design might not in another. Likewise, a design might be detrimental to, or overtly detract from, the existing character of one streetscape, but the same design might not be so, or do so, in relation to another.
(f)Compliance does not require a design that is, itself, of a high quality architectural standard. The obligation is to ‘encourage’ future developments with such standards in the street. In most cases, a ‘lead by example’ design would be the sensible way to achieve compliance, but there may be cases where that is not necessary.
(g)Compliance permits difference from the existing streetscape, provided it meets the ‘two limb’ test mentioned above.
In later cases these factors might be refined, but applying them in this case led me to conclude that the amended proposal complies with criterion 56A.
Rounsevell Street is a long, curved and reasonably narrow street. The houses are homogenous to the extent that they are predominantly large homes. Most have double garages and generous front gardens. All are setback behind the front building line.
The dwellings are, however, of many different designs, surface treatments and styles. They reflect different architectural styles over approximately 40 years. Several were two storey homes or split-level homes or had two-storey components. The slope of the land causes the houses on the western side of Rounsevell Street to ‘dominate’ the streetscape, even when single storey. The slope enables several single storey homes to have garages underneath giving the impression of a two storey house. Several houses in the street have been recently renovated to introduce different styles and architecture.
The street landscape also varies significantly. Some front gardens are well manicured and well watered. Others are more rustic, involving less maintenance, gravel, rockeries and less plantings. Street trees outside each block on the street differ significantly, or do not exist.[29]
[29] Photographs at T documents pages 116 and 117
Regarding the first limb, I had no expert evidence as to the extent to which the design of the proposed buildings might or will encourage high quality architectural standards that contribute to a visually harmonious streetscape character. I can only draw on the opinions of the planners, Ms Jamaly and Ms Lana, that the different materials and the articulation incorporated within the dwellings will ensure a high quality architectural standard, and that the roof styles and overall building design will complement the surrounding existing developments. Comparing the design of the amended proposal with the many other different designs in the street, I was satisfied that the design of the proposed buildings will encourage high architectural standards that contribute to a visually harmonious streetscape character.
Regarding the second limb, taken together, I was not persuaded that dwelling A or B is detrimental to, or will overtly detract from, the existing streetscape character. Taken together, they are setback 3m from each of the side boundaries similar to many other dwellings.Their width facing the street, taken together, is not out of character or inconsistent with the width of many other houses on the street. They are both behind the front boundary line.
The applicants’ primary concern appeared to be the minimal separation between the buildings. Much was made of the absence of a line of sight between the dwellings from the front of the block to the back.[30] This, they said, is not visually harmonious to the existing streetscape where dwellings have generous separation between them. They contended that the residents of the two dwellings, with so little separation between the dwellings, “will be living under each other’s noses.”
[30] Transcript of proceedings 1 August 2019, page 39, lines 36-39
I was not persuaded that the small separation between the dwellings causes them to be non-compliant with criterion 56A. The small separation is a function of permissible dual occupancy development on a ‘Mr Fluffy’ block. True, it is a feature that distinguishes the dwellings from other – and probably all other – dwellings on Rounsevell Street, but it does not cause the dwellings themselves not to be ‘visually harmonious’ with other dwellings on the street, when taken together.
I gained the impression that if the proposal was one single dwelling, although similarly presented to the street, the applicants’ concerns would be somewhat alleviated. This added to my view that the applicants were more concerned about the proposed use (i.e. a dual occupancy with residents living in close proximity to each other) than the actual presentation of the dwellings to the street. This is not a matter that the Authority, or the Tribunal on review, can take into account. Whether persons choose to live in these dwellings in close proximity to each other is a personal decision for them. One could say the same thing about townhouses. It is not a matter that can be taken into account from a planning perspective.
Separation between external walls
The applicant submitted that the amended proposal does not comply with rule or criterion 62 of the MUHDC because the side window of the guest/rumpus room of dwelling B looks into the side window of the living area of dwelling A. They also noted, correctly, that at its narrowest point, the distance between the two rooms is 1m.
Rule and criterion 62 of the MUHDC state:
An ‘unscreened element’ is defined in the Definitions part of the Territory Plan as “unscreened windows, decks, balconies and external stairs.”
An ‘external wall’ is defined in the Definitions part of the Territory Plan as follows:
External wall means an external wall that may also incorporate any of the following:
a) windows with sill heights at or above 1.7m from the floor
b) screened decks
c) fixed pane windows with obscure glass
d) awning sashes with obscure glass and with an opening of not more than 30 cm to the horizontal
e) obscure glass bricks.
The external walls between dwellings A and B in the original design did not comply with rule 62. The question was whether they complied with associated criterion 62. The original decision-maker concluded that they did not, stating that “the outlook from windows (unscreened elements) of dwelling A will be impeded by [a] blank wall of dwelling B and therefore, does not meet C62”.
In relation to the amended design, Ms Jamaly determined that the location of the windows between the dwellings is “staggered”. She noted that the windows facing a blank wall are windows either from a passage or from a toilet. She also observed that landscape plantings within the “central courtyards” between dwellings will minimise the visual impact further. In her view, criterion 62 is met.
Ms Lana gave evidence that further changes should be made to achieve greater separation between the dwellings in compliance with criterion 62. These changes were removal of the area marked “WC” of dwelling B adjacent to Bedroom 4; removal of the area marked “HS + Bench” in the WIP area of dwelling B; and reconfiguration of 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.[31] Ms Lana noted that there is space to include the WC in the bathroom adjacent to Bedroom 4. Ms Lana sketched on a copy of the site plan[32] the extent to which the circulation area and consequentially Bedroom 1 of dwelling A should be reconfigured to give greater separation from dwelling B. By reference to the scale of the site plan, I calculated the reconfiguration as requiring the distance of the exterior wall of dwelling A from dwelling B to be increased by 400mm. Dempsey 56 did not oppose any of these further changes.
[31] Witness statement of Sheikh Lana dated 16 July 2019, paragraph 56. See also transcript of proceedings 1 August 2019, page 21, line 30; page 23, line 19; page 46, lines 15-19
[32] Exhibit R3
The applicants contended that criterion 62 is still not met, despite the amended design. They referred, in particular, to the proximity between the living area of dwelling A and the guest/rumpus room in dwelling B. As the applicants point out, the corner windows in the living area of dwelling A and the guest/rumpus room in dwelling B are directly opposite each other. Contrary to what Ms Jamaly states, their placement is not staggered.
However, the applicants’ complaint about overlooking in the context of criterion 62 is misconceived. Criterion 62 is directed to the “outlook” from a window (or any other unscreened element) and whether it is unreasonably impeded by an external wall. Questions of privacy and overlooking are dealt with, as a different issue, under rule and criterion 59. I deal with this issue below.
To achieve compliance with criterion 62, I agree with the changes proposed by Ms Lana to achieve greater separation between the living area of dwelling A and the external walls of dwelling B by “removing the corner” of the living area. How this should be done is a matter for Dempsey 56. In addition to the specific areas to be removed, as mentioned above, I will direct only that the design be amended to ensure a separation of not less than 1.2m at any point between the two dwellings as a further condition of approval.
Overlooking windows
Overlooking between the windows in the living area of dwelling A and the guest/rumpus room in dwelling B, where they directly face each other is governed by rule 59 and associated criterion 59. They state:
A ‘primary window’ is defined in the Definitions of the Territory Plan as “the main window of a habitable room”. I accept that the living area in dwelling A and the guest/rumpus room in dwelling B are habitable rooms.
Ms Lana noted that the window of the guest/rumpus room of dwelling B is shown to be “frosted as per the plans.” I could not see this on a plan, but presume her to mean the window facing dwelling A, not the window facing the street, and accept it is so marked.
In my view, the ‘note’ in criterion 59 (stating that the criterion cannot be met by using obscured – for example ‘frosted’ – glass) should be understood as a reference to a ‘primary window’ of a dwelling to which a person has a direct line of sight from an unscreened element of another dwelling. The reasoning seems to be that the overlooking must be addressed in the dwelling from where a person can overlook, not the dwelling being overlooked. This is consistent with the definition of ‘unscreened element’ which includes unscreened windows.
Applying these factors, I am satisfied that both dwellings comply with rule 59.
Regarding dwelling A, even if there is uncertainty as to whether the ‘primary window’ of the living area is the window facing the street or the window facing dwelling B (they being the same size), in either case a person does not have a direct line of sight from an ‘unscreened element’ into either window. The window in the guest/rumpus room of dwelling B facing dwelling A is not an unscreened element because it will be frosted. There is, of course, no unscreened element from which a person has a direct line of sight into the living room window of dwelling A facing the street.
Regarding dwelling B, a person in the living room of dwelling A will have a direct line of sight to the frosted window of dwelling B, but the development does not breach rule 59 because the frosted window is not the ‘primary window’, as defined, of the guest/rumpus room in dwelling B.
Off street parking
The applicants complained that the proposed dwellings, having regard to the number of bedrooms in each dwelling, will lead to an overflow of cars that will be forced to park on the street. They complained about the congestion this will cause, especially where Rounsevell Street is a narrow street. They referred to the risks if firefighting vehicles were unable to travel freely along the street.
Nothing in the P&D Act or the Territory Plan limits or prevents a person from parking, kerbside, on a street. Limits of that kind are controlled, for example, by designating areas along a street as ‘no parking’ areas, ‘time-limited’ parking areas or ‘permit parking’ areas. Limits of that kind have been introduced on many suburban streets in the interests of residents and others, but not on Rounsevell Street.
From a planning perspective, necessary parking is determined under the Parking and Vehicular Access General Code (the Parking Code), and rule and associated criterion 77 of the MUHDC. The Parking Code, at section 3.1.5, provides for different numbers of parking spaces in a residential zone, depending on the use of the land. For a detached house, two parking spaces must be provided “for each dwelling with three or more bedrooms”. That is met in this case for each dwelling.
Rule 77 states requirements regarding car spaces on a block such as their location on the block, a need for one car space to be roofed and separation from windows or doors of habitable rooms. Rule 77 is met in this case for each dwelling.
In addition, as noted in the assessment of the reconsideration application, there is also sufficient space in each driveway for visitor parking.[33]
[33] T documents, page 111
Where the amended proposal complies with all aspects of applicable on-site parking requirements, the Tribunal cannot set aside or vary the amended proposal on the basis that the on-site parking might not prove to be sufficient (for example, for a trailer or a boat) or because persons might choose not to use it. That circumstance is true for any development.
Notification
The Authority’s initial notification of the development proposal was inaccurate. A sign placed outside the subject block, prior to the original decision, gave notice of the proposed construction of “two single-storey dwellings with attached garages, landscaping and associated works” and invited submissions by 13 June 2018.
It appears that the error was not addressed, despite protestations from the applicants, until June 2019 when the Authority publicly notified the reconsideration decision. By that stage, it was the subject of the application for review by the Tribunal. On 14 June 2019,[34] the Authority gave further notification by placing a sign on the land and on the Authority website that gave correct details about the proposed development. The notification invited representations about the correctly described proposed development over the following two weeks. There is no dispute that the further notification was done in accordance with section 155 of the P&D Act.
[34] Transcript of proceedings 1 August 2019, page 81, lines 23-24
The applicants provided pro forma letters from most if not every resident of Rounsevell Street[35] expressing concern about the development proposal, as now correctly described. They contended that they had been misled through the process, that they were concerned about the large building footprint compared to existing neighbours and, they said, about the “unreasonable negative impact on neighbours”.
[35] Transcript of proceedings 1 August 2019, page 86, line 27
The applicants’ concerns about inaccurate public notification of the proposed development are justified, but they do not have consequence. Following correct notification, neighbours took their opportunity to express their response to the proposed as correctly stated. Also, as Mr Peraic properly acknowledged, even if there were process and procedure errors leading up to the Authority’s decision, the hearing by the Tribunal enabled objections to the development to be heard and determined with accurate knowledge of what is proposed.
I refer to remarks of the (then) ACT Administrative Appeals Tribunal in Downer regarding a complaint about alleged procedural unfairness. They are equally relevant to the applicants’ concerns about prior inaccurate public notification:
5.We do not need to dwell on this contention. On the hearing of an application for review of decision the Tribunal stands in the shoes of the original decision-maker. It is not necessarily the Tribunal’s concern to determine whether the respondent was right or wrong or whether it followed correct procedures or whether those procedures were flawed or deficient. Its principal function is to determine what, on the evidence before it, is the correct or preferable decision for it to make.
6.The Tribunal is obliged to give the applicant a fair opportunity to present its case. By the directions it has given and by holding a hearing at which there has been opportunity for the applicant to present all of the evidence on which it wished to rely, to test the evidence relied upon by the other parties and to make a submission to the Tribunal, this requirement has, we believe, been satisfied.[36]
[36] Downer Community Association and ACT Planning & Land Authority & Anor [2007] ACTAAT 20 at [5]-[6]
Mr Davies nevertheless remained concerned that with all the errors that had already occurred “how do we have any confidence [about] what’s going to be built and that the [conditions] that [Ms] Lana made are actually going to be enforced”? This concern is periodically expressed in challenges to planning decisions, but it is not a matter that can be addressed at the planning stage. It is a question of enforcement. During and on completion of the development, one of the building certifier’s tasks will be to certify that the development is constructed in accordance with the approved plans and the conditions of approval. Given the scrutiny that this development has attracted, I would be surprised if the certifier did not give close attention to proper compliance with the plans and with all conditions of planning approval.
Discrepancies in the information
The original decision-maker refused the development application on the grounds that the departures from a number of provisions of the Territory Plan and their cumulative adverse impact on neighbouring residences and on the amenity of the proposed dwellings, could not be resolved by imposing conditions. The original decision-maker also referred to several discrepancies in the design plans, particularly the absence of plans showing the finished floor level for the dwellings. The original decision-maker was also concerned that the separation between the buildings at the front building line is around 4m, but reduced to 2m only 1.5m behind that line.
In relation to the amended proposal, Ms Jamaly stated her view that in the context of a ‘Mr Fluffy’ block the proposed development is compliant.
The applicants maintained that the number of departures from the Territory Plan, and their cumulative impact on them (and on future occupants of the proposed dwellings) are so significant that they cannot be resolved by imposing conditions. They noted that the amended plans still do not show finished floor levels. They repeated their concern that criterion 56A is not met.
I am not persuaded by a general submission of this kind. It also misunderstands what is necessary to obtain planning approval. The P&D Act does not accommodate the concept that some departures from the Territory Plan are acceptable, but only to a point where their “cumulative impact” becomes unacceptable. Section 50 of the P&D Act prohibits approval of a development application that is inconsistent with the Territory Plan, which means inconsistency with any relevant provision of any relevant code of the Territory Plan. It is for this reason that I have considered each rule and/or criterion about which a challenge to compliance was made. Where I was not persuaded that the amended design does not comply with any applicable rule and/or criterion, the concept of “a number of departures” or their “cumulative impact” on anybody falls away.
Also, additional conditions imposed as part of the reconsideration decision, and the additional conditions I will impose with reliance on the evidence of Ms Lana, are not to ameliorate the impact of a departure from a rule and/or a criterion. They are to ensure compliance with a relevant rule and/or criterion. For example, the concern about finished floor levels is addressed by requiring Dempsey 56 to submit plans indicating the correct finished floor levels as a condition of approval of the whole development. I have addressed above the applicants’ argument that the amended design will not comply with criterion 56A.
Sections 193 and 194 of the P&D Act
Towards the close of the hearing, a question arose as to whether the Authority had, at law, refused the reconsideration application.
The applicants referred to section 193 of the P&D Act that provides, in summary, that if the Authority receives a reconsideration application it must reconsider the original decision not later than 20 working days after it receives the application, unless the 20 working day period is extended by agreement. The applicants then referred to section 194 of the P&D Act that provides, in summary, that if the Authority does not make a substitute decision or does not confirm the original decision by the end of the 20 working days, or the end of any extension of that period, the Authority “is taken to have confirmed the original decision.” The reasoning appears to be that, on a reconsideration, a developer should not be left ‘in limbo’.
The applicants contended that because the reconsideration application had not been decided before the expiry of the 20 working day period, and there is no evidence of any extension of that period, the Authority is “taken to have confirmed the original decision” – which was to refuse the development application.
The applicants had not earlier made this submission, at least not in these terms. Accordingly, I gave the Authority 14 days within which to respond.
The Authority submitted, and I accept, that Dempsey 56’s reconsideration application should not be taken to have been accepted until it had paid the required fee. That occurred on 12 February 2019, meaning that 12 February 2019 should be treated as the date upon which the reconsideration application was made rather than 20 December 2018 when it was lodged.
The 20th working day after 12 February 2019 was 13 March 2019. On that day, the Authority asked Dempsey 56 for an extension of time until 29 March 2019 to make a decision which was agreed.[37] On 29 March 2019, the Authority asked Dempsey 56 for a further extension until 2 April 2019.[38] On 2 April 2019, the Authority made its reconsideration decision.
[37] T documents, pages 176-177
[38] T documents, page 176
On the question whether Dempsey 56 agreed to the further extension from 29 March to 2 April 2019 (which included a weekend), the Authority sought leave to file an email in reply from Mr Hunter (on behalf of Dempsey 56) that, it said, is relevant to that question. The applicants would not agree to the request, stating that the Authority “seems to be able to bend the rules as they need to suit them.”
I was not persuaded that the Authority was “bending the rules”. The Authority was not seeking leave to obtain and then tender fresh evidence after the close of the hearing going to some qualitative aspect of the proposal. The email response from Mr Hunter forms part of the record that already exists. The Authority sought leave to tender it only to respond to a question that arose at the conclusion of the hearing. It was also a key document for determining whether the Tribunal was reviewing a decision to approve the amended proposal with conditions, or a decision to refuse it. For this reason, I decided to receive the email as part of the evidence.[39]
[39] I received the email and marked it exhibit R6.
The email from Mr Hunter, sent on 1 April 2019 at 11:31am, states only “Yes thats fine” (sic).
In my view, Mr Hunter’s response could only be understood as an agreement, on behalf of Dempsey 56, to the requested extension until 2 April 2019 for making a decision. It follows that section 194 of the P&D Act has no application because the decision was made by the end of the period “as extended by agreement”.
I add that the character of the reconsideration decision (whether a deemed refusal under section 194, or an approval with conditions under section 162) made no difference to the Tribunal’s role. Either way, my task was to review the decision afresh, meaning to determine whether the amended proposal should be approved or refused because it does, or does not, comply with a relevant rule and/or criterion of a code. I determined that, with conditions, it complies and should therefore be approved.
Conclusion
Neither Mr or Mrs Jennaway who attended the hearing objected to any of the additional conditions that Ms Lana proposed during the hearing or questioned her about them.[40] Without implying that I may have decided otherwise if objection had been taken, for the reasons given I concluded that the reconsideration decision should be varied by adding the further conditions proposed by Ms Lana, but otherwise confirmed.
[40] Transcript of proceedings 1 August 2019, page 42, line 9; page 43, line 9
………………………………..
Presidential Member G McCarthy
HEARING DETAILS
FILE NUMBER: | AT 36/2019 |
PARTIES, APPLICANTS: | Danny Peraic, Ross Davies, Fiona Stevens, Kevin Swain, Edward Watson |
PARTIES, RESPONDENT: | ACT Planning and Land Authority |
PARTY JOINED | Dempsey 56 Pty Ltd |
COUNSEL APPEARING, APPLICANTS | N/A |
COUNSEL APPEARING, RESPONDENT | Mr M Hassall |
COUNSEL APPEARING, PARTY JOINED | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
SOLICITORS FOR PARTY JOINED | N/A |
TRIBUNAL MEMBERS: | Presidential Member G McCarthy |
DATE OF HEARING: | 1 August 2019 |
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