Primavera Holdings Pty Ltd and Act Planning & Land Authority
[2006] ACTAAT 28
•7 September 2006
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:PRIMAVERA HOLDINGS PTY LTD AND ACT PLANNING & LAND AUTHORITY & ANOR [2006] ACTAAT 28 (7 SEPTEMBER 2006)
AT06/37
Catchwords: Land and planning – application for approval of amendment to existing development approval – scope of section 247 – whether the amendment would change the effect of a condition subject to which the approval was given – whether the amendment would cause significant increase in detriment to any person – exercise of discretion – heritage.
Heritage Act 2004
Land (Planning and Environment) Act 1991, ss 222, 229, 229A, 229B, 230, 231, 245, 247
Land (Planning and Environment) Regulation 1992, Sch 1 item 2(a)
Legislation Act 2001, s 146
Power and ACT Planning and Land Authority & Anor [2005] ACTAAT 20 (17 August 2005)
Tribunal:Ms P O’Neil, Senior Member
Dr E McKenzie, Senior Member
Dr D McMichael, Senior Member
Date:7 September 2006
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/37
LAND AND PLANNING DIVISION )
RE: PRIMAVERA
HOLDINGS PTY LTD
Applicant
AND: ACT PLANNING AND
LAND AUTHORITY
RespondentAND: VILLAGE OF HALL &
DISTRICT PROGRESS
ASSOCIATION INC.
Party Joined
DECISION
Tribunal : Ms P O’Neil, Senior Member
Dr D McKenzie, Senior Member
Dr D McMichael, Senior Member
Date : 7 September 2006
Decision : The decision under review is affirmed.
…………………………
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/37
LAND AND PLANNING DIVISION )
RE: PRIMAVERA
HOLDINGS PTY LTD
Applicant
AND: ACT PLANNING AND
LAND AUTHORITY
RespondentAND: VILLAGE OF HALL &
DISTRICT PROGRESS
ASSOCIATION INC.
Party Joined
REASONS FOR DECISION
7 September 2006 Ms P O’Neil, Senior Member
Dr E McKenzie, Senior Member
Dr D McMichael, Senior Member
Background
In May 2001 the Commissioner for Land and Planning (“the Commissioner”) approved with conditions a development in the village of Hall. It comprised:
consolidation of two commercial blocks (Blocks 3 and 12 Section 2, Division of Hall) under a single Crown lease incorporating a variation to the uses of the land permitted under the existing Crown leases,
erection of four additional commercial units, comprising three units at lower floor level of a two storey building and one detached single storey building, together with hard stand car parking for those commercial units,
erection of eight residential dwellings, comprising three detached two-storey houses, two detached single storey houses and three upper floor dwellings above the commercial units, together with car parking for those units,
provision of vehicular ingress/egress from Victoria Street, and
associated landscaping.
2. The land is within the Hall Village Precinct that was entered into the interim Heritage Places Register in August 2001 and into the ACT Heritage Register established under the ACT Heritage Act 2004 in March 2005. The Hall Master Plan 2002 is on the Register of Planning Guidelines given status by the Territory Plan.
3. A proposed amendment to the development approval received on 28 February 2003 was approved by the Commissioner on 11 March 2003. This was described as minor amendment to the floor levels occasioned by the stormwater management plan required as a condition of original approval.
4. The consolidated lease over Block 19 (formerly Blocks 3 and 12) Section 2 Division of Hall was granted to Primavera Holdings Pty Ltd (“the applicant”) on 4 March 2003.
5. Two further minor variations to the approval were granted on 16 September 2003 and 20 November 2003. In May and June 2004, the applicant lodged further Development Applications (Nos 2000402271 and 200402271A) with the ACT Planning and Land Authority (“the Authority”) seeking approval to the development (more-or-less) as built. The Authority declined to approve the revised proposal on 18 November 2004, on the grounds that it was, among other things, inconsistent with some of the conservation objectives of the Hall Village Precinct Interim Heritage Places Register. On 26 August 2005 and 27 April 2006 the Authority refused to approve further applications for minor variations.
The application
6. This application seeks review of a decision of the Authority to refuse to approve variations that were expressed as follows. To:
increase the number of parking spaces,
increase the height of the upper floor windows of Units 3 and 4,
change the proportions between chimneys and windows of Units 6, 7, 8 and 10,
raise the ridge heights of Units 3, 4, 5, 6, 7, 8, 9 and 10, and
raise the internal walls of Units 3 and 4.
7. The approval sought by the applicant was revised during the course of the hearing to read as follows:
DA 200100236 is amended by:
Amendment of drawings
In relation to Units 3 and 4
· Increasing height to RL 639.93
· Lowering slab level to 631.23
· Raising upper floor windows in south-west elevation by 200mm as
shown in the annexed drawing marked A [T62], and
· Increasing internal wall height to ceiling as shown in the annexed drawing marked B [T61]
In relation to Units 6, 7 and 8
· Increasing height to RL 639.79, 639.99 and 640.19 respectively
· Altering roof pitch at lower floor to 40º and upper floor to 32º
· Altering proportions between chimneys and windows as shown on the annexed drawing marked C [T63]
In relation to Units 9 and 10
· Increasing height to RL 639.95 and 639.52 respectively as shown in the annexed drawings marked D [T64] and E [T65], and
· Altering proportions between chimney and windows (Unit 10 only) as shown in the annexed drawing marked E
Amendment of text
Adding after the words “imposed pursuant to Section 245 of the Act” the words “and subject to the additional approval set out below”.
Adding a Condition 18 as follows:
“That as soon as reasonably possible the lessee is to take all steps within its power to ensure the registration of the variation of the Crown lease referred to under the heading Further Approval and will pursue that registration diligently until the variation is entered on the Register.”
Adding after Condition 18 the words
“Further Approval
Further approval is given to amend the Crown lease by inserting the following sub-clause 3(i)
“The internal roof spaces of Units 3, 4, 6, 7 and 8 are not to be used for habitable purposes”.”
OR
“The internal spaces above the first floor ceilings of Units 3, 4, 5, 7 and 8 are not to be used as habitable rooms or as a bathroom or laundry”.
8. The buildings have already been constructed. The 10 units surround a central open area accessed from Victoria Street to the front and leading to an unnamed lane at the rear. No change is proposed to the approved plans for Units 1 and 2, which are separate ground level commercial units fronting Victoria Street. Units 3, 4 and 5 also front Victoria Street across the driveway access and are intended to provide upper floor residential above ground floor commercial premises. Units 6, 7 and 8 lie generally behind Units 3, 4 and 5 and were approved as two-storey town houses, while Units 9 and 10, originally approved as single storey dwellings but which were approved in November 2003 to include lofts making them effectively two storeys, are located behind Units 1 and 2.
9. It is common ground that, as well as the matters for which retrospective approval is sought through this application, there are other ways in which the buildings as constructed do not comply with the approved plans but for which no approval was sought in this application for amendment of an approval.
10. The main variation from the approved plans has been the raising of the ridgelines of the units. Staircases leading to lofts have been inserted in Units 3, 4, 6, 7 and 8 and additional bedrooms and en-suites have been constructed under the raised roofs. The buildings are higher than originally approved and to achieve this the walls above the ground floor level have been expanded or “stretched” upwards. As the number of windows and their positions in the walls has remained generally the same, the appearance of the external walls has changed so that there is a much larger expanse of timber cladding above the first floor windows.
11. The external effects of the proposed changes would be to reduce the ridgelines of most of the units, although not to the originally approved levels, to change the pitch of various roof elements and to move some windows. Internally, a partition would block off some staircases, without removing the attic rooms and access stairs already constructed.
The evidence
12. A written report and oral evidence on the effects on the proposed alterations on the heritage values of Hall was given by Mr Eric Martin for the applicant. Mr Martin is a qualified architect specialising in heritage architecture and a former chair of the ACT Heritage Council. Mr Martin’s opinion was that the heritage values of Hall had been significantly damaged by the initial development approval, which had occurred before heritage listing, and made worse by subsequent approved amendments. He considered that the reduction of the ridge lines to the extent proposed, with consequent change of pitch of the upper roof and reduction of surface area of timber above the ground floor level, together with raising of the windows, would ameliorate the adverse consequences of the unapproved changes. In his opinion the end result would not erode further the heritage values of Hall because the difference between what had been earlier approved and what was being sought in this approval was insignificant in its effect on heritage, the main damage already having been done. While the proposed changes did not reduce the height of the buildings to the approved dimensions, in his opinion the difference in height would not be significant when viewed from Victoria Street. Mr Martin considered that the perspective from Victoria Street, the main street in Hall, was of importance but that from the rear lane was much less so. He said he had not inspected the interior of the units and could not comment on them. However, he did confirm that a timber framed plasterboard wall was shown on the proposed plans at the base of the staircase leading to the lofts in units.
13. Dr Michael Pearson provided a written report and oral evidence for the Authority on the effects on the heritage values of Hall. Dr Pearson is current chair of the ACT Heritage Council and Adjunct Professor, Cultural Heritage Management, University of Canberra. As did Mr Martin, Dr Pearson focussed on the view from Victoria Street. He was particularly concerned about the visibility of part of the roof of Units 9 and 10 above an existing heritage building, an outcome that the Heritage Council had expressly sought to avoid in commenting on earlier applications. He was also concerned about the appearance of the three regular peaks, being the ridgeline of Units 6, 7 and 8, when seen from Victoria Street. He considered this regularity to be inconsistent with the informal rural appearance of Hall Village identified as a feature intrinsic to the Hall Village Precinct recommended to be conserved. More generally he considered the height of the ridgelines and the bulky appearance of the walls to be inconsistent with the heritage values of the Village of Hall. Dr Pearson illustrated these points with photographs of the site.
14. The following residents of Hall tendered sworn statements and gave oral evidence for The Village of Hall and District Progress Association (“the Association”) - Dr Ken Heffernan, Mr Colin Watkins, Mr Greg Hayes (by telephone) and Mrs Margaret Monahan. Unsworn written statements were also tendered from other residents – Margaret and Tony Morris, Anna and Craig Sheargold and Brian and Anne O’Connor. Their import was generally consistent with that of the residents who gave oral evidence.
15. The Association stated that although concerned about some aspects of the original development application, it believed that the proposal was thoughtful and relatively sensitive to its environment. It now strongly opposed the proposed changes reflected in the development as built, believing them to result in too dense a development and to adversely affect the streetscape and landscape heritage values of Hall Village. The Association was also concerned about traffic and parking and the possibility that approval would set a precedent for future development in Hall.
16. Dr Heffernan, a former member of the ACT Heritage Council, said that he had chosen to live in Hall because of its particular heritage character. Dr Heffernan believed that the original plans were acceptable. His evidence focussed on the detriment he believed would occur to the heritage significance of the Hall Village Precinct should the proposal be approved. He drew particular attention to the appearance of Units 3, 4 and 5. He described them as having the height and dominance of a three-storey structure, in contrast to the predominantly single storey construction in Victoria Street noted in the Heritage Register as contributing to its modest rural village streetscape scale. The physical dominance of these buildings and the units behind that were visible from Victoria Street diminished the informal streetscape character, he said. He was also concerned about the hard surface treatments and lack of space for mature trees, which contrasted with the high proportion of landscape space elsewhere that contributed to Hall’s rural village character. Dr Heffernan also commented adversely on the impact on the laneway to the rear of the development, noting the contrast between Units 6, 7, 8 and 9 and the historic slab cottage across the laneway. Finally, Dr Heffernan noted the building heights limit the ability to appreciate the landscape setting of Hall Village with its backdrop of distant hills and intermittent tree canopies, a feature intrinsic to its heritage significance.
17. Mr Watkins, a builder and quantity surveyor, lives directly across the back lane from the development. His house addresses Palmer Street and he has lived there for 20 years. The slab cottage mentioned by Dr Heffernan is on Mr Watkins’ land. Mr Watkins said that the development as constructed has no vertical relationship with what had been approved and that drawings of the existing buildings were inaccurate in relation to both their vertical properties and roof slopes. The result of the departures from the approved plans was to distort the visual appearance of the buildings so that they were bulky and intimidating. He described his view of Units 6, 7 and 8 as of monstrous obelisks and the roof of Unit 9 as a mass of shining steel roofing when viewed from his house, causing sunlight to be reflected into his family room. His views of snow on the distant hills was now partially obscured by the tall roofs of the buildings. He considered that the proposed new ridge heights would not redress the problem but that the buildings would continue to look intimidating and inappropriate. In cross-examination he confirmed that the distance from the back of his house to Unit 9 was about 40 metres and that a shed, fence and trees lay in between them.
18. Mr Hayes said he valued the heritage of Hall and was attracted to live there because of its rural village atmosphere. Victoria Street was a focal point of the village and he frequently passed by and visited it. He had opposed the original development and believed that the proposal to further increase the height would add further detriment.
19. Mr and Mrs Monahan, who have lived in Hall for 19 years, are the owners of the property directly opposite the development. It is occupied by the Hall Village Store, which is a focal point for residents. Mrs Monahan said that they had chosen to live in Hall because of its character, appearance and special atmosphere. She said that they had not objected to the original design of the buildings, but described the bulk of the buildings as constructed as overwhelming. Mrs Monahan said that the approval of the development would detract markedly from the ambience of the village and have a seriously detrimental effect on them. Mrs Monahan also expressed concern about the impact on parking and traffic safety. Mr and Mrs Monahan had lodged a written objection to the original development application, but only in relation to parking and traffic issues.
The Land Act
20. Section 247 of the Land (Planning and Environment) Act 1991 (“the Land Act”) reads:
(1)The lessee or an occupier of a place in relation to which an approval is in force may apply in writing to the planning and land authority for amendment to it.
(2)The planning and land authority may amend an approval, if satisfied that the amendment -
(a)does not change the effect of a condition subject to which the approval was given;
(b)will not cause a significant increase in detriment to any person; and
(c)does not change the kind of development approved but only the activity permitted.
(3) ……
21. It is agreed by the applicant and the Authority that the scope of section 247 must be construed in the light of the other provisions of the Act. The three conditions in section 247(2)(a), (b) and (c) are threshold requirements on which the Tribunal needs to be satisfied before the proposed amendments can be approved: Power and ACT Planning and Land Authority & Anor [2005] ACTAAT 20 (17 August 2005). If those threshold requirements are met then the Tribunal has the power to amend the approval but is not required to do so, as the word “may” in section 247 indicates the existence of a discretion: Legislation Act section 146(1). In exercising the discretion, regard is to be had to the scope and purpose of the Land Act. There is no power to impose conditions on an approval under section 247, as section 245 applies only to approvals and not to amendments of approvals.
22. The fact the buildings have been constructed is not a consideration that either favours or militates against approving the amendments. The applicant submitted that the evidence concerning what has been constructed was not relevant, because ultimately, what is in existence must be in accordance with approved plans. If not, the statutory mechanisms for compliance and enforcement can be called into action by the relevant authorities. It was not the role of the Tribunal in making a decision on an application under section 247 to undertake a compliance function, but to decide whether the amendments proposed should be approved having regard to the requirements of the Land Act.
23. We accept that our task in undertaking this review is not a compliance one and we will not take into account those unapproved built elements, for example, the roof mounted cooling units that are not dealt with in the proposed amendments. However, we will need to consider the effects of the amendments in the light of evidence revealed in the review process, including evidence about what has been constructed.
The Lofts
24. The Village of Hall is covered by Part B2D Commercial ‘D’ (Local Centres) policies in the Territory Plan. A Performance Control for Local Centres listed in Schedule 2 is a maximum height of two storeys. That Control was in effect when the Commissioner made the original decision in 2001 and has remained unchanged since then (although the terminology in Schedule 2 was changed slightly in 2002). A storey is defined in Part D of the Plan as:
a space within a building that is situated between one floor level and the floor level next above, or if there is not floor level above, the ceiling or roof above but does not include an attic or a basement.
An attic is in turn 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.
25. A loft is not defined. It follows that an additional floor level above two storeys, whether called a loft or something else, cannot be inserted into the buildings unless it conforms to the definition of attic.
26. Notwithstanding that lofts incorporating bedrooms, bathrooms, etc, have been built in Units 3, 4, 6, 7 and 8 they are not approved and could not be approved unless they are attics. Although the proposed amendment did not expressly seek approval for these unapproved structures, the effect of the amendment would be to allow them to remain. However, the amendments, if approved, would block access to the lofts in Units 3 and 4 by closing off the base of the stairs with timber framed plasterboard walls.
27. The Authority pointed out that no future approval would be required in respect of the use of the loft space, as internal alteration of a building that does not increase the number of dwellings within it is exempt from Part 6 of the Act: Regulations Schedule 1 item 2(a). The applicant submitted that inserting an appropriately worded condition in the lease to preclude the use of the loft as bedrooms, bathrooms or other habitable spaces would overcome the risk foreshadowed by the Authority. The Authority submitted that there was no legal authority to amend the new lease, but even if that were not so and an appropriate lease variation could be devised, it would be inappropriate and unenforceable if and when the buildings were completed, unit titled and sold. For reasons that follow we are not persuaded that approving such a lease variation overcomes the difficulty faced by the applicant.
Would the amendment change the effect of a condition subject to which the approval was given?
28. The conditions subject to which the approval was given include requirements that the development be undertaken in accordance with approved plans. The applicant submitted that in such circumstances a change of plan did not amount to a change of a condition where section 247 has application. In any event, the applicant argued that even if what was sought amounted to a change in a condition, it was not seeking to change the effect of a condition. Relying on the Tribunal’s reasoning in Power, the Authority submitted that it was appropriate to focus on the substantive effect of the amendment in order to determine whether section 247(2)(a) was complied with. The applicant agreed that it was necessary to look at the substance of the amendment, but argued that many of the matters in issue were either not subject to identified conditions or, if they were, were changes in degree rather than in substance.
29. In respect of Units 3, 4, 6, 7 and 8, the approved plans are for buildings on two levels. In our view it would change the substantive effect of a condition to approve amendments of buildings which comprised three levels. The appearance of the external walls of the buildings would depart from that approved. Seeking approval for the construction of plasterboard walls at the base of the stairs of Units 3 and 4 serves to reinforce the fact that the buildings if approved would be on three floor levels, since otherwise the plasterboard walls would not be necessary.
30. The respondent contends that, in approving amended plan 43802.04 B on 11 March 2003, the Commissioner was approving a 300mm reduction in the ridge heights of Units 6, 7 and 8 as shown by the height dimensions on the drawing. The applicant contests this on the grounds that no such reduction to the originally approved ridge heights was sought. However, the terms of the Commissioner’s approval are unequivocal – that the development is to be carried out in accordance with Drawing No 43802.04 Issue B – even though reduced ridge heights were not identified by the Commissioner in the summary of the proposal set out in paragraph 1.0 of the approval.
31. We do not think we can go behind the approved plans, but given that we know the proposed new heights in absolute terms (RL 639.79, 639.99 and 640.19 respectively), whether the proposed change is 300mm or 600mm above the approved plans is not particularly relevant. The variations subsequently approved by the Authority, including the change of roof form, did not include any approval for an increase in ridge height. Thus the heights in the plan for Units 3, 4, 6, 7, and 8, considered by the Commissioner to be consistent with the Master Plan for the Village of Hall, remain the approved heights. We are satisfied that the substantive effect of the amendment to increase the ridge heights of Units 3, 4, 6, 7 and 8 would change the effect of the condition originally imposed.
32. The Authority drew attention to the terms of the approval of an earlier amendment to the original approved plans after the place had been entered onto the ACT Heritage Register. The decision-maker sought the Heritage Council’s advice. At that time, the Heritage Council did not oppose the increase in the ridge height of Units 9 and 10 by 250mm, but stated that it would not support any further increases, because it wished to ensure that Units 9 and 10 were not visible from Victoria Street over the existing heritage building on site (Unit 1). The applicant was given written advice of the Heritage Council’s position. The effect of the approval was to limit the height of Units 9 and 10 to that considered by the Heritage Council to be the maximum possible without affecting heritage values.
33. The proposed variation before us is to further increase their height so that they will be more visible from Victoria Street and thus in the opinion of the Heritage Council, adversely impact on heritage values. We are satisfied that the proposed amendment would therefore change the substantive effect of the condition limiting the height of Units 9 and 10. In the context of section 247(2)(a) we do not think it is necessary for us to examine whether or not the Heritage Council’s opinion on this issue is the preferred one. It is sufficient that the height limit was imposed on the Heritage Council’s recommendation.
34. We are satisfied that the amendments affecting Units 3, 4, 6, 7 and 8 would, if approved, change the effect of a condition of the development approval by changing the number of floor levels within the buildings from two to three and the appearance of the external walls. The amendment would increase their height above that considered by the Commissioner to be consistent with the Master Plan for the Village of Hall. We are satisfied that the amendments affecting Units 9 and 10 would, if approved, change the effect of a condition of the development approval designed to protect heritage values by limiting the ridge height.
Would the amendment cause a significant increase in detriment to any person?
35. For this criterion to be met we must be satisfied that, firstly, there is an increase in detriment to a person or group of persons. Secondly, the detriment must arise from the proposed amendments, not from the already approved component of the development. Thirdly, the detriment must be increased significantly.
36. It is not uncommon for residents, wherever in the ACT they live, to believe that a proposed development in their district or suburb will diminish its qualities that they enjoy. Often that occurs when a development reflects changes such as increased density of development specifically provided for in the Territory Plan. In this case the residents have expressed concerns about density. In addition, residents say they wish to preserve the qualities of Hall that have been specifically protected in recent years by its heritage listing and through the adoption of the Hall Master Plan as a Guideline under the Territory Plan. For the purposes of section 247(2)(b), what is required is a link between the changes proposed in this application, those values as identified in Specific Requirements identified in the Heritage Register and a significant increase in detriment.
37. The evidence of Mr Watkins, who has lived across the back lane from the site for 20 years, did not focus on heritage values. Mr Watkins is well able to read and interpret plans. He did not lodge an objection to the original development. We do not believe that it can be said of him that he is in fact objecting to the original approval. He is objecting to the development as it would appear if the amendment were to be approved. He has closely observed what has been built and described in graphic terms how it departs from what has been approved and how objectionable it is to him when viewed from his back yard. He has mentioned the problem caused by sunlight reflecting off the roof into his house. He has turned his mind to the changes that would occur if the amendment were to be approved and has specifically identified the proposed new ridge height as a source of increased detriment. Even if the height is lower than it is presently built, it will still be significantly higher than what was approved. He says the amendment will not change the intimidating appearance of the buildings when viewed from the laneway. We accept that the amendment will cause detriment to Mr Watkins and while we have taken account of the fact that the new buildings as varied would be some distance away from his house we are satisfied that the level of detriment to Mr Watkins is significant. In doing so we have not had regard to any loss of view of snow-capped hills.
38. Having found that the amendment would cause a significant increase in detriment to Mr Watkins, it is not necessary to consider whether any other person would suffer significant increase in detriment.
Would the amendment change the kind of development approved but only the activity permitted?
39. The wording of this part of section 247 is ambiguous and obscure. The better interpretation as proposed by the Authority links it to activity as used in section 222. We accept the Authority’s submission that it is not relevant in the circumstances of this case.
The exercise of discretion
40. We have found that the application fails the tests in section 247(2)(a) and section 247(2)(b).Even if we are wrong in that finding and the criteria in section 247(2) are satisfied, we would exercise the discretion in section 247 not to approve this application for the following reasons.
41. The development is located in the Hall Village Heritage Precinct, a place on the ACT Heritage Register maintained under the Heritage Act 2004. Attention was drawn by the Authority to some of the Specific Requirements for the Conservation of the Hall Village Precinct in the Entry to the ACT Heritage Register. They are Conservation Objective 3.1:
The rural village streetscape character within the village should be retained, including informal characteristics which contrast to the unity and ordered arrangements of suburban Canberra.
Conservation Objective 3.2:
To conserve the low density character of the village of large blocks with detached dwellings generally sited centrally within a generous landscape setting. To ensure that development is sympathetic to the existing patterns of built form, predominantly single-storey scale, and landscape composition of the rural village streetscapes.
………
(k)New dwellings or additions to existing dwellings should present a single-storey scale to the front street and any loft or two-storey elements at the rear shall not be visually prominent from other public domains.
Conservation Objective 3.4:
To retain the historical use and ‘main street’ character of the commercial area of Victoria Street.
(q)Development of blocks within Sections 2 and 3 that front Victoria Street shall retain the urban character of a small rural village commercial area including a single storey scale to the street, mixed forms comprised of detached commercial shopfronts and industrial buildings, presence of awnings or covered verandahs along shopfronts, and predominance of timber and metal claddings.
42. Attention was also drawn to the Master Plan for the Village of Hall, and in particular to the following points in Part 4.2.3 (under heading ‘Principles’):
·Maintain and protect the significance of the historic pattern of development and the existing landscaping.
·Retain the historical form and architectural character of the original historic buildings as perceived from the street or adjacent public domain.
·New buildings or alterations to existing buildings should be sympathetic in appearance and style to existing buildings in the street, particularly where adjacent buildings are of heritage significance.
and the references to building height under ‘Guidelines’:
· Buildings are to be no higher than 8.5 metres in height to roof peak.
· Development should be sympathetic to the existing patterns of built form. In residential areas, new dwellings or additions to existing dwellings should present a single-storey scale to the front street and any loft or two-storey elements at the rear shall not be visually prominent from other public domains.
43. That there are particular requirements in the Land Act and the Territory Plan governing development applications in heritage precincts indicates the importance placed by the legislature on the protection of the ACT’s heritage places. If the proposed amendments were clearly of no consequence in heritage terms then section 247 might be an appropriate vehicle for their determination. But that is, at best, a contestable proposition. We have heard differing opinions from two well-qualified experts in Mr Martin and Dr Pearson as to the effect of the proposed amendments on the heritage significance of the Hall Village Precinct.
44. The requirements in the Land Act for public notification under sections 229 and 232, the power to require further information under section 233, the powers of the Minister under section 229A and section 229B and the powers to impose conditions under section 245 are all avoided or unavailable so long as the proposed variations are dealt with under section 247. Importantly, the requirements under section 231(2), which limit the capacity to approve applications in heritage places, are also avoided. Section 231(2) reads:
The relevant authority may make a decision under section 230 that is inconsistent with any heritage council advice under the Heritage Act 2004, section 60 only if it is satisfied that –
(a)the following have been considered –
(i)all applicable heritage guidelines;
(ii)all reasonable development options and design solutions;
(iii)any prudent and feasible alternative to the proposed development, or relevant aspects of it; and
(b)as far as is practicable, the decision avoids or minimises any adverse impact on the heritage significance of the place; and
(c)on balance, the decision is consistent with the objects of the territory plan.
45. Section 247 should only be used in limited circumstances and we do not think it appropriate in this case, when the protection of a part of the Territory’s built heritage may be at stake. In our opinion, a decision under section 230 taking into account the provisions of section 231(2) would be the proper way to deal with issues of such importance.
46. We conclude that the proposed amendments are not approvable under section 247 because they fail to meet the tests laid down in section 247(2)(a) and (b) and because section 247 is not appropriate for dealing with amendments of this magnitude and complexity.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT06/37
APPLICANT: PRIMAVERA HOLDINGS PTY LTD
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: VILLAGE OF HALL & DISTRICT PROGRESS
ASSOCIATION INC.
COUNSEL APPEARING: APPLICANT: MR R ARTHUR
RESPONDENT: MR D MOSSOP
PARTY JOINED:
SOLICITORS: APPLICANT: TETLOW TIGWELL WATCH
RESPONDENT: ACT GOVERNMENT
SOLICITORPARTY JOINED:
OTHER:APPLICANT:
RESPONDENT:
PARTY JOINED: DR A CROMBIE
TRIBUNAL MEMBER/S: MS P O’NEIL, SENIOR MEMBER
DR E MCKENZIE, SENIOR MEMBER
DR D MCMICHAEL, SENIOR MEMBER
DATE/S OF HEARING: 31 JULY; 1, 10 &
15 AUGUST 2006 PLACE: CANBERRA
DATE OF DECISION: 7 SEPTEMBER 2006 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENTS:
0
0