Ross and Laure Edgar v ACT Planning and Land Authority & Anor (Administrative Review)
[2010] ACAT 32
•24 May 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ROSS AND LAURE EDGAR v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2010] ACAT 32
AT 100 of 2009
Catchwords: ADMINISTRATIVE REVIEW – land and planning – plot ratio – GFA – basement car park – building envelope – side and back setbacks
Legislation:Territory Plan 2008 (ACT) Residential Zones Multi Unit Housing Development Code Rule 13, 14, 15, 16, 28, 55, 56, 247A Criterion 14, 55, 56
Single Dwelling Housing Development Code
Case law:Finlayson &Ors v ACT Planning and Land Authority &Ors [2009] ACAT 35
Griffith/Narrabundah Community Association Inc and Ors and ACT Planning and Land Authority and Ors [2005] ACTAAT 34
Tribunal:Mr B Hatch Senior Member
Mr R Nichols Senior Member
Date of Orders: 24 May 2010
Date of Reasons for Decision: 24 May 2010
IN THE AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 100 of 2009
BETWEEN: ROSS AND LAURE EDGAR
Applicant
AND: ACT PLANNING AND LAND AUTHORITY
Respondent
AND: DAVID RIGGS AND KRYSIA KITCH
Party Joined
AND: LOCHIEL AND BRONDWEN MACLEAN
Party Joined
Tribunal: Mr B Hatch Senior Member
Mr R Nichols Member
Date: 24 May 2010
ORDER
- The decision under review is confirmed.
……………………………….
Mr B Hatch
Senior Member
REASONS FOR DECISION
This is an application for review of a decision to refuse approval for the erection of a second house with basement carparking together with subdivision of the block on which it would have been built at Block 15, Section 16 in Campbell. This decision was made on 11 September 2009. The Applicant sought a reconsideration. The reconsideration is dated 9 November 2009 and it confirmed the original decision of 11 September 2009.
Evidence in this matter was given by the Applicant, Mr Ross Edgar. Evidence was given on behalf of the Respondent by Ms Gabrielle Caddy.
The evidence given by the Applicant was that he and his wife intended building a new residence at the back of their block in Campbell. They would then live in that house. What Mr and Mrs Edgar intended doing with the original house was not stated and is not relevant. Mr Edgar prepared the plans and drawings for the proposed residence himself. The plans submitted were difficult to follow. Any person is entitled to produce their own drawings and plans, and in simple matters that may be worthwhile. In a large enterprise, such as this proposed house, it is probably not in an applicant’s best interests if those drawings lack the clarity of professionally prepared drawings.
THE TECHNICAL AMENDMENT TO THE TERRITORY PLAN
After the initial decision of September and before the reconsideration was completed, there were changes made to the Territory Plan with respect to multi unit housing development. This meant that the reconsideration used the changed Territory Plan. The Applicants sought to challenge the use of the changed Territory Plan and to also challenge the validity of the amendments.
The officer who determined the reconsideration was bound to use the Territory Plan as it then applied and not the Territory Plan that the original decision was based on. This Tribunal also must apply the law, which includes a Territory Plan at the time of making its decision. Whether or not the amendment to the Territory Plan is valid or otherwise is also not a matter which this Tribunal can determine. In Re Robert McKie and Minister for Immigration, Local Government and Ethnic Affairs, (1988) 8AAR 90 at 96, Thompson DP after reviewing the authorities said:
“In order to review a decision, the Tribunal has to construe the legislation under which the decision was made and to satisfy itself as to the nature and extent of the power conferred on the person who made it. Section 15A of the Acts Interpretation Act 1901 requires that every Act is to be construed by subject to the Constitution. The Tribunal must comply with that requirement. But the construction of an Act is an entirely different process from the consideration of its constitutional validity. Prima facie an Act of the Parliament which has been regularly enacted and to which the royal assent has been given must be treated as having come into operation as provided for by section 5 of the Acts InterpretationAct 1901 or by the Act itself and to be a valid Act to the provisions of which those administering it, including the Tribunal, must give effect until such time as it is declared by a court of competent jurisdiction to be invalid.
The Tribunal undoubtedly has power to consider and form an opinion as to the validity or invalidity of an Act of Parliament, just as any other person responsible for the administration of that Act may; but that is the full extent of its power. If it comes to the conclusion that the Parliament did not have power to enact the Act or any part of it, it has no power, in my view, to make its decision on the basis that the Act or that part of it is invalid. That is, I believe, not inconsistent with what was said by Bowen C.J in the Brian Lawlor case. As I pointed out above, in that case the question whether the Tribunal has power to entertain the application for review arose because the decision to be reviewed was made ultra vires the Act of the Parliament under which it was purported to be made. The Court was not required to decide the limits of the Tribunal’s jurisdiction; in particular it was not required to consider whether the Tribunal would have power to make a decision contrary to the provisions of an Act of the Parliament if it considered that the Parliament had no power to enact those provisions. Bowen C.J did not expressly address that question. His reference to “an appeal involving a constitutional question” is, in my view, not to be taken as indicating that he had done so or that he intended it to be understood that he had done so. I respectfully adopt the view expressed by Brennan J. In Re Adams page 257, as set out above.”
SETBACKS
According to Rule 55, the side setbacks for the lower floor level are given as 3 metres. The plans, however, show that at the closest points to the boundary, there is a relatively minor encroachment. Had that been the only issue, the Tribunal accepts the evidence of Ms Caddy that such an encroachment would not have been of any great concern. Having been to the block in question, the Tribunal agrees with that assessment. Unfortunately, there is an upper floor which is what the Applicant describes as his roof walk. The Respondent contends that the roof terrace of the studio of the proposed dwelling amounts to a second upper floor level. The Applicant gave evidence that because those floors had a slope that they were not usable as floors. He gave an example of trying to keep a table steady on a sloping floor. The gradient of this floor is 1:50. Ms Caddy gave evidence that the slope, as described, was only slight and no more than other terraces and therefore these areas were floors. Even in the absence of Ms Caddy’s evidence, which the Tribunal accepts, it is clear from the plan that these areas that the Applicant refers to as roof walks are floors which are easily accessed and trafficable. The very slight gradient is merely a practical requirement for an area open to the elements to enable water from rainfall to be controlled. Such a gradient, even in an internal room, may well go unnoticed and would, for most houses, be of no relevance.
Dual occupancies are governed by the Multi Housing Development Code of the Territory Plan. On the assumption that the roof walk would be properly screened, the setback should be 6 metres pursuant to Table 4 of Rule 55. Accordingly, the proposed development fails to meet Rule 55. The next issue, however, is whether the proposed development meets Criterion 55. The Tribunal does not accept that the proposed development meets any part of Criterion 55. There is not sufficient spacial separation, particularly at the closest points, and privacy and solar access to two neighbouring dwellings and outdoor spaces are adversely affected. In addition, none of the setbacks are progressively increased in order to reduce the bulk and scale of this building.
The rear setbacks are governed by Rule 56. Once again, the lower floor level setback is given as 3 metres and this proposed development encroaches to the extent that at the nearest point the setback is only 2.8 metres. Once again, that itself would not have any great concern other than the fact that the upper floor level that is present also needs to have a setback of 6 metres if it were to be properly screened. Accordingly, this proposed development fails Rule 56. The Tribunal also does not see that Criterion 56 has been met as the scale, height and length of this development does not provide sufficient special separation. Paragraph (b) of Criterion 56, with respect to privacy and solar access, does not appear to be an issue with respect to the rear setback.
This proposed development is also subject to Rule 247A. The Applicant contended that rather than Rule 247A, it was Rule 28 which was applicable. In the Tribunal’s opinion, that is an erroneous view. Rule 28 relates to integrated housing developments. An integrated housing development is defined in the Territory Plan as follows:
Rule 28:
(a) Subdivision or consolidation of existing residential leases is only permitted where the subdivision or consolidation is part of an integrated housing development and it is demonstrated that any building on a consequent lease is or can be designed in accordance with the relevant sections of this code.
10. This proposed development does not meet the definition of integrated housing development and therefore Rule 247A applies.
11. The evidence of Ms Caddy, which the Tribunal accepts, is that Rule 247A requires that the buildings, when completed and when new boundaries are created as a result of a new subdivision, comply with the relevant setback and the building envelope provisions of the Single Dwelling Housing Development Code. The proposed development does not comply with those rules.
FLOOR SPACE
12. The Multi Unit Housing Development Code contains Rule 15 and 16 which are mandatory requirements relaying to Plot Ratio. They require that:
R15
On a standard block (or a block resulting from the consolidation of these blocks), the maximum plot ratio does not exceed 50%, except for dual or triple occupancy housing, where at least one dwelling does not directly front a public road from which vehicular access is permitted, the plot ratio does not exceed 35%.
R16
In addition to R15, for dual occupancy housing, the maximum plot ratio for any additional new dwelling that does not directly front a public road from which vehicular access is permitted does not exceed half of the permissible plot ratio of all development of the block or 17.5%, whichever is the lesser.
13. Plot Ratio as defined in the Plan: means the gross floor area in a building divided by the area of the site.
14. Gross Floor Area (GFA): means the sum of the area of all floors of the building measured from the external faces of the exterior walls, or from the centre lines of walls separating the building from any other building, excluding any area used solely for rooftop fixed mechanical plant and/or basement carparking.
15. The site has an area of 1343 square metres. The proposed new dwelling is one which does not directly front a public road and therefore the maximum permissible gross floor area permitted by a 17.5 plot ratio is 235 square metres. The site plan forming part of the development application shows that the proposed building has a gross floor area of 234 square metres which is very close to the maximum permitted.
16. Mr Edgar’s calculation of GFA does not include any part of the basement area. It was the Respondent’s contention that part of the basement is not used solely for carparking and consequently should be assessed as contributing to the gross floor area with the result that the plot ratio exceeded the maximum permitted. The basement parking plan depicts the turning circles of vehicles to demonstrate how vehicles are to be manoeuvred to access three parking bays. The basement is not a totally open space but has columns supporting the upper floors. These columns restrict manoeuvrability in the basement and in the Respondent’s view part of the area is unsuitable for directly accessible parking. It submits that part of the area should be counted as GFA because of availability for purposes other than carparking. The basement area also contains water storage tanks.
17. Mr Edgar gave evidence that he has 8 vehicles including some being restored, some of which would not be moved regularly and were not easily moved. Despite the limitations caused by the building columns he considered that such vehicles could be manoeuvred into this space. Ms Walker submitted that it was not just a question of Mr Edgar’s intended use but what ordinarily it might be used for by some subsequent owner. Previous Tribunals have considered the question of whether or not basements have been used “solely for basement carparking”. On the one hand, it has been determined that storage areas within a basement should be calculated as being part of GFA (Finlayson &Ors v ACT Planning and Land Authority &Ors [2009] ACAT 35 at [73]). On the other hand, those parts of a basement which are necessary for pedestrian accessibility and movement have been excluded.
18. The issue of excessive carparking provision and storage in basements has been considered in Griffith/Narrabundah Community Association Inc and Ors and ACT Planning and Land Authority and Ors [2005] ACTAAT 34. The Tribunal, in that case, considered that three to four spaces per unit was not necessarily excessive and that it had no evidence that they would be used for storage. Mr Edgar’s evidence, in this case however, indicates a much larger number of vehicles, some of which are being restored or stored for intermittent use. The Tribunal considers that, together with limitations on accessibility, this is not wholly carparking within the general sense of that term in the Territory Plan. Part of the basement area should therefore be seen as contributing to the GFA of the building.
19. It may not be necessary to determine a precise floor area that may be seen as not used solely for basement carparking. The GFA of the other floors of the building is so close to the maximum permitted that any additional floor area will result in the mandatory Plot Ratio being exceeded.
20. The Respondents assessing officer, Ms Gabrielle Caddy, gave evidence in this matter. It is worth firstly noting that as the current fashion, the statement of Ms Caddy had the standard paragraph that the witness has read the Expert Witness Code of Conduct and agrees to be bound by that. The normal purpose of the code of conduct is with respect to independent expert witnesses. An officer of the respondent such as Ms Caddy is not giving evidence in the same vein as an expert witness pursuant to the Code of Conduct. This is not meant to be a criticism of officers of the Respondent but rather the proper acknowledgment that witnesses in this situation are giving evidence with respect to the Respondent’s position. Any such witnesses will have expertise in various areas but part of what such a witness should do is to present to the Tribunal the view of the Respondent.
21. Ms Caddy gave evidence with respect to the basement and marked on a plan of the basement the area which she deemed not suitable for car-parking which became Exhibit 8. According to Ms Caddy, that area amounts to 84.62 square metres. The Tribunal accepts Ms Caddy’s calculation of that area.
22. In her evidence before the Tribunal, Ms Caddy stated that her assessment was that the area within the columns of the basement was not suitable for manoeuvring motor cars and that even if the water tanks were removed the columns would still make manoeuvring motor cars impractical.
23. The Tribunal accepts the evidence of Ms Caddy. As the gross floor area other than the basement is 234 square metres and accepting the opinion of Ms Caddy that the extra basement space amounts 84.62 square metres this gives a gross GFA of 23.7% where the maximum permissible is 17.5%.
24. The Tribunal therefore finds that the requirements in Rule 15 of the Code are not met in relation to plot ratio.
BUILDING ENVELOPE
25. The Multi Unit Housing Development Code includes Rule 14 which sets out a building envelope within which a building must be contained. For applications in the Merit Track, there is a corresponding criterion, C14, which aims to ensure proposed buildings do not adversely impact on the amenity of neighbouring properties.
26. It was common ground between the evidence of Ms Caddy and Mr Edgar that the building exceeded the maximum height permitted under the building envelope provisions of Rule 14. Rule 14 has different envelope requirements depending whether a building is within a primary building zone or a rear zone. There was conflicting interpretation of the Territory Plan between Mr Edgar and Ms Caddy about whether the proposed building is within the primary building zone or rear zone of the block. The Plan defines the zones as:
Front Zone means the area of a block between the front boundary or at the minimum front setback of the block whichever is greater and the building line (note: for the purposes of this definition, the front zone shall not be more than 10 metres from the front boundary).
Primary Building Zone means the area between the front zone and a line projected 12 metres distant.
Rear Zone means the area of a block behind the primary building zone.
27. Mr Edgar argued that, given the proposed subdivision, each block should be regarded as having a front zone and that his proposal should be assessed on the basis of the proposed building being within such a front zone. Ms Caddy argued that there could only be one such front zone for an existing block and that the front boundary as defined in the Plan refers to a “boundary of a block adjacent to a public road”. The Tribunal can find no basis to support Mr Edgar’s contention and that even if the land were subdivided, the rear block would not have an applicable front zone because of the lengthy narrow access to the rear battle axe block. The building envelope provisions to be applied are therefore those which apply to a rear zone. The effect of this is that the building envelope specified in Rule 14 of the Plan is one which has a 30 degree slope to determine the maximum height of the building.
28. There was different evidence about the heights of various points on the building. The land is steeply sloping and interpretation of the survey information about the natural ground levels was one reason for discrepancy in the evidence. Ms Caddy relied on the contour information forming part of the development application whereas Mr Edgar gave evidence that he had relied on spot levels provided by the surveyor in a digital data file that he had imported into his CAD programme. The Tribunal had no evidence about Mr Edgar’s expertise in CAD drafting. Ms Caddy conceded that the figures she provided in evidence may not be completely accurate because of the difficulty in interpreting the precise intersection of the plane of the building envelope requirement with the planes of the building roofs. She was, however, not prepared to concede that any error was as great as suggested by Mr Edgar.
29. Ms Caddy’s evidence was that the height of the building was close to 2 metres above the height envelope for a distance of about 4 metres along the southern edge of the roof and a similar height at a point on the peak of the roof. Mr Edgar calculated that the peak of the roof was 1.67 metres above the envelope and one point on the southern edge was 1.9 metres but reducing to zero over the 4 metres distance. The task of the Tribunal in the light of the non-compliance with the rule is to determine whether the criterion C14 is met.
30. Criterion C14 states:
The built form does not adversely impact on the amenity of adjoining properties by ensuring:
(a) sufficient special separation exists between adjoining developments; and
(b) the protection of a reasonable amount of privacy and solar access to adjacent dwellings and their associated private open space.
31. The adjoining block to the south is Block 16. The lessees of that property were not a party to these proceedings but lodged an objection to the development application. The grounds of objection were overshadowing and loss of solar amenity, particularly to the back garden. No evidence was presented to the Tribunal about the nature of the area potentially affected but during the site inspection it was observed that the north and west side of the dwelling on Block 16 were maintained as outdoor living spaces and gardens.
32. Shadow diagrams were in evidence before the Tribunal and Ms Caddy observed that these clearly demonstrated the overshadowing impact. The evidence is that part of the roof structure, which is above the envelope requirements of Rule 14, causes increased overshadowing of Block 16. This is exacerbated by the slope of the land, with the rear of the house on Block 16 and its associated outdoor open space areas being substantially below the proposed new dwelling. An increase in height of the proposed building beyond that within the acceptable envelope will increase the adverse impact on Block 16. Ms Caddy’s evidence was that the cumulative effect of the overshadowing from development of Block 15 was less than the acceptable 3 hours minimum at the winter solstice. The Tribunal therefore concludes that criterion C14 is not met.
CONCLUSION
33. The proposed development does not meet many requirements of the Residential Zones Multi Unit Housing Development Code of the Territory Plan. In particular, it greatly exceeds the allowable plot ratio. The building envelope and set backs are exceeded and that creates difficulties for neighbouring dwellings with respect to loss of privacy and solar access.
34. The Tribunal confirms the decision under review.
………………………………………….
Mr B Hatch
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 09/100
APPLICANT: ROSS AND LAURE EDGAR
RESPONDENT: ACT PLANNING AND LAND AUTHORITY
PARTY JOINED: DAVID RIGGS AND KRYSIA KITCH
PARTY JOINED: LOCHIEL AND BRONDWEN MACLEAN
SOLICITORS: APPLICANT: N/A
RESPONDENT: MS K SOPER
TRIBUNAL MEMBER/S: Mr B Hatch Senior Member
Mr R Nichols Member
DATE/S OF HEARING: 24 & 25 May 2010 PLACE: CANBERRA
DATE/S OF DECISION: 24 May 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
1
1
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