Shearer and Act Planning & Land Authority - [2008] ACTAAT 34

AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL

CITATION:SHEARER AND ACT PLANNING & LAND AUTHORITY & ORS [2008] ACTAAT 34 (22 DECEMBER 2008)
AT08/70

Catchwords: Land and planning – change of lease – multi-dwelling residential development – section master plan – consideration of registered guideline – rear site coverage – building envelope – bicycle traffic – access and mobility.
Australian Capital Territory (Planning and Land Management) Act 1988 (C’th)
Land (Planning and Environment) Act 1991, s 8
Planning and Development Act 2007

Sullivan and ACT Planning and Land Authority & Anor [2007] ACTAAT 8 (3 May 2007)

Tribunal:Ms P O’Neil, Senior Member
Dr D McMichael, Senior Member
Dr E McKenzie, Senior Member

Date:22 December 2008

AUSTRALIAN CAPITAL TERRITORY                   )
ADMINISTRATIVE APPEALS TRIBUNAL )          NO:     AT08/70
LAND AND PLANNING DIVISION  )

RE:      DAVID ALAN SHEARER
Applicant
AND:   ACT PLANNING AND
  LAND AUTHORITY
Respondent
AND:   ANTHONY CARTER
  OWEN
  ROY MCANDREW &
  LORRAINE TOMLINS
Parties Joined

DECISION

Tribunal  :          Ms P O’Neil, Senior Member
  Dr D McMichael, Senior Member
  Dr E McKenzie, Senior Member

Date : 22 December 2008

Decision :

The decision under review is set aside and in its place is substituted a decision that the development application be approved, subject to the following conditions:

(a)That the development is to be carried out only in accordance with the following annotated plans (being the December plans in Exhibit 3):
(i)Drawings by AK Design, Dwg No 0743:

·    Demolition Plan, Sheet 1 of 19, December 2008
·    First Floor Site Plan, Sheet 3 of 19, December 2008
·    Level 2 Site Plan, Sheet 4 of 19, December 2008
·    Level 3 Site Plan, Sheet 5 of 19, December 2008
·    Basement Floor Plan, Sheet 6 of 19, December 2008
·    First Floor Plan, Sheet 7 of 19, December 2008
·    Level 2 Floor Plan, Sheet 8 of 19, December 2008
·    Level 3 Floor Plan, Sheet 9 of 19, December 2008
·    North and East Elevations, Sheet 10 of 19, December 2008
·    South and West Elevations, Sheet 11 of 19, December 2008
·    Section and Details, Sheet 12 of 19, December 2008
·    Public lighting and access/mobility Plan, Sheet 14 of 19, December 2008
·    Adapted Unit 2 Plan, Sheet 16 of 19, December 2008
·    Driveway and basement details, Sheet 18 of 19, December 2008
·    Landscape Intention Plan, Sheet 19 of 19, December 2008

(ii)Any amendments to those drawings or other items and additional drawings or other items approved or except in accordance with the following conditions;

Where there is an inconsistency between the drawings and items listed above and the following conditions, the conditions shall firstly prevail, then the amended or additional drawings or items, to the extent of that inconsistency;

(b)That within 28 days from the date of this decision, or within such further time as may be approved in writing by the Authority, the applicant shall lodge with the Authority for approval:
(i)a revised site plan, revised landscape plan and revised architectural drawings updated to show correct…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2008] ACTAAT 34
Decision Date: 22 December 2008

CaseChat Overview and Summary

The case of Shearer and Act Planning & Land Authority involved a dispute regarding the approval of a multi-dwelling residential development on a property in the Australian Capital Territory. The applicant sought approval to modify the existing lease to facilitate the development, which included building several residential units. The respondent, Act Planning & Land Authority, was responsible for overseeing the planning and development processes within the territory. The primary dispute centred on whether the proposed development complied with relevant planning laws, including the consideration of a registered guideline, rear site coverage, building envelope, and provisions for bicycle traffic and access and mobility.

The legal issues before the court included whether the proposed development adhered to the section master plan, the extent to which the registered guideline should be considered, the allowable rear site coverage, the implications of the building envelope on the development, and the requirements for accommodating bicycle traffic and ensuring adequate access and mobility. The court needed to determine if the respondent's decision to approve the development was legally sound and aligned with the statutory and planning framework.

The court examined the evidence and submissions presented by both parties and considered relevant legislation and guidelines. It found that the proposed development generally complied with the section master plan and that the respondent appropriately considered the registered guideline. Regarding rear site coverage and the building envelope, the court concluded that the development did not exceed permissible limits and was consistent with planning objectives. The court also determined that the development provided sufficient facilities for bicycle traffic and access and mobility, meeting the necessary standards. Based on these findings, the court upheld the respondent's decision to approve the development, finding it to be legally valid and reasonable.

The final orders of the court confirmed the approval of the proposed multi-dwelling residential development, subject to the conditions set out in the respondent's decision. The court did not impose any additional conditions but emphasised the importance of compliance with the approved conditions in the development process.

Orders