Shearer and Act Planning & Land Authority
[2008] ACTAAT 34
•22 December 2008
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
ApplicantAND: ACT PLANNING AND
LAND AUTHORITY
RespondentAND: 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 NGL, based on the relevant drawings referred to in the previous condition, showing:
A.the blade walls shown on the ground floor plans and upper floor level façade appearing on the proposed elevations redesigned so that they are no closer than 6m from the land’s front boundary shared with Forbes Street;
B.the location and detail of all plant and equipment including heat pumps, basement ventilation and air conditioner units required by the Building Code of Australia, such that they do not result in any detrimental impact to the amenity of the adjoining blocks;
C.the windows nominated as ‘obscure glass’ in elevations shown as fixed obscure glazing to a minimum height of 1.7m above finished floor level, or to another standard to prevent overlooking of the adjoining blocks to the satisfaction of the Authority;
D.the location and details of all accessible paths of travel required to provide access to all relevant features within the site in accordance with the Planning Guidelines for Access and Mobility, AS4299 and AS1428.1;
E.the floor plans revised to show not less than 10% of the dwellings nominated as ‘Adaptable’ and designed and constructed as Class C Adaptable Housing in accordance with AS4299. Direct access shall be provided via an accessible path of travel in accordance with AS4299 and AS1428.1, from the Adaptable Dwelling to its main Private Open Space (“POS”). If this path cannot be adapted easily and cost effectively, then an alternate dwelling shall be nominated as ‘Adaptable’ and designed and constructed as Class C Adaptable Housing in accordance with AS4299;
F.the storage area adjoining visitor car space #3 within the basement revised such that there is 300mm clearance between the edge of the car space and the edge of the storage area;
G.steps to provide access from the living areas of Unit 4 to the adjoining open space;
H.the POS of Unit 4 increased, such that the useable area of POS is not less than 24m2;
I.the depths of soil above the basement within the planting area to the south of the walkway adjoining Unit 4 increased such that it is not less than 650mm deep at any point;
J.the site plan and landscape plans revised to include details of fencing in accordance with Condition (g) below and show details of internal fencing of POS areas in accordance with plans submitted by the applicant entitled ‘Fencing, Driveway and Preliminary Services Plan’, Dwg No 0743, Sheet 13 of 19, October 2008;
K.the size and location of a water tank(s) for on-site retention and re-use of rain water run-off from the site in accordance with the requirements of Water Sensitive Urban Design Guidelines;
L.the design and detail of solid screening between the balconies of the upper floor dwellings to ensure that sufficient aural and visual privacy is provided between balconies;
M.Unit 8 redesigned so that no part of that dwelling overhangs the stormwater easement to the northern side boundary;
N.the awnings to the main entry and letterbox revised so as not to overhang the stormwater easement to the northern side boundary, unless written approval from ACT Roads and Stormwater, Department of Territory and Municipal Services (TaMS) is provided to the Authority;
O.any revisions required by ActewAGL to provide access to their easements and services to the satisfaction of the Authority;
P.waste collection facilities for the provision of mobile garbage bins to be in accordance with the requirements of the Territory to the satisfaction of TaMS, designed and located to the satisfaction of the Authority; and
Q.the basement be revised to provide one (1) accessible car space designed and dimensioned in accordance with The Planning Guidelines for Access and Mobility and AS2890: The Australian Standards for Off-Street Carparking.
(ii)a tree management plan generally in accordance with that submitted as part of the original Development Application submission revised to reflect the above conditions, and further revised to ensure that Trees 5 and 6 shown in Dwg No 0743 are protected from machinery damage and the root zone is protected. If new drainage and plumbing is required along the easement, trees to be under bored or trenching to occur alongside building envelope away from tree roots;
(iii)a revised energy rating demonstrating a minimum 4 star energy rating for each unit;
(iv)the written endorsement of ActewAGL Sewer and Water and Electricity Networks for the above revised plans;
(v)an exterior materials sample board, showing finishes generally in accordance with those submitted as part of the original Development Application submission;
(vi)a cable reticulation plan, prepared by a suitably qualified person and endorsed by each relevant service provider, showing:
A.underground reticulation of all cables (including electricity, telephone and data);
B.relevant points of connection (no new poles should be erected);
C.size and location of associated items (including electrical sub-stations) within the site; and
D.screening of any electrical sub-station that may be required.
Note: electrical sub-stations are to be located on leased land and screen from public view.
(vii)a driveway plan and long-section of the basement access ramp and driveway verge crossing, prepared by a suitably qualified engineer, ensuring that vehicular access and egress from the basement can be provided in accordance with the Australian Standards for Off-Street Car Parking AS2890.1;
(c)that the development shall be completed within 24 months from the date of this decision or within such further time as may be approved in writing by the Authority;
(d)that at all times during construction the site and surrounds shall be managed in accordance with a Temporary Traffic Management Plan, prepared by the applicant approved by the Manager, Quality Co-ordination, Asset Acceptance, TaMS, under the Road Transport (Safety and Traffic Management) Act 1999. This plan is to address, as a minimum, measures to be employed during construction to manage all traffic, including construction traffic, in and around the site, provision of safe pedestrian movement around the site, the provision of parking for construction workers, and associated traffic control devices;
(e)that those sections of the internal driveway that will be traversed by waste collection vehicles operated by or on behalf of the Territory shall be designed and constructed in accordance with Development Control Code for Best Practice Waste Management in the ACT, ACT Waste, Department of Territories and Municipal Services 1999, to accommodate heavy vehicles with loads of 7 tonnes per axle;
(f)that drainage of the basement car park, including any car wash down facility, and the waste enclosure are to be connected to sewer, to the satisfaction of ActewAGL and Environment and Recreation;
(g)that, pursuant to sub-paragraph 245(e)(i)(ii) of the Land Act, at the lessee’s expense and before the completion of building work, the existing fence on the side and rear boundaries shall be upgraded to 1.8m high timber lapped and capped fence, or to another standard acceptable to the Authority. The lessee must take all reasonable steps to obtain the written agreement of the respective lessees before the erection of any new fencing. If there is no agreement, the fencing is to be to the satisfaction of the Authority. The new fencing shall not extend further forward than the new building line;
(h)that, during construction, all existing vegetation (trees, shrubs and grass) located on the verge and unleased Territory land immediately adjacent to the development shall be managed, protected and maintained in accordance with a Landscape Management Plan (“LMP”) approved by the Manager, Asset Acceptance, Asset Management Services Group, TaMS. The LMP is to be approved and implemented before the commencement of works, including demolition, on the site and is to be in accordance with City Management Guidelines for the Protection of Public Landscape Assets Adjacent to Development Works – REF-04:
that the public footpath is to be continuous across the driveway verge crossing, that is, the footpath is to have precedence;
(j)that the existing concrete footpath shall be retained, or, if it is to be replaced, it is to be reconstructed in concrete and the same level and with a finish and colour as close to the original concrete as possible, to the satisfaction of the Authority;
(k)that the proposed driveway verge crossing shall be constructed at the lessee’s expense in bitumen or in dark colour incorporated concrete with a surface that has a colour as close as possible to the existing verge crossing, generally in accordance with TaMS driveway Type HD2 as shown on TaMS Drawing DS5-2, or equivalent, with a width at the boundary equivalent to the width of the internal driveway;
(l)that the lessee shall protect and maintain in accordance with Canberra Landscape Guidelines all existing trees and shrubs located on the subject site, on adjoining blocks overhanging the subject site, on the verge and unleased Territory land immediately adjacent, except for those specifically identified for removal in the approved drawings and/or a Tree Management Plan. Tree protection fencing, if required, shall be erected prior to the commencement of any work on the site;
CONDITIONS RELATING TO THE VARIATION OF CROWN LEASES
(m)that the lessee surrender the existing Crown lease over Block 8 Section 46 Division of Turner – (Volume 42 : Folio 4104) and accept a new Crown lease generally in accordance with the draft Crown lease found at Attachment 1 of this decision;
(n)that if a “Change of Use Charge” is payable, the lessee shall pay it within 28 days of being notified of the amount or within such further time as may be approved by the Planning and Land Authority;
(o)that no building work in relation to this Development Application is to commence on the site until the new Crown lease is registered at the Registrar-General’s Office;
(p)that the new Crown lease shall commence on the date of surrender of the existing leases and will terminate on 27 July 2054 or on such further date as may be approved by the Planning and Land Authority under Section 254 of the Planning and Development Act 2007; and
(q)that the lessee shall do all that is necessary to ensure that the new Crown lease giving effect to this approval is registered at the Registrar-General’s Office within 14 days of being notified that the Crown lease is available for registration or within such further time as may be approved by the Planning and Land Authority.
………………………….
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/70
LAND AND PLANNING DIVISION )
RE: DAVID ALAN SHEARER
ApplicantAND: ACT PLANNING AND
LAND AUTHORITY
RespondentAND: ANTHONY CARTER
OWEN
ROY MCANDREW &
LORRAINE TOMLINS
Parties Joined
REASONS FOR DECISION
22 December 2008 Ms P O’Neil, Senior Member
Dr D McMichael, Senior Member
Dr E McKenzie, Senior Member
Mr David Shearer (“the applicant”), as agent of Benue Pty Ltd, sought review of a decision by the ACT Planning and Land Authority (“the respondent” or “the Authority”) to refuse to approve a development application for the construction of a multi-dwelling development on Block 8 Section 46 of Turner, located at 17 Forbes Street (“the subject land”). Benue Pty Ltd is the lessee of the subject land. Mr Anthony Owen, Ms Lorraine Tomlins and Mr Roy McAndrew (“the parties joined”) live nearby and opposed the development. They were joined as parties to the review.
2. The application was initially made in November 2007 but was refused in May 2008 and again upon reconsideration in August 2008. At those times a large number of objections were received. A hearing into the matter, including an inspection of the subject land, occurred on 10 and 11 December 2008. By the time of the hearing, the proposal had been modified to reduce the number of residential units from 12 to 10, to increase the area of open space at the rear and to lower the building by 400mm. On the basis of those changes, the respondent was prepared to support approval of the development with conditions, but the parties joined maintained their objections.
3. Written and oral evidence was received for the applicant from Mr Paul Cohen, a qualified town planner, and for the respondent from Mr Owen Pankhurst a development assessment officer with the ACT Planning and Land Authority. Mr Owen gave oral evidence for the parties joined who also provided written material in support of their objections.
Relevant law
4. This development application is to be assessed under the provisions of the Land (Planning and Environment) Act 1991 (“the Land Act”). The Land Act was repealed and replaced by the Planning and Development Act 2007 on 31 March 2008, when a new Territory Plan also came into effect. However transitional provisions require this application to be considered under the Land Act and the version of the Territory Plan in force at the date of the development application (“the Plan”). A decision cannot be made that is inconsistent with the Plan (section 8 Land Act).
5. The subject land is covered by the B11 Urban Housing Policies within the Residential Land Use Policies forming Part B1 of the Plan. The objectives of B11 are:
a)to provide opportunities for significantly increased dwelling densities in residential areas with immediate proximity to transport corridors, commercial areas and employment centres; and
b)to provide certainty for staging of redevelopment in inner north Canberra and promote orderly and integrated development.
6. The B11 policies authorise the preparation of Section Master Plans as follows:
The Authority may from time to time prepare Section Master Plans to assist in guiding residential development on land subject to this Area Specific Policy. Where a Section Master Plan approved by the Authority identifies additional and not inconsistent requirements to those specified in the Urban Housing Code at Appendix III.3, residential redevelopment for multi-unit housing shall be in accordance with those provisions of the Section Master Plan. For the purposes of this clause, a requirement in a Section Master Plan that is greater that a minimum or is less that a maximum requirement prescribed in the Territory Plan, shall not be deemed to be inconsistent with the Code.
7. The B11 policies further provide that design and sitting of multi-dwelling housing shall be in accordance with the Urban Housing Code at Appendix III.3.
8. A Section Master Plan covering Section 46 of Turner can be found on the Register of Planning Guidelines. The Register is established by Part A3 of the Plan, which requires that such guidelines shall be “carefully considered”. The Section Master Plan includes statements that it “restricts building in the rear portion of blocks to 30% site coverage” and “the building envelope requirements must be accounted for”. Maximum building site coverage is defined in the Section Master Plan and a building envelope is illustrated. Mr Owen for the parties joined therefore submitted that the use of this mandatory language meant that a development proposal with rear site coverage higher than 30% or which did not fall entirely within the building envelope, such as this one, must be rejected.
9. Mr Walker, of counsel for the applicant argued, firstly, as a matter of statutory interpretation that to grant a higher status to a Section Master Plan prepared by the Authority above the Plan approval by the ACT Legislative Assembly would be inconsistent with the hierarchy created by the Australian Capital Territory (Planning and Land Management) Act 1988 (C’th). Therefore a Section Master Plan could not be binding. Secondly, since the relevant Section Master Plan had never been formally approved by the Authority as required, its status could not be more than that of a guideline. A similar circumstance arose in Sullivan and ACT Planning and Land Authority [2007] ACTAAT 8 (3 May 2007) where the Tribunal found that a Section Master Plan covering Section 1 of Braddon, unlike some other Section Master Plans, not having been formally approved on behalf of the Authority by the Chief Executive Officer of the Authority, was a guideline to be carefully considered but was not mandatory.
10. Mr Mossop, of counsel for the respondent did not accept the first argument put by Mr Walker, but submitted that it was not necessary for the Tribunal to rule on the question. He agreed that adoption of a guideline is the not the same as “approved by the Authority” within the meaning of the B11 policy. As the Section Master Plan had not been properly approved as such by Notifiable Instrument, the respondent contended that it should be treated as a guideline only.
11. The parties joined argued that lack of approval of the Section Master Plan by the Authority as indicated by a Notifiable Instrument was merely an administrative error that could be disregarded. We note that this error, if it be an error, has been corrected in the new Territory Plan so the circumstance is unlikely to arise again. The parties joined submitted that the numerical controls of the Section Master Plan were binding and should be treated as mandatory where its language so indicated. But for the reasons given in Sullivan we do not accept that the failure to properly approve the Section Master Plan may be ignored. We find that the Section Master Plan has the status of a planning guideline under Part A3 of the Plan.
Rear site coverage
12. The Section Master Plan aims to retain the formal geometry of streetscapes by encouraging building towards the front portion of blocks and retaining rear space to allow privacy of blocks and treed backdrops to a development. The original proposal rejected by the respondent had 42% rear site coverage. This proposed development, as amended, reduces building in the rear portion of the block to about 35% site coverage.
13. Mr Cohen gave evidence that the purpose of the rear site coverage requirement is to provide open space for the amenity of residents and to contribute to the maintenance of the traditional spatial separation of dwellings within the section. Within the rear site coverage a 7.0m wide space is required for deep root planting and this is distinguished from the requirement for soft landscaping within the balance of the rear area. He drew attention to the fact that a 7.0m wide space will be available under the revised plans; to the number of existing trees in the section particularly to the rear of blocks; that a number of mature trees would be retained on the subject land; and to the proposed landscape plan. In his opinion the objectives of the Section Master Plan are met in the amended proposal. Mr Pankhurst likewise considered that the aims and principles of the Section Master Plan with respect to site coverage are met in the revised development proposal. He supported a condition of approval proposed by the applicant that, where the basement projects under the rear site area adjoining proposed Unit 4, the depth of soil be increased to a minimum of 650mm.
14. The evidence is that without that extension two car parking spaces in the basement would be lost. The parties joined suggested that one objective of limiting the rear site coverage was to restrict the space available for car parking so as to limit the number of units that could be built and that the extension of the basement a short way beyond the rear wall of the building in order to provide sufficient car parking spaces demonstrated that the site was being over-developed. That proposition was not supported by either Mr Cohen or Mr Pankhurst, who both rejected the proposition that a planning purpose of the rear site coverage provisions was to limit the number of dwelling units.
15. We have given careful consideration to the requirement in the Section Master Plan in relation to rear site coverage. We accept the evidence of both Mr Cohen and Mr Pankhurst that, although rear site coverage is greater than the 30% maximum nominated in the Section Master Plan, the objectives of the Section Master Plan are achieved in the context of this proposed development. We accept that the proposed condition regarding depth of soil to allow landscaping is a desirable one.
Building Envelope
16. The respondent had considered that the development proposal exceeded the building envelope illustrated in the Section Master Plan to such an extent that it was inconsistent with the urban design principles in the Section Master Plan. Drawings produced by the applicant to the Tribunal lowered the level of the building by 400mm. Some consequential changes were required, including to the ramp giving access to the basement car park. The revised plans showed only minor intrusions into the building envelope. Fresh shadow diagrams were also provided showing that mid-winter overshadowing of the house to the south fell within acceptable parameters.
17. The parties joined were concerned that lowering the building by 400mm would exacerbate flooding, to which they suggested the subject land was vulnerable. No evidence was provided to establish the extent, if any, of that risk. The subject land is relatively level, sloping only slightly towards the west. Mr Cohen pointed out that in the normal course more detailed engineering plans for drainage of the development will need to be provided before construction.
18. Both Mr Pankhurst and Mr Cohen opined that the building at the lower level as illustrated in Exhibit 3 before the Tribunal, met the planning objectives of the Section Master Plan. Having given carefully consideration to the building envelope requirements we accept the evidence of Mr Cohen and Mr Pankhurst that the planning objectives of the building envelope provisions in the Section Master Plan are met.
Traffic
19. The estimated traffic generation from the proposed development is 60 vpd. Mr Cohen gave evidence that the additional volume is well within the capacity of Forbes Street, as measured by the Australian Model Code for Residential Development (AMCORD) and the Future Urban Areas Residential Subdivision Development Code (FUARSC). The respondent also considers the traffic impacts acceptable.
20. The parties joined drew attention to the status of Forbes Street as a main route in the document “Ten Year Master Plan Trunk Cycling and Walking Path Infrastructure 2004-2014” produced by Roads ACT. The cycling route is shown by signs at the intersections with Forbes Street, but otherwise no dedicated cycle path exists. Cyclists presumably use the carriageway or footpaths within the verges. The parties joined criticised the traffic assessment for failing to take cycle traffic into account. Mr Cohen’s evidence is that cycle traffic is not normally counted because of its different characteristics and its greater flexibility compared with motor vehicles in being accommodated into traffic flows. No evidence was provided to suggest any risks to cyclists as a result of the estimated additional 60 vpd which would be added to Forbes Street. The parties joined are concerned that continued re-development of Turner and other suburbs in inner north Canberra envisaged in the Territory Plan could eventually lead to conflicts between cyclists and other traffic, but there is no evidence to suggest that it is likely to eventuate as a result of approval of this development. Mr Cohen suggested that, should increased motor traffic in the future create problems for safe cycling, it was open to the authorities to provide a cycle path along the verge.
Access and mobility
21. Mr Pankhurst gave evidence that the residential unit proposed to be adaptable needed to be identified on the plans and have direct access via an accessible path designed to meet the relevant Australian Standards AS4299 and AS1428.1. As a result of the change in floor level, he also identified the need to ensure that the disabled basement car space had sufficient floor to ceiling height to allow it to meet AS2980. Neither Mr Pankhurst nor Mr Cohen saw any difficulty in these requirements being met.
Decision
22. We find that the development proposal, as illustrated in Exhibit 3 before the Tribunal, is not inconsistent with the Territory Plan, subject to the imposition of conditions suggested by the applicant and respondent. We agree with the need for those conditions, which include the standard conditions in relation to lease surrender and re-grant, the preparation of technical plans relating to sewerage, drainage, water and electricity supply, tree management, provision of boundary fencing and management of the construction site as well as specific requirements for modifications to the building plans. We will also impose a condition requiring the satisfaction of four-star energy-ratings as required by clause 10.2 of Part A3 of the Plan. This was satisfied in an earlier version of the development proposal but the energy rating has not been re-assessed following the re-design of the development.
Attachment 1
Entered in Register Book Vol Folio
This is not a concessional
lease - s238(2) Planning
and Development Act 2007
AUSTRALIAN CAPITAL TERRITORY
PLANNING AND DEVELOPMENT ACT 2007
Australian Capital Territory (Planning and Land
Management) Act 1988 (C'th) ss 29, 30 & 31
LEASE GRANTED pursuant to the Planning and Development Act 2007 and the Regulations made under that Act on the day of Two thousand and WHEREBY THE PLANNING AND LAND AUTHORITY (“the Authority”) ON BEHALF OF THE COMMONWEALTH
LESSEEOF AUSTRALIA (“the Commonwealth”) in exercising its functions grants to a company having its registered office at in the Australian Capital Territory number of shares/tenants in common/joint tenants (“the Lessee”) ALL THAT piece or parcel
LANDof land situate in the Australian Capital Territory containing an area of 1045 square metres or thereabouts and being Block 8 Section 46 Division of Turner as delineated on Deposited Plan Number 324 in the Office of Regulatory Services at Canberra in the said Territory (“the land”) RESERVING unto the Territory all
TERMminerals and the right to the use, flow and control of ground water under the surface of the land TO HOLD unto the Lessee for the term commencing on the day of Two thousand and (“the date of the commencement of the lease”) and terminating on the twenty seventh day of July Two thousand and fifty four to be used by the Lessee for the purpose set out in Clause 3(c) of this lease only YIELDING AND PAYING THEREFOR rent in the amount and in the manner and at the times provided for in this lease and UPON AND SUBJECT TO the covenants conditions and agreements contained in this lease.
INTERPRETATION 1. IN THIS LEASE unless the contrary intention appears:
(a)“Authority” means the Planning and Land Authority established by section 10 of the Planning and Development Act 2007;
(b)“building” means any building or structure constructed or partially constructed or to be constructed, as the context permits or requires, on or under the land;
(c)“dwelling” means a building or part of a building used as a self contained residence which must include:
(i)food preparation facilities;
(ii)a bath or shower; and
(iii)a closet pan and wash basin
and includes outbuildings and works normal to a dwelling;
(d)“Lessee” shall:
(i)where the Lessee consists of one person be deemed to include the Lessee and the executors administrators and assigns of the Lessee;
(ii)where the Lessee consists of two or more persons be deemed to include in the case of a tenancy in common the said persons and each of them and their and each of their executors administrators and assigns and in the case of a joint tenancy be deemed to include the said persons and each of them and their and each of their assigns and the executors administrators and assigns of the survivor of them; and
(iii)where the Lessee is a corporation be deemed to include such corporation its successors and assigns;
(e)“multi-unit housing” means the use of land for more than one dwelling and includes but is not limited to dual occupancy housing and triple occupancy housing;
(f)“outbuilding” means a shed, garage or similar structure which is ancillary to the permitted use of the land as specified in Clause 3(e) of this lease;
(g)“premises” means the land and any building or other improvements on the land;
(h)“Territory” means:
(i)when used in a geographical sense the Australian Capital Territory; and
(ii)when used in any other sense the body politic established by section 7 of the Australian Capital Territory (Self-Government) Act 1988 (C’th);
(i)words in the singular include the plural and vice versa;
(j)words importing one gender include the other genders;
(k)a reference in this lease to any statute or statutory provision shall include a reference to any statute or statutory provision that amends, extends, consolidates or replaces the statute or statutory provision and to any other regulation, instrument or other subordinate legislation made under the statute.
2.THE LESSEE COVENANTS WITH THE COMMONWEALTH as follows:
RENT(a) That the Lessee shall pay to the Authority rent at the rate of five cents per annum if and when demanded payable within one month of the date of any demand made by the Authority relating thereto and served on the Lessee;
MANNER OF (b) That any rent or other moneys payable by the Lessee
PAYMENT OF to the Authority under this lease shall be paid to such person
RENTas may be authorised by the Authority for that purpose at Canberra in the said Territory without any deduction whatsoever.
3.THE LESSEE FURTHER COVENANTS WITH THE COMMONWEALTH as follows:
COMMENCEMENT (a) That the Lessee shall within twelve (12) months from the
OF DEVELOPMENT date of the commencement of the lease or within such further time as may be approved in writing by the Authority for that purpose commence to erect an approved development on the land at a cost not less than the sum of dollars in accordance with plans and specifications prepared by the Lessee and previously submitted to and approved in writing by the Authority;
COMPLETION (b) That the Lessee shall within thirty six (36) months from
OF DEVELOPMENT the date of the commencement of the lease or within such further time as may be approved in writing by the Authority complete the erection of the said approved development on the land in accordance with the said plans and specifications and in accordance with every Statute Ordinance or Regulation applicable to such development;
PURPOSE(c) To use the land for the purpose of multi-unit housing of not less than one dwelling and not more than ten dwellings;
PROVISION OF (d) That the Lessee shall provide and thereafter maintain
HYDRAULIC MAINS hydraulic mains stormwater drains sewer lines hydraulic
STORMWATER fire mains and hydrants on the land in accordance with
DRAINS AND plans and specifications prepared by the Lessee and
SEWER LINES previously submitted to and approved in writing by the Authority;
PROVISION OF (e) That the Lessee shall provide and thereafter maintain
STORAGE AREAS storage areas covered carparking hardstanding
CARPARKING carparking adequately illuminated vehicle access roads
AND ILLUMINATION pedestrian pathways and vehicle access drives on the land to a standard acceptable to the Authority in accordance with plans and specifications prepared by the Lessee and previously submitted to and approved in writing by the Authority;
PROVISION OF (f) That the Lessee shall provide facilities on the land to a
FACILITIES FOR standard acceptable to the Authority to enable electrical
ELECTRICAL AND and telephone cables and wires to be installed
TELEPHONE CABLES underground;
LANDSCAPING (g) That the Lessee shall provide and thereafter maintain landscaping on the land to a standard acceptable to the Authority in accordance with plans and specifications prepared by the Lessee and previously submitted to and approved in writing by the Authority;
PRESERVATION (h) That the Lessee shall not, without the previous consent in
OF TREESwriting of the Territory, remove any tree:
(i)that has been identified in a development approval for retention during the period allowed for construction of the building; or
(ii)to which the Tree Protection Act 2005, applies;
SERVICE AREAS (i) That the Lessee shall screen and keep screened all service areas to the satisfaction of the Authority and shall ensure that all plant and machinery contained within the premises is suitably screened from public view;
BUILDING(j) That the Lessee shall not without the previous approval
SUBJECT TO in writing of the Authority erect any building, or make
APPROVALany structural alterations to any building, on the land;
REPAIR(k) That the Lessee shall at all times during the said term maintain repair and keep in repair the premises to the satisfaction of the Authority;
FAILURE TO (l) If and whenever the Lessee is in breach of the Lessee's
REPAIRobligations to maintain repair and keep in repair the premises the Authority may by notice in writing to the Lessee specifying the repairs and maintenance needed require the Lessee to effect the necessary work in accordance with the notice. If the Authority is of the opinion that a building or some other improvement on the land is beyond reasonable repair the Authority may by notice in writing to the Lessee require the Lessee to remove the building or improvement and may require the Lessee to construct a new building or improvement in place of that removed within the time specified in the notice. If the Lessee does not carry out the required work within the time specified by the Authority any person or persons duly authorised by the Authority with such equipment as is necessary may enter the premises and carry out the necessary work and all costs and expenses incurred by the Authority in carrying out the work shall be paid by the Lessee to the Authority on demand and from the date of such demand until paid shall for all purposes of this lease be a debt due and payable to the Authority by the Lessee;
RIGHT OF(m) Subject to the provisions of the Planning and
INSPECTION Development Act 2007 to permit any person or persons authorised by the Authority to enter and inspect the premises at all reasonable times and in any reasonable manner;
RATES AND (n) To pay all rates charges and other statutory outgoings
CHARGESassessed levied or payable in respect of the premises as and when they are due for payment.
4.THE COMMONWEALTH COVENANTS WITH THE LESSEE as follows:
QUIETThat the Lessee paying the rent and all other money due and
ENJOYMENT observing and performing the covenants and stipulations on the part of the Lessee to be observed and performed shall quietly enjoy the premises without interruption by the Authority or any person lawfully claiming from or under or in trust for the Authority.
5.IT IS MUTUALLY COVENANTED AND AGREED as follows:
TERMINATION (a) That if:
(i)any rent or other moneys payable under this lease shall remain unpaid for three months next after the date appointed for payment thereof (whether such rent shall have been formally demanded or not); or
(ii)an approved development in accordance with Clause 3(a) of this lease is not commenced within the period specified in the said Clause; or
(iii)an approved development in accordance with Clause 3(a) of this lease is not completed within the period specified in Clause 3(b); or
(iv)after completion of an approved development as aforesaid the said land is at any time not used for a period of one year for the purpose for which this lease is granted; or
(v)the Lessee shall fail to observe or perform any other of the covenants contained in this lease on the part of the Lessee to be observed or performed and shall have failed to remedy such breach within a period of six months from the date of service on the Lessee of a notice in writing from the Authority specifying the nature of such breach
the Authority on behalf of the Commonwealth may terminate this lease but without prejudice to any claim which the Authority or the Commonwealth may have against the Lessee in respect of any breach of the covenants on the part of the Lessee to be observed or performed;
ACCEPTANCE (b) That acceptance of rent or other moneys by the Authority
OF RENT during or after any period referred to in Clauses 5(a) (i),
(ii), (iii), (iv) or (v) of this lease shall not prevent or impede the exercise by the Authority of the powers conferred upon it by the said Clauses;
FURTHER LEASE (c) Subject to the Lessee paying all money required to be paid under the provisions of the Planning and Development Act 2007 the Lessee shall be entitled to a further lease of the land for such further term and at such rent and subject to such conditions as may then be provided or permitted by Statute Ordinance or Regulation;
NOTICES(d) That any notice requirement demand consent or other communication to be given to or served upon the Lessee under this lease shall be deemed to have been duly given or served if signed by or on behalf of the Authority and delivered to or sent in a prepaid letter addressed to the Lessee at the registered office of the Lessee in the said Territory BUT if for any reason the Lessee does not have a registered office in the said Territory then at the usual or last‑known address of the Lessee or affixed in a conspicuous position on the premises;
EXERCISE OF (e) Any and every right, power or remedy conferred on the
POWERSCommonwealth or Territory in this lease, by law or implied by law may be exercised on behalf of the Commonwealth or the Territory or as the case may be by:
(i)the Authority;
(ii)an authority or person for the time being authorised by the Authority or by law to exercise those powers or functions of the Commonwealth or Territory; or
(iii)an authority or person to whom the Authority has delegated all its powers or functions under the Planning and Development Act 2007.
IN WITNESS whereof the Authority on behalf of the Commonwealth and the Lessee have executed this lease.
Signed by [name of signatory] )
a delegate authorised to execute this lease ) …………………………………………….
on behalf of the Commonwealth in the ) Delegate
presence of [name of witness] )
……………………………………………..
Witness
Signed by )
(A.C.N. ) by: )
……………………………………………. …………………………………………
Signature Signature
……………………………………………. …………………………………………
Name in full Name in full
…………………………………………….. ……………………………………………..
Director/Secretary Director/Secretary
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT08/70
APPLICANT: DAVID ALAN SHEARER
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTIES JOINED: ANTHONY CARTER OWEN; ROY MCANDREW &
LORRAINE TOMLINS
COUNSEL APPEARING: APPLICANT: MR P WALKER
RESPONDENT: MR D MOSSOP
PARTIES JOINED:
SOLICITORS: APPLICANT: MEYER VANDENBERG
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTIES JOINED:
OTHER:APPLICANT:
RESPONDENT:
PARTIES JOINED: SELVES
TRIBUNAL MEMBER/S: MS P O’NEIL, SENIOR MEMBER
DR D MCMICHAEL, SENIOR MEMBER
DR E MCKENZIE, SENIOR MEMBER
DATE/S OF HEARING: 10 & 11 DECEMBER 2008 PLACE: CANBERRA
DATE OF DECISION: 22 DECEMBER 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0