Sheedy & Act Planning and Land Authority & Anor; (Administrative Review) - [2012] ACAT 49

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SHEEDY & ACT PLANNING AND LAND AUTHORITY AND ANOR
(Administrative Review) [2012] ACAT 49

AT 2 of 2012
Catchwords:             ADMINISTRATIVE REVIEW – Territory Plan 2008 – pylon lights
for ovals – whether sporting facilities in ovals created traffic hazard – whether proposed lights will affect the amenity of the area and privacy – intrusiveness of proposed lights – noise from lights – whether lights increase sporting activities – spill from lights to residences – glare factor – capacity use of sports grounds – whether lights meet with AS4282
List of legislation:     Planning and Development Act 2007, s 121
List of regulations:   Territory Plan 2008
Bicycle Parking Code
Parking and Vehicular Access General Code, Part 3.9
Parks and Recreation Zones Development Code, Rules 8 and 28, and Criteria 22-25 and 28
PRZ1 – PRZ2 Objectives and Development Tables

PRZ1 Urban Open Space Zone

Tribunal: Mr B. Hatch - Senior Member
Ms E. Symons - Presidential Member

Date of Orders: 8 August 2012
Date of Reasons for Decision: 8 August 2012

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL )

AT 2 of 2012

BETWEEN:

DANIEL SHEEDY
Applicant

AND:

ACT PLANNING AND LAND AUTHORITY
Respondent

AND:

THOMAS O’CONNOR
Party Joined

TRIBUNAL: Mr B. Hatch – Senior Member

Ms E. Symons – Presidential Member

DATE: 8 August 2012

ORDER

The Decision under Review is varied by accepting the Decision under Review with that Decision being remitted to the Respondent in order to consider the requirement, if any, for bicycle parking.

………………………………........

Ms E. Symons, Presidential Member
For and on behalf of the Tribunal

REASONS FOR DECISION

This is an Application for a review of a decision made on 12 December 2012 to approve, subject to conditions, four new pylon lights in accordance with the Australian Standards at Block 2 Section 73 in Downer (the ovals). The land is the Downer playing fields and it comprises a large area facing Bonython Street which also has a “secondary” face to Frencham Street. This large area is divided into two playing areas known as ovals 108 and 109. These are the areas intended to be lit by the new lights. The other part of the land is offset to the north-west and is known as oval 110. Oval 110 will not be lit by the proposed lights.

The conditions that were imposed relate to tree protection, verge protection and waste management. These conditions were not contentious and the parties did not mention them. The Tribunal finds that these conditions are reasonable.
The Applicant and the Party Joined are neighbours and both live on the southern side of Bonython Street. Bonython Street is clearly a street that will be most affected by the proposed development. Both parties are married and have young children. They each represented themselves in the proceedings.
The Applicant gave evidence that he moved to Bonython Street in 2005. He was attracted to the area as it was quiet. He has 2 children aged 7 and 3 years. He gave evidence that the ovals can be used up to 9 pm and a bit later during daylight saving, which is for 6 months of the year. This became more marked during January to March this year. During that time the ovals were used by soccer players for training. This had not previously occurred to the Applicant’s knowledge and he put this down to soccer clubs beginning to use the ovals in anticipation that the lights would be approved.
The Applicant gave evidence that Downer was, from the early 1940s, a CSI & R research station and farm. This is a well known historical fact. As a result, the Applicant said that the ovals were not a purpose built sporting facility. The Tribunal does not understand this evidence, and in any event sees it as irrelevant. The ovals appear to have been set aside as such when Downer was first planned. Other evidence was that the reason the playing surface is of such a high quality is due to improvement made to that area during the research farm period. Perhaps that explains the location of the ovals in the initial plan for Downer. Whether or not that is true is of no relevance when it is clear the ovals have been set aside for such for a long time as ovals probably since Downer was first planned.
The Applicant gave evidence that when the ovals are busy particularly on Saturdays there are a lot of cars parked on both sides of Bonython Street. This also occurs when the ovals are used two afternoons per week by nearby Daramalan College for rugby training. On a recent occasion one of the vehicles on a Saturday was a noisy motorcycle. During these busy times the cars may use driveways, including the Applicant’s driveway, in order to execute U-turns on Bonython Street. The Applicant considered that this created a traffic hazard.
The problems provided by the ovals were also listed by the Applicant. Rubbish is left behind, such as by Daramalan rugby players after training. There have also been instances of hooliganism at the ovals, and at times the Applicant has had to call the police. The Radiata Pines around the ovals are also becoming a problem. They drop branches which are a hazard in the dark. Some of the trees fell recently, possibly a function of their advancing years having been planted in the 1940s as part of the research farm.
The summary of the Applicant’s evidence is that the proposed lights will affect the amenity of the area, and adversely affect his privacy. As it stands now, he can hear sport being played and people chatting as they move to and from their cars and this can continue past dark.
The Party Joined also gave evidence. He has two children aged 7 and 10 years. He, like the Applicant, gave evidence about cars on Bonython Street and the use of driveways to make U-turns; of the increase of soccer training at the ovals since December 2011 which ended with daylight saving ending and that the oval is unique, being a former research station.
The Party Joined said that the noise and car lights after 9 pm would adversely affect his privacy and the quiet nature of the neighbor-hood. He also had evidence of the use of other ovals across the north of Canberra. This evidence shows that the other ovals which already have lights are not used at 100% capacity. The Party Joined was critical of management of the ovals. He considered that there should be more intense use of the ovals that currently have lights and thereby avoid the need for lights at Downer. The Tribunal gained the impression that the Party Joined preferred to have other ovals and residents around those ovals put up with increased usage.
The Party Joined, perhaps more so than the applicant, was concerned about the intrusiveness of the lights as proposed. He gave evidence that he would have a line of sight to at least one of the light towers, that one being at the north western corner of the ovals. The Party Joined’s house has been designed so that he does not require heavy window coverings facing the ovals and his concern is that the lights would make it uncomfortable to use his front rooms in the evening due to the light coming from the ovals.
Both these parties also raised the issue that the heritage issue was not dealt with in the decision. That issue surrounds the trees around the ovals. Many were planted as part of the research station and they are regarded as significant. The evidence, however, is that once the respondent realised this omission the issue was put to the Heritage Council. The response was that the Council had no concerns from its perspective. The Tribunal accepts the evidence of Mr Ray Brown, the decision maker, that failing to put the issue to the Council at the outset was a clerical error. Nothing now turns on this point as the Council has no concerns, and the Applicant and party joined raised no issue as to the findings of the Council.
Mr Ray Brown gave evidence. Mr Brown is an experienced town planner with qualifications in civil engineering, and further post graduation qualifications in traffic engineering, and planning law and administration. He was the delegate who signed the decision of 12 December 2011 and the Statement of Findings of 30 January 2012.
Mr Brown gave evidence that Bonython Street has a carriageway width of 10.365 metres which allows for cars to be parked on both sides of the street and still allows cars to travel in both directions along the street. The width of the verge from the carriageway to the property boundaries he measured at 5.486 metres. Mr Brown estimated that 42 cars could park on Bonython Street and Frencham Street; there are about 60 spaces at the local shopping centre; and a further 52 spaces in the car park which is entered from Melba Street.
The tribunal accepts that Bonython Street, which is where the applicant and party joined live, is able to cope with the amount of traffic and parked cars which already use the street during Saturday mornings and which will use the street when the lights are approved. In addition, the tribunal accepts that there is ample parking to cater for the use the ovals are currently subjected to and may be subjected to if lights are approved.
Further, the applicant and Party Joined were concerned by cars turning in their driveways. This seems to be a necessary part of maneuvering a car. As the verge is nearly 5.5 metres wide the cars would be unlikely to enter onto the land of residents, at least, on Bonython Street. A standard car parking space is 5.5 metres long. As that is generally regarded as adequate an area in which to park a standard car, the tribunal finds that cars using the driveways to turn is acceptable use of the roadway which includes the carriageway and the verge.
In addition, the Territory Plan 2008 (TP) has a Parks and Recreation Zones Development Code. Element 4 is Parking and Site Access. There are no Rules, only Criteria, as follows:
Rules Criteria
4.1 Traffic Generation
C22
The existing road network can accommodate the amount of traffic likely to be generated by the development.
4.2 Vehicle Access and Parking
C23
Vehicle Access and parking complies with the requirements of the Parking and Vehicular Access General Code.
4.3 Bicycle Parking
C24
Bicycle Parking complies with the requirements of the Bicycle Parking General Code.
4.4 Pedestrian Movement
C25
Safe and convenient movement of public transport passengers, pedestrians and cyclists is provided.
The evidence of Mr Brown satisfies the tribunal that Criteria 22 and 25 are satisfied. The tribunal’s view of the site also strengthens that finding. Criteria 23 refers to the Parking and Vehicular Access General Code. That Code has little to say about ovals such as the subject ovals. The closest appears to be Part 3.9 of that Code which is with respect to “Other Zones”. Outdoor recreational facility is raised in Part 3.9.5. The only relevant piece is the reference to “other” and the parking is subject to individual assessment. With no real guidance given by such a process the Objectives of Part 3.9 need to be taken into account. Those objectives are:

3.9.1 Objectives for all other zones
The objectives for the provision of access and parking in all other zones are to ensure:
a) Amenity
i) the amenity of surrounding areas is not unacceptably affected by the provision of parking and access as part of the operation of these areas
b) Safety
i) no traffic hazards are created by the provision of access and parking for a development
ii) the safety of all users, especially pedestrians and cyclists, is considered at all times
c) Efficiency
i) adequate supply of parking for the level of demand generated by the development
ii) all demand can be adequately catered for by the on-site provision of parking
d) Access
i) the safe and efficient access for all users of the area, including for operational and
commercial vehicles.

The tribunal is satisfied, based on the evidence of Mr Brown, that these objectives have been met, notwithstanding the evidence of the Applicant and Party Joined. This is particularly so when it is considered that on Saturdays and in daylight-saving months the ovals are already used with many cars being parked at and around the ovals.
Criteria 24 requires that the Bicycle Parking Code is to be taken into account. This Code perhaps mentions something like the ovals by reference to “outdoor recreational facility” in which case bicycle parking is again by individual assessment. No evidence was presented in relation to bicycle parking. We consider that this is a minor issue and on the basis that the lights are approved it is a matter that can be easily dealt with.
Mr Brown also accepted that the lights would mean that the ovals would be used up to 9.15 pm, and that this would generate noise from players, spectators and cars. Mr Brown was of the view that this amount of unamplified noise is acceptable. The Tribunal accepts that while some neighbours may appreciate the quiet in non-daylight saving months, the noise which the lights may generate during those months is unlikely to be any greater than the noise that is currently experienced during the daylight-saving months. Accordingly we accept Mr Brown’s evidence that the noise is at an acceptable level.
The Parks and Recreation Zones Development Code also has height rules and criteria. The proposed light towers are 22.5 metres. Rule 8 restricts “buildings” to 10 metres. Building is not defined in the TP. Mr Brown was of the view that a tower for lights is not a building which seems to refer to something with bulk. The tribunal is of the view that the normal use of the word would not refer to the type of light tower to be built. Whether a much larger light tower would be seen as a building is not something the tribunal is called upon to consider.
Mr Brown also gave evidence in relation to the Zone Objectives for Urban Open Space.[1] The Objectives are as follows:
[1]Territory Plan 2008, PRZ1 – PRZ2 Objectives and Development Tables, PRZ1 Urban
Zone Objectives
a) Provide an appropriate quality, quantity and distribution of parks and open spaces that will contribute to the recreational and social needs of the community
b) Establish a variety of settings that will support a range of recreational and leisure activities as well as protect flora and fauna habitats and corridors, natural and cultural features and landscape character
c) Allow for stormwater drainage and the protection of water quality, stream flows and stream environs in a sustainable, environmentally responsible manner and which provides opportunities for the community to interact with and interpret the natural environment
d) Allow for ancillary uses that support the care, management and enjoyment of these open spaces including park maintenance depots, small-scale community activity centres
e) Ensure that development does not unacceptably affect the landscape or scenic quality of the area, adequacy of open space for other purposes, access to open space, or amenity of adjoining residents
f) Provide for integrated land and water planning and management
The most relevant are a, b, d, and e. The evidence of Mr Brown, which seems to be accepted, is that there are, apart from the ovals, five other small parks in Downer, and two areas of parkland adjacent to Northbourne Avenue which create a barrier between the residential areas and Northbourne Avenue. The tribunal accepts the evidence of Mr Brown that the lights will add to the recreational and social needs of the community.
While there was no evidence from Mr Brown to define “community” the tribunal does not find that it could only mean Downer. Ovals are used by people from across Canberra although in the evenings it is probably restricted to surrounding areas. Organised games on a Saturday may well attract people from much further away in Canberra. The lights will also allow a greater range of activities, especially in the non daylight-saving months as Mr Brown said and which the tribunal accepts. Mr Brown conceded that lights may restrict some informal use of the ovals but he did not consider that to be unacceptable. The Tribunal notes, however, that the lights will not light all three ovals. Oval 110 will not be lit and this may allow informal use even when the lights are used on the other ovals.
Objective (d), while relevant, does not appear of great note in the context of the ovals although the lights may assist in the use of the Scout hall which is on the western side of the ovals. Objective (e) is important. The tribunal accepts the evidence of Mr Brown that the landscape and scenic quality will not be affected. No trees will be removed or altered and, indeed, most are protected by heritage concerns.
The lights will light the ovals and there will be some spill from the lights to the residences around the ovals. The Parks and Recreation Zones Development Code refers to lighting at Rule 28 and Criteria 28 which state:
R28
All external lighting provided is in accordance with AS 4282 Control of the Obtrusive Effects of Outdoor Lighting.
C28
All outdoor lighting, including security and car park lighting, is designed and sited to minimize light spill.
The lighting has been designed by Mr Charles Hill, Principal Director of AEC Consulting Group. Mr Hill gave evidence that the beam of light from each tower is designed to throw light onto the area to be illuminated. The Standard allows up to 100,000 candelas of light from each tower. Each tower in this design has three luminaires, which in lay terms means the light source. The design for Downer has 22,250 candelas, that is, under a quarter of what the Standard may allow. A ‘candela’ is the measurement for the light at the point of the luminaire. The measure of light at area to be lit, and any spill areas, is called a lux. The design allows for 60 lux on the playing area of the ovals. Mr Hill gave evidence that the initial lux would be at 60, but the nature of the lights is that they quickly deteriorate. How quickly depends on the length of time the lights are used for and he estimated that 6 to 8 weeks of normal use would see the lux on the playing field reach 50 lux, and that would remain the usual level for the life of the luminaires.
Mr Hill demonstrated various light levels in the hearing room. He used his light meter to show that the level of light on the bar table at normal lighting in the room to be 681 lux. This is considerably higher than what is proposed for the ovals. By comparison, Mr Hill said that lights for competition games would be 1000 lux, particularly where television cameras were used to telecast that game. For a game of competition softball, without the need to television cameras, Mr Hill considered that 900 lux would be required, but that the 50 lux as he had designed was adequate for softball training. In response to the concerns of the Applicant and the Party Joined, Mr Hill said that the Standard allowed for a spill of 10 lux at the boundary of neighbouring properties. This measurement is done taking on the assumption that there are no trees. The light spill is measured at the boundary of the neighbouring properties where the light would spill onto a wall or fence of three metres in height that may exist at the boundary.
At that point the Standard allows for 10 lux. The evidence of Mr Hill is that, at that point, the maximum spill for the Applicant would be 6.2 lux and for the Party Joined 3.0 lux with an average for each of 0.62 lux and 1.0 lux respectively. The lower lux for the Party Joined was explained by Mr Hill as due to the greater distance from the luminaires.
Mr Hill said that looking into the luminaire is known as the glare factor. This is something known to all people. Mr Hill accepted that there would be a glare factor into the front of the Party Joined’s house. The Tribunal does not see how all of the glare factor can be removed. Mr Hill did not say it could be and he calculated the glare factor to be well within that allowed by the Standard.

The tribunal finds that the lights are designed in accordance with the Standard, and probably in excess of the Standard.
Mr Hill gave evidence that the design had a timer attached so that the lights went off at 9.15 pm, but could be manually turned off earlier. The tribunal notes the concerns of the Applicant and Party Joined that this time could be altered in the future, but the current approval allows for a 9.15 pm cut off. What may occur in the future and whether such a change may then require approval is not a matter that, as the decision maker, the tribunal can take into account.
The final two witnesses were Mr Richard Rand from the Sports and Recreation Branch of the relevant ACT government agency, and Ms Heather Reid, the CEO of Capital Football which is the umbrella organization for football (soccer) in the ACT and also covering regional centres such as Queanbeyan, Cooma, Yass and Goulburn.
Ms Reid gave evidence that, despite the evidence of the Party Joined as to other ovals not being fully utilized, soccer has been growing as a sport in the region at 8% per annum and that there are insufficient lit grounds in the Dickson area. She considered that, without further lit grounds, there was a limit to the growth of soccer in the region. Ms Reid agreed with the Party Joined that grounds were not used to capacity due to training usually being restricted to Tuesday, Wednesday and Thursday evening.
Mr Rand gave evidence that grounds tend to be used on Tuesday, Wednesday and Thursday. Mondays are not favoured as players recover from weekend sport, and Fridays not favoured as people prepare for the weekend games. Further, Canberra is a difficult place to grow grass for ovals due to cold winters and hot summers, so it would be difficult to have grounds used more often due to the wear and tear that would result. This is difficult even with the professional turf managers who are employed to undertake this task.
Mr Rand also gave evidence as to how the Ranger system operates. By way of example if a ground was only booked for 7 pm, a ranger would set the timer so that lights went off at an earlier time than 9.15 pm. The Rangers would also be in charge of opening the gate to the carpark, but at a later stage the sporting groups may be allowed to be in charge of the keys. In cross examination Mr Rand said that, of the other grounds with lights, he had received complaints about parking, but never about the lights. Mr Rand had been doing this job for 30 years.
Planning works on a reasonable level of amenity to cover a reasonable range of activity objectively, not subjectively. The object of the TP gives some insight into the approach to planning. It is not about the protection of the status quo or the freezing of planning at a point in time. Its ethos is the appropriate management of change. The DA is prepared to take into account objectives and Rules and if the Rules are satisfied then that is the end of the matter; if the Rules are not satisfied then the Criteria are considered.
Subsection 121(2) of the Planning and Development Act 2007 limits what this Tribunal can do. It states:
If there is a right of review under chapter 13 in relation to a decision to approve an application for development approval for a development proposal in the merit track, the right of review is only in relation to the decision, or part of the decision, to the extent that—
(a) the development proposal is subject to a rule and does not
comply with the rule; or
(b) no rule applies to the development proposal.
There is clearly a demonstrated need for lights at Downer. Soccer is already at capacity and grounds cannot be used every evening and then on the weekend. Rule 28 requires that all lighting is subject to AS4282. Although the Applicant and the Party Joined questioned whether Rule 28 was met, the Tribunal is satisfied that Mr Hill’s evidence was not contradicted and accepts his evidence that the lights are designed to the Australian Standard. This Rule is therefore met. As stated above the Tribunal is also satisfied that the relevant Criteria have been met.
The tribunal varies the Decision under Review by accepting the Decision under Review with the Decision being remitted to the Respondent in order to consider the requirement, if any, for bicycle parking.

…………………………………….
Ms E. Symons, Presidential Member
For and on behalf of the Tribunal

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO: AT 12/02

APPLICANT: DANIEL SHEEDY

RESPONDENT: ACT PLANNING AND LAND AUTHORITY DIRECTORATE AND ANOR

COUNSEL APPEARING: APPLICANT:

RESPONDENT: Mr Philip Walker

SOLICITORS: APPLICANT:

RESPONDENT: ACT Government Solicitor

OTHER: APPLICANT:

RESPONDENT:
TRIBUNAL MEMBERS: Mr B Hatch, Senior Member
Ms E Symons, Presidential Member

DATE/S OF HEARING: 28, 29, 30 May 2012 PLACE: CANBERRA

DATE/S OF DECISION: 8 August 2012 PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS:

Open Space Zone