Stark v ACT Planning and Land Authority (Administrative Review) - [2023] ACAT 15

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

STARK v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2023] ACAT 15

AT 62/2021
Catchwords: ADMINISTRATIVE REVIEW – merits review of decision to grant retrospective approval for a development undertaken without approval – where non-habitable Class 10a garage or shed structure was converted into a secondary dwelling without approval – where secondary residence must meet the requirements for adaptable housing (Class C) under AS 4299 – 1995 – where evidence was inadequate to show that secondary residence is easily adaptable to suit needs of persons with disabilities – where evidence was inadequate to show that continuous accessible path from the street to the front entrance of secondary residence is feasible – where evidence was inadequate to show that circulation space to meet the requirement of an adaptable house (Class C) is available – decision set aside – development approval refused

Legislation cited: Planning and Development Act 2007 ss 139, 139, 162, 205

Subordinate
Legislation cited: Residential Zones Development Code, R13/C13
Tribunal:Senior Member M. Orlov
Senior Member G. Trickett

Date of Orders:  11 October 2021
Date of Publication:  7 March 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 62/2021

BETWEEN:

JANE STARK
Applicant

AND:

ACT PLANNING AND LAND AUTHORITY
Respondent

AND:

NATHAN LALLIARD
Party joined

TRIBUNAL:Senior Member M. Orlov
Senior Member G. Trickett

DATE:11 October 2021

ORDER

The Tribunal orders that:

The decision to grant approval to DA Number 202037660 is set aside and substituted by a decision to refuse approval.

......................Signed.....................

Senior Member M. Orlov
For and on behalf of the Tribunal

REASONS FOR DECISION

This is an application for a merits review of a decision made under section 205 of the Planning and Development Act 2007 (PD Act) to give retrospective approval of a development, involving the conversion of a non-habitable Class 10a garage or shed structure into a secondary residence, undertaken without development approval.
The applicant, Ms Stark, is a neighbouring landowner who objected to the development. The respondent is the ACT Planning and Land Authority (ACTPLA). The party joined, Mr Lalliard, is the owner of the land on which the development was carried out and did most of the work.
The Tribunal conducted a view of the development and heard evidence and submissions from the parties on 11 October 2021. At the conclusion of the hearing the Tribunal made an order setting aside the decision to approve the development and substituted a decision refusing approval. Reasons for the decision were to be given later. These are the Tribunal’s reasons.
The relevant background may be summarised briefly.
The subject block is zoned RZ1 Urban Residential and is surrounded by single residences. The existing brick residence was built in 1971. A certificate of occupancy was issued on 10 January 1972. A metal garage was constructed behind the residence parallel to the rear boundary shortly afterwards. A certificate of occupancy for the garage was issued on 17 October 1972.
The block slopes towards the rear boundary so that the building is single level at the front and two level at the back. The residence is on a single level. The bottom level at the back is a storeroom. The south-east facing boundary adjoins a public pathway. The boundary fence on that side encroaches some distance onto public land. A single carport is located next to the residence close to the boundary. A sewerage and electricity supply easement is located on the block parallel to the north-east facing rear boundary. The garage is built up to the edge of the easement.
Mr Lalliard purchased the block in 2013. The metal garage was used as a shed. In late September 2019 Mr Lalliard commenced work on converting the shed into a secondary residence. He completed most of the work by January 2020 without development approval and building approval. In March 2020 he became aware that approval was required. He engaged a designer, Candice Van Duren, to prepare plans and apply for retrospective development approval on his behalf. The initial development application was submitted to ACTPLA on 15 October 2020. The application was refused. Ms Van Duren prepared a revised proposal addressing the reasons for refusal and sought reconsideration of the decision by an application lodged on 30 April 2021. On 9 June 2021 ACTPLA gave development approval subject to conditions. It is that decision that is subject to this merits review.
Where a development which required development approval has been undertaken without approval, an application for retrospective development approval may be made under section 205 of the PD Act. Pursuant to section 205(4) the application must be treated as if the development had not been undertaken, subject to section 139(2)(o), which provides that a development application under section 205 must be accompanied by a plan of the development prepared by a registered surveyor that sets out the dimensions of the development.
The present application did not comply with section 139(2)(o). A survey drawing was provided[1] but, other than specifying the length of the boundaries, did not set out the dimensions of the development. Ms Van Duren provided an amended site plan[2] showing some dimensions relating to setback but omitting, among other things, dimensions needed to determine whether a continuous accessible path of travel is available from the street frontage and vehicle parking area to the entry of the secondary residence. Neither the survey drawing, nor the site plan, show a deck and side fence that Mr Lalliard has constructed over the easement between the rear boundary and the north-east wall of the secondary residence.
[1] T Docs page 271
[2] Exhibit 5
Although many issues were canvassed at the hearing,[3] the determinative consideration is the inability of the proponent to demonstrate that the development complies with R13/C13 of the Residential Zones Development Code (RZDC).
[3] These included issues relating to (in no particular order): (a) non-compliant front and side setbacks; (b) encroachment of structures onto the easement; (c) parking for the existing residence and secondary residence located in the front zone; (d) location of an appropriately dimensioned adaptable parking space; (e) siting of the carport on the front boundary; (f) the encroachment of the boundary fence onto public land; (g) whether the conversion of the class 10a structure complied with the BCA requirements for a class 1 structure; (h) whether this was a relevant consideration when deciding whether to grant development approval or the conditions upon which development approval should be granted; (i) whether a lease variation was required to permit a free-standing secondary residence where the Crown Lease arguably restricted the kind of secondary residence that was permissible.
R13 requires that a secondary residence complies with AS 4299 - 1995 Adaptable Housing (AS 4299) for an adaptable house class C. Appendix A of AS 4299 lists essential features that must be incorporated into a housing unit for it to be termed an ‘adaptable house’. A class C adaptable house must incorporate all essential features listed in Appendix A.
It was common ground that the secondary residence did not comply with R13. The issue was whether it complies with C13. C13 requires that the secondary residence is easily adaptable to suit the needs of people with disabilities.
The following parts of AS 4299 are relevant.
(a)Clause 1.4.3 defines an ‘adaptable housing unit’ as a –
…housing unit which is designed and constructed to meet the performance requirements stated in Clause 2.2 and to include the essential features listed in Appendix A. An adaptable housing unit is designed in such a way that it can be modified easily in the future to become accessible to both occupants and visitors with disabilities or progressive frailties.
(b)Clause 1.4.7 defines a ‘ramp’ as an inclined accessway with a gradient steeper than 1 in 20 but not steeper than 1 in 14. AS 1428.1 – Design for Access and Mobility (AS 1428.1) stipulates that the maximum interval between landings for a ramp with a 1 in 14 gradient is 9 metres.
(c)Clause 1.4.13 defines a ‘walkway’ as any accessway with a gradient not steeper than 1 in 20. AS 1428.1 stipulates that the maximum interval between landings for a walkway with a 1 in 20 gradient is 14 metres.
(d)Clause 2.1 states that the objectives for adaptable housing are:
(a)     That housing be designed and constructed or altered in a way which satisfies the performance requirements for adaptable housing enumerated in Clause 2.2 below.
(b)     That housing is designed in such a way that later alterations to suit individual requirements will be achievable at minimal extra initial cost.
(c)     That housing be designed in such a way that it will easily adapt to suit the widest possible range of lifetime needs. This will include the needs of people with physical disabilities (including people who use wheelchairs, people with disabilities who are ambulant, and people with manipulatory disabilities); people with sensory disability (vision, hearing) and people with intellectual disability.
(d)     The initial design will allow for visitability through an accessible path of travel to the living room and toilet.
(e)Clause 2.2 states that an adaptable housing unit shall be designed and constructed to meet the following requirements (omitting notes):
(a)     Visitability   To be visitable by people who use wheelchairs, in that there must be at least one wheelchair accessible entry and path of travel to the living area and to a toilet that is either accessible or visitable.
(b)     Avoidance of level changes          To have no steps and to avoid level changes where possible.
(c)     Manoeuvrability     This shall include the following:
(i)To provide space efficient to manoeuvre a wheelchair within a living area, the kitchen and an accessible path of travel linking these areas.
(ii)To provide space sufficient to manoeuvre a wheelchair within a bedroom, a bathroom and a toilet or to provide a design and details whereby after adaptation there will be sufficient space to manoeuvre a wheelchair within these facilities and an accessible path of travel linking these facilities to the entry, living and kitchen areas.
(d)     Ease of adaptation If the design for adaptation requires further demolition of walls then these walls shall be non-load-bearing and free of electrical and plumbing services.
(e)     Ease of reach        To provide electrical controls, taps, and some shelves and cupboards at levels to suit people who use wheelchairs.
(f)     Future laundry facilities    To provide laundry facilities that after adaptation will be accessible to people who use wheelchairs. Those laundry facilities may be external to the adaptable housing unit, providing a wheelchair accessible path of travel is available from the adaptable housing unit to the laundry facilities.
(f)Clause 2.3 requires that as built drawings be provided showing the housing unit in its pre-adaptation and post-adaptation stages, with a description of how the adaptation is to be achieved.
(g)Clause 3.3.2 provides in part:
Accessible pathway        An accessible path of travel from the street frontage car parking area or drop-off point shall be provided to all adaptable housing units. As a minimum, this accessible path shall comply with AS 1428.1 and shall be continuous, slip-resistant, hard-surfaced and shall not incorporate any step, stairway or other impediment which would prevent it from being safely negotiated by people with disabilities.
(h)Essential features for a class C adaptable house enumerated in Appendix A include:
·        Provision of drawings showing the housing unit in its pre-adaptation and post-adaptation stages (item 1);
·        A continuous accessible path of travel from street frontage and vehicle parking to entry complying with AS 1428.1 (item 3);
·        Carparking space or garage with a minimum area of 6.0 m x 3.8 m.
An earlier version of the site plan[4] showed what purported to be a “continuous accessible path” from the street to the front entry of the secondary dwelling beside the south-east facing boundary to the public pathway. This was not feasible once it was realised that the fence encroached onto public land and had to be relocated closer to the house. An amended site plan was tendered at the hearing as exhibit 5, showing what purports to be an alternative pathway and accessible ramp located on the other boundary adjoining Ms Stark’s property. No dimensions were shown.
[4] T Docs, page 170
There is a 2.815 metre change in level from the south-west corner of the front boundary at RL 644.95 to the floor level of the secondary residence at RL 642.135.[5] At the maximum permissible slope of 1 in 14 for a ramp, the required length of ramp is 39.41 metres. To comply with AS 1428.1, a 1.2 metre landing must be provided at no greater than 9 metre intervals, and a 1.5 metre landing must be provided at every location where there is a change of direction. Exhibit 5 shows that the pathway has at least three changes of direction – at the junction of the ramp and the path from the proposed parking space, at the bottom of the ramp on the boundary, and at the entrance to the secondary residence – adding 4.5 metres to the required length. Landings would be required also at the entrance to the ramp at the street frontage and approximately halfway down, adding a further 2.4 metres to the required length. The total length required to provide an accessible pathway is approximately 46.31 metres. As best we can determine by scaling from exhibit 5, there is only approximately 34.4 metres available.
[5] RL (relative level) taken from the survey drawing at T Docs page 171
In those circumstances we are not persuaded that an accessible pathway can be provided in accordance with clause 3.3.2 of AS 4299 and therefore that the secondary residence is easily adaptable to suit the needs of people with disabilities as C13 of the RZDC requires.
Drawings were provided purporting to show the secondary residence in its pre-adaptation and post-adaptation stages.[6] A description of how the adaptation is to be achieved, which clause 2.3 of the AS 4299 requires, was not provided.
[6] T Docs pages 164, 165
The post-adaptation drawing shows the kitchen/bathroom wall being demolished and moved 100 mm. As a sink and refrigerator are located adjacent to the wall, it must contain plumbing and electrical services and therefore does not comply with clause 2.2(d) of AS 4299. The kitchen joinery would need to be moved also. Mr Lalliard proposed in oral evidence that the bedroom wall could be moved instead. However, this would require the WC to be moved to comply with the dimensional requirements in clause 4.4.3 and Figure 4.3 of AS 4299.
The post-adaptation plan requires the hand basin and laundry to be relocated. The laundry most probably would require a floor waste. The water supply to both would need to be re-routed through the walls and the waste lines would need to be located under the floor slab and away from the easement where no services are permitted. The concrete floor would need to be partly demolished to install the waste lines, compromising the vapour barrier – assuming one was installed when the garage was built, which is not certain by any means. The bathroom membrane and wall and floor tiling would need to be partially or fully reinstalled.
We do not consider that this meets the requirement of being ‘easily adaptable’.
There were other deficiencies in the information provided. For example, clause 4.6.1 of AS 4299 requires at least one bedroom to be capable of accommodating a queen-sized bed and a wardrobe and the circulation space requirements of AS 1428.2 clear of wardrobe fixtures. The post-adaptation plan does not show this. Clause 4.7.1 requires provision to be made for a circulation space in the living area to enable a 360⁰ wheelchair turn after furniture has been placed. The post-adaptation plan does not show this.
This is not intended to be an exhaustive analysis of the deficiencies in the post-adaptation plan. Pursuant to section 139(2(f) of the PD Act, the responsibility lies on the applicant for development approval to provide all necessary information and documentation to demonstrate compliance with the relevant rules and criteria. In the case of C13 of RZDC, this was not done.
For these reasons we are satisfied that the development proposal does not comply with C13 and nor that it would be appropriate to deal with the non-compliance by imposing a condition under section 162(1)(b) of the PD Act.
As section 119(1) of the PD Act prohibits development approval being given where the proposal is not consistent with all relevant codes, this means that the correct or preferable decision is to set aside the decision to approve the development and substitute a decision to refuse approval. This makes it unnecessary to decide the other issues canvassed at the hearing.

………………………………..
Senior Member M. Orlov

For and on behalf of the Tribunal

Date(s) of hearing:	11 October 2021
Applicant:	In person
Solicitors for the Respondent:	ACT Government Solicitor
Counsel for the Respondent:	Ms. A. Costin
Solicitors for Party Joined:	Elringtons Lawyers, Ms. D. Zezulka