Sterner & Anor v ACT Planning and Land Authority (Administrative Review)
[2023] ACAT 60
•5 October 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
STERNER & ANOR v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2023] ACAT 60
AT 91/2022
Catchwords: ADMINISTRATIVE REVIEW – planning and development control – merit track assessment – Planning and Development Act 2007 Part 5.2 contents of Territory Plan – zone objectives – relationship with codes – discretion to refuse approval where development proposal is code-compliant – occasion for exercise – exceptional case – unintended consequence of code drafting – mischaracterisation of ‘Standard ‘block’ – approval contrary to planning intention – Territory Plan RZ1 Suburban zone objectives – protection of character – single dwelling housing area – low density – proposal for four dwelling building – Statutory interpretation – ‘Standard block’ – “originally leased or used” – “original lease” – “explicitly” – purpose of Territory Plan provisions for residential housing areas – Multi Unit Housing Development Code – courtyard walls – setback and materials composition – basement ramp wall – setback and safety
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Districts Act 2002 s 6
Legislation Act 2000 ss 4, 6, 10, 13, 136, 139, 142, ch 14
Planning and Development Act 2007 ss 13, 46, 48, 50, 51, 53, 54, 55, 66, 73, 119, 120, 146, 191, 193, 235, 407, Sch 1
Subordinate
Legislation cited: Australian Standard AS2890.1 – Off-Street Parking
Boundary Fences General Code
Multi Unit Housing Development Code rr 6, 10, 16, 17, 18, 23, 29, 30, 38, 39, 41, 42, 59, 61, cr 30, 40, 41, 42, Table A6
Planning and Development (Draft Variation Number 306) Consultation Notice 2011
Planning and Development (Plan Variation No 306) Notice 2013
Planning and Development (Plan Variation No 306) Commencement Notice 2013
Planning and Development (Plan Variation No 350) Approval 2019
Residential Zones Development Code
RZ1 Suburban Zone Objectives and Development Table
Territory Plan 2008 (NI2008-27, Planning and Development Act 2007), 1.1 Governance, 13.1 Definitions
Cases cited:4THD Planning & Design Pty Ltd v ACT Planning and Land Authority [2021] ACAT 59
Baptist Community Services v ACT Planning and Land Authority [2015] ACTCA 3
Glover v Minister for Planning [2003] ACTSC 42
Javelin Projects Pty Limited v ACTPLA [2017] ACAT 87
Re City Area Leases Ordinance 1936 and Axiom Pty Ltd (1986) 66 ACTR 1
Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail Reit & Ors v ACT Planning and Land Authority [2018] ACAT 38
Ward v Griffiths (1987) 9 NSWLR 458
List of
Texts/Papers cited: Frank Brennan, Canberra in Crisis (Dalton Pub. Co, 1971)
Tribunal:Senior Member R Arthur
Senior Member G Tomlins
Date of Orders: 5 October 2023
Date of Reasons for Decision: 5 October 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 91/2022
BETWEEN:
KAREL STERNER
First Applicant
AND:
SAMUEL MCDONALD
Second Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
BRETT BIDDINGTON
Party Joined
AND:
DEAKIN RESIDENTS’ ASSOCIATION
Party Joined
TRIBUNAL:Senior Member R Arthur
Senior Member G Tomlins
DATE:5 October 2023
ORDER
The Tribunal orders that:
The decision of the delegate is confirmed.
………………………………..
Senior Member R Arthur
For and on behalf of the Tribunal
REASONS FOR DECISION
The matter before the tribunal
Nature of the matter
The Tribunal has reviewed a proposal for development on Block 11 Section 64 Deakin (Block 11) seeking the demolition of an existing one-storey single dwelling to be replaced with a two-storey four-unit development and associated landscape works, with variation of the lease to permit four dwellings. The development application was refused initially and again on reconsideration. The proponent applied to the ACAT for review.
Jurisdiction of the tribunal
The ACAT has jurisdiction to review certain decisions under the Planning and Development Act 2007 (PD Act).
The development application was refused. The proponent then sought reconsideration under section 191 of the PD Act. The proponents did not also at the same time apply to ACAT for review of the decision. The delegate of the planning authority reconsidered the original decision and confirmed it under section 193(1)(b)(ii) of the PD Act. The proponents, as the applicants for reconsideration referred to in Item 13, Column 3 of Schedule 1 of the PD Act, applied to the ACAT under section 407 of the PD Act.
Under section 68 of the ACT Civil and Administrative Tribunal Act 2008, the Tribunal may exercise any relevant function given by an Act to the planning authority and must: confirm the decision; vary the decision; set aside the decision and make a substitute decision; or, remit the matter for reconsideration.
Parties
The applicants to the tribunal are Karel Sterner and Hamish McDonald, the Crown lessees of Block 11. The planning authority, whose delegate made the decision under review, is the respondent (the Authority). Dr Brett Biddington – who is the Crown lessee of, and resident in, a residential property near to Block 11 – and the Deakin Residents’ Association – an association whose objects concern such development as this in Deakin – sought to be, and were, joined as parties to the proceedings in opposition to the proposal.
The progress of the development application
Assessment
On 3 December 2021, Purdon Planning Pty Ltd submitted, on behalf of the Crown lessees, Development Application No. 202139648 (the DA).
On 15 December 2021, the DA was formally lodged with the Authority, seeking approval for:
(a)demolition of the existing dwelling;
(b)construction of four, new two-storey attached town houses with basement car parking, driveway, landscaping and associated works; and
(c)lease variation to increase the number of permitted dwellings from two to four.[1]
[1] Tribunal document 28 – ‘Development Application – No 202139648’ dated 3 December 2021, pages 781-951
The DA was assessed in the merit track.
The DA was publicly notified and entity referrals were sought. The public notification attracted over 60 representations.[2]
[2] Tribunal document 21 – ‘Representations for Current Development Application’, pages 551-738
Entity referral responses requiring attention were received from the Conservator of Flora and Fauna and Transport Canberra and City Services (TCCS).[3]
[3] It was necessary to consider only the response from TCCS by the time the matter came before ACAT
The delegate of the Authority refused the DA on 27 May 2022.[4]
[4] Tribunal document 18 – ‘Email NOTICE OF DECISION & ENTITY ADVICE – 2021396648-11/64 DEAKIN-01’ dated 27 May 2022, pages 509-511, referring to Tribunal document 2 – ‘Notice of Decision’ dated 27 May 2022, pages 54-66
On 5 September 2022, the proponents lodged an application for reconsideration of the refusal decision.[5]
[5] Tribunal document 16 – ‘Application for Reconsideration’ dated 17 August 2022, pages 417-507
The decision to refuse approval of the development was confirmed, on reconsideration, on 19 October 2022.[6]
Design changes
[6] Tribunal document 2 – ‘Notice of Decision – Reconsideration’ dated 19 October 2022, pages 35-53
As originally lodged for development approval, the development drawings of the proposal:
(a)showed a building with floorspace of 858m2 consisting of four two storey townhouses facing Norman Street;
(b)had boundary setback encroachments at the front upper floor level for the full height fin walls facing Norman Street;
(c)had boundary setback encroachments at side upper floor levels;
(d)had no setback of the courtyard wall facing Norman Street;
(e)showed three stories over a portion of the building due to excessive basement height;
(f)provided inadequate solar access; and
(g)indicated removal of three regulated trees and showed part of the basement as within the tree protection zones.
Drawings accompanying the reconsideration application made the following changes:
(a)provided for retention of regulated tree 3;
(b)reduced basement footprint and height;
(c)reduced unit 1 from three to two bedrooms;
(d)lowered unit 4 finished floor levels;
(e)lowered finished floor levels of rear courtyards of units 2 to 4 by 0.2m;
(f)increased setbacks;
(g)partially replaced the courtyard wall along Lawley Street with a hedge
(h)provided for the courtyard wall along Norman St to have a front setback of approximately 0.5m;
(i)increased fencing height on the common side boundary with block 12 from a maximum of 1.8m to 2.3m above natural ground level;
(j)updated landscaping; and
(k)changed plans from light wells to skylights.
Further changes (and changes to changes) made to the drawings which accompanied the application to ACAT were said by Mr Nash, on behalf of the applicants, to improve the overall development by reducing the overall scale, increasing landscaping, improving traffic control to the basement, and reducing perceived impacts to neighbouring properties and comprised:
(a)Relocated unit for laundry from basement to ground floor and reduction in laundry size of unit 1;
(b)Removal of basement storage;
(c)Increased driveways set back to 1 metre, increased planting to width of 1 metre on both sides of driveway and driveway updated;
(d)Introduced traffic lights and visitor car park lights to control car movements;
(e)Removal of courtyard walls to unit 1 corner and updated unit 1 courtyard entry to increase deep root planting on Norman/Lawley Streets corner;
(f)Change to unit 1 dining area;
(g)Increased set back to unit 2 and unit 3 courtyard walls, introduction of shared footpath removal of gates and introduction of hedges;
(h)Removal of front courtyard walls to unit 4, gates set back behind building line footpath now shared with unit 3;
(i)Concealment of units 3 front door by relocation from Norman St facade to side;
(j)Lowering of unit 4 backyard to maintain natural ground level in tree protection zone of tree 6;
(k)Letterboxes relocated to limit simultaneous visibility;
(l)Overall material pallet simplified;
(m)Reduction to floor area of unit 1 by relocating bedroom to ground floor, removing ground floor lounge and removing upper floor bedroom and continued green roof;
(n)Relocation of unit 1 front door to address Lawley Street with consequential facade changes. Addition of roofed element to unit 1 front door by recessing the front door and continuing green roof;
(o)Softening to unit 1 facade through introduction of curves to upper floor corners;
(p)Update to unit 1 upper floor facade facing Lawley Street;
(q)Reduction to floor area of unit 4 by removing bedroom 3 and green roof to unit 4;
(r)Softening to unit 4 by curving up a floor corners and setting back stairs;
(s)Reduction to overall height of unit 2 and unit 3 by one metre from 7.45 metres 26.45 metres and reduction to overall height of unit 1 by 1.5 metres from 7.45 metres to five point 95 metres;
(t)Reduction to gross floor area plot ratio from 72.2% to 63.69%;
(u)Overall facade updated to look like two dwellings.[7]
Hearing
[7] Witness statement of Richard Nash dated 8 March 2023, pages 2-3 at [3], referring to witness statement of Ronan Moss dated 8 March 2023, annexure RM2 – ‘Drawing DA 01-01’, page 1
The matter was heard over three days, following an inspection of Block 11 and its surrounds, by the Tribunal, and representatives and witnesses.
Representatives
Mr Walker SC of counsel appeared for the applicants, and Mr Bird of counsel appeared for the respondent. Dr Brett Biddington, first party joined, represented himself. The second party joined, the Deakin Residents Association Incorporated, was represented by its president, Mr John Bell.
Positions of the parties
The respondent, in its pre-hearing contentions, and at the hearing, supported, or at least did not oppose, approval of the proposal on the basis that the most recent changes (with a further change suggested) addressed the issues on which approval had been refused on reconsideration.
The parties joined maintained their opposition to the application.
Evidence
Expert evidence was given for the applicants by:
(a)Mr Richard Nash – town planner;
(b)Mr Ronan Moss – architect;
(c)Mr Neil Hobbs – landscape architect; and
(d)Mr Hamish McDonald – traffic engineer.[8]
[8] Witness statement of Hamish McDonald dated 11 January 2023
Expert evidence was given for the respondent by Mr Trent Varlow – town planner.
Expert evidence was given for the second party joined by Mr Owen Pankhurst – town planner.
Mr Peter Young also gave evidence for the applicants, relating to comparisons made by him of developments in the RZ1 zone in Deakin and elsewhere in Canberra, and of calculations made by him of site coverage and plot ratio of various properties.[9]
Adequacy of public notification
[9] Witness statement of Peter Young dated 8 March 2023
The parties joined contended that the combined effect of the changes, including those introduced after the commencement of the hearing, required amendment of the development application and re-notification to the public. During the hearing, we took time to consider whether the further notification was required. We informed the parties that, for reasons to be given later, we had decided that the combined effect of the changes were not such as to give rise to the requirement for re-notification of the application. Those reasons are now set out.
Although many in number, the design changes do not alter the essential nature of the development – it still remains a two-storey four-unit development with associated landscape works, albeit less obtrusively so. As such, no-one other than the applicants will be adversely affected by the amendments and there will be no greater environmental impact caused by the approval of the amendments. In short, there is nothing in the amended proposal that could reasonably cause a person who had not objected to the original proposal to now do so. It is accordingly appropriate for the Tribunal to waive the requirement to publicly notify the amended application pursuant to section 146(3) of the PD Act.
Geography of the area
Deakin
Deakin has three main components. The area east of Hopetoun Circuit, which extends to the Prime Minister’s Lodge and contains some streets following the alignment of Walter Burley Griffin’s plans, was mostly built much earlier than the other parts of Deakin. The mixed-use community, educational, commercial, and diplomatic area to the west of Kent Street forms a second main component of Deakin.
The third component is the central area between Hopetoun Circuit and Kent Street. It is a neighbourhood development which, in many respects, is similar to other complete neighbourhoods in Canberra. It has a local neighbourhood centre surrounded by commercial and recreational areas. Vacant blocks, set aside for the purpose, along Adelaide Avenue and in the area adjacent to the local centre, have been infilled with higher density in low-rise profile housing after the majority of the residential area for separate detached housing was developed.
The subject block
The subject site, Block 11, is located at 27 Lawley Street, Deakin. It is a reasonably large block, about the same size of many of its neighbours, with an area of 967m2 located in an RZ1 zone on the corner of Lawley and Norman streets. The block has a long frontage to Norman Street, of about 35.25m, and a shorter frontage to Lawley Street of about 24.6m. The side boundary to block 12 is 39.525m long and the other side boundary is 29.33m long. There is one mature street tree to each frontage, although the Norman Street frontage is largely exposed. There are no public footpaths adjoining the subject site. It contains a small single-storey dwelling addressing the street corner, but well setback into the block, and four trees of which three are regulated. The existing driveway is off Lawley Street along the side boundary. The block is reasonably level along the Norman Street frontage and falls away down the Lawley Street frontage by approximately 1.25m.[10]
The adjacent area
[10] As described by the delegate in ‘Notice of Decision – Reconsideration’ dated 19 October 2022, page 40
The adjoining block to the northwest, block 12 – located at 25 Lawley Street – is a single storey, single dwelling with a regulated tree in the rear corner adjacent to the subject block. The dwelling on block 12 has two bedroom windows and a patio or deck accessed off the living area, along a common boundary with the subject block. The patio or deck is largely to the south of the dwelling, it is located approximately 1.5m from the common boundary and is enclosed by an approximately 1.5m high wall. The dwelling has a second living area to the northeast and a deck off the kitchen, both with access to northern principal private open space. The adjoining block along Norman Street comprises a two-storey dwelling with a detached garage, both well set back from the common boundary.[11]
Use of block 11
[11] Tribunal document 2 – ‘Notice of Decision – Reconsideration’ dated 19 October 2022, page 40
Block 11 came into existence on 27 July 1964, on the registration of Deposited Plan 1283 (DP 1283), which was one of the historical documents tendered by the respondent.[12] DP 1283 identified blocks 1-21 of Section 64 and part of Section 63. Also included was a detailed drawing headed “Schedule of General Treatments” dated 31 January 1964, depicting blocks 11-21 Section 64, and setting out the architectural treatments to be applied to the dwellings drawn on each of the blocks. Numbers on the dwellings identify them as variants of standard designs for residential dwellings constructed by the government throughout Canberra around these times. A drainage plan dated 26 June 1964 shows a building of the same size and shape and in the same location as the dwelling still on Block 11. A covering sheet for the Schedule and the Plan bears the statement “No Building File – Ex-Government Residence”.
[12] Exhibit R5 – ‘Historical Documents’
Among the historical documents tendered by the respondent was an instrument made under section 17(1) of the Housing Assistance Ordinance 1987 (the 1987 Ordinance) dated 16 December 1987, transferring control of designated blocks to the Commissioner of Housing. Among the around 7000 designated blocks spread across many suburbs, approximately 85 were in the central residential area of Deakin.
A historical title search of the land titles register identifies a lease granted over Block 11 to the ACT Commissioner for Housing. It is the same lease identified in Exhibit R1 (Tribunal Documents) as the current lease over Block 11.
The lease for the site was granted to the Commissioner for Housing for the ACT on 16 December 1993 for 99 years from 16 December 1987. The lease purpose clause states:
THE LESSEE COVENANTS WITH THE COMMENWEALTH as follows:
…
(c) To use the land for residential purposes only;
(d) That the building erected on the land shall be used only as:
(i)a single private dwelling; and
(ii)where permitted by the Territory Plan, a second single unit private dwelling;
PROVIDED THAT any outbuildings erected on the land shall not be used as a habitation …[13]
[13] Tribunal document 29 – ‘Copy of Crown Lease Volume 1366 Folio 59’ dated 16 December 1993, page 953
The 1987 Ordinance was one in a series of housing assistance statutory instruments under which the Commissioner for Housing had provided housing assistance, partly as a welfare measure, but principally to accommodate Commonwealth public servants relocated from other parts of Australia.
In summary, the evidence shows:
(a)development in the form of dwellings built by the government in this area of Deakin from the mid-1960s;
(b)a single dwelling having been built on Block 11 at that time;
(c)that same single dwelling even now being the only building on Block 11;
(d)Block 11, and many other blocks of land in this area of Deakin, having been under the control of the Commissioner for Housing at least from 1987, and likely from the date when the dwellings were constructed;
(e)a Crown lease was granted to the Commissioner for Housing in 1993, commencing from 1987; and
(f)inferentially, that the dwelling on Block 11 was occupied by tenants of the Commissioner from around 1964, prior to the grant of the lease.
In the end, it was common ground amongst the parties that, from around 1964, Block 11 was used for residential purposes as a single dwelling.
The inference we draw from this evidence is that the planning intention in 1964 for Block 11, and the other blocks depicted in DP 1283, was that they were to be used for residential purposes as single dwellings.
The foundational systems
The cadastral system
The Territory’s cadastral system, though not a part of the Territory Plan (the Plan) itself, underpins it by identifying each piece of land covered by the Plan.[14] The ‘block’ is significant as being the basic building block of the system. Since, at least from the District Ordinance 1927, the land of the Territory has been subdivided into districts, those districts into divisions (which equate with the named suburbs), divisions into sections, and sections into blocks. Blocks may be further subdivided into smaller blocks, or consolidated with others to form one larger block. Each new block created is given a new number not previously used.
[14] See Territory Plan 2008 found as Notifiable Instrument 2008-27 to the Planning and Development Act 2007 (Territory Plan), 1.1 Governance, Map – Contents
Thus, Block 11 is known uniquely as Block 11 Section 64 in the Division of Deakin in the District of Canberra Central in the Australian Capital Territory.
A block does not exist until it is created. Under the relevant districts legislation as it exists from time to time, a block is created on the registration of a deposited plan on which it is identified as such.[15] Once created, a block never ceases to exist – it remains as a record of the boundaries of the parcel it comprises, and any blocks into which it is subdivided (or consolidated with) are given, conventionally, a sequentially unique descriptive number.
[15] There have been various iterations since the 1927 ordinance leading to the present Districts Act 2002, see section 6
Commonly, a section, with each block within it, is registered as a deposited plan. On viewing the various sections of a division, the subdivision pattern of that division can be seen.
The planning and leasehold systems
Canberra is a wholly planned city, with all land under the control of the Crown in right of the Commonwealth within a leasehold system. Land has invariably been brought into use only after it has been surveyed and subdivided into blocks.
Though, at its outset, the policy planning system was enforced contractually through lease purpose clauses under the leasehold system, since self‑government the planning system has had a statutory basis[16] which enables a much more sophisticated and effective enforcement process. Under both regimes, however, development of land has been fully planned – land use determined and layout designed to suit – before its release for development and construction. In particular, districts, or divisions in a district, or a cluster of sections within a division, are always in accordance with the approved/designated plans for the development area.[17]
Legislative framework
Legislation
[16] Mandated by Part IV of the Australian Capital Territory (Planning and Land Management) Act 1989 (Cth) and implemented in the Planning and Development Act2007
[17] See the descriptions of the system before self-government under the National Capital Development Commission in Re City Area Leases Ordinance 1936 and Axiom Pty Ltd (1986) 66 ACTR 1 per Miles CJ, pages 4-5 and Kelly J, pages 13-15; see also, Frank Brennan, Canberra in Crisis (Dalton Pub. Co, 1971) ch 9, esp page 174
The PD Act provides for the Territory Plan and specifies its content.[18] Furthermore, the PD Act requires the assessment of development proposals be undertaken in accordance with the Territory Plan.[19]
[18] Planning and Development Act 2007, ss 46, 51
[19] Planning and Development Act 2007, ss 50, 54
Relevant to the matter before us, the PD Act provides that the Plan must include codes,[20] which must contain either, or both, of detailed rules and criteria that apply to development proposals that the code applies to.[21] The Plan must also include objectives for each zone,[22] which are to “set out the policy outcomes intended to be achieved by applying the applicable development table and code for the zone”.[23] Further, a code must be consistent with each objective of the zone to which the code relates.[24]
[20] Planning and Development Act 2007, s 51(1)(d)
[21] Planning and Development Act 2007, s 55
[22] Planning and Development Act 2007, s 51(1)(b)
[23] Planning and Development Act 2007, s 53(1)
[24] Planning and Development Act 2007, s 55(2)
As to assessment, the PD Act provides that development approval must not be given for a development proposal in the merit track unless the proposal is consistent with the relevant code.[25] Additionally, in deciding a development application for a development proposal in the merit track, the decision‑maker must consider the objectives for the zone in which the development is proposed to take place.[26]
[25] Planning and Development Act 2007, s 119(1)(a)
[26] Planning and Development Act 2007, s 120(a)
The interplay of these various provisions was explained by the Court of Appeal in Baptist Community Services v ACT Planning and Land Authority:
[42] Clearly, zone objectives are part of the Territory Plan. However the Territory Plan consists of multiple sets of provisions relating to different kinds of developments and different kinds of zones. It is thus also clear that a set of zone objectives being a part of the Territory Plan is not enough to create an inconsistency with the Territory Plan for a development proposal within a different zone: the structure would be unworkable if a development proposed for a particular zone is “inconsistent with the Territory Plan” because it is inconsistent with zone objectives for a different zone.
[43] Rather, inconsistency with the Territory Plan must depend on the status and operation given to particular parts of the Territory Plan’s contents, either by the Territory Plan itself or by the associated legislation.
[44] In the form in which the zone objectives are part of the Territory Plan, they have no particular status, consisting as they do of what are grammatically a series of orders or exhortations with no clearly identifiable audience: who or what, for instance, is required to “provide opportunities for home-based employment consistent with residential amenity” (objective (c))? ACTPLA? A would-be developer? Or, perhaps most sensibly, the provisions of the relevant code?.
[45] The relevant provisions of the Territory Plan itself (quoted at [14] above) describe zone objectives as being “relevant” to the assessment of certain development proposals; they do not indicate that any inconsistency with zone objectives excludes approval of the development proposal. Those provisions closely reflect the Planning Act provisions referred to in that part of the Territory Plan (ss 120 and 129), which in their terms require the zone objectives to be “considered” in deciding a development application in the merit track or impact track.
[46] Apart from ss 120 and 129, the Planning Act, as already noted:
(a)(at s 53(2)) sets out requirements for the contents of the zone objectives, being that the zone objectives must be consistent with the statement of strategic directions; and
(b)(at s 53(1)) sets out the purpose of the zone objectives, being that they set out “the policy outcomes intended to be achieved by applying the applicable development table and code to the zone”, thereby providing, in effect, both general instructions for the preparation of a code and a test for the validity of the resulting code (by reference to its consistency with the relevant objectives).
[47] Having regard to s 53‘s location in the set of sections dealing with the various components of the Territory Plan and in particular with the hierarchical relationship between those components, s 53(1) is in our view an indication of the kind of material that is to be set out in zone objectives. That is, s 53 is an explanation to the drafter of zone objectives that the purpose of those objectives is to give guidance in the drafting of the development table and the codes.
[48] We are satisfied that s 53(1) does not mean that the zone objectives set out the policy outcomes to be achieved by applying the code to a particular development proposal. That is, a zone objective is not an instruction to a person testing a proposal against a code, although it may incidentally be an instruction to a person interpreting a code for the purpose of applying it to a development proposal for the zone concerned.[27]
Plan provisions
Objectives
[27] [2015] ACTCA 3 at [42]-[48] (Refshauge and Penfold JJ, Burns J agreeing)
The objectives for the RZ1 Suburban Zone are the subject of detailed attention later in these reasons, where they are set out.
Codes
Of the various codes that were relevant to the general assessment of the proposal, only the Multi Unit Housing Development Code (MUHDC) was relevant to the matters before the Tribunal. The relevant provisions are set out where they are referred to in these reasons.
Interpretation of Planning Act and Territory Plan
In the ACT, the meaning of all acts and statutory instruments is to be ascertained in accordance with chapter 14 of the Legislation Act 2001. Section 136 specifies that, for the purposes of Chapter 14, an “Act” includes a statutory instrument.[28] Therefore, as the Territory Plan was made under the PD Act – and therefore is a statutory instrument – references to “Act” in Chapter 14 refer to both the PD Act and the Territory Plan.[29] By subsection 13(2) and (3) of the PD Act, the Plan includes any codes, and each provision of a code.
[28] Legislation Act 2001, s 136
[29] Legislation Act 2001, s 13(1)
Section 139 provides:
(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
Section 140 provides:
In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.
Section 141 provides:
In working out the meaning of an Act, material not forming part of the Act may be considered.
Section 142 provides that material may be taken into account if it is listed in table 142. Table 142 provides specifically for Acts in column 2, and for statutory instruments in column 3.
A statutory instrument includes notifiable instruments.[30] When the Plan is being varied, documents which are part of the public consultation process, or which are given to the Minister or an Assembly Committee in the course of the variation process,[31] are notifiable instruments.
Overview of issues
Standard block
[30] Legislation Act 2001, s 13(2)
[31] See Planning and Development Act 2007, ss 66, 73
The codes set out the specific development controls that apply to regulate land use. For the RZ1 Suburban zone, there are specific controls that set parameters outside of which a development proposal cannot be approved. They do so because they are stated to apply to a specific type of block – the standard block. The applicant says that Block 11 is not a standard block. If Block 11 is a standard block, those specific controls prevent approval. If it is not, then approval could be given.
Code compliance
It is either common ground or otherwise very clear that the proposal, with Block 11 as a non-standard block, complies with the majority of code provisions. In respect of two matters, further consideration is necessary. Those matters are Courtyard walls and basement side setback and related structures concerning safety and privacy.
Section 120 considerations
Section 120 of the PD Act sets out a number of considerations a decision-maker must consider when deciding a development application for a development proposal in the merit track.
Paragraph 120(a) – zone objectives – requires detailed consideration.
Paragraphs (b), (d), and (h) – dealing with suitability of land, representations, and probable impact, respectively – have some relevance.
Exercise of discretion
Consideration of the proper exercise of the discretion to refuse approval to a proposal which is code compliant arises in this case.
Issues considered in the statutory order
We will set out our consideration of the issues in the statutory order, and on the initial assumption that Block 11 is not, as the applicant and the respondent contend, a standard block. It will then be necessary to return to the interpretation of the definition of ‘standard block’, before considering the final disposition of this application.
Section 119 – Code compliance
Generally
Relevantly, section 119 of the PD Act requires “development approval must not be given … unless the proposal is consistent with … the relevant code”.
In considering the proposal against the codes, we have assumed that Block 11 is not a standard block. The relevant code is the MUHDC.
We have reviewed the planning assessment and expert evidence. We are satisfied that:
(a)The building is a maximum of two stories as required by rules 16-18.
(b)The building height is less than 8.5m as required by rule 23.
(c)The front boundary setbacks of 4m and 6m, as required by rule 29, are met.
(d)The side and rear boundary setbacks, as required by rule 30 are met, with the exception of the driveway wall and basement at the driveway entry. This matter is discussed below.
(e)The landscape, planting area, and site open space and principal private open space requirements of rules 38, 39, and 61, and criterion 40, are met.
(f)The privacy requirements of rule 59 are met.
The front fence rule and the courtyard walls requirements of rule 41 and of criteria 41 and 42 are discussed below.
We are satisfied otherwise that the planning assessment shows that all other matters of parking and driveway requirements, waste, letter boxes and so on are now compliant.
Two matters remain:
(a)the setback of the courtyard walls; and
(b)The basement side setback and related structures concerning safety and privacy.
Both of these matters were the subject of extensive evidence and investigation during the hearing.
Courtyard walls
Concern was raised by the parties joined about the location and material composition of the courtyard walls. In the notice of decision on reconsideration dated 19 October 2022, it was said:
The proposed courtyard wall along Norman Street is located at a minimum setback of approximately 0.5m rather than the required 2m which is not adequate to provide planting. They total length of this courtyard wall also exceeds the permissible 60% of the width of the block. It extends almost the full length of the frontage inconsistent with the existing/desired streetscape character including the courtyard walls to Norman St on the recent dual occupancy development across [Lawley St from] the subject block which has greater setbacks. In relation to the courtyard wall to Lawley Street, the applicant states “… has been significantly reduced in length and setback 2m. Where the wall has been removed, a hedge will be established, paying homage to the original inner South suburban design aesthetic”. But the same treatment is not afforded to Norman St, which is a longer frontage and has greater impact. Considering the front yards to Norman Street are not PPOSs, courtyard walls to majority of the width of the block frontage is not warranted.[32]
[32] Notice of Decision on Reconsideration dated 19 October 2023, page 4-5
The revised development drawings submitted to the Tribunal incorporate a courtyard wall of about 12 m in length in front of units 2 and 3, setback 1.225m; and a courtyard wall of about 4m, set back behind the building line, associated with unit 1. These walls are constructed of masonry material, apart from approximately 2.6 m of the wall in front of unit 3, which appears to be constructed of wooden, or possibly metal, palings. The isometric view DA-81-05 shows three linking courtyard walls at right angles to the courtyard wall in front of units 2 and 3 which appear to be constructed of palings.[33]
[33] Witness statement of Ronan Moss dated 8 March 2023, annexure RM2 – ‘Drawing DA-81-05’, page 17
There was extensive discussion on the front courtyards. Mr Pankhurst pointed out that the setback in front of units 2 and 3 was less than the rule requirement of 2m. He added that the walls running at right angles to the front courtyard walls did not comply with the requirement of rule 42 – that they be:
[C]onstructed of brick, block or stonework and of any which may combine with timber or metal panels that include openings not less than 25 per cent of the surface area of the panel.[34]
He added that if they were to contain a tree that reflected the streetscape, they would not be able function as courtyards.[35]
[34] Transcript of proceedings 27 March 2023, page 305, lines 16-19
[35] Transcript of proceedings 27 March 2023, page 306, line 43 - page 307, line 2
Mr Walker SC submitted that if the structures form courtyards, they are courtyard walls. He also submitted that if they constitute a problem, they can either be pulled back inside the 2m setback, or alternatively, they can be deleted entirely.
Mr Bird submitted that it is appropriate to deal with the dividing structures under the courtyard wall provision, and not the fence provision.
Mr Bell also submitted that they do not comply with the Boundary Fences General Code because they are located forward of the building line.
Neither ‘courtyard’ nor ‘courtyard wall’ is defined in the Territory Plan. We adopt the common understanding of a courtyard as an unroofed area that is completely or partially enclosed by walls or buildings, and that the enclosing structures are either the walls of buildings or courtyard walls.
Courtyard walls are governed by rule 42 and criterion 42 of Part 4 of the MUHDC, outlined below:
R42
Courtyard walls are permitted forward of the building line where they comply with all of the following:
a) a total length not exceeding 60% of the width of the block at the line of the wall
b) a minimum setback from the front boundary of not less than 2m
c) trees and/or shrubs between the wall and the front boundary, in accordance with an approved landscape plan
d) a maximum height not exceeding 1.8m above datum ground level
e) constructed of brick, block or stonework, any of which may be combined with timber or metal panels that include openings not less than 25% of the surface area of the panel
f) do not obstruct sight lines for vehicles and pedestrians on public paths or driveways in accordance with Australian Standard AS2890.1 - Off-Street Parking.
C42
Courtyard walls achieve all of the following:
a) consistent with the desired character
b) the dominance of the building’s facade in the streetscape taking all of the following aspects of the proposed courtyard wall into account:
i)height
ii)relationship to verge footpath
iii)total proportion relative to the building
iv)width
v)colour and design features
vi)transparency
vii)articulation
viii)protection of existing desirable landscape features
ix)tree and shrub planting forward of the wall
c) do not obstruct sight lines for vehicles and pedestrians on public paths or driveways in accordance with Australian Standard AS2890.1 - Off-Street Parking.
The first issue to consider is the setback of the front courtyard wall from the front boundary.
The setback proposed in the latest design is 1.225m, which is less than the 2m required in Rule 42. Criterion 42 must therefore be considered. It requires consistency with “desired character”, which is defined in the Territory Plan as:
[T]he form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code.[36]
[36] Territory Plan, 13.1 Definitions, ‘desired character’, page 33
A wall of this nature could be permitted if it were associated with a single residential development. It is noted that there are other walls of this nature in the vicinity, and the wall across the street on block 23 section 63 Deakin comes as close as 0.7m to the boundary. The courtyard wall in the submitted design is proposed to be fronted by vegetation located on the block, resolving an issue which was a concern in the previous refusal, and it integrates visually with hedges which are proposed for other locations around the site.
The front courtyard wall is approximately 1.5m high and approximately 12m long. The height is within the 1.8m limit set in rule 42 and the length, at about 35% of the frontage, is significantly less than the 60% restriction set in the rule. It is integrated with the building design in colour, length and design features. It does not jeopardise any existing vegetation, is not of sufficient length to require articulation and contains a transparent section. In addition, there is no footpath in front of the wall.
We conclude that the front courtyard wall, if considered as an element in its own right, complies with the requirement for desired character and meets the other criterion elements, except for the materials used in its construction, which are now considered.
Part of the front courtyard wall to the southeast, and the three courtyard walls at right angles to that wall, appear to be constructed from wooden or metal palings. In terms of the desired character of the area, the construction of these elements, as shown in the isometric drawings, could be seen to be fencing material and, in this case, front fences.
The tribunal in 4THD Planning & Design Pty Ltd v ACT Planning and Land Authority noted that:
Rule 42 e) requires the courtyard walls to be constructed in brick, block or stonework, any of which may be combined with timber or metal panels that include openings not less than 25% of the surface area of the panel … Our assessment is that, similar to the construction of a panel door, the timber panels in the courtyard walls would need to be located within a wall, partly or whole surround (sic) by a ‘frame’ of brickwork.[37]
[37] [2021] ACAT 59 at [75]
We agree with that assessment. The front courtyard wall, at a minimum, needs a masonry column to terminate its south-eastern extremity, and the three courtyard walls linking the front wall to the building need to be redesigned to meet the requirements of rule 42(e) – that is, to have masonry frames to the timber or metal panels. We are satisfied that this could properly be made the subject of a condition and would impose a condition to this effect.
The basement side setback and related structures concerning safety and privacy
Several issues were raised about the basement and the driveway in the vicinity of Lawley Street, particularly in relation to setback and safety.
The building has an extensive basement which is under much of the floors above, and extends beyond them in some areas to be beneath the rear terraces to the north of the building. The basement is angled on the site, being closer at the Lawley Street frontage than at the back, where there is ample setback. Drawing DA-21-01 shows the driveway starting where the 3m setback line crosses the basement wall, but where the traffic light is located, and the driveway starts to slope up and is separated from the basement by a wall, the basement setback is 2m.[38] The driveway transitions to a setback of 1m at the property boundary and is at ground level.
[38] Witness statement of Ronan Moss dated 8 March 2023, annexure RM2 – ‘Drawing DA-21-01’, page 4
The ceiling over the basement has a step up of about 400mm for about 2m to provide increased clearance in the area where the driveway begins to rise. This area is adjacent to the courtyard and laundry of unit 2. On top of this elevated section are located a 1.4 m high fence, which provides protection against falls, and a substantial planter box approximately 5.2m long, 0.7m wide and 1m high. The planter box is about the same height as the side fence as shown in the sightline details drawing DA-23-01, making it 2.2m above ground level, and extends to within 1.7m of the side boundary.
Setback
The first issue concerns the driveway and the setback of its retaining wall. The expert evidence was varied:
(a)Mr Nash’s opinion was that the retaining wall forms part of the driveway and is therefore excluded from the table of the MUHDC, which refers to setback distances.[39]
(b)Mr Moss considered that the retaining wall was about 900 mm and was under a metre above ground level. He also indicated that it did comply with the safety requirements.[40]
(c)Mr Varlow did not consider that the retaining wall associated with the driveway fell into any part of the defined terms which required a 3m setback to the side boundary.[41]
(d)Mr Pankhurst considered that the wall of the building forming access to the basement car parking is a lower floor level and that part of the building is within 3m of the side boundary.[42]
[39] Transcript of proceedings 22 March 2023, page 45, lines 41-44
[40] Transcript of proceedings 22 March 2023, page 92, line 25 - page 93, line 45
[41] Transcript of proceedings 23 March 2023, page 18, lines 18-35
[42] Transcript of proceedings 23 March 2023, page 283, line 15 - page 285, line 2
The ramp wall and side setback of the basement are considered first. In Sladic, with reference to a similar structure, the tribunal said:
We are satisfied that on the ordinary meaning, the walls are a building. As in Ward v Griffiths, the ramp walls under consideration are of such a height, depth, length and constructed of such material as to be considered substantial. However, we do not consider that the ramp walls are ‘basement’, rather they are structures attached to the basement.[43]
[43] Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail Reit & Ors v ACT Planning and Land Authority [2018] ACAT 38 at [145], citing Ward v Griffiths (1987) 9 NSWLR 458
The ramp and its retaining walls, in this proposal, constitute a substantial construction. The walls on the northern side of the ramp fall within the setback line over their whole length and so do not meet the requirement set out in table A6 of the MUHDC, as required by rule 30. Consequently, they need to be assessed against the requirements of criterion 30.
Criterion 30 of the MUHDC states as follows:
Buildings and other structures are sited to achieve all of the following:
a)consistency with the desired character
b)reasonable separation between adjoining developments
c)reasonable privacy for dwellings on adjoining residential blocks
d)reasonable privacy for principal private open space on adjoining residential blocks
e)reasonable solar access to dwellings on adjoining residential blocks and their associated principal private open space.
Sub-criteria (c), (d) and (e) raise no concerns and are all met. The first two require consideration. The component of the basement which falls within the 3m setback is also considered here because similar issues are involved. The first issue is consistency with the “desired character”, which in part requires the nature of the resulting streetscape be consistent with the relevant zone objectives.[44] A highly prevalent feature of the neighbourhood character in these areas consists of the planting of vegetation along the side boundaries. Reasonably deep planting zones are necessary for the maintenance of this vegetation, particularly where sizeable trees are present, and hence it is highly desirable that deep cuts (which the ramp requires) be setback from the boundary.
[44] Territory Plan, 13.1 Definitions ‘desired character’, page 33
In our view, the existing design fails to meet sub-criteria (a) and (b). The driveway and building basement do not move outside the setback line until unit 3. That is, the front half of the building fails to meet the setback requirement and jeopardises the potential for boundary planting to thrive.
An alternative design was prepared over the weekend between days two and three of the hearing. It is shown on SK-10-01 and SK-10-02 and is now considered.[45] Driveways at ground level are permitted to be located at a 1m setback and, on the subject block, separation from a street tree requires the driveway to enter the street at approximately such a setback. The driveway transitions from a 1m setback to a 3m setback over 8m and becomes deeper as the setback increases. The focus is on about 12.5% of the setback area behind the line at which the driveway begins to dip. It meets the two sub-criteria for the driveway, by maintaining adequate space for boundary planting and by transitioning to a 3m setback in a short distance. This design also moves the planter box and the edge of the terrace to unit 3 outside the setback line, affording full compliance if the heights in the original design are maintained.
[45] Exhibit A10 – ‘Drawings SK-10-1, SK-10-02 and SK-99-02, Drawings of Cox Architecture’ dated 20-25 March 2023
Mr Pankhurst indicated that he would need to view elevation drawings to be fully satisfied with the revised proposal. He was concerned that part of the basement was more than 1m above ground level and could be termed to be a floor.[46] Drawing DA-23-01 shows that, as the driveway exits the basement, the ceiling of the basement is raised by about 0.4m to increase the access height.[47] Mr Pankhurst showed in his mark up diagram that it is this feature that is up to 0.132m over the allowable 1m.[48] If these levels are carried through on the new design, the issue persists.[49]
[46] Witness statement of Owen Pankhurst dated 19 February 2023 at [50]
[47] Witness statement of Ronan Moss dated 8 March 2023, annexure RM2 – ‘Drawing DA-23-01’, page 8
[48] Exhibit PJD2 – ‘Diagrams showing mark-up of setbacks’ dated 26 March 2023, page 2
[49] Witness statement of Ronan Moss dated 8 March 2023, annexure RM2 – ‘Final Amended Plans’
However, we do not think that this makes the whole basement a floor.
This segment, measuring 2m by 3.8m approximately, probably is a floor – without matching elevations it is difficult to be certain. It has no floors above it, so the building remains as a two-storey building, and just under 8m2 is added to the gross floor area. But that is not a critical issue.
Safety
The safety issue associated with a potential fall hazard is now considered. In the revised design submitted during the hearing,[50] the boundary fence was proposed to be extended about a metre forward and connected to a new side fence between that boundary fence and the driveway. This approach is not considered to be adequate. The connecting fence is not necessary. Whether it is there or not, a structure is needed on the driveway wall, or the driveway wall itself needs to be sufficiently high above the finished ground level to meet building requirements. The 0.9m suggested by Mr Moss may be adequate, but this should be checked.
[50] Exhibit A10 – ‘Drawings SK-10-1, SK-10-02 and SK-99-02, Drawings of Cox Architecture’ dated 20-25 March 2023
We are, however, satisfied that an appropriate design is achievable for safety purposes with modifications to Drawings SK-10-01 and SK-10-02, showing elevations no higher than in the most recent design submitted before the hearing, and barriers around the driveway consistent with safety requirements. A condition to this effect should be imposed.
Privacy
The side fence is shown as 1.8m high, situated on a 0.5m retaining wall, giving a top of wall height of 597m for the retaining wall and 598.8m for the fence.[51] The north elevation on Drawing DA-30-01 appears to show a uniform soil level, indicating that fill covers the area to the level of the retaining wall.[52] This would also ensure that drainage is not concentrated at any point on the boundary. The contours on Drawing DA-15-01, however, show the 596.5 m contour moving from near the boundary at the Lawley Street end of the property to over 6m away from the boundary towards the back of the block.[53] Given the reasonably consistent fall on the block demonstrated by the contour map,[54] it could be expected that some points on the boundary could be close to 596.25 m and, hence, the retaining wall to be up to 0.75 m high if a top of wall height is to be maintained as required by the proposed levels. On the contour plan, height readings, shown close to the wall but in indefinite locations, are 596.4 m, 596.41 m and 596.37 m indicating that the retaining wall reaches at least 0.67 m.
[51] Witness statement of Ronan Moss dated 8 March 2023, annexure RM2 – ‘Drawing DA 21-02’, page 5
[52] Witness statement of Ronan Moss dated 8 March 2023, annexure RM2 – ‘Drawing DA-30-01’, page 13
[53] Witness statement of Ronan Moss dated 8 March 2023, annexure RM2 – ‘Drawing DA-15-01’, page 3
[54] Witness statement of Ronan Moss dated 8 March 2023, annexure RM2 – ‘Drawing DA-15-01’, page 3
The northern elevation of the proposed building, which faces block 12 at a slight angle, has substantial glazing and, clearly, the most glazing of any of the ground floor elevations.[55] The living rooms of units 1 and 2 which face the fence have a floor level 1.24 m below the fence, and the living rooms of units 3 and 4 have floor levels 1.34 m below the fence, affording high levels of visibility into the adjacent yard. The minimum distance from the windows to the fence is just over 6m. The courtyard terraces have a floor level of 1.5 m below the fence, giving some visibility into the yard of block 12 for many people. The courtyard terrace of unit 2 comes within 2m of the fence. On the plan submitted during the hearing, SK-10-02, the terrace is setback 3 m.[56] Other courtyards are setback further, at least 3m back.
[55] Witness statement of Ronan Moss dated 8 March 2023, annexure RM2 – ‘Drawing DA-30-01’, page 13
[56] Exhibit A10 – ‘Drawings SK-10-1, SK-10-02 and SK-99-02, Drawings of Cox Architecture’ dated 20-25 March 2023
Mr Pankhurst considered that the development as a whole provides additional impact from having four neighbours instead of one.[57] Mr Walker SC submitted that it was accepted that the closest parts of the buildings across the back fence were effectively non habitable spaces, like sheds and things of that sort, so the development would not have an immediate impact upon neighbours.
[57] Transcript of proceedings dated 27 March 2023, page 387, line 33- page 388, line 7
We consider that there is a need for some balancing of these assessments. A higher fence would provide a greater degree of protection of the privacy of the occupants of block 12. The noise and intrusion on privacy from four units would, however, be more than one or two units. The drawings show a structure, generally about 2.3m high rising to nearly 2.5m in one location, comprising a 1.8m fence on top of a retaining wall rising, generally, to height of 0.5m. and 0.7m in one location.[58] We consider that the proposal for the retaining wall and fence is acceptable.
Section 120 – Matters for consideration
[58] Witness statement of Ronan Moss dated 8 March 2023, annexure RM2 – ‘Drawing DA-21-02 and DA-23-01’, pages 5, 8
Section 120 requires that, in deciding a development application for a development proposal within the merit track, the decision-maker must consider specified matters.
The matters specified in paragraphs (c), (e) and (f) of section 120 have no application to this proposal. No further consideration of them is required.
Paragraph (a) requires consideration of the objectives for the zone in which the development is proposed to take place. Paragraphs (b) and (h) concern the suitability of the land for the kind of development proposed, and its probable impact. Paragraph (d) concerns the representations received following public notification of the proposal.
Section 120 (a) – zone objectives
RZ1 Suburban zone objectives
The RZ1 objectives, in their present form, were introduced in July 2013, with the Territory Plan Variation 306 (Variation 306), as an outcome of a general review of the policy content of the Territory Plan.[59] This review commenced in 2009 and included policy relating to all forms of development in residential zones and the subdivision of land, particularly greenfield estates. Before that, assessment of development applications relied on a number of planning guidelines, including guidelines for Planning and Design of Residential Estates, which were largely incorporated into the restructured 2008 Territory Plan, but with much of the policy content remaining unchanged.[60]
[59] Planning and Development (Plan Variation No 306) Notice 2013, see also Planning and Development (Plan Variation No 306) Commencement Notice 2013
[60] Planning and Development (Draft Variation Number 306) Consultation Notice 2011 at [2.1]
Draft Variation 306 (DV 306) was released for public consultation in May 2011. The Explanatory Statement to DV 306 described the role of zone objectives:
2.2.1 Zone objectives
Zone objectives provide context to the formulation of proposals to vary the plan, including the preparation of codes. Their key role is in the assessment of development proposals in the merit and impact tracks under sections 120 and 129 of the Planning and Development Act 2007.[61]
[61] Planning and Development (Draft Variation Number 306) Consultation Notice 2011 at [2.2.1]
The “key changes” to the relevant zone objectives were summarised as:[62]
2.4.1 Zone objectives
Residential zone objectives, as found in section 3 of the Territory Plan, are revised to better differentiate between zones, to more fully describe the “desired character” of urban development in each zone, and to recognise the importance of good solar access. The objectives for RZ1, for example, seek to convey that the nature of initial development is low rise and predominantly low density. The objectives go on to indicate that, once established, the pattern of urban development should be protected. Protection of the established pattern is an indication of “desired character”, which is defined under this draft variation as:
desired character means the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives
Many of the criteria found in the draft residential development codes list “consistency with the desired character” as a matter to be considered when determining whether that criterion is achieved. Because “desired character” relates to the zone objectives, it is important that these objectives make a clear statement of the “desired character” of each zone. In some zones, notably RZ1, the desired character will ordinarily be a continuation of the current pattern of development. By contrast, the desired character in other zones, such as RZ4, may reflect quite different forms of urban development, such as higher density housing.[63]
[62] Planning and Development (Draft Variation Number 306) Consultation Notice 2011 part [2.4] addressed both zone objectives and development tables, as only the zone objectives are relevant, the sections referring to development tables are not referred to
[63] Planning and Development (Draft Variation Number 306) Consultation Notice 2011 at [2.4.1]
The “key draft zone objectives” were identified as:
RZ1 – suburban zone
a) Provide for the establishment and maintenance of residential areas where the housing is low rise (maximum two storeys) and predominantly single dwelling and low density in character
b) Protect the character of established single dwelling housing areas by limiting the extent of change that can occur particularly with regard to the pattern of subdivision and the density of dwellings.
RZ2 – suburban core zone
a) Provide for the establishment and maintenance of residential areas where the housing is low rise (maximum two storeys) and contains a mix of single dwelling and multi unit development that is low to medium density in character particularly in areas close to facilities and services in commercial centres
b) Provide opportunities for redevelopment by enabling a limited extent of change with regard to the pattern of subdivision and the density of dwellings.
RZ3 – urban low rise zone
a) Provide for the establishment and maintenance of residential areas where the housing is low rise (maximum two storeys) and predominantly medium density in character and particularly in areas that have good access to facilities and services and/ or frequent public transport services
b) Provide opportunities for redevelopment by enabling changes to the pattern of subdivision and the density of dwellings.[64]
[64] Planning and Development (Draft Variation Number 306) Consultation Notice 2011 at [2.4.1], see also Planning and Development (Draft Variation Number 306) Consultation Notice 2011, Appendix A
The ordinary meaning[110] of “original” is:
adj. 1 belonging or pertaining to the origin or beginning of something, or to a thing at its beginning.
[110] Macquarie Dictionary
The respondent pointed out that the term “original” is ambiguous, but then considered only two arms of the ambiguity, both concerned with the lease itself. There is a third arm. The applicant looked at parts of speech and the different sense that may be attached to the adverbial form as opposed to the adjectival, but then did not consider the contextual significance in the difference. They both reached the conclusion that ‘original lease’ meant the first lease granted over the block, whenever that was.
There are several reasons why the word ‘original’ should not be interpreted as referring to the first lease granted, but rather as the lease referred to in the expression “originally leased or used”, it thus being ‘original’ only if it were granted at that time.
This follows from the fact that, when introducing this expression, the drafter has chosen to use a word related in meaning to one already used, rather than another word which would identify the first lease, whenever granted. Generally speaking, in both ordinary language and drafting of statutory provisions, the meaning of a word appearing in proximity with that word, used in another part of speech derived from that word, will be the same in both cases. Conversely, the use of another part of speech derived from that word in such circumstances would be avoided where it was important to convey a different meaning. In this instance, it would be more natural to select the word “first” to convey a reference to the first lease granted whenever that was, rather than risk confusion by using a part of speech derived from the word already used in close proximity.
Moreover, as has been indicated, the grammatical structure employed suggests that “originally” and “original” are connected in meaning. The sense conveyed by the structure is “the block [which was] originally leased”, such that the reference immediately following, to “original lease”, suggests the lease just referred to, implicitly, as being the lease originally granted over the block.
“Explicitly”
The ordinary meaning of ‘explicitly’ is: “adj. 1 leaving nothing merely implied; clearly expressed; unequivocal”.[111]
[111] Macquarie Dictionary ‘explicitly’ (def 1)
The exception applies where a lease explicitly permits “two dwellings”. Necessarily, that must mean something different from a lease for the purpose of “one or two” dwellings.
As explained in the Explanatory Statement to the Variation 350 Approval,[112] the second smaller dwelling was allowed if the low-density suburban character was maintained. That clearly was a policy based on planning considerations. It follows that the lease supposed in the exception must also be the outcome of planning consideration – that is, that the block has been assessed and proved suitable for multi-unit housing or, as expressed in the Explanatory Statement: “blocks that have always contained multi-unit development (i.e. more than one dwelling)” and “blocks originally developed or assigned for multi-unit housing”.
[112] See above at [159]; Planning and Development (Plan Variation No 350) Approval 2019 at [1.2]
The definition is part of any code which employs its label (‘standard block’). The codes must be consistent with the zone objectives.[113] RZ1 Objective b) is concerned with protection of the character of established single dwelling housing areas, particularly with regard to the original pattern of subdivision and the density of dwellings. As we discussed earlier,[114] that is a reference to the layout and land use originally established for the area. It is not a reference to the layout and land use as it may be at some later time. The interpretation that the applicant and the respondent contend for involves a lease granted at that later time. That is inconsistent with Objective b) and is not to be preferred.
[113] Planning and Development Act 2007, s 55(2)
[114] See above at [133]
The conditional permission for a second dwelling in this case indicates that Block 11 had not been subjected to a planning assessment that informed the land use permission expressed in the lease.
We are reinforced in that view by the fact that, in 1993, there were several thousand leases granted to the Commissioner for Housing at the same time. The work involved in the assessment of each block would have been considerable. If it had been undertaken, it is likely to be reflected in lease purpose clauses that unequivocally stated the permitted number as assessed.
The wording of clause 2(d) of the lease for Block 11, however, suggests that this did not occur, but that a simple administrative instrument was being used as an expedient to limit the smaller blocks – possibly those under 700 m2 – to one dwelling, and providing the possibility for larger blocks to have two dwellings developed on them. This conclusion is consistent with the random sample of those leases conducted by the respondent.[115]
[115] Exhibit R6 – ‘Crown Leases for Blocks 7 of 20, 24 of 24 and 28 of 24, Deakin’ dated March 1994
The exception has become necessary only because the definition now includes a block leased for the purpose of “one or two dwellings” so as to cover blocks leased for a single dwelling and a second smaller dwelling. Such blocks had always been regarded as falling within the ‘single dwelling’ planning intention. It has become necessary to distinguish those blocks from blocks which were leased at the time for two dwellings because they were intended to be multi‑dwelling blocks, and to be treated as such for development control purposes.[116]
Consideration of the submissions of the applicant and respondent
[116] See above at [159]; Planning and Development (Plan Variation No 350) Approval 2019 at [1.2]
It will be apparent from the foregoing that we do not accept the submissions of the applicant and of the respondent. We do note, however, that it became common ground that Block 11 had been originally used as a single dwelling, and that Mr Walker SC, at least (albeit ‘on the run’), appeared to concede that Block 11 fell within the first part of the definition, though maintaining that it was then taken out by the exception.
In that regard, we do not accept his submission (echoed by Mr Bird)[117] that it matters only what the lease says.[118] That implies a lack of connection between lease administration and planning, which ignores the context in which the definition is to be interpreted. That context is planning, solely about what development controls attach to particular blocks, and assumes that both leasing and planning agencies work in conjunction when formulating a lease purpose clause.
[117] Transcript of proceedings 27 March 2023, page 426, lines 40-43
[118] Transcript of proceedings 27 March 2023, page 406, lines 18-46
We have considered the letters in Exhibit R8, but do not regard them as of assistance for the reason that, as extrinsic material that may be considered under section 142 of the Legislation Act 2001, they would carry very little weight as neither refers to Block 11 and we do not know the circumstances of the blocks they are concerned with.
Conclusion – Block 11 is a standard block
The purpose of the Territory Plan in relation to Canberra’s suburban residential areas is to establish them according to an expressed template, allowing each to develop its own character, and then to manage change predictably so as to protect that character appropriately.
That element of predictability requires the definition of ‘standard block’ to be given an operation which, in accordance with section 139 of the Legislation Act 2001, ensures that the codes are applied to like blocks in like manner, unaffected by random events which are not themselves the outcome of planning.
Our conclusion is that Block 11 was ‘originally used’ as a single dwelling and is therefore a standard block. The corollary of that proposition is that the lease for Block 11 is not an ‘original lease’ and therefore does not come within the exception. Even if that is not the case, we also conclude that the lease for Block 11 does not explicitly permit two dwellings.
Block 11 remains a standard block.
Summary of conclusions
We have considered the proposal on the basis that Block 11 is not a standard block, and concluded that it is code compliant, but that it is not consistent with RZ1 Zone Objective b).
We have considered whether Block 11, on the proper construction of the codes and its lease, is a standard block, and concluded that it is. This conclusion is sufficient to decide the matter independently of other considerations.
Nonetheless, we have also considered whether, if it were necessary, we should exercise the discretion to refuse the proposal in the light of our other conclusions.
Exercise of discretion
The Court of Appeal has said that a decision-maker has a discretion to reject a code-compliant proposal after consideration of the section 120 matters.[119] The Court made no express comment as to when it would be appropriate to exercise that discretion.
[119] Baptist Community Services v ACT Planning and Land Authority [2015] ACTCA 3 at [59]
That question was touched on in Javelin Projects Pty Limited v ACTPLA, where the tribunal considered the “[i]nterplay between Sections 119 and 120” and, after noting that the objectives had a role in providing guidance on the interpretation of the codes, observed “that if a development has been assessed as code compliance (sic) in this way there will be a strong presumption that the zone objectives have themselves been met”.[120] We agree with that observation as we do with the further statement that “it would be in an exceptional case that a single development would offend a zone objective and so bring section 120 into play”.[121]
[120] [2017] ACAT 87 at [142]
[121] Javelin Projects Pty Limited v ACTPLA [2017] ACAT 87 at [145]
The tribunal in Javelin found that the proposal before it was not code compliant and so did not need to consider the characteristics of an exceptional case. We have found that this proposal is code compliant, but we consider that it is not consistent with Objective b). We therefore need to consider what constitutes an exceptional case, justifying the exercise of discretion to refuse approval.
The tribunal in Javelin found, ultimately, in the case before it, that the force of the objectives was sufficiently expressed in the codes with which the proposal did not comply and therefore had to be refused.[122]
[122] Javelin Projects Pty Limited v ACTPLA [2017] ACAT 87 at [144]
The Court of Appeal in Baptist said of section 53(1) that it:
[S]ets out the purpose of the zone objectives, being that they set out “the policy outcomes intended to be achieved by applying the applicable development table and code to the zone”, thereby providing, in effect, both general instructions for the preparation of a code and a test for the validity of the resulting code (by reference to its consistency with the relevant objectives).[123]
[123] Baptist Community Services v ACT Planning and Land Authority [2015] ACTCA 3 at [46]
As we have said earlier, Objective b) is very clear about what the codes are to do to protect the character of an established single dwelling housing area, by way of setting parameters to limit the extent of change, particularly with regard to the original pattern of subdivision and the density of dwellings. Consequently, it is possible to see that the codes have failed to follow those instructions and have allowed a situation to arise in which four dwellings might be developed on a block designated for two, contrary to the original pattern of subdivision and the density of dwellings.
In Javelin, the tribunal could not see its way clear to ‘stretch’ its interpretation of the rules and criteria, as guided by the objectives, such that the proposal could achieve code compliance.[124] The situation in this case is the converse of that.
[124] Javelin Projects Pty Limited v ACTPLA [2017] ACAT 87 at [142]-[146]
As we have held, an interpretation of the definition of ‘standard block’ that results in Block 11 not being a standard block is inconsistent with Objective b). It is inconsistent to the extent that it allows the later grant of a lease (even more so, one which has not been informed by a planning assessment) to subvert the original subdivision pattern and density of dwellings, and the character which they engender, by evading the parameters set by the codes to prevent that happening.
It is also clear that this situation is not intended – indeed, it has arisen, ironically, in the course of an attempt to prevent exactly that which it has allowed.
Even treating Block 11 as a non-standard block, it nonetheless sits within the parameters that have been set by the codes, in that its lease permits two dwellings – within the limit of the extent of change allowed by the codes. It is only because of the unintended consequence arising from the attempt to set the critical parameters through the mechanism of a definition, and the applicants’ consequent ability to seek approval for four dwellings, that the inconsistency has been enabled to happen.
This is not a matter of degree about which reasonable minds may differ as to what a given planning intention was, and whether it has been achieved or not. This is a case of a clear-cut planning intention not being achieved because of misadventure.
We consider that this circumstance renders this case exceptional, leading to refusal of approval on that basis.
Decision
We confirm the decision of the delegate on reconsideration to refuse the proposal.
Conditions
If we had approved the proposal, we would have imposed the conditions set out in the document handed up by the respondent at the conclusion of the hearing headed “Part A – Conditions of Approval” to which we would add, by way of insertion, the following:
3a(iii)New basement and driveway design consistent with Drawings SK-10 and SK02.
3a(iv)Revised courtyard wall design, providing for a construction of brick, block, or stonework frames combined with timber or metal panels that include openings of not less than 25% of the surface area of the panel.
3a(v)A new safety structure, largely transparent and consistent with the relevant building codes, along the north-west wall of the driveway adjacent to block 12 and joining the fence or structure crossing above the driveway opening.
“Part A – Conditions of Approval” is set out below.
………………………………..
Senior Member R Arthur
For and on behalf of the Tribunal
| Date(s) of hearing: | 23, 24, and 27 March 2023 |
| Counsel for the Applicants: | Mr P Walker SC |
| Solicitors for the Applicants: | Terracon Legal |
| Counsel for the Respondent: | Mr J Bird |
| Solicitors for the Respondent: | ACT Government Solicitor |
| First Party Joined: | Self-represented |
| Second Party Joined: | Mr J Bell, Authorised Representative |
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