Stoddart & Ors and Act Planning & Land Authority - [2007] ACTAAT 27

AUSTRALIAN CAPITAL TERRITORY

ADMINISTRATIVE APPEALS TRIBUNAL

CITATION:STODDART & ORS AND ACT PLANNING & LAND AUTHORITY & ANOR [2007] ACTAAT 27 (21 DECEMBER 2007)
AT07/40-44
Catchwords: Land and planning – review of decision to conditionally approve a multi-dwelling development in an A10 area – pre-application consultation and other issues – traffic and safety – adequacy of private open space – setbacks – privacy – application of performance controls relating to setbacks and interface to impact on adjacent land – resident and visitor car parking – streetscape – removal of trees – application of development application to unleased land.
Administrative Appeals Tribunal Act 1989, s 37
Australian Capital Territory (Planning and Land Management) Act 1988 (Cth), s 29
Land (Planning and Environment) Act 1991, ss 222, 225, 226, 230, 245, 284
Land (Planning and Environment) Regulation 1992, reg 1
Tree Protection Act 2005

Tribunal:Mr M H Peedom, President
Dr D McMichael, Senior Member
Mr R Nichols, Member

Date:21 December 2007

AUSTRALIAN CAPITAL TERRITORY                   )
ADMINISTRATIVE APPEALS TRIBUNAL )          NOS:   AT07/40-44
LAND AND PLANNING DIVISION  )

RE:      JIM STODDART
Applicant in AT07/40
RE:      RAYMOND WALTERS
Applicant in AT07/41
RE:      STEWART JAMES
  WESTWOOD
Applicant in AT07/42
RE:      IAN & KAREN GARRITY
Applicant in AT07/43
RE:      HELEN J BREWER &
  GREGORY F QUINN
Applicant in AT07/44
AND:   ACT PLANNING & LAND
  AUTHORITY
Respondent
AND:   NORTON VILLA’S
PTY LTD
Party Joined

DECISION

Tribunal  :          Mr M H Peedom, President
  Dr D McMichael, Senior Member
  Mr R Nichols, Member

Date : 21 December 2007

Decision :

The decision under review is set aside and substituted by a decision that the development application is refused approval.

…………………….
President

AUSTRALIAN CAPITAL TERRITORY                   )
ADMINISTRATIVE APPEALS TRIBUNAL )          NOS:   AT07/40-44
LAND AND PLANNING DIVISION  )

RE:      JIM STODDART
Applicant in AT07/40
RE:      RAYMOND WALTERS
Applicant in AT07/41
RE:      STEWART JAMES
  WESTWOOD
Applicant in AT07/42
RE:      IAN & KAREN GARRITY
Applicant in AT07/43
RE:      HELEN J BREWER &
  GREGORY F QUINN
Applicant in AT07/44
AND:   ACT PLANNING & LAND
  AUTHORITY
Respondent
AND:   NORTON VILLA’S
PTY LTD
Party Joined

REASONS FOR DECISION

21 December 2007  Mr M H Peedom, President
  Dr D McMichael, Senior Member
  Mr R Nichols, Member

The decision under review

Mr Jim Stoddart, Mr Raymond Walters, Mr Stewart Westwood, Mr Ian and Ms Karen Garrity, Ms Helen Brewer and Mr Gregory Quinn (“the objectors”) have all sought review by the ACT Administrative Appeals Tribunal (“the Tribunal”) of a decision by a delegate of the ACT Planning and Land Authority (“the Authority” and “the respondent”) made in relation to Development Application (“DA”) 200605589A, lodged by Mr David Shearer on behalf of Norton Villa’s Pty Ltd (“the party joined”). The decision was made pursuant to section 230 of the Land (Planning and Environment) Act 1991 (“the Land Act”) to approve the development application, subject to conditions imposed pursuant to section 245 of the Land Act.

2. As the objectors were opposed to the proposed development for a variety of reasons, many of which were common to them all, the matters were heard concurrently.

The development application

3. An earlier DA (DA 200605589) was lodged on 15 January 2007 seeking consolidation of the leases for Blocks 20 and 21, Section 69 Evatt and the construction on the consolidated block (“the subject land”) of a multi-dwelling development. Following public notification, which attracted 70 objections and concerning which a number of petitions were submitted to the Legislative Assembly, the party joined lodged an altered DA (DA 200605589A) under section 226(7) of the Land Act on 6 June 2007 which was again subject to public notification and attracted 47 objections.

4. The subject block will be 1824.14 m², with a frontage to Norton Street of about 70 metres and to the two arms of Gleadow Street, each of about 25 metres. The altered proposal is to demolish the two existing houses on it and to erect thereon 10 one-bedroom units in three buildings separated from each other by 2 metre wide passageways. The buildings at either end of the consolidated block are each to contain 4 units, one of which is at the second floor level. The building in the centre comprises two units at ground level. Each unit has a single garage and street access from each garage is by a separate driveway, arranged in pairs. One pair (for Units 1 and 2) exits to the western arm of Gleadow Street; three pairs (for Units 3 and 4, 5 and 6, 7 and 8) exit to Norton Street, and one pair (for Units 9 and 10) exits to the eastern arm of Gleadow Street, each pair utilising a combined double-width verge crossing. The verge crossing for Units 3 and 4 involves the removal of a gum tree on public land, referred to as Tree No 4. One unit (Unit 9) at the eastern end is to be adaptable for use by disabled persons (as required by Control 3.11 of the Territory Plan (“the Plan”)). Visitor parking is proposed to be provided by allowing visitors to park in front of each garage on the driveways. Private open space is provided adjacent to each ground floor unit, while the two upstairs units have balconies.

5. While the general orientation of the three proposed buildings is roughly west-south-west to east-north-east, for convenience we have chosen to regard the long axis of the subject block as aligned east-west. We will refer to its Norton Street boundary as south, and its boundary with Blocks 9 and 10 as north, while its two Gleadow Street boundaries will be referred to as east and west.

6. The subject land lies within an A10 area and is subject to the A10 Residential Core Area Specific Policy, as well as to the Part A3 Plan Administration Policies of the Plan and to the Residential Design and Siting Code for Multi-Dwelling Developments, Appendix III.2 to the Plan (“the Code”).

7. Mr Bruce Frazer, as delegate of the respondent, made the decision to approve the altered DA subject to conditions (including the provision of some further revised plans) on 16 July 2007. At the date of hearing, the party joined had not lodged the required revised plans with the respondent. However, some further plans were lodged with the Tribunal by the party joined seven days prior to the hearing and were tendered in evidence at the hearing. These plans were similar to those submitted with the altered DA, except that they were more comprehensively dimensioned and indicated some alternative visitor parking arrangements.

The hearing

8. The applicants were self-represented at the hearing. They called no witnesses to give evidence in support of their claims, relying instead on their statements tendered in evidence and on cross-examination of witnesses called by the respondent and the party joined. They did, however, tender a statement prepared by Dr CL Brack, Senior Lecturer in Forest Measurement, Modelling and Management at the Fenner School of Environment and Society, ANU, concerning the adequacy of the tree survey submitted by the party joined as part of the DA, and in particular the proposal to remove Tree No. 4 and for additional street tree plantings on the verge of Norton Street. Dr Brack was not called to give oral evidence.

9. The respondent was represented by Mr G McCarthy, of counsel, who called as witnesses:

Mr Ken Hungerford, an Assessment Officer with Development Assessment Branch of the Authority, who has a Bachelor of Architecture degree, a Post-Graduate Diploma in Urban and Regional Planning and a Post-Graduate Diploma in Building Surveying, and has had 15 years’ experience as a town planner in development assessment roles with the Authority. Mr Hungerford was the officer who had the carriage of the assessment of the DA;

Mr Paul Isaks, a transport specialist with the Office of Transport in the Department of Territory and Municipal Services (“TAMS”), who has a Bachelor of Applied Science degree and has had 18 years’ experience with transport-related aspects of development applications both in the Authority and in TAMS; and

Mr Michael Brice, program manager in the Urban Tree Unit with Parks, Conservation and Lands (“PCL”) section of TAMS who has a Bachelor of Science (Forestry) degree and is responsible for 4 technical staff and 30 industrial staff and contractors, tasked with urban tree management activities across urban Canberra.

10. Mr McCarthy also tendered a witness statement from Mr Robert Perryman, an officer of Asset Acceptance, Asset Management Services of TAMS, which provides guidance to relevant government agencies, other entities and persons regarding waste collection in the Territory. Mr Perryman is qualified in surveying and building and holds a builder’s licence. He has occupied his present or an equivalent position for five years. He was not called to give oral evidence.

11. The party joined was represented by Mr John Harris, a legal practitioner. He called only one witness, Mr Paul Cohen who is a Director of Campbell Dion Pty Ltd, a town planning and landscape architecture design consultancy. Mr Cohen is a qualified urban and regional planner, a Fellow of the Planning Institute of Australia and presently President of its ACT Division, and a Councillor of the National Trust of Australia (ACT).

12. Mr Harris also tendered a plan prepared by Sellick Consultants showing the proposed Stormwater Management Plan for the development, but did not call its author to give oral evidence about it.

13. In the respondent’s statement of facts and contentions, a number of additional conditions or proposed variations to the conditions attaching to the decision under review were proposed. During the course of the hearing some further proposed conditions were put forward, both by the respondent and the party joined, in an attempt to resolve issues which arose during the hearing.

14. The Tribunal also had before it the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1989 (“the T documents”) and undertook a site inspection of the subject land during the course of the hearing in the presence of the parties’ representatives.

15. The Tribunal feels it necessary to record its dissatisfaction as to the adequacy of the T documents prepared in this case. During the course of the hearing, it emerged that some documents of significance in understanding the course of the decision-making under review were not included, while other documents were included whose origin and significance could not be explained by the witnesses available. Section 37 of the Administrative Appeals Tribunal Act 1989 provides that, in addition to “a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision” a decision-maker is required to lodge with the Tribunal “every other document or part of a document that is in his or her possession or under his or her control and is considered by him or her to be relevant to the review of the decision by the tribunal”. This obligation requires decision-makers to have careful regard to what is to be included and to ensure that witnesses on behalf of the respondent are fully informed on the origin of each document and as to what part it played in arriving at the decision under review.

16. It will be most convenient to deal with the matters raised by the objectors, issue by issue, and to set out our conclusions in relation to them as follows:

Preliminary consultations, pre-application documents and related concerns;

Impact of the proposed development on traffic and safety;

Adequacy of the provision of private open space;

Setbacks/privacy/private open space amenity;

Resident parking requirements;

Visitor parking requirements;

Streetscape; and

Trees.

Preliminary consultations, pre-application documents and related concerns

17. The objectors raised with the Tribunal a number of concerns that they had with the processes that preceded the lodgement of the first DA in January 2007. These included what they considered to be inadequate consultation by the representative of the developer with neighbours and the adjacent community; what they described as “inducements” (being offers to provide facilities or services to the immediate neighbours in return for their support for the project); and what they perceived to be a failure on the part of officers of the respondent to act in an ethical manner when these alleged deficiencies were brought to their attention.

18. The Tribunal explained to them that these allegations had no bearing on the review of the decision which the Tribunal was undertaking. It was stressed that the Tribunal was reviewing the decision on its merits. It stood in the shoes of the decision-maker and would base its decision solely on the relevant law and the evidence put before it in relation to the DA that was the subject of the decision and alterations proposed to it. Those persons to whom inducements were claimed to have been offered had the opportunity, if they chose, to give evidence to the Tribunal regarding the impact of the proposed development on their amenity. The objectors were given opportunity to cross-examine the witnesses called to give evidence on behalf of the respondent. The Tribunal’s task was to determine whether or not the altered DA, as approved with conditions, was consistent with the Plan. Consequently, we make no findings or comments in relation to the allegations made by the objectors.

19. However, the objectors did raise a matter that is of concern to the Tribunal and that was the extent to which the developer had responded to advice given to it by the respondent during the pre-application phase. This phase included:

discussions between the developer and officers of the respondent and City Management on 20 November 2006 at which two versions of the proposed development were considered, as evidenced by a report of the meeting prepared by Mr Hungerford that day; and

consideration of the proposal at a meeting of a Project Review Group on 5 December 2006, which had before it Mr Hungerford’s report of the 20 November meeting, as well as (at least) two plans (Sheets No 1 of 16 and 2 of 16 of Drawing No 06128, dated November 2006) tendered in evidence by Mr Garrity when provided to him by Mr Hungerford during the hearing.

20. One of these plans shows elevations of two versions of the proposal, one with eight of the units facing Norton Street conjoined and with a continuous roof-line, the other with the eight units broken into three buildings with hipped roofs and separated by narrow passageways.

21. The Project Review Group considered the proposal and on 6 December 2006, Mr Hungerford wrote to Mr Shearer, the representative of the developer, conveying their views and setting out some specific requirements to be addressed. The developer responded by lodging a Design Response Report (undated but apparently on 2 February 2007) with numerous attachments. In that report, the developer commented on how it had responded, or proposed to respond, to the issues raised at the pre-application meeting on 20 November 2006 and to those raised by the Project Review Group on 5 December 2006.

22. The objectors considered that the response of the developer to the matters raised by the Project Review Group was inadequate and that it contained inaccuracies, for example in the tree survey that had been undertaken and submitted. They were concerned that Mr Hungerford, in his tendered witness statement, said that he “did not rely on any of the claims made” in the Design Response Report and that he had assessed the altered DA by reference only to the plans lodged and supporting documentation, when assessing whether it complied with the Plan.

23. Mr Garrity drew attention to Part A2 of the Plan which sets out Strategic Principles including at Section 5, those intended to achieve Environmental and High Quality Design and to Clause 5.1 which states that “Particular care will be taken to ensure high quality design outcomes within residential areas”. He submitted that the development under review did not reflect “best practice” as the recommendations of the Project Review Group, a group of senior officers with expertise in high quality design, had not been properly addressed. He also drew attention to the “Development Applications” book published on the Authority’s website, which stated under the heading “Initial Assessment by Authority” that this initial assessment (by the assessment case officer) ensures that the development can be supported by the Authority in relation to ACT planning policy and regulations and has addressed all the issues raised during the design phase” (emphasis added). Mr Hungerford responded that he had considered the responses made on behalf of the party joined, but he had not relied upon them.

24. In oral evidence, Mr Hungerford explained that he regarded the discussions with the representative of the developer and the advice of the findings of the Project Review Group as being for guidance to the developer in an attempt to secure a better design outcome. In his opinion, what had resulted was superior to what had originally been proposed. However, he accepted that in such a process not everything that was suggested could be achieved. For example, the 20 November discussions had identified “the lack of quality of having a battery (row) of POS (ie, private open space) at the rear (north) of the building footprint” as a matter to be considered while the Project Review Group had suggested the need to “increase composite open space adjacent to neighbours’ open space. Bring buildings off the centre of the northern boundary to reinforce collective space of the combined rear yards”. However, the DA submitted had retained the row of POS for eight of the 10 units on the northern boundary because, in Mr Hungerford’s opinion, that had proved to be the only appropriate place to locate it.

25. While the Tribunal understands that designing a multi-dwelling development such as here proposed is often likely to be an iterative process involving interaction between officers of the respondent and the developer and that ultimately the assessing officer must respond to the DA that is actually lodged for assessment, it seems to us that it would be incompatible with the policy expressed in clause 5.1 of Part A2 of the Plan to not give effectual consideration during the assessment phase to issues that were of concern to the respondent and had been raised with the developer during the pre-application phase.

26. We were informed that the Project Review Group comprised senior officers of the Authority, including the Manager, Development Services and the person immediately below, the head of Urban Projects, as a well as someone from Urban Design. It is inconceivable to us that the views of such a senior group could simply be disregarded and normally we would have regard to both the views of the Group and the adequacy of the developer’s response. Our difficulty in this case is that we were not supplied with the documentation that was before either the meeting of 20 November 2006 or the Project Review Group (save the two tendered plans mentioned above), so we have an incomplete understanding of the concerns of the Project Review Group.

27. Under the circumstances we have assessed the DA against the provisions of the Plan and especially those applying to A10 areas, including the Code and our findings are set out in the following sections.

Impact of the proposed development on traffic and safety

28. The objectors were concerned that the development would lead to a reduction in safety as a result of two factors:

an increase in the number of vehicles exiting the development into the two arms of Gleadow Street and into Norton Street, thus increasing the amount of traffic in Norton Street which they considered to be a busy street; and

parking generated by the development overflowing onto Norton Street, compromising the safety of vehicles exiting Gleadow Street, especially its western arm, into Norton Street.

29. As to the first of these concerns, they noted that there would be an increase in the number of residences on the subject land from two to 10 and that cars would exit the land via five double driveways, three directly onto Norton Street and one onto each of the arms of Gleadow Street. They estimated that the increased number of vehicle movements per day (“vpd”) would exceed the carrying capacity of Norton Street which, while classified as a “local road” in the ACT road hierarchy, was already serving as a “minor collector road” carrying some through traffic in both directions between Clancy Street to the east and Moynihan Street to the west.

30. As to the second, they considered it likely that the occupiers of the proposed units would have more than one car and possibly would use the garages for storage. Therefore they would be likely to park on their driveways forcing visitors to park in the adjacent streets.

31. They drew attention to Performance Control 5 of the Code which deals with Vehicle Parking and Access, Objectives 5.1 and 5.2 of which read:

05.1 To provide sufficient and convenient parking for residents, visitors and service vehicles

05.2 To ensure parked vehicles do not obstruct the passage of vehicles on the carriage way or create traffic hazards.

32. The relevant Performance Criteria read:

P5.1 Resident and visitor parking to be provided according to projected needs of the dwelling and taking into account

·    the safety of pedestrians, cyclists and vehicles;
·    the provision of public car parking easily accessible to visitors;
·    the effect of sloping land in reducing parking opportunities; and
·    efficient location and use of car spaces and access ways including adequate manoeuvrability for vehicles between the street and the front boundary.

P5.2 Garages and carports to be located and designed to maintain streetscape amenity, complement dwelling design and allow surveillance of the street from within dwellings.

33. The objectors noted that Performance Measure D5.1 of the Code, stated

No vehicle parking spaces between the front boundary and the building line;

No access directly to individual parking spaces from the front boundary of developments of more than 2 dwellings

and observed that neither Performance Measure was met. They considered that the proposed parking and access arrangements were neither convenient nor safe, nor did they contribute to streetscape amenity.

34. The representative of the respondent was unable to give any definite view as to the purpose of the second sentence of Performance Measure D5.1 but presumed it was to avoid a proliferation of separate driveways, leading to an increased safety risk arising from numerous drivers backing out onto the adjacent street.

35. In his witness statement, Mr Hungerford said that when assessing this aspect of the DA, he considered the departure from the Performance Measure was justified. This was because, when considering the unique circumstances of the subject land, it met the Objectives and Performance Criteria of Performance Control 5 of the Code. He described the subject block as “an elongated block, providing opportunities for dwellings to address the street with north-facing private open space behind and to distribute access to the dwellings along the frontage, with the driveway in front of each garage associated only with that residence and not prejudicing the movement of vehicles associated with other dwellings on the block”.

36. The Tribunal is aware that there are many single dwellings in Canberra with garages accessed by driveways directly from the street which require a driver exiting the block to reverse onto the adjacent street. Nevertheless, the Code includes elements of the relevant performance specific control directed against such arrangements in the case of multi-dwelling development, in contrast to the Residential Design and Siting Code for Single Dwellings (Appendix III.1 to the Plan) where no similar measures are to be found. We consider that it is to be assumed that the Plan envisages that a proliferation of such driveways may give rise to safety issues and is not to be encouraged in multi-dwelling developments.

37. The objectors gave evidence of the difficulty they already had in exiting the western arm of Gleadow Street because of the incline at the intersection and the poor sight-lines which would, in their opinion, be exacerbated by any cars parked in Norton Street, especially if near the intersection. They contended that visitors would either not be able, or not choose, to park in the driveways and would park on Norton Street which was quite narrow. Photographs were tendered of cars parked in such positions and they contended that these demonstrated the impact that such parking would have on the capacity of a motorist exiting Gleadow Street to do so safely, especially if the volume of traffic in Norton Street increased.

38. Mr Paul Isaks gave evidence about the traffic in Norton, Gleadow and nearby streets. He advised that he had visited the area and arranged for traffic counts to be undertaken when the respondent had drawn attention to the proposed development of the subject land. He estimated that the proposed development would generate an extra 44 vehicle movements per day than are generated by the present dwellings. He regarded this as a comparatively minor, negligible increase in traffic movements in the area.

39. He explained that the “capacity” of a road was measured by counting or estimating the number of motorised vehicles of all types which travel on the road in either direction past a particular point. Because traffic distributed itself in different directions along a road, the actual number of movements on any one road may be greater than its capacity at any one point – for example, he estimated that Gleadow Street might experience 370 movements per day, but because vehicles would travel along only one of its two arms, its capacity at each intersection would be about 185 vpd. By contrast, its design capacity is estimated to be between 300 and 1000 vpd. He said that Norton Street was currently carrying about 1800 vpd of which he considered about 1440 to have been generated by local traffic (based on ACT estimates that a single detached dwelling generated, on average, 8 vpd). Therefore, there were about 360 vpd of through traffic using Norton Street, that is, 180 trips in each direction.

40. He did not regard Norton Street as a particularly busy street but agreed that cars parked near the western Gleadow Street intersection might result in the need for drivers entering Norton Street from Gleadow Street to exercise greater caution than normal and to watch out for approaching traffic. Mr Isaks acknowledged that he was not a traffic safety expert but nevertheless considered that it would not be unsafe if reasonable care was undertaken, in particular at peak hours. He drew attention to the fact that there was no accident history for mid-block Norton Street although there had been some accidents at its intersections with Moynihan Street.

41. Mr Isaks agreed that if parking in Norton Street became commonplace and people complained, Roads ACT might decide to restrict parking but given the traffic volumes he considered that they would not. He thought it more likely that traffic calming measures such as chicanes or raised platforms could be adopted or that the speed limit might be reduced.

42. Part A3 of the Plan deals with Plan Administration Policies and Section 9 of that Part with Consideration of Land Use Development Proposals. Among other matters, Section 9.3(k) requires the relevant authority to seriously consider the amount of traffic likely to be generated and its impact on the movement of traffic and the road system.

43. In the absence of any other expert evidence, the Tribunal accepts Mr Isaks’ view that the traffic generated by the proposed development will not significantly affect safety in the area, or that any car parking on Norton Street that arises as a result of the development will create unacceptable hazards that cannot be dealt with by traffic calming measures.

44. The impact of the proposed driveways and front of garage parking on the streetscape is dealt with below.

Adequacy of the provision of private open space

45. Performance Control 4 of the Code deals with private open space (“POS”). Its Objective and Performance Criteria are:

O4.1To provide each dwelling with private open space that meets the reasonable recreational, service and storage needs of residents.

P4.1Private open space to be of dimensions to suit the projected requirements of the dwelling occupants and to accommodate both outdoor recreation needs as well as providing space for service functions such as clothes drying and domestic storage.e

P4.2Part of the private open space to be capable of enabling an extension of the function of the dwelling for relaxation, dining, entertainment, recreation and children’s play, and be directly accessible from the dwelling.

46. The altered DA provides areas of POS adjacent to each ground floor unit. Those for Units 3 to 8 are to be located to the north of the units, in a row along the boundary of the subject land with Block 10 Section 69 Evatt (occupied by Mr J Fox) and Block 9 Section 69 Evatt (occupied by Mr and Mrs Westwood.). The POS for Unit 1 is to be located generally to the south-west of the unit between it and Gleadow Street, screened by a courtyard wall set back 3 metres from the property boundary. The POS for Unit 9 is similar to that of Unit 1, but is located generally to the north-east of the unit. The POS for each of the second storey units (Units 2 and 10) consists of a north-facing balcony measuring 2.76 by 3.94 metres or about 10.9m² in area, well in excess of the minimum of 6m² required by Performance Measure D4.3. Because the several elements of POS raise different issues, they are dealt with as three groups below.

Units 3-8

47. The POS for Units 4 to 7 in each case meets the minimum dimension of 6m required by Performance Measure D4.2 of the Code for a portion of usable POS that is directly accessible from a main living area and not located to the south, south-east or south-west of the dwelling. The POS for Units 3 and 8 is marginally less than 6m in one dimension, but still provides 44m²of POS which is larger than the area required by Performance Measure D4.2 (Minimum Area 10% of the average block area per dwelling, ie 10% of 182.4m² or 18.24m²). Each area is separated from its neighbours by a short section of masonry wall carrying a folding clothesline and a length of 1.5m high timber fencing. A 1.8m high lapped and capped timber fence is proposed to separate the POS from the adjacent properties on Blocks 9 and 10, although Mr Westwood has indicated a preference for a 2m high Colorbond fence.

48. Because the POS for these units is located to the north of the buildings it should be well positioned as far as solar access is concerned (Performance Criterion P4.3 and Performance Measure D4.3). However, the 1.8 metre high fence will cast a shadow over some of the POS during the winter months and to a greater degree if Mr Westwood’s preference for a 2 metre high fence is adopted. This shadowing is not shown on the shadow diagrams submitted as part of the DA and we were not provided with any expert evidence as to its extent. While the Code imposes no requirement for any particular amount of winter sunshine on POS (as for example is to be found in the Urban Housing Code, Appendix III.3 to the Plan), Performance Criterion P3.3 requires “Dwellings to be sited to ensure good sunlight access to their major private open space”. In this case, the dwellings are situated on the block in such a position that the area of useable POS with a minimum dimension of 6m, required to meet Performance Criterion P4.2, is necessarily located immediately adjacent to the boundary fence. While the POS is not ideal in that respect, the deficiency does not seem to us sufficient to disqualify it from being generally consistent with the relevant POS Objective and Criteria of the Code.

Units 1 and 9

49. The POS for the two end ground floor Units 1 and 9 is located in front of the buildings facing Gleadow Street. The POS for Unit 9 is located generally east of the dwelling but is to be surrounded by a 1.8 metre high masonry courtyard wall with infill panels of an undisclosed nature. In approving the proposal, the respondent imposed no conditions as to the nature of these panels. The nature and location of courtyard walls is governed by Performance Control 2 of the Code, Buildings in Relation to Front Boundaries and, in particular, Performance Criterion 2.3 which reads: “The location and design of courtyard walls to enable the efficient use of front garden space, taking into account the amenity of the street”. The relevant Performance Measures are in D2.5 and all of them are met by the proposed wall.

50. However, as with the back fence, the courtyard walls will create some shadowing of the POS during the winter months and thus it does not fully meet Performance Criterion 4.3 which reads: “Location of private open space to …provide for maximum year round use.” Again, the relevant shadowing cast by the courtyard wall was not shown on the shadow diagram submitted with the DA, but it seems clear that a portion of the POS would be shadowed between 9.00 am and 3.00 pm at the winter solstice (21 June). Furthermore, there is an established street tree to the north-east of the subject land that will also limit direct access of sunlight to the POS during winter mornings. Nevertheless, as with the POS for Units 3 to 8, we do not consider these deficiencies to be of such a magnitude as to make the POS for Unit 9 unacceptable.

51. The same cannot be said for the POS proposed for Unit 1. In this case, for all practical purposes it is located to the south-west of the building, even though its minor dimension is aligned 12⁰ 30’ north of south-west. Mr Hungerford considered that, as the POS was oriented north of due south-west, it did not conflict with Performance Measure D4.3 and observed that, while there was no guarantee of the amount of sun exposure available to the POS, there was no numerical standard in the Code in relation to exposure of POS to direct sunlight. He concluded that, while the solar access of POS was of variable quality throughout the development, it was such that the units had sufficient solar access to satisfy the Performance Criteria of Performance Control 4 (Private Open Space).

52. Mr Cohen also considered that the POS of Unit 1 lay to the north of south-west and was acceptable in that regard. He gave evidence about the amenity of this space, observing that while the shadow diagrams provided indicated that the courtyard would be in full sunlight at 3.00pm on 21 June, in fact that would not be the case because of the solid masonry wall to its west. He observed that the front wall (to the west) had two large infill panels which could allow filtered sunlight into the courtyard, although lack of detail did not enable him to make an assessment. He contended that the objectives of Performance Criterion P3.3 Buildings in Relation to Side and Rear Boundaries (which he considered relevant in this case, even though the relevant boundary is technically a front boundary) are to seek a balance between privacy and day-lighting; energy efficiency and access to sunlight; and the design of buildings of appropriate residential scale, but again pointed out that there is no prescriptive requirement for either direct exposure to sunlight for any specified period or for any particular area to be exposed to direct sunlight. Hence in his opinion, Performance Criterion P3.3 seems to offer a degree of flexibility in determining what “good sunlight access” means. In his view, the criterion requires the POS to receive some direct sunlight at some time during the day, but would not necessarily require the whole space to be sunlit simultaneously.

53. Mr Garrity included in his tendered evidence a hand-drawn shadow diagram of what he estimated would be the shadow cast by the courtyard walls, and contended that these showed that the POS would be totally in shadow at 9.00 am, approximately 70% in shadow at midday and approximately 80% in shadow at 3.00 pm and for this reason the POS had not been sited to receive good, adequate sunlight access and hence did not comply with Performance Criterion P4.3, that POS “must provide for year round use”. In fact the wording of P4.3 is “Location of POS to…provide for maximum year round use”. Nevertheless, it seems clear to us that this POS does not provide for maximum year round use.

54. In recognition of the shadowing effect of the masonry wall, Mr Cohen recommended that a suitable slatted infill panel, to permit sunlight to enter but to assist in excluding views from the street, should be designed to alleviate this problem and its installation made a condition of approval.

55. The Tribunal does not believe that the installation of such a panel would resolve the problems associated with this area of POS. Despite the alignment of its minor dimension, it is patently obvious that the bulk of the POS is to the south-west and south of the dwelling and will receive almost no winter sunlight. On 21 June it will be totally shadowed by the dwelling and attached garages at 9.00am and as the sun moves to the west, there will be a brief period when some sunlight penetrates into the courtyard, but that will soon be replaced by shadow from the courtyard wall. We conclude that the POS for Unit 1 is not consistent with the Plan.

Units 2 and 10

56. The POS for Units 2 and 10 comprises balconies whose floors are elevated some 3.05m above natural ground level, facing north towards the adjacent blocks. They are built into the roof, so that they are bounded by a portion of the roof structure of the units below which creates a low exterior northern wall and a trapezoidal side wall. The plans indicate that a 1.8m high privacy screen might possibly be built. Its purpose would be to increase the height of this northern wall to prevent overlooking of neighbouring properties. While the dimensions of the balconies are more than sufficient to meet the requirements for POS set out in Performance Measure D4.2 (Minimum dimension of POS on balconies 1.8m) and D4.3 (total minimum area 6 m²) they may not satisfy other provisions of the Code, including those concerning location of buildings in relation to boundaries and to overlooking. These aspects are dealt with in the following section.

Setbacks/privacy/private open space amenity

57. The subject block is unusual, in that it will be the result of consolidation of what were two corner blocks. Corner blocks are treated differently from others in the Code. While Performance Measure D2.1 provides that the lower floor setback from the street frontage is normally required to be 6m and the upper floor setback 7.5m, for corner blocks greater than 650 m², the lower floor setback from one street frontage can be only 4m and the upper floor setback 6m. The present residences on the two corner blocks have been built facing Norton Street, but the original developers chose to treat their Gleadow Street boundaries as their front boundaries. Thus each is set back about 4m from Norton Street, and about 6m from Gleadow Street.

58. Mr Hungerford said that he had regarded the subject block as having three front boundaries and one side boundary for the purposes of the setback requirements of the Code and, on this view, the side boundary comprised the whole of the northern boundary abutting Blocks 9 and 10.

59. It was submitted on behalf of the objectors that, while the building comprising Units 1-4 and the building comprising Units 7-10 would each be located on the corner of Norton Street and one of the arms of Gleadow Street, the building comprising Units 5 and 6 would not be located on a corner and should be set back 6 metres from Norton Street in accordance with the distance specified in Performance Measure D2.1 for non-corner blocks.

60. The definition of “block” in Part D of the Plan as meaning “a parcel of land, whether or not the subject of a lease” does not assist in resolving the issue. We note, however, that if consolidated, Blocks 20 and 21 would together become a single block under the new Crown lease required by the conditions of approval of the development application to be accepted and that they would then be regarded as a single block of land for the purposes of land administration. We consider that the subject land should be regarded as one block for the purposes of Performance Measure D2.1. Accordingly, the front setbacks of the proposed development, which are generally 4 metres to Norton Street and 6 metres to Gleadow Street, satisfy Performance Measure D2.1.

61. Because the subject land falls to the north, the balcony of Unit 10 will, as planned, permit direct overlooking of the back yard (and main POS) of Block 9, Mr and Mrs Westwood’s property, and that of Unit 2 would overlook the yard of Block 10. While the yard of Block 10 is presently partially screened from such overlooking by a number of trees, the removal of some of them as part of the proposed development would increase the degree of overlooking of it. The Westwood’s backyard is not screened at all by existing vegetation and the possibility of visual intrusion into their POS has distressed them greatly. The owner of Block 1 Section 70 Evatt, on the other side of the western arm of Gleadow Street, has also expressed concern about the possibility of overlooking of his POS from the balcony of Unit 2, albeit from across the street.

62. Reference was made in the evidence and submissions to Performance Control 3 and Performance Control 7 of the Code in addressing the issue of the impact of overlooking from the balconies of Units 2 and 10 on the privacy of the adjacent properties.

63. Performance Measure D3.1 of Performance Control 3 requires the lower floor levels to be set back 3m from side or rear boundaries while the upper floor levels (“UFL”) are to be set back 6m if up to 12m behind the UFL building line and 9m if over 12m behind the upper floor building line. The development as proposed complies with these performance measures.

64. Performance Measure D7.2 of Performance Control 7 provides:

Outlook from windows, balconies, stairs, landings and decks or other private, communal or public areas within a development to be screened or obscured if there is a direct view into private open space of another dwelling.
Screening devices to be designed to prevent overlooking of more than 50 per cent of the private open space of another dwelling on the same block.
No screening is required if windows have obscure glazing or sill heights of at least 1.7m;
or
are at lower floor level and facing a side or rear boundary where there is already a screen wall.

65. If applicable to the situation under consideration, the balconies as proposed for Units 2 and 10 would not meet Performance Measure D7.2 because the outlook from them would afford a direct view into the POS of the adjoining dwellings on Blocks 10 and 9 unless screening or some other device was provided to obscure that view.

66. The drafting of Performance Controls 3 and 7 gives rise to uncertainty as to their application in particular situations. The performance measures of the various controls of the Code appear to be intended as the more detailed, and often quantitative formulation of the method of satisfying the relevant performance criteria and both are designed to achieve the stated objectives of the relevant performance control. In practice, the specified minimum side and rear boundary setback performance measures of Performance Control 3 have been applied as the means of affording privacy to dwellings and their POS on land which adjoins the site on which the proposed development is to be undertaken. Performance Criterion P3.1 which states:

The privacy of dwellings and outdoor spaces to be protected

is evidently relied on in support of this practice. The application of Performance Measure D3.1 and Performance Criterion P3.1 in this way is not obviously supported by the relevant objective (O3.1) which, relevantly to the issue of privacy, is expressed in a way that suggests it is confined in its application to achieving privacy for the occupants of the land on which the (multi-unit) development is to be undertaken. Objective O3.1 states:

To site buildings to meet projected user requirements for privacy and daylighting.
(emphasis added)

The emphasised reference in Objective O3.1 appears to be a reference to the users of the buildings for which approval is sought by the relevant DA. When so interpreted, Performance Criteria P3.1 would be confined in its application to the POS of the dwellings to be constructed on the land which is the subject of the DA.

67. The relevant objectives and performance criteria of Performance Control 7 are not expressed in a way that limits their application to dealing with the interface of multiple dwellings on the same block. Objectives O7.1 and O7.2 and Performance Criterion P7.1 and P7.2 provide:

O7.1To ensure the occupants of dwellings can maximise the advantages of sunlight and daylight.
O7.2To limit overlooking of private open space and to enable residents to effectively control outlooks between rooms in adjacent dwellings.
P7.1The dwellings to be designed and located to receive adequate daylight and sunlight.
P7.2The private open spaces and living rooms of adjacent dwellings to be protected from direct overlooking by dwelling layout, screening devices, distance or landscaping.

68. The definition in Part D of the Plan of the word “adjacent” (used in O7.2 and P7.2) is:

Adjacent means either being contiguous with the subject location; or, if separated only by a road, where the front boundary faces the section of the road which separates it from the subject location.

The inclusion in the definition of a reference to “being contiguous with the subject location” and to a separation of dwellings by a road suggests that the references in O7.2 and P7.2 to “adjacent dwellings” extends the application of them both to the effect of the development proposed by the DA on land other than the land on which the development is proposed.

69. The reference in Performance Measure D7.2 (see paragraph 64 above) to the use of screening devices to prevent the overlooking of another dwelling “on the same block” and the absence of a provision in the Residential Design and Siting Code for Single Dwellings similar to Performance Control 7 were relied upon by Mr McCarthy as indicating that Performance Measure D7.2 is confined in its application to the interface between dwellings on the same block.

70. It is not necessarily, in our view, to be interpreted in this way. It is also arguable that the second paragraph of Performance Measure D7.2 is intended to more specifically guide the exercise of the discretion available to the decision-maker when addressing the issue of interface between multiple units in the same development but to allow a more unfettered discretion to be exercised in dealing with the interface between multiple units in a development and dwellings on adjoining land. Nor do we consider the fact that the Residential Design and Siting Code for Single Dwellings does not contain an equivalent provision to Performance Control 7 as leading to a different conclusion. It is to be expected that planning guidelines would be concerned to impose stricter controls over the development of multi-unit developments because of their potential for greater impact than single dwellings on the amenity of the properties of adjoining land owners.

71. In addressing the issue of the impact of the proposed development on the adjoining Blocks 9 and 10, we have been assisted by an inspection of the subject land and Block 9. At the inspection, poles were supported in a position to indicate the location of the front wall of the balcony and its height was able to be determined by reference to a feature of the existing building on the subject land. It was apparent that from the balcony of Unit 10 there would be a clear, direct and minimally obstructed view of the entire back yard of Mr and Mrs Westwood’s property. Because the balconies of the upper floor units afford a northerly aspect and provide the only private open space for the occupants of those units, it is to be anticipated that the outlook from them would be sought to be enjoyed by their occupants on a regular basis. The impact on the amenity of the occupants of Blocks 9 and 10 would, in our view, be substantially adversely affected by such overlooking.

72. We note further that the original plans of the development application appear to have recognised such an impact by including provision for the possible inclusion of a 1.8 metre high privacy screen on the balcony of each of Units 2 and 10 and that the party joined specifically proposed the imposition of a condition of any approval of the development application that a privacy screen of translucent material be constructed on each balcony to a height of 1,600mm from floor level and 3,940mm long, that is, the width of their northern sides.

73. Despite the lack of clarity in the drafting of Controls 3 and 7 of the Code, we consider that it is likely that either or both was intended to address the issue of interface between proposed multi-unit dwellings and existing dwellings on adjoining land in so far as it affected the privacy of the latter. Further, it is to be observed that the impact on the amenity of surrounding land uses, including impacts on privacy, is a matter which clause 9.3(d) of the Part A3 policies of the Plan requires the decision-maker in relation to the development application to carefully consider.

74. The capacity for overlooking from the balconies of Units 2 and 10 clearly fails, as we have already concluded, to meet Performance Measure D7.2.

75. Although the balconies meet Performance Measure D3.1 that does not, in our view, in the circumstances of this case, necessarily resolve the issue. Meeting performance measures is, according to the introduction to the Code, “considered to satisfy the objectives and relevant performance criteria in most cases so that normally no further evidence is required” (emphasis added). In the view we have taken, meeting Performance Measure D3.1 would not, in the circumstances of this case, meet Performance Criteria P3.1 nor Objective O3.1, if they apply.

76. The solution proposed by the party joined and supported by the respondent to overcome the problem of overlooking gives rise to a further difficulty. If the privacy screens were installed, the private open space of the upper floor units would comprise little more than an enclosed box with views to the east or to the west as the case may be. In each case, those views would be substantially obstructed by the roof-line of building slanted across them. They could not be described as being “capable of enabling an extension of the function of the dwelling for relaxation, dining, entertainment, recreation and children’s play” as required by Performance Criterion P4.2.

77. We conclude that the balconies for Units 2 and 10 do not meet the objectives and performance criteria of the Code for private open space and, hence, are inconsistent with the Plan.

Resident and visitor car parking

78. Details of the proposed arrangements for car parking for residents and visitors are given in paragraph 4 above.

79. The relevant performance measure of the Code (D5.2) provides for a minimum number of resident parking spaces of one space per one bedroom unit and two spaces per two bedroom unit. The plans approved by the respondent show 10 residences each of one bedroom and there are 10 single car garages.

80. The objectors submitted that additional parking should be provided, as some of the units contain rooms identified as for “dining” which, they contended, could be adapted to use as a second bedroom with the construction of minor wall partitioning. They pointed to the fact that in the original DA the living room and dining rooms of Units 4 to 7 were an open integrated area whereas in the altered DA those dining rooms have been separated as distinct areas and drew attention to the provision of a second toilet in the now separate laundry.

81. In response to a question asked by Mr Quinn, Mr Hungerford explained that in the original DA, the entrances to Units 4 to 7 were at the sides of the buildings, but in the altered DA, they had moved to the front, which had led to the internal design layout changing. He considered that the rooms could still serve as an adjunct to daily living, whether as a dining room, study, media room or utility room. They were close to the entrance to the unit and had an outlook to the street and he saw no compelling reason to presume that they would be converted into bedrooms.

82. The Tribunal notes that the area shown as a dining room of each unit on the altered plans has no walls that separate them from the entry to the units or from the hallway that links the entry to the laundry, kitchen and living room of the unit. The dining room is in reasonable proximity to the kitchens and readily accessible from it. In the normal course of events the area would not be suitable as a bedroom without the construction of a wall and doorway to make it a discrete area.

83. Mr Cohen submitted that any modification of the “dining” areas for use as a second bedroom would be a breach of the conditions of approval, relying on sections 222 and 225 of Part 6 of the Land Act. Section 222 defines “development” as including inter alia:

(a)the erection, alteration or demolition of a building or structure on or under the land;

while section 225(1) provides that:

A person must not, without reasonable excuse, undertake a development otherwise than in accordance with an approval.

84. However, Mr McCarthy drew attention to Regulation 40, Sub-Regulation 1 of the Land (Planning and Environment) Regulation 1992 which provides that the Act, Part 6, does not apply to a development listed in Schedule 1, while Schedule 1, Item 2, reads:

Internal alteration of a building, if—

(a) for a residential building—the alteration would not increase the number of dwellings within the building; and

(b) …and

(c) in any case—the alteration would not result in the building’s being classified differently under the classification scheme set out in the building code.

85. It seems clear that any internal alteration of the kind anticipated by the objectors would not be subject to development approval, should future owners choose to do so as it does not increase the number of dwellings, nor does it result in the building being classified differently. Moreover, it would be inconsistent with the intent of the Act and Regulations for the Tribunal to attempt to impose any lease condition which constrained the way that the areas marked as “dining” may be used even were it empowered to do so.

86. In lodging a DA, the person applying for approval signs a declaration that “all the information given on this form and its attachments is true and complete” and, absent any evidence to the contrary, it must be assumed that the intention of those lodging the application is to construct what is shown on the approved plans. There is no evidence before the Tribunal that, in our opinion, would justify a conclusion that the occupiers of the units would undertake building alterations to enable them to be adapted for use as two bedroom units.

87. The Tribunal concludes that the dwellings should be regarded as one bedroom units and that consequently the Performance Measure (D5.2) for resident car parking is met.

88. The performance measure of the Code for visitor car parking (D5.2) is the provision of 0.25 spaces per dwelling. For a development of 10 units the requirement is therefore 3 spaces. The approved plans of the development show visitor parking for 10 cars, each located immediately in front of each of the 10 garages.

89. The objectors further submitted that the parking provision for both resident and visitor parking does not comply with Performance Measure D5.1 of the Code. This measure is:

D5.1 Parking and Access Restrictions

No vehicle parking spaces between the front boundary and the building line.
No access directly to individual spaces from the front boundary in developments of more than 2 dwellings.

90. The plans which form part of the development application show that the proposal does not meet these measures. For convenience the impacts of this non-compliance are dealt with under the headings of traffic safety (above) and streetscape.

91. In the event that the Tribunal would not accept the visitor parking as proposed in the application, the party joined provided an alternative plan for visitor parking. This provided for 2 additional visitor car parking spaces abutting the northern boundary and adjoining the garages for Units 1 and 9, with a third and a fourth space in front of the garages of Units 2 and 10. Alternatively, it was suggested by Mr Cohen that a third visitor could park in the street, though he preferred the proposal for visitor parking in front of the garages of Units 2 and 10.

92. The two parking space locations adjacent to the boundary fence were shown in the Landscape Plan as the location of pathways to the rear of Units 3 and 8 and also as the garbage bin locations for Units 2, 3, 8 and 10. Part of the space adjoining the garage for Unit 9 would also be affected if Unit 9 were to be utilised as an adaptable unit and its garage used for disabled parking with wider dimensions to achieve accessibility.

93. Mr McCarthy described these proposed areas for visitor carparking spaces as unusable and unrealistic. The relevant objectives and criteria (O5.1 and P5.1) require that visitor spaces be convenient and easily accessible. He observed that not only were the spaces that they occupied to be used for access to the rear of units but their remoteness from the entry of the majority of the units and the availability of garage aprons for parking meant that, in practice, they would not be used by visitors. Mr McCarthy submitted that these areas should be retained for access and boundary landscaping as shown in the Landscape Plan. The Tribunal agrees with this submission. The only visitor carparking provision to be determined therefore is that shown on the plans approved by the respondent, located in front of each of the garages. This is considered further under Streetscape below.

Streetscape and Adjoining Development

94. A major concern of the objectors and of the many other objections received to the proposal was the impact of the proposed development on streetscape and the general amenity of the area. The Plan (Part A3 para 9.3) requires the relevant authority to carefully consider:

(e) impacts on the visual amenity and landscape or streetscape of the area.

95. One of the Objectives of the Residential Land Use Policies highlights the balancing act required to:

(d)safeguard the amenity, safety and special qualities and in particular the landscape character of existing residential areas whilst carefully managing change in suitable locations.

96. Mr Cohen identified Variation 200 to the Plan as introducing the A10 policies to this area “grouped around the Evatt Local Centre”. It is an objective of the A10 policy:

To ensure development respects existing streetscapes and adjoining development, or contributes to the desired future suburban character of the area as defined by an approved master plan.

97. There is no approved master plan for Evatt, consequently development must respect existing streetscape. The objectors pointed out that the A10 area applies only to part of Norton Street at its north-easterly end and only to one side of the street. The future urban character for the majority of Norton Street will consequently be that of the Residential Suburban Area under the Plan rather than the A10 Residential Core. In such an area, redevelopment opportunities are more limited. Additionally, the relevant objective for Residential Redevelopment in Suburban Areas contained in section 3.6 of Part B1 of the Plan sets a more onerous standard than that required in the A10 area itself. Viz:

To ensure development respects characteristic features of existing attractive streetscapes such as building scale, height and setbacks, landscape character and architectural style and is compatible with adjoining development.

98. There was no disagreement that existing development in Norton Street and Gleadow Street almost exclusively comprises single storey detached houses. They are predominantly tiled roofs in a mix of roof styles and are generally brick clad. Norton Street runs in a gentle arc from end to end; it has a footpath adjacent to the kerb on the southern side. Houses on the southern side are set back 6 metres or more from the front boundary and the general landscape effect is of individual blocks planted in an informal mix of domestic gardens. On the southern side of Norton Street, the blocks have as their frontage the narrower dimension of the block whereas on the northern side of the street the blocks have their wider dimension as frontage to Norton Street and they are all corner blocks with their narrower frontage to the intersecting streets, particularly Gleadow Street adjoining the subject land.

99. The street trees are of differing varieties and shapes with some missing or diseased so that the street lacks any cohesive or regular planting character. The private landscaping of the individual blocks (some of which extends onto the verge) dominates the view from the street.

100. The objectors identified a number of characteristics of the proposed development which in their view adversely impacted on the streetscape and adjoining development. These included the two storey height of parts of the building; the smaller front setback (about 4 m) to Norton Street, resulting in a “wall-like” effect closer to the frontage than nearby residences; the multiple garages with driveways; and the parking spaces intruding into the front setback area.

101. As to the height of the buildings the Tribunal notes that two storey development meets the performance criteria for the A10 area, but also for the residential suburban areas. The fact that only the end units of the proposed development are two storey mitigates the impacts but it is a change to the area that is allowable, regardless of the A10 provisions. Both Mr Cohen and Mr Hungerford gave evidence about the design features of the buildings, especially the fact that the development was proposed to be in three separated buildings with hipped roofs, which in their view rendered it consistent with the general characteristics of nearby buildings. The Tribunal accepts that evidence, particularly having regard to the intent of the plan for a more intensive scale of development in the A10 areas.

102. As noted earlier regarding carparking, the proposal does not comply with Performance Measure D5.1 because it proposes parking between the front boundary and the building line and because there is direct access to individual spaces from the front boundary. In respect to visitor parking in front of the building Mr Cohen gave written evidence that he had been shown the revised parking arrangements with visitor parking along the rear (northern) boundary rather the front and contended that “provided that visitor parking is not located in front of garages...parked vehicles will not adversely impact on streetscape amenity.” In answer to questions during the hearing Mr Cohen said that he did not support the carparking in front of the garages. He also proposed that, if the plans were approved, the visual impact of the driveways should be mitigated by the use of a coloured/textured material.

103. Mr Hungerford stated in his written evidence that, in his opinion, the parking in front of the building was acceptable because of the unique orientation of the blocks with its elongated frontage to Norton Street thus giving “opportunities to provide dwellings that address the street” and “to distribute access to the dwellings along the frontage”. In his view “temporary parking of a vehicle on the garage apron in front of the garage is not considered to detract from the streetscape”. During the hearing reference was made to a letter in the T documents dated 6 December 2006 issued by Mr Hungerford to the developer as a result of the Project Review Group’s discussion of a pre-application development concept for the site. Regrettably, Mr Hungerford was unable to recall the events of the meeting or identify what the plans were that were discussed or why specific issues were raised. However, the text of the letter makes it clear that this group of senior officers was concerned amongst other things about the impact of the early design on the streetscape and suggested in the letter that consideration be given to “mitigate dominance of vehicle facilities (driveways, garages) on the streetscape”. It is noted that, in its decision, the respondent imposed a condition that such driveways as were proposed were to be widened to a minimum of 5.5 metres.

104. Given the earlier conclusion that the alternative visitor parking along the rear boundary was unacceptable, if the development is to proceed the parking along the front boundary would need to be accepted. It was Mr McCarthy’s submission that if the Tribunal did not accept direct access and parking in front of the garages then the respondent’s position was that the DA should be refused.

105. One of the reasons given by Mr McCarthy in support of the front parking proposal was that whether or not alternatives were provided, in reality the availability of the driveways in front of the garages would mean that visitors (including service vehicles) would park there, given their accessibility and convenience.

106. The Tribunal has noted that while the provisions of D5.1 are found in the Code, they are not in Appendix III.1 (the Residential Design and Siting Code for Single Dwellings). Whilst it may be the norm for single dwellings to have direct access to parking spaces and for vehicles to park between the front boundary and the building line, it is apparent that the Code for multi-unit dwellings seeks to avoid this. Unlike other numerical standards in the performance measures, this standard is not capable of partial achievement or of being nearly met; it is achieved or not achieved. As a consequence failure to achieve this measure, although not mandatory, is strongly indicative of failing to meet the relevant objective and criterion (O5.3 and P5.2). On the basis of the public objections and Mr Cohen’s evidence, the Tribunal considers the parking and access arrangements do detract from streetscape amenity and the character of adjoining development and therefore do not meet the relevant objectives and criteria.

Trees

107. An existing site plan and tree survey lodged with the DA showed that a number of trees on the subject land were to be removed as part of the development process. The T documents included a letter from PCL, a unit of TAMS, approving the removal of Tree No. 4 from the verge adjoining the subject land but conditional on approval of the DA by the Authority and the planting of a number of trees on the verge. The objectors expressed concern at the removal of trees on the subject land and verge and also expressed doubts as to the accuracy of the tree survey.

108. In his written statement Mr Hungerford stated that the tree survey was inaccurate in that it omitted to depict a number of trees on the subject land and that the dimensions given for some trees were inaccurate. He stated, however, that there were no “regulated trees” on the subject land for the purposes of the Tree Protection Act 2005. This is confirmed by e-mail advice in the T documents from Ms Helen McKeown of the office of the Conservator of Flora and Fauna, which undertook an independent tree survey. As a consequence no approval is necessary for the removal of trees from the subject land.

109. The Tree Protection Act 2005 only applies to leased land and therefore does not apply to the trees on the verge. Mr Brice gave evidence that as program manager in the Urban Tree Management Unit of PCL, he had agreed to the removal of Tree No. 4 and a smaller stunted tree also on the verge to its north. He had done this having regard to the nature of the proposed development, the existing tree planting in Norton Street (being disjointed with at least 16 different species) and the proposal to plant replacement trees on the verge. In a letter to Mr Hungerford dated 6 February 2007 he had recommended that the Authority include a requirement that the party joined plant six Red Spotted Gum trees on the verge adjoining the subject land as a condition of approval of the DA.

110. In opposing the removal of Tree No. 4 the objectors relied upon the evidence of Dr Brack that it was taller than as measured for the tree survey submitted to the Authority by the party joined; was of good form and health; had a long life expectancy; and was of considerable value to the amenity of the area. They also relied upon a comment made by Mr Hungerford in his assessment report that Tree No. 4 “represents something of a landmark in that section of (Norton) Street”.

111. Mr McCarthy submitted that the DA did not extend to seeking approval to the removal of Tree No. 4 and that as Tree No. 4 was on unleased land, as would be the proposed new driveways crossing the verge, it was beyond the power of the respondent and the Tribunal to determine whether or not Tree No. 4 should be removed and whether or not the driveways and any other works on the verge associated with the proposed development should be approved. Those, he contended, were matters for approval by TAMS, which he said was the relevant agency of the Territory with responsibility for the management of public land.

112. In relation to the issue of management responsibility for works on unleased land, Mr Brice said that there were administrative arrangements (which were not put in evidence) in place which dealt with such matters. He said that his unit was part of the decision-making process in relation to the removal of trees from unleased land. If the DA was approved, the unit would authorise the removal of Tree No. 4. Roads ACT would be involved in decision-making about whether the driveways satisfied requirements and that would be part of the DA process as well.

113. In relation to the submission that the DA did not include works on the verge we note that the form of DA (Form 1) made available by the Authority for completion by the party joined made specific provision for the notification by the developer of works to be undertaken on the verge and/or public land. The DA completed by the party joined responded by identifying the verge crossings and removal and reinstatement of street trees as such work to be undertaken. A form of Application to Construct or Reconstruct a Driveway Verge made available by the Authority was completed by the party joined. The form made provision for it to be sent to Roads ACT, Heritage and Environment ACT. Advice endorsed on the form required that it was required to be submitted “as part of a Form 1 Development Application”. Provision was made on the form for signature by the Authority signifying any approval given to the application. These facts do not support the submission under consideration but, rather, contradict it.

114. We note further that, in his assessment of the DA, Mr Hungerford specifically addressed the impact of the removal of Tree No. 4 by reference to Performance Control 9 of the Code which addresses landscaping issues. In his comments regarding the extent of compliance with Performance Criterion P9.1 (“Major existing trees and natural features are retained wherever practicable”), he justified its removal on the basis that the streetscape would be contributed to by the replacement of Tree No. 4 with three additional advanced street trees. Conditions were also included in the approval of the DA by the respondent which required existing vegetation on the verge to be managed, protected and maintained in accordance with a Landscape Management Plan approved by TAMS and for verge trees to be planted in accordance with a plan approved by TAMS. The conditions also required the driveways and barrier kerb to be constructed in the particular manner specified by the conditions. We accept the submission made on behalf of the party joined that the Authority not only entertained the applicaton including works on the verge but made those works part of its decision.

115. In relation to the submission that the Authority lacked the power to approve works on the verge, we note that under the Land Act the requirement is for “development”, whether undertaken by a person or a Territory authority, to be not undertaken without approval (see section 225(1)). The procedure for obtaining approval of a development is by lodging a DA (section 226). “Development” is defined by section 222 to mean certain specified activities in relation to land including “the carrying out of earthworks or other construction work on or under the land” (paragraph (b)); “the carrying out of work that would affect the landscape of the land ……” (paragraph (c)); and “a use of the land that is not authorised by a current licence or permit for the land under an Act” (paragraph (f)). Paragraph (f) of the definition expressly applies in the case of land, that is, “unleased territory land”. Section 226(4)(b) also requires a DA made in the case of land which is not the subject of a lease to be signed by the Authority.

116. The kind of activities proposed to be undertaken on the verge in this case are activities of the kind referred to in paragraphs (b), (c) or (f) of the definition of “development”. The word “land” is not defined in the Land Act. There is nothing to restrict its meaning to land which is leased or to exclude land which is unleased from within its meaning. The Land Act, therefore, specifically applies to the kind of activity proposed as part of the DA in this case to be undertaken on the verge and it is within the power of the Authority to approve that activity pursuant to section 230 of the Land Act.

117. As we have noted, section 226(4)(b) of the Land Act requires that, where the place to which the DA relates is unleased land, it is required to be signed by the Authority. The Form 1 Development Application form contains provision for it to be signed by the “Government Land Manager’s signature (unleased land only)” and by the “Delegate of ACTPLA (unleased land only)”. In the case of unleased land the Authority therefore has an additional function to that of approving a DA. It appears that the purpose of the requirement imposed by section 226(4)(b) is to signify agreement on behalf of the owner of the land[1] to the undertaking of development activities on unleased land without which agreement that activity could not be undertaken, irrespective as to any planning approval given by the Authority in accordance with section 230 of the Land Act. We assume also that prior to signifying any such agreement, the Authority would consult with those Territory agencies with administrative responsibility in relation to the particular activity proposed to be undertaken in, for example, the manner provided for by the form of Application for Approval to Construct a Driveway Verge Crossing.

[1] The Commonwealth, managed on its behalf by the ACT Executive pursuant to section 29 of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth).

118. Neither the original DA nor the altered DA were, in fact, signed in the manner required by section 226(4)(b). Having regard to the evidence of Mr Brice that the Territory agency with responsibility for approving the removal of trees on unleased land has, subject to the conditions specified by it and included in the conditions of approval of the DA, approved the removal of Tree No. 4, we consider that this would be an appropriate case in which to dispense with the requirement for such signature pursuant to section 284 of the Land Act.

119. Having had the benefit of a site inspection, we consider that we should accept the evidence of Mr Brice that the replacement of the existing street trees would improve the streetscape and better achieve Objectives O9.1 and O9.2 which are:

O9.1 To create a pleasant, safe and attractive living environment.

O9.2 To blend new development into the streetscape and neighbourhood.

In the result, however, we have concluded for reasons related to other planning issues that the DA should be refused approval.

Other matters

120. We have in our consideration of this appeal drawn attention to what we consider to be a lack of sufficient clarity in the drafting of Performance Controls 3 and 7 of the Code. Apart from the conflicting submissions made to the Tribunal regarding their interpretation by representatives of the party joined and the respondent in this case, we note that the respondent’s assessing officer, Mr Hungerford, appears to have been in some confusion in dealing with the matter. Although he gave evidence that the level of privacy for the adjoining blocks was considered to be acceptable because Performance Criterion D3.1 had been complied with, he went on to say that the inclusion of privacy screens “may be seen to advance the performance of criterion P7.2 ……” despite the submission made by Mr McCarthy that it had no application to the impact of the proposed development on the privacy of the private open space of the dwellings on adjoining blocks.

121. We understand that consideration is presently being given to amendment of the Plan and we recommend that as part of that consideration, and in any event, consideration also be given to amendment of Performance Controls 3 and 7 to make their application clearer. Any continuation of the uncertainty which exists gives rise to the potential for inconsistency in the application of the Code and inconvenience to persons affected by it.

FORM 33

PUBLICATION DETAILS

TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________

PART A FILE NOS: AT07/40-44

APPLICANTS: JIM STODDART (AT07/40); RAYMOND WALTERS (AT07/41); STEWART JAMES WESTWOOD (AT07/42); IAN & KAREN GARRITY (AT07/43); HELEN J BREWER & GREGORY F QUINN (AT07/44)

RESPONDENT: ACT PLANNING & LAND AUTHORITY

PARTY JOINED:                 NORTON VILLA’S PTY LTD
COUNSEL APPEARING:    APPLICANTS:
RESPONDENT:       MR G MCCARTHY
PARTY JOINED:     MR J HARRIS

SOLICITORS:  APPLICANTS:
RESPONDENT:       ACT GOVERNMENT SOLICITOR
PARTY JOINED:     O’CONNOR HARRIS

OTHER:  APPLICANTS:         SELVES
RESPONDENT:
PARTY JOINED:

TRIBUNAL MEMBER/S:   MR M H PEEDOM, PRESIDENT
  DR D MCMICHAEL, SENIOR MEMBER
  MR R NICHOLS, MEMBER

DATE/S OF HEARING: 27-30 NOVEMBER 2007 PLACE: CANBERRA

DATE OF DECISION: 21 DECEMBER 2007 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:

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

COMMENT: