Stone and Act Planning & Land Authority
[2008] ACTAAT 8
•10 April 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:STONE AND ACT PLANNING & LAND AUTHORITY & ORS [2008] ACTAAT 8 (10 APRIL 2008)
AT07/56
Catchwords: Land and planning – consolidation of leases and partial demolition of two heritage listed cottages – construction of multi dwelling development adjoined to cottages
Heritage– effect of Heritage Act 2004 on application of Heritage Citations to development proposals – obligation of approving authority to consider heritage aspects and any advice from Heritage Council - whether proposed development meets specific requirements of heritage citation – whether original dwellings remain the dominant form from public domain – meaning of the words “shall” and “should”, “complementary” or “complement” and “dominance” – whether proposed development retains architectural characteristics of original dwellings
Planning issues – whether development applications meets requirements of the Residential Design and Siting Code for Multi-Dwelling Developments – impacts on visual amenity and landscape/streetscape of area – whether scale, bulk, character, setback and style inconsistent with adjoining development – impact of overshadowing and privacy on adjoining development – impact on parking and traffic in surrounding area.
Administrative Appeals Tribunal Act 1989, s 37
Heritage Act 2004, ss 20, 25, 27, 60, 61, 128, 129, Sch 1
Land (Planning and Environment) Act 1991, ss 7, 8, 13, 229, 230, 231, 244, 245
Canberra Tradesmen’s Union Club Incorporated v Commissioner for Land and Planning (1998) 147 FLR 291
Civil Aviation Authority v Coburn (1996) 24 AARJ 389
Tradesmen’s Union Club v Minister for the Environment Land and Planning (1997) 131 ACTR 1
Nowicki v Martyn and Johnston (1996) 131 FLR 88
Tribunal:Mr M H Peedom, President
Ms S Tongue, Senior Member
Dr D McMichael, Senior Member
Date:10 April 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/56
LAND AND PLANNING DIVISION )
RE: STEVEN STONE &
SUE STONE
ApplicantsAND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: CHRIS FEENEY &
MYRA CROKE
DOROTHY TAYLOR
MR & MRS TERRY
CATCHPOLE
DEBBIE ARGUE
MARK HAUGHEY
MR RIC BUTT
YARRALUMLA
PROJECTS PTY LTD
THE PROPRIETORS
UNITS PLAN NO. 1204
Parties Joined
DECISION
Tribunal : Mr M H Peedom, President
Ms S Tongue, Senior Member
Dr D McMichael, Senior Member
Date : 10 April 2008
Decision :
The decision under review is varied by attaching the following additional conditions:
That the following plans - Landscape Plan L01, Planting Plan L03, Lower Floor Level A04 and Site Plan Lower A01 - be amended to:
(a)remove the two “horizontal slat fence on metal frame” shown perpendicular to the Hutchins Street pedestrian entry to the site; and
(b)remove the “1800 high horizontal slat fence on metal frame” shown between Unit 5 and the Hutchins Street boundary;
and replace the fences with hedges or plantings of a species to the satisfaction of the ACT Planning and Land Authority.
That the following plans - Landscape Plan L01, Planting Plan L03, Lower Floor Level A04 and Site Plan Lower A01 - be amended and re-submitted for approval by the appropriate ACT authority showing the removal or relocation of those of the gateposts abutting the driveways which do not meet the sightline requirements of Appendix III.2 (AS 2890.1).
That the following plans - Section A08, Elevations A07, Upper Floor Level A05
be amended to show that portion of the northern boundary of the terrace of Unit 7 which is 12m beyond the Upper Floor Level building line (being a distance of 12m west from gridline 4 shown on plan Upper Floor Level A05) to have fixed louvres of at least 1.7m in height from the finished floor level of that terrace, designed to prevent direct overlooking of the windows of the family room of the residence on Block 11 Section 64 Yarralumla.
That car parking for residents and visitors be provided in accordance with the amended plans - Site Plan Lower AO1 and Basement Garage A03 – submitted by the developer as an amendment to the 2007DA on 4 October 2007 (T-Documents 54 to 64).
That the following plans – Landscape Plan L01, Planting Plan L03, Lower Floor Level Plan A04, Area Plan A10 and Site Lower Plan A01 – be amended so that not less than 40% of the area of the consolidated block is retained as planting area, such planting area to:
(a) include all areas of shrub planting (including shrub plantings in planter boxes and over basement car parking); and
(b) exclude any areas covered by
(i) buildings;
(ii) vehicle parking and manoeuvring areas;
(iii) any form of impermeable surface; and
(iv) any form of paving (including permeable paving).
That the following plans – Sections A08, Elevations A07, Upper Floor Level A05, Lower Floor Level A04, Basement Garage A03, Site Plan Upper A02 and Site Plan Lower A01 – be amended so that the relative level (RL) of any part of the roof of the proposed development is not greater than RL 577.600.
………………………..
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/56
LAND AND PLANNING DIVISION )
RE: STEVEN STONE &
SUE STONE
ApplicantsAND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: CHRIS FEENEY &
MYRA CROKE
DOROTHY TAYLOR
MR & MRS TERRY
CATCHPOLE
DEBBIE ARGUE
MARK HAUGHEY
MR RIC BUTT
YARRALUMLA
PROJECTS PTY LTD
THE PROPRIETORS
UNITS PLAN NO. 1204
Parties Joined
REASONS FOR DECISION
10 April 2008 Mr M H Peedom, President
Ms S Tongue, Senior Member
Dr D McMichael, Senior Member
Introduction
Mr Steven and Ms Sue Stone (“the applicants”) have sought review of a decision of the ACT Planning and Land Authority (“the respondent” or “the authority”) to approve Development Application (“DA”) 200703503 (“the 2007 DA”) which sought approval to the consolidation of the leases of Blocks 12 and 16, Section 64, Yarralumla (“the subject land”), the partial demolition of two heritage-listed cottages thereon, and the construction of a two storey extension adjoined to both cottages so as to provide eight (8) units with a basement car park under the extension.
2. The cottages on the subject land are part of a group of four similar workmen’s cottages dating from 1921-22 and were included on the ACT Interim Heritage Places Register on 23 February 2005 under the title “Early Canberra Brickworks Housing Precinct (Former Workers Cottages at Westridge)”. They subsequently became included on the Heritage Register established under Part 4 of the Heritage Act 2004 (“the Heritage Act”) pursuant to section 128 of the Heritage Act under the title “Early Canberra Brickworks Housing Precinct” and the citation from the Interim Register became, by virtue of section 129, the Heritage Guidelines required under Part 5 of the Heritage Act. (Both sections 128 and 129 were later omitted from the Heritage Act on expiry).
3. The subject land is subject to the A10 Residential Core Area Specific Policies of the Territory Plan (“the Plan”).
4. The decision to approve the application was made pursuant to section 230 of the Land (Planning and Environment) Act 1991 (“the Land Act”) and was subject to conditions imposed pursuant to section 245 of the Land Act.
5. Mr Eric Butt, who is the current lessee of Block 16, and Yarralumla Projects Pty Ltd, the current lessee of Block 12, were joined as parties who supported the proposed development (“the developers”). Mr Butt is also the Principal Architect and Managing Director of Strine Design and is the architect for the project.
6. Mr Chris Feeney and Mrs Myra Croke, Ms Dorothy Taylor, Mr and Mrs Terry Catchpole, Ms Debbie Argue, Mr Mark Haughey (all of whom live nearby) and the proprietors of Units Plan 1204 were also joined as parties who were opposed to the development (“the objectors”).
The history of the proposed development
7. The proposed development comprises the construction of a two storey extension to the west of the two original cottages, to which it will be adjoined at the rear of the cottages, to yield eight units, two of which will be at the upper floor level. Of the six at the lower floor level, two will incorporate substantial parts of the original cottages. A basement car park, entered via a new verge crossing and ramped driveway from Bentham Street, would provide for both resident and visitor parking under the proposed extension. The original cottages have severe structural cracking due to undersized footings. In order to ensure the structural integrity of the cottages into the future, extensive remedial work will need to be done, requiring removal of their roofs and internal walls and the installation of a stiffened raft/waffle slab within the residence footprints connected to short concrete corbels constructed to the underside of the existing footings around the perimeter of each cottage. Subsequently, the roofs will be rebuilt to their original form, using the original tiles wherever possible.
8. The proposal is the end product of a long period of development of concepts of ways by which a multi-dwelling development complying with the A10 policies, that would also achieve the conservation objectives of the heritage citation, might be located on the two blocks following their consolidation.
9. Proposals advanced in 2003 for a dual occupancy development on Block 16 considered the use of red brick and tile construction for the extension, but these were not considered appropriate materials by the Heritage Council (“the Council”) which was, at that time, considering listing the buildings. A decision to add the cottages (together with two other similar cottages on Blocks 8 and 11) to the Interim Heritage Register was appealed to the Administrative Appeals Tribunal (“the Tribunal”) and after mediation, a revised citation was agreed and the cottages were added to the Interim Register. That citation applies today, but its force has altered as a result of changes made in 2004 to the provision regarding heritage listing (see discussion at paras 58 to 66 below). Earlier development proposals had extended to a third block (Block 11, Section 64) but later that block was redeveloped as a single dwelling by Mr and Mrs Stone, the present applicants.
10. In 2006, the developers submitted a new scheme as DA 200600165 (“the 2006 DA”), involving a two storey concrete extension with a flat roof, substantially located to the west of the original cottages on Blocks 16 and 12, but partly attached to the back of each of them. The Council considered that this proposal did not sufficiently meet the conservation objectives of the heritage citation and that a range of matters required further consideration. They formally advised the respondent that the proposed development would have a major detrimental impact upon the heritage values of the place, but indicated that they would be willing to consider a further DA that addressed a number of matters to “mitigate the current impacts and thereby retain the heritage values of the precinct”. Because of the time it would have taken to deal with these matters, the developers withdrew the 2006 DA.
11. In July 2007, the developers submitted the 2007 DA which while substantially similar to the 2006 DA, had been modified to try to address the issues raised by the Council and to take account of advice from heritage consultants Godden, Mackay Logan who were commissioned by the developers to provide an independent Heritage Impact Statement as recommended by the Council. This DA was notified for public consultation and attracted a number of objections, some of which were concerned mainly with the adequacy of the measures proposed to meet the conservation objectives of the heritage citation while others were concerned about the potential for overlooking of neighbouring properties, or with the impact of the proposed development on traffic, parking and streetscape.
12. The proposal was referred by the respondent to the Council under section 229(4) of the Land Act and following further consideration by the Council and the provision of advice to the respondent under section 60 of the Heritage Act, the DA was approved by the respondent with conditions, including a condition specifically recommended by the Council concerning the height of certain fences. It is this decision of the respondent that is the subject of the present review.
The hearing
13. The matter was heard by the Tribunal on 4, 5, 6, 7 and 14 March 2008. The applicants and the objectors were represented by Mr Ian Clarke who, while legally qualified, was not a practising lawyer. The respondent was represented by Mr Phillip Walker of counsel, and the developers were represented by Ms Caitlin Sims, a legal practitioner.
14. The Tribunal visited the subject land and inspected the existing cottages and the neighbouring properties, including the interior of the applicants’ house. Mr Eric Martin an experienced heritage conservation architect who is Managing Director of Eric Martin and Associates and a former Chair of the Heritage Council, gave evidence as an expert witness on behalf of the applicants and objectors. Dr Diane Firth, Deputy-Chair of the Heritage Council who is Head of Landscape Architecture in the Faculty of Design and Creative Practice at the University of Canberra, gave evidence on behalf of the respondent. Mr Butt gave evidence on his own behalf, while Mr Anthony Adams, an experienced and qualified town planner who is Senior Director of the Canberra office of CB Richard Ellis Pty Ltd, a property and town planning consultancy, gave evidence on behalf of the developers.
15. The Tribunal had before it the documents prepared by the respondent in accordance with section 37 of the Administrative Tribunals Act 1989 (the T-Documents) as well as documents relevant to the consideration of the 2006 DA (the Supplementary T-Documents). It was also assisted in its consideration of the matter by a scale model of the proposed development prepared by the developer, but it emerged during the hearing that the model was deficient in a couple of details which were later corrected by Mr Butt.
16. The matter will most conveniently be addressed issue by issue.
(a) Heritage issues
(i) Evidence and contentions of the parties about heritage issues
17. The Heritage Register entry for the Early Canberra Brickworks Housing Precinct consists of:
- A Statement of Features Intrinsic to the Heritage Significance of the Place;
- A Statement of Significance; and
- Specific Requirements for Conservation of the Early Canberra Brickworks Housing Precinct.
18. The last-mentioned comprises a brief statement of the conservation policy for the place, together with a series of four Conservation Objectives, each of which is supported by a series of specific requirements.
19. The objectors contended that a number of these specific requirements would not be complied with if the proposed development went ahead as approved, but in some cases their contentions were not supported by any evidence or were shown to be incorrect. Those which were the subject of most evidence and submissions are dealt with seriatim below.
Conservation Objective 1.5(b)
20. This provides that:
Not less than 40% of the area of a residential block shall be retained as planting area. Planting area means an area of land within a block that is not covered by buildings, vehicle parking and manoeuvring areas or any other form of impermeable surface and that is available for landscape planting.
21. The developers claimed in the 2007 DA that the area required to be available for planting was 40% of the area of the consolidated block, that is, 40% of 2081.04 m2 or 832.42 m2, and that their proposal yielded 962.23m2. They arrived at this figure by including a substantial area of the site that would be covered by what were described as “permeable pavers”, but excluding the area of the planter boxes and of the existing hedge (which they stated lay outside the property boundary). Mr Butt contended that permeable pavers could be counted because only “impermeable surfaces” were excluded by the Objective and that he had been advised by Dr Firth that, because the permeable pavers would allow water to penetrate to the soil beneath them and could be lifted to allow landscape planting when required, they could be counted as part of the planting area.
22. The applicants and objectors by contrast contended that the use of the word “shall” in this Objective meant that it was mandatory to have 40% of the block area available for planting and that the area of the permeable pavers should not be counted as it was impossible to “plant a plant in a paver”. They submitted that the purpose of the Objective was to ensure that developments actually have landscape plantings around them, that is, the required area must be available for planting and must be planted with living, growing plants.
23. Mr Martin gave evidence that, in his opinion, the Objective meant that each of the existing Blocks 16 and 12 was required to have 40% of its area available for planting, not just the consolidated block area, and according to his calculations, Block 16 would have only about 28% planting area while Block 12 would have about 38%. However, it was established that Mr Martin made his calculations on the basis that the area covered by permeable pavers was not counted. He conceded that on a strict interpretation of the wording of the Objective, only impermeable surfaces were excluded and hence permeable pavers might be counted. Mr Martin had also included the areas of the planter boxes and the existing hedge in his estimate of planting area, but if these areas were not counted, his estimate of the percent coverage would have been even smaller.
24. Dr Firth was questioned about the Council’s view of what should be included in calculating the percentage planting area. She asserted that the planter boxes could be counted, as could the permeable pavers, because it would be possible to grow trees adjacent to the areas covered by the permeable pavers, as they would allow water and air to penetrate the soil to support the trees. She contended that for this reason, the Council did not consider the proposed development was inconsistent with this Conservation Objective. She also contended that the use of grass lawn in place of the permeable pavers would be inconsistent with the Government’s sustainability goals and that trees would add more to the landscape as seen by the passer-by than would grass.
25. However, the Tribunal notes that when assessing the 2006 DA, the Council concluded that the proposed planting area was approximately 10% of the block area and recommended that it be increased to not less than 40%. The Design Response Report submitted by the applicant in association with the 2007 DA asserted that the use of permeable paving meant that the 40% requirement had been met, and this assertion was apparently accepted by Godden Mackay Logan in their Heritage Impact Statement. Dr Firth said that the Council had relied on information provided by the respondent as to the areas of the site covered by the various elements and had not independently calculated them. Presumably this information was that supplied by the developer in the 2007 DA as there is no evidence that the respondent or Godden Mackay Logan made any separate calculations.
26. When cross-examined by Mr Clarke, Mr Butt conceded that some of the areas covered by permeable pavers were intended as permanent access paths and recreational amenity areas and would be of limited availability for landscape planting. If these were not to be counted, he agreed they would have to modify their plans to achieve the 40% requirement. He said if need be they could eliminate the access paths, which were not required by the Plan, but in his estimate about 120m2 of the area of permanent pavers could be removed and the plan would still meet the 40% requirement.
27. Nevertheless, whether the Objective is met or not turns on the question of whether areas covered by permeable paving are also “available for landscape planting”. Whether this is so and whether the required percentage planting area should apply to the individual blocks or to the consolidated block is considered below.
Conservation Objective 1.7 and 1.8 (a) – (c)
28. These Objectives relate to the position of driveways and verge crossings. They read:
1.7New or additional verge crossings shall only be permitted on Block 16, Section 64, which has two street frontages. For Block 16, Section 64, a second verge crossing may be permitted where:
· the new verge crossing will not have an adverse impact on street trees;
· the new verge crossing shall maintain an alignment closest to the nearest side boundary, single car width (less than or equal to 3.6m except if it is located on Bentham Street);
· any driveway connecting the two verge crossings is screened from the street by plantings;
· only one additional verge crossing shall be permitted;
· any new verge crossing shall be sympathetic to the heritage values of the precinct.
1.8(a)Driveways shall conform to the verge crossing location. Areas of driveway visible from the street shall maintain an alignment close to the nearest side boundary, and should integrate with front garden planting to reduce the visibility of the driveway from the street.
1.8(b)Driveways should be single-vehicle width (less than or equal to 3.6m) between the front boundary and building line and have a uniform surface of subdued charcoal or earthen tones. Gravel, brick, clay or concrete pavers or bitumen are preferred surface finishes. Strong textures including stamped concrete, and bright colours including bare or exposed aggregate concrete shall not be permitted.
1.8(c)The existing driveway level, in the area between the front boundary and building line shall be retained.
29. Mr Martin gave evidence and the applicants and objectors contended that, because the proposed new verge crossing in Bentham Street required the removal of a street tree, and because the driveway was to be 4m wide between the front boundary and the building line (rather than the prescribed 3.6m) it was inconsistent with Conservation Objectives 1.7 second dot point and 1.8(b). Further, they considered that because the driveway was to be ramped, the existing level between the front boundary and the building lines was not maintained as required by Objective 1.8(c).
30. Mr Butt in evidence explained that the driveway had been relocated to its proposed position adjacent to the property boundary in order to meet Conservation Objectives 1.7 second dot point and 1.8(a). The verge crossing had been made 5.5m wide in order to enable departing traffic to pass entering traffic before it reached Bentham Street, as required by Performance Measure D5.8 of Appendix III.2 of the Plan. While normally this passing zone would be located within the block, the driveway width requirements of Conservation Objective 1.8(b) precluded such an arrangement. He said that, while Australian Standard 2890.1 – Parking Facilities Part 1: Off-street car parking specifies a driveway width of 3.6m, it also requires a 300mm wide by 150mm high kerb on each side, hence the driveway (including the kerbs) shown on the plans scaled at 4.2m.
31. Mr Butt explained that it would not be possible to maintain the level of the existing driveway for the new driveway because of the slope of the land towards Hutchins Street. To do so would require the new driveway to be 0.5m below natural ground level at its new location.
32. As to the removal of the street tree, the 2007 DA made it clear that this was the result of the requirement to locate the driveway adjacent to the property boundary. The tree in question is one of a group subject to a replacement program and would need to be removed during the next five to ten years in any case. Its removal was approved by Canberra Urban Parks and Places in connection with the 2006 DA (Supplementary T-Documents 635-6) who had also approved its replacement by two trees of the species Sophora japonica (Pagoda Tree).
Conservation Objective 3.2
33. This Objective reads:
The level of the ridgeline or highest roof point of any development should not exceed the level of the ridgeline or highest roof point of the original dwelling.
34. The applicants and objectors drew attention to the fact that the plans submitted with the DA showed that the fascia of the roof of the proposed two storey development was some 150mm higher than the ridgelines of the original dwellings and the roof was stepped up a further 300mm over its centre. Further, there were two vertical elements (blade walls) which extended another 300mm above the highest part of the roof, making a total of 750mm by which the highest points of the new work exceeded that of the original buildings.
35. Mr Butt gave evidence that these proposals had been accepted by the Heritage Council because the wording of the objective had been altered from “shall not exceed” to “should not exceed” following the earlier AAT mediation. He explained that “shall” meant that the requirement was mandatory while “should” meant that it was desirable but not mandatory. He explained that the upper floor in the 2007 DA had been set back an additional distance behind the building lines of the original dwellings, so that its ridgeline would appear to be lower than those of the original buildings when viewed from Hutchins Street because of the perspective effect, by which more distant objects appeared smaller than closer objects. The height of the roof had been raised by 300mm in the central area to provide for increased ceiling height. However, he contended that the perspective effect would ensure that the roof of the extension would not appear to be higher than the roofs of the original cottages.
36. In relation to the 2006 DA, the Council had recommended that the “roof line of the new development be stepped back from the cottages, so that the cottage ridge lines remain the dominant skyline as seen from the eastern side of Hutchins Street” and in its formal advice to the respondent on the 2007 DA noted that this had been achieved, but made no reference to the height of the ridgeline.
37. In her witness statement Dr Firth stated that the proposed development complied with Objective 3.2, but in oral evidence, she asserted that because the height of the ridgeline of the new work was higher than the ridgelines of the original dwellings, it was inconsistent with the Conservation Objective.
38. She explained that in discussions on compliance issues between Mr Butt, officers of the Council and a representative of the respondent, Mr Butt had been asked to try to reduce the ridgeline height so that it would conform to the requirement. Dr Firth said that she believed that a record of the discussions had been kept, but no such record was before the Tribunal. Following a search of the Council files, an undated unsigned handwritten note was located which indicated that some such discussion may have occurred.
39. She explained that what the Council was seeking was a desirable visual outcome and while the word “should” meant that the requirement was not mandatory, they considered that if possible it should be met. She said that, while the proposed development remained inconsistent with the statement in the Objective, nevertheless the Council was prepared to accept it as it complied “visually”. She did not accept that a composite image created by superimposing a CAD image of the elevation of the proposed development onto a photograph of the subject land taken from Hutchins Street (included in the T-Documents) gave an accurate picture of what the development would look like, although she agreed that the image did make it appear that the extensions would look substantially higher than the cottage ridgelines.
40. Mr Butt gave evidence that, in his view, the blade walls were not part of the roof line. They were vertical elements that had been introduced for purely decorative reasons in response to a suggestion of the Council as to the desirability of having some such elements in the design. In response to questions as to how the ridgeline could be lowered to meet Conservation Objective 3.2, Mr Butt agreed that it would be possible to do so, for example, by sinking the extensions further into the ground but that would be costly and have consequential changes including the need for a longer or steeper ramp with modified transition zones. However, he felt that if this were done it would still be possible to meet the Australian Standards for the ramp and transition zone slope.
Conservation Objectives 4.1 and 4.2
41. These Objectives read:
4.1 The original dwelling shall remain the dominant form on the Block as seen from the public domain.
4.2 Alterations and additions shall not dominate the original houses on Blocks 8, 11, 12 and 16 as seen from the public domain.
42. The applicants and objectors contended that the new construction proposed will be the dominant form as seen from the public domain. They relied on the evidence of Mr Martin who said that the proposed development would overpower the individual residences, both because of its overall two storey height and because it would link the two buildings. It would occupy a large proportion of the site and its bulk would mean that the original buildings would no longer appear as separate detached houses surrounded by landscape.
43. Mr Butt said that “dominance” did not mean simply size, but the “strongest element” or “forceful” or “commanding” and that the ordinary person viewing the development from Hutchins Street would gain the impression that the new development was on a block behind the original dwellings and this impression would be assisted by the perspective effect. He referred to other heritage registered sites in which substantial new structures had been built to the rear of heritage houses and tendered photographs of them which, he contended, showed that the original buildings remained dominant.
44. Mr Clarke submitted that the public domain included Bentham Street and he contended that viewed from the south-west (ie from Bentham Street) the new development was indisputably dominant as only a small part of the cottage on Block 16 and none of the cottage on Block 12 could be seen. He also suggested that the public domain included the view from above (as would be seen by hot-air balloonists) and submitted that there was no doubt that when so viewed, the new development was overwhelmingly the largest, most obvious and dominant form on the block.
45. He further submitted that the perspective effect would not operate in this case because the new development was not set back at any distance from the cottages, but instead sits on top of and dominates the cottages, which are dwarfed by its size and are subsumed into it.
46. Dr Firth said that the development as shown on the model was “very large” and seen from the rear appeared to be “enormous” but noted that when viewed from the south-west in Bentham Street, it would be seen over a dark green hedge and through street trees, hence its visual impact would be lessened. The main public domain view would be from Hutchins Street and there the impact had been reduced by the requirement that the new development be set back further from the original houses, while the articulation of the extension would create shadowing that, coupled with a pallet of muted colours, would result in greater prominence being given to the original buildings.
47. Mr Walker submitted that the Tribunal should prefer Dr Firth’s view to that of Mr Martin and that “dominance” was not merely a matter of physical size. There are a range of aspects which contribute to “dominance”. Moreover, it was not appropriate to choose one particular place in the public domain and assert that the new development was dominant when viewed from that spot: the appropriate approach is to take an all-round view.
Conservation Objectives 4.11 and 4.12
48. It is convenient to deal with these two Objectives together as they are concerned with the architectural character of the original dwellings. They read:
4.11Development on each Block shall retain the architectural characteristics of the original development (i.e. single detached dwelling).
4.12 The roof form, roof pitch, materials scale and detail of any new structures shall complement the architectural character of the original dwellings.
49. The applicants and objectors noted that these Objectives were mandatory and contended that the Council and the respondent had misinterpreted the meaning of Objective 4.11 and misapplied the meaning of “complementary”.
50. Mr Clarke referred to the definitions in the Macquarie Dictionary (3rd Ed) as follows:
single – 1. one only; separate; individual
detached – 1. standing apart; separate; unattached (usually applied to houses)
and submitted that, if the development proceeded, the two single storey heritage dwellings would no longer be detached, that is, separate, individual or free-standing dwellings. Rather an ordinary person observing the proposed development would conclude that the cottages are attached to and incorporated into the new development and no longer retain the architectural characteristics of the original development, that is, “single detached dwelling” as required by Objective 4.11.
51. Mr Martin opined that the proposed development would not retain the architectural characteristics of the original dwellings and that there was no way that the proposed development could be modified to meet this Objective because, through the linking of the two dwellings by the new building, their identity as single detached dwellings on individual blocks would be lost. In his opinion, it would only be possible to retain their characteristics by keeping them as separate dwellings on separate blocks with appropriately designed extensions, preferably by using similar materials and forms that match the existing detail. He accepted that in some circumstances different architectural styles could be adopted (and he considered that there were a number of successful examples where this had been done) but not, in his opinion, for these buildings having regard to their characteristics and their original purpose.
52. Mr Walker submitted that the Heritage Citation at Objective 1.3 clearly contemplated that new dwellings or additions were permissible on the blocks while the Schedule to the Citation identified a building envelope extending across the block boundaries where extensions could be built and which, he contended, clearly contemplated that they could link to the original buildings. He noted that Dr Firth’s evidence was that the requirement of the Objective was not that the original dwellings could not be joined to the extensions, but that they should retain their architectural characteristics as single detached dwellings and, in his submission, anyone looking at them would consider that this had been achieved.
53. In relation to Objective 4.12, Mr Martin’s evidence was that the roof form, roof pitch, materials, scale and detail of the new structure contrast with rather than complement the original dwelling. In response to cross-examination by Mr Walker, Mr Martin explained that in order to complement the details and the materials of the original dwellings, the buildings should remain as single detached houses on separate blocks and any extensions should be constructed of similar materials, for example, by the use of bricks and tiles and windows of similar character, particularly where visible from the public domain. He agreed that more flexibility could be accepted in areas not visible from the public domain. He said that the aim should be to aim for the highest level of complementarity possible but acknowledged that it was never wholly achievable, as reflected in Conservation Objective 1.3, first dot point which required additions to an existing dwelling to be clearly distinct from the original dwelling. However, he contended that this meant the new work should be readily identifiable rather than being quite different (as indicated in the Burra Charter, paragraph 22.2).
54. Mr Butt gave evidence that in earlier schemes dating from 1999, he had proposed to use pitched terracotta tile roofs, red brick trim and some rendered and painted walls as the materials for extensions to the cottages but these had met with resistance from the Council who had instead recommended an approach similar to that which had been taken with the heritage registered Whitley houses in Griffith and Braddon. In 2004, architect Rodney Moss of Cox Humphries Moss had been engaged to develop this concept and his sketch plans (Supplementary T-Documents 268-273) were endorsed by the Council as the basis for a further proposal. The Council had advised that they liked the fact that the new elements would be readily identifiable from the original buildings and the introduction of vertical elements and more muted colours to accentuate the difference between the new elements and the original cottages. These views had been taken into account when the current Heritage Citation was negotiated following Tribunal mediation.
55. Mr Butt said that he understood the word “complement” to mean harmony or balance between the new and the old, not to replicate or mimic, and referred to the Whitley House at 107 Limestone Avenue, Braddon as an example of how this had been achieved.
56. Dr Firth also contended that “complement” did not mean to mimic. She said that the Heritage Council’s view was that any new work should be clearly distinguishable from the old and whether individuals personally liked the architecture was not important: what was important was whether the new work complemented the existing cottages and gave them visual prominence and she contended that the proposed development had done this by the increased setback of both the lower and upper floors and the use of neutral colours.
57. Mr Walker submitted that the wording of the Objective 4.12 did not mean that any new development had to be reflective of the architecture or mimic the original buildings – the use of the word “complement” implies the possibility of using a different architectural style. It permits a wider variation and he submitted that Mr Martin had conceded this.
(ii) Consideration of the heritage issues
58. The enactment in 2004 of the Heritage Act resulted in a significant change to the way in which Heritage Citations operate. Prior to 2004, the Heritage Register was an Appendix to, and therefore part of, the Plan. Consequently decision-makers were obliged by section 8 of the Land Act, not to approve any development that was inconsistent with a provision of the Register. Schedule 1 Part 1.5, Clause 1.22 of the Heritage Act 2004 removed Part 3 (the heritage provisions) from the Land Act while Schedule 1, Part 1.9 removed the Register from the Plan.
59. Under Part 4, section 20 of the Heritage Act, the Council must keep a register of heritage places which includes, inter alia, each heritage guideline. Section 25 provides that the Council may make written guidelines in relation to the conservation of the heritage significance of places and once made, following public consultation, they become disallowable instruments.
60. The Heritage Register entries (including any Interim Register entries) removed from the Plan became included on the Heritage Register established under Part 4 of the Heritage Act by virtue of section 128 of the Heritage Act, and citations from the Register or the Interim Register became, by virtue of section 129, the Heritage Guidelines required under section 20 of the Heritage Act for the places concerned. The Heritage Register remains separate from the Register of Planning Guidelines established by the ACT Planning and Land Authority and referred to in Part A.3 section 9.2 of the Plan.
61. Under the new arrangements, the Authority is required (by section 229(4) of the Land Act) to refer any development application that affects a place registered or nominated for provisional registration on the Heritage Register to the Council for advice and, under section 60 of the Heritage Act, the Council is required to provide advice to the Authority on that development application within 15 working days.
62. The nature of the Council’s advice to the Authority is set out in section 61 of the Heritage Act as follows:
(1)The council’s advice under section 60 about the effect of a development on the heritage significance of a place or object must include the following:
(a)an outline of the effect of the development on the heritage significance of the place or object;
(b) advice about ways of avoiding or minimising the impact of the development on the heritage significance of the place or object.
(2)Without limiting subsection (1), the advice may set out proposed conditions on any approval of the development, including conditions requiring compliance with all or any of the following:
(a)prudent and feasible measures to conserve the heritage significance of the place or object;
(b) conservation requirements under applicable heritage guidelines;
(c) a conservation management plan approved by the council.
63. Section 27 of the Heritage Act provides that:
(1)A function under this Act that relates, directly or indirectly, to the conservation of a place or object must be exercised in accordance with any applicable heritage guidelines.
(2) Subsection (1) applies, in particular, to the following functions:
(a)the giving of advice to the planning and land authority under section 60 (Advice about effect of development on heritage significance), particularly in relation to ways of avoiding or minimising the effect of a development on the heritage significance of a place or object;
(b) ……….
64. It is clear from these provisions that when a DA is referred to it by the Authority under section 229(4) of the Land Act, the Heritage Council is bound to advise the Authority in accordance with the specific provisions of the Heritage Guidelines. However, the Authority is not bound to accept the advice of the Heritage Council.
65. While section 231(1)(e) of the Land Act requires the Authority to consider:
any advice given to the authority by the Heritage Council under the Heritage Act 2004, section 60 (Advice about effect of development on heritage significance) within 15 working days after the day the council is given notice of the application by the authority
section 231(2) of the Land Act provides that the Authority may make a decision inconsistent with the advice of the Heritage Council only if satisfied that:
(a) the following have been considered—
(i) all applicable heritage guidelines;
(ii) all reasonable development options and design solutions;
(iii)any prudent and feasible alternative to the proposed development, or relevant aspects of it; and
(b)as far as practicable, the decision avoids or minimises any adverse impact on the heritage significance of the place; and
(c) on balance, the decision is consistent with the objects of the territory plan.
66. If an application relates to a place registered, or nominated for provisional registration, under the Heritage Act, section 244(A) of the Land Act requires the authority to give the Council written notice of its decision and a copy of the decision.
67. In the present case, the 2007 DA was duly referred by the respondent to the Council by email on 7 August 2007 and the Council provided its section 60 advice in a letter from the Council’s Secretary dated 24 August 2007. Its advice was summarised in the last paragraph of that advice as follows:
The Heritage Council advises that the proposed extension is unlikely to have detrimental impact on the heritage values of the Yarralumla Brickworks Heritage Precinct and therefore is supported by Council provided the height (1.8m) of the subject fence is reduced to 1.2m.
68. In his Findings on Material Questions of Fact that accompanied the decision, the delegate of the respondent wrote:
The Heritage Council have given their full support to this proposal in its current form apart from a minor variation to one of the fences. As the Council had supported the proposal the Authority had no grounds on which to refuse the application in regard to its compliance or otherwise with the citation.
69. No evidence was presented to the Tribunal as to what, if any, consideration was given by the delegate of the authority to the adequacy of the Council’s advice, even though section 231(2) clearly envisages that such advice need not be accepted. Be that as it may, the Tribunal stands in the shoes of the decision-maker and in reviewing the decision has available to it the same discretions as are given to the authority by section 231(2) and other provisions under the Land Act, including those contained in the Plan.
70. Apart from considering any advice provided under section 60 by the Council, a decision-maker is also bound to take account of the general provisions of the Plan, in particular those set out in Parts A and B. For example, Part A1 sets out the Objects and Goals of the Plan which include, at 2.5 under the heading ‘Environmental and High Quality Design’:
Continuing enhancement of the territory’s natural, built and cultural environmentincluding conservation of heritage and other valued features…
while Part A2 sets out Strategic Principles which are meant to indicate how the Object and Goals of the Plan are to be achieved and set directions for the more detailed policies in Parts B and C. In particular the Strategic Principles include, at 5.6:
Heritage and cultural features will be safeguarded… The distinctive qualities of residential areas and other places…will also be recognised and their conservation promoted;
and at 5.7:
Identified places of heritage significance will be protected in accordance with the requirements for their conservation contained in the Heritage Register and any relevant heritage guidelines under the Heritage Act 2004.
71. Part A3 of the Plan sets out Plan Administration Policies and section 9 of that Part is headed ‘Consideration of Land Use and Development Proposals’, which include, at 9.1 the following:
The relevant authority shall not approve a development or a proposal for the use of land that would be inconsistent with
(f) the Heritage Act 2004
and at 9.2:
The relevant authority shall, in relation to an application to undertake a development or a proposal to use land, carefully consider the following matters:
(i) any advice given to the Authority by the ACT Heritage Council under the Heritage Act 2004
and at 9.3:
In addition to the matters in paragraph 9.2, the relevant authority shall carefully consider those of the following matters that are relevant to the proposal
(f)impacts on the character and appearance of any building, area or architectural, aesthetic or scientific interest or otherwise of special cultural or heritage value.
72. Mr Clarke submitted that these provisions obliged the authority to undertake some basic analysis of whether the Council’s advice looked adequate or consistent with the Heritage Guidelines and that, if it was inadequate or inconsistent, it would be open to the authority to reject a DA even where the Council had indicated support provided that the authority had fulfilled the requirements set out in section 231(2) of the Land Act. He further submitted that in this case, the decision-maker had taken the decision without sufficient evidence to justify the decision as he did not have a complete or accurate assessment of the facts from the Council because the Council did not provide the authority with a complete or accurate assessment of the 2007 DA against the Conservation Objectives. In his view, as a result, the decision was flawed and should be set aside by the Tribunal.
73. Mr Walker submitted that the Tribunal’s task was not to review the Council’s advice, but only the decision made by the respondent. He agreed that it must, of course, consider the Council’s advice but it could not review the decision of the Council under the guise of reviewing the respondent’s decision. He referred to several authorities (Civil Aviation Authority v Coburn (1996) 24 AARJ 389; Tradesmen’s Union Club v Minister for the Environment Land and Planning (1997) 131 ACTR 1; and Canberra Tradesmen’s Union Club Incorporated v Commissioner for Land and Planning (1998) 147 FLR 291) which supported this submission.
74. Nevertheless, he agreed that the Tribunal, based on the evidence before it, was able to reach its own conclusions as to whether the proposed development was consistent with the Heritage Citation or the Plan and that it would be entitled to arrive at a decision that was inconsistent with the advice of Council as envisaged by section 231(2) of the Land Act especially if the proposal was inconsistent with the Plan. The requirement to take certain matters into consideration under Part A3 of the Plan would provide a basis for refusing to approve a DA if the issue at hand were considered to be serious enough, that is, in exceptional circumstances. However, in his view the respondent (and therefore the Tribunal) was not bound to reject a DA which was inconsistent with a Heritage Citation, as that would not per se give rise to exceptional circumstances. Otherwise the provisions of the Citation would continue to have the binding effect on decision-makers that they did when they formed part of the Plan, an effect which the Heritage Act was designed to remove.
75. Mr Walker reminded the Tribunal that the land was subject to the A10 Residential Core Specific Area Policies and as such, the aims of those policies could not simply be ignored. Ms Sims also stressed that the A10 Policies which encouraged more intensive development needed to be given weight. She noted that the present proposal was the result of many years of consultation between the developers and the Council and was considered by the Council to be “unlikely to have detrimental impact on the heritage values of the Yarralumla Brickworks Heritage Precinct” and generally consistent with the Heritage Citation.
76. This is the first case before the Tribunal that has involved consideration of heritage buildings located in an A10 area. The objectives of the A10 policies and those of the Heritage Act need to be balanced in arriving at the correct and preferable decision. However, we are bound by section 8 of the Land Act not to approve any development that would be inconsistent with the Plan and in particular, we must take cognizance of Strategic Principles 5.6 and 5.7 in Part A2 of the Plan, and carefully consider the impact of the development on the character and appearance of the original cottages, as required by para 9.3(f) of the Part A3 policies.
77. The Heritage Council established by Part 3 of the Heritage Act has the following functions:
(a)to identify, assess, conserve and promote places and objects in the ACT with natural and cultural heritage significance;
(b) to encourage the registration of heritage places and objects;
(c)to work within the land planning and development system to achieve appropriate conservation of the ACT’s natural and cultural heritage places and objects, including Aboriginal places and objects;
……….
(j) any other function given to it under this Act or another Territory law.
78. Its membership includes six persons who must have expertise in one of a wide range of subjects relevant to heritage conservation, as well as three public representatives, the Conservator of Flora and Fauna and the chief planning executive. As such, it is clearly a body to whose opinions and advice considerable weight must be given. Nevertheless, it is required by virtue of section 27(1) and (2) of the Heritage Act to give advice to the authority in accordance with any applicable Heritage Guidelines. So, an issue for decision by the Tribunal is whether the evidence before it demonstrates that the advice provided to the respondent by the Council was in accordance with the Heritage Guidelines applying to the Early Canberra Brickworks Housing Precinct. Having regard to the evidence and contentions of the parties, we are satisfied that in all but two respects the Council’s advice was in accordance with the Guidelines.
79. We are not persuaded that the position of the new driveway and its dimensions or the consequential need to remove and replace a street tree are inconsistent with Objectives 1.7 and 1.8 (a) (b) and 9(c). It is clear that a second driveway to Block 16 on Bentham Street was envisaged when the citation was adopted and the requirement that its alignment be closest to the nearest side boundary has determined its location and level, while the widths of the driveway and verge crossing are imposed by the Plan and the relevant Australian Standards.
80. We are persuaded that the original dwellings will remain as the dominant forms on the block as seen from the public domain, as required by Conservation Objective 4.1 provided that the height of the roof of the extension is lowered as indicated below. Views of the model made this apparent to us and we accept Mr Walker’s submission that, in assessing consistency with this Objective, an all-round view must be taken and not only the view from a carefully selected point.
81. We consider that the development will retain the “architectural characteristics” of the original development (ie single detached dwellings) and it is therefore not inconsistent with Conservation Objective 4.11, because the substantial portion of each of the original houses affected will be retained and will be readily apparent to the ordinary passer-by as being the original single detached dwellings. That they are no longer “detached” is not the critical issue; it is whether or not their “architectural characteristics” are retained and the development will achieve this through retention of their red brick construction, their terracotta-tiled pitched roofs and the visible parts of their external form. We do not accept Mr Martin’s view that the extent of demolition of the cottages and the need to rebuild the front stairs or replace the windows affects their essential architectural characteristics.
82. We do not consider that the roof form, roof pitch, materials scale and detail of the new structures fail to complement the architectural character of the original dwellings. The Macquarie Dictionary (Rev 3rd Ed) relevantly defines “complement” as “that which completes or makes perfect” while the Australian Oxford Dictionary defines it as “something that completes”. We accept that the meaning of the word “complement” is not to mimic or copy, hence the proposed development is not inconsistent with Conservation Objective 4.12 simply because of its different building materials and its different architecture.
83. However, we are not satisfied that Conservation Objective 1.5(b), that not less than 40% of the area of a residential block shall be retained as planting area, will be achieved by the proposal, especially having regard to the requirement that the definition of “planting area” includes that it is “available for landscape planting”. In our view, land covered with permeable pavers cannot be considered as “available for landscape planting” and we will impose a condition on approval of the DA that the planting area be increased to achieve the mandatory 40% of the area of the consolidated block, exclusive of any area covered with permeable pavers.
84. We reject Mr Martin’s contention that this Conservation Objective should be applied to each of the original blocks as opposed to the consolidated block. Lease consolidation is permitted in an A10 area and the 2007 DA specifically sought that outcome. The Objective refers to “a residential block” where “block” is in lower case, whereas other references to the original blocks in this Objective are written “Block” with an upper case initial letter. We are satisfied that the 40% requirement applies to the consolidated block.
85. We also have some difficulty with the interpretation of Conservation Objective 3.2 which specifies that the ridgeline or highest point of the roof should not exceed the level of the ridgeline or highest point of the roof of the original dwelling. The proposed development exceeds the height of the cottage roofs by some 450mm, even if the tops of the vertical blade walls are excepted (as not being part of the roof). While the use of the word “should” rather than “shall” means that the Objective is couched in non-mandatory terms, nevertheless “should” carries more weight than a mere suggestion.
86. The evidence of Dr Firth was unequivocal that the height of the ridgeline of the extension was inconsistent with this Objective, though she also asserted that the development “visually” complied with it. The composite image included in Mr Butt’s 2007 DA (T-Documents 402) gave a very different impression and made the extension appear to be the dominant element. Although Dr Firth did not accept that the composite image was an accurate reflection of what would be seen by a person viewing the development from Hutchins Street it was, nevertheless, part of the material lodged by the developer with the DA as a representation of the proposed development and Mr Butt did not express reservations of the kind mentioned by Dr Firth. We consider it should be taken into account in considering whether Conservation Objective 3.2 has been achieved. We should also give weight to Dr Firth’s evidence that the proposal is inconsistent with the Objective and that it would be a better outcome if the height of the extensions was reduced.
87. Mr Butt agreed that it would be possible to lower the height of the ridgeline so as to conform to the Objective, albeit at some additional cost and with consequential design changes, especially to the ramp and transition zones of the driveway to the basement. In our opinion, the height of the roof of the extension (but not the blade walls) should be reduced to a height not greater than that of the roofs of the original cottages and this should also be made a condition of approval.
88. In arriving at this decision and in accordance with section 231(2) of the Land Act, we have considered all applicable heritage guidelines, all reasonable development options and design solutions, any prudent and feasible alternatives to the proposed development, or relevant aspects of it,. We take note of the fact that exhaustive efforts have been made by the proponent of this development to develop a design solution (at considerable additional construction cost) that both complied with the heritage requirements and the Residential Design and Siting Code for Multi-Dwelling Developments and which at the same time was feasible economically. We consider that as far as practicable our decision will avoid or minimise any adverse impact on the heritage significance of the Early Canberra Brickworks Housing Precinct and that on balance our decision on heritage issues is consistent with the objects of the Territory Plan.
(b) Planning Issues
(i) Applicable Law and Policy
89. As this application was lodged prior to 31 March 2008 the 2002 version of the Plan applies.
90. The Plan is established by section 13 of the Land Act. Its framework is usefully described in Nowicki v Martyn and Johnston (1996) 131 FLR 88. The object of the Plan is described in section 7(1) of the Act as providing the people of the Territory with an “ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation”. Pursuant to section 7(2) the Plan sets out planning principles and policies for giving effect to its object. When it considers whether to approve an application pursuant to section 230 a Territory authority must not, by virtue of section 8, make a decision inconsistent with the Plan.
91. Part A of the Plan sets out general planning principles and policies and Part B contains specific objectives and policies for giving effect to these planning principles and policies. The objectives are a formal statement of the planning aims sought by the land use policy and the controls are specific policy provisions identifying the purposes for which land may be used and the planning criteria that apply to development proposals in the relevant land use policy area.
92. Section 9.1 of Part A3 provides that “the relevant authority shall not approve a development or proposal for the use of land that would be inconsistent with” [a list of matters]. A “relevant authority” includes the Tribunal and the use of the mandatory word “shall” makes it incumbent on the Tribunal to pay particular attention to the matters listed which include, inter alia:
(a) the applicable land use policy in Part B;
………..
(d)for proposals in a Residential Area, the relevant provisions of any Residential Code at Appendix III.
93. Appendix III.2 of the Plan contains the Residential Design and Siting Code for Multi-Dwelling Developments (“the Code”).
94. Section 9.2(b) of Part A3 provides that:
(t)he relevant authority shall, in relation to an application to undertake a development or a proposal to use land, carefully consider the following matters:
………….
(b)any relevant planning guidelines or interim guidelines contained in the Register of Planning Guidelines;
…………
95. The Yarralumla Neighbourhood Plan was adopted as a Planning Guideline on 28 September 2004 and placed in the Register of Planning Guidelines. It is, therefore, a matter to which careful consideration must be given.
96. Section 9.3 of Part A3 states that, in addition to the matters in paragraph 9.2, the authority “shall carefully consider”:
(b)the overall quality of the proposed development, including the extent to which it achieves high standards or urban and environmental design and sustainable development outcomes;
(c)any significant short or long term effect which the relevant authority considers the use or development may have on the environment, including social and economic effects and potential cumulative effects;
(d)impacts on the amenity of surrounding land uses, including impacts on air quality, the level of noise generated, overshadowing, privacy, and the level of wind turbulence generated; impacts on the visual amenity and landscape or streetscape of the area;
…………
(k)the amount of traffic likely to be generated and its impact on the movement of traffic on the road system;
……….
97. Territory Plan Variation No 200 (“DV200”), the Garden City Variation, introduced the A10 (Residential Core) Area Specific Policy to the Territory Plan in 2003. This policy permits medium density housing near local centres, imposes limits on multi-unit developments and imposes controls on what is permissible in A10 areas. The objectives of the A10 policies are:
· 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.
· To retain a moderate level of flexibility to accommodate a wider variety of additional housing close to facilities and services to meet changing community needs and preferences.
· To assist in creating a more sustainable pattern of urban settlement by providing for more housing to be developed close to identified commercial centres.
98. In relation to the first of these objectives, there is no relevant approved master plan to define the desired future suburban character in this case, so that the existing streetscapes and adjoining development are the determining factors. Streetscape is defined in Part D of the Plan as “the visible components within a street (or part of a street)”.
(ii) Evidence and contentions of the parties about planning issues
Character of development
99. The applicants and objectors are concerned about the impact of the proposed development on the streetscape and general amenity of the area. The Plan (Part A3 section 9.3) requires the relevant authority to carefully consider:
(e) impacts on the visual amenity and landscape or streetscape of the area.
100. An objective of the Controls for Residential Development and Redevelopment in Suburban Areas, set out in Part B.1, Section 3.2 of the Plan is:
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.
101. Section 2 of the Code deals with buildings in relation to front boundaries and Objective 2.1 is:
to provide attractive streetscapes which reinforce the functions of the street and enhance the amenity of dwellings.
102. Section 6 of the Code deals with the external appearance of buildings and Objective 6.2 is:
to ensure that external colours and finishes of buildings and structures above roofs are not excessively obtrusive or likely to cause a loss of amenity to the streetscape or neighbours.
103. Performance Measure 6.2 reads:
Structures, plant and equipment situated on or visible above roofs to be so located and treated so as to be as inconspicuous as possible
while Performance Measure 6.3 reads:
Massing of groups of dwelling or buildings containing groups of dwelling to be designed to an appropriate residential scale and to provide visual variety and interest.
104. The proposed development has been described at paragraph 7 above. The Tribunal had in evidence the plans, photographic montages, a model, landscape plans, colour charts, shadow diagrams, elevations, aerial images and photographs of neighbouring developments. It also observed the streetscape during the site visit.
105. Mr Martin gave evidence that in his opinion its scale, bulk, character, setback and style were inconsistent with adjoining development. By contrast, evidence given by Mr Adams on behalf of the developers, was that the proposed development would respect the existing streetscape, taking into account the setbacks of the new building elements, the retentions of the street presentation of the existing cottages and the “lightweight” appearance of the new structure. He said the external colours and finishes are aesthetically pleasing and compatible with the local environment and meet the A10 policy objective. As to the scale and height, Mr Adams noted that two storey buildings are allowed in an A10 area.
Front hedges, gateposts and fences
106. The Tribunal was provided with a landscape plan of the proposed development which showed that the existing hedges around the subject land would be preserved. The plans also showed gateposts at the pedestrian entries on Hutchins and Bentham Streets and the driveway on Bentham Street. Mr Martin gave evidence that the proposed gateposts did not meet the sightline requirements of Performance Measure D5.4 of the Code which specifies those of Australian Standard 2890.1.
107. Mr Butt said that the gateposts had been added at the suggestion of the Heritage Council but agreed that they were located beyond the site boundaries. He stated that this was in order to integrate them with the existing hedge plantings (which are also located outside the site boundaries) consistent with Conservation Objective 4.7 of the Heritage Citation. However, he accepted that one of the gateposts adjacent to the driveway on Bentham Street and both gateposts adjacent to the Hutchins Street driveway would need to be relocated to meet the sightline requirements, or alternatively they could be deleted.
108. The plans also show three 1.8m high timber slat fences forward of the building line perpendicular to Hutchins Street. Mr Butt gave evidence that these fences provide security and privacy to units in the development. The applicants and objectors contended that these fences did not comply with the Plan.
109. Section 3.9 of Part B1 provides:
Fencing shall not be erected in front of the building line except where provided for in planning guidelines or development conditions released prior to the issue of a lease. This restriction does not apply to courtyard walls that are in accordance with the relevant Residential codes set out in Appendix III.
“Fencing” is not defined in the Plan, but considerable information on fences is contained in the Residential Boundary Fences Interim Guidelines, which were included in the Register of Planning Guidelines in 2006. The Guidelines clearly state that development approval is not required for hedges in front of the building line.
110. Appendix III.2 includes controls relating to courtyard walls in front of the building line and Performance Criterion P2.3 is relevant. For example, it requires:
the location and design of courtyard walls to enable the efficient use of front garden space, taking into account the amenity of the street
while Performance Measure D2.5 sets out the circumstances in which courtyard walls can be sited in front of the building line.
111. However, the fences proposed are not courtyard wall, which are required to be of brick, block or stonework which may be combined with feature panels (Performance Measure D2.5).
112. Mr Martin gave evidence that the location of the fences were non-compliant with the fencing policy. Mr Butt argued that prohibition of fences in front of the building line was, in practice, applied only to fences parallel to the boundary and that because these fences were to be perpendicular to the streetscape and only 1.2m high, they would not appear dominant.
113. In the course of the hearing the possibility of replacing the fence with planting or hedges was discussed. Mr Butt agreed that the two horizontal slat fences on metal frames perpendicular to the Hutchins Street pedestrian entry to the site and the similar fence between Unit 5 and the Hutchins Street boundary could be replaced with plantings. It was agreed that this would soften the impact of the development on the street while enabling efficient use of the gardens and retaining privacy for the residents and not offending the fencing policy.
Setbacks
114. The applicants and objectors argued that some parts of the proposed development did not comply with the setback requirements contained in the Plan. The main concern relates to the setback of the development from the side boundary shared with the applicants. In particular the setback affects overlooking of the adjacent dwelling on Block 11 from the upper storey Unit 7 and resulting privacy concerns that are discussed below.
115. Section 3 of the Code is concerned with buildings in relation to side and rear boundaries and Objective 3.1 is:
To site buildings to meet projected user requirements for privacy and daylighting
while Objective 3.3 is:
To ensure scale, height and length of a building and walls relative to side and rear boundaries are of appropriate residential character.
116. Performance Measure D3.1 provides for:
Minimum Setbacks from Side and Rear Boundaries
………..
B. Upper Floor Level (UFL):
a) Blank walls, windows with sill heights over 1.7 m with obscure glazing, screen walls:
- up to 12m behind UFL building line: 3 metres
- over 12 m behind UFL building line: 6 metres
b) Other walls, outer faces of unscreened decks, balconies and external stairs:
- up to 12 m behind UFL building line: 6 metres
- over 12 m behind UFL building line: 9 metres
117. The applicants and objectors submitted that the side setbacks of the development did not comply with the Plan. Mr Martin gave evidence of non-compliance with D3.1 as follows:
- the portion of the terrace of Unit 7 which is more than 12m beyond the UFL building line is required to be set back 9m but is only 6m;
- the western end of the terrace of Unit 7 in relation to the rear boundary with Block 13 is required to be set back 9m but is only 8.24m;
- the bathroom and powder room windows of Unit 7 in relation to the boundary of Block 17 are required to be set back 9m but are only 6m;
- the western terrace of Unit 8 which fronts Block 17 is required to be set back 9m and is only 6m;
- the wall of Unit 8 facing Block 17 which is beyond 12m from UFL is required to be set back 9m (because its windows are not obscurely glazed) but it is set back only 6m.
118. Mr Clarke submitted that the purpose of setbacks is to impose adequate spacing or distancing between buildings to ensure there is not an inappropriate level of overlooking on neighbouring properties. The applicants’ access to daylight and sunshine was not in issue as their block is to the north of the proposed development. However, as discussed below, evidence was given that the applicants’ family privacy is a major concern to them, as the room where they spend much of their recreation time is overlooked by the proposed development.
119. The main issue in contention is the setback of the terrace of Unit 7 from the boundary of Block 11. Having regard to the evidence, Mr Butt conceded that a portion of the terrace of Unit 7 did not comply with Performance Measure D3.1. That is, a section beyond gridline 3 shown on the UFL plan in plan AO5 (T Document 425) is not sufficiently set back from the side boundary. This section is located immediately to the rear of where the overhead roof shades the balcony of Unit 7, forming an area that seems likely to be used for recreation.
120. Mr Butt observed that it is possible to meet a performance objective without complying with a performance measure. Mr Butt gave evidence that the area on Block 17 that could potentially be overlooked is a driveway and car park, while the area on Block 13 that could potentially be affected is a treed and apparently little used area. Mr Walker tendered an aerial photograph showing the large size of Block 13 and the location of the existing dwelling away from the proposed development. Plans were in evidence showing that the wall of Unit 7 facing Block 13 is a blank wall in compliance with the 6m setback requirement.
Overshadowing and Privacy
121. Section 7 of the Code deals with the interfaces between dwellings. Objective 7.2 is:
To limit overlooking of private open space and to enable residents to effectively control outlooks between rooms in adjacent dwellings
122. Performance Criterion P7.2 requires:
The private open spaces and living rooms of adjacent dwellings to be protected from direct overlooking by dwelling layout, screening devices, distance or landscaping.
123. Performance Measure D7.2 requires:
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.
124. Performance Criterion P3.1 requires:
the privacy of dwellings and outdoor spaces to be protected
and the minimum setbacks set out above are designed to achieve this.
125. The applicants are particularly concerned about the impact of the development on their peaceful enjoyment of their living area which is close to the fence line between their block (Block 11) and the proposed development on Block 12. Mr Clarke asserted that there would also be some overlooking of their outdoor recreational area.
126. While on the site inspection, the Tribunal considered the impact of the proposed upper floor development by viewing the adjacent residence from the subject land at ground level and at the proposed upper floor height (using a step-ladder). The Tribunal also went inside the affected room of the adjoining property, which is the main kitchen and family room area. It has large windows facing north and an adjacent outdoor recreation area. The Tribunal observed there are five windows in the southern wall close to the relevant boundary with three windows in the main room particularly affected. Photographs and plans submitted show the affected windows are 2.6m in height and 600mm in width.
127. The Tribunal was also provided with diagrams showing sightlines drawn from the terrace of Unit 7 to the affected windows in the applicants’ property. There was agreement that Exhibit 16 which contains a west sectional elevation of Block 11 and Block 12 accurately reflects the sightlines from the proposed development. It shows that:
·a person sitting or standing in Unit 2, on the lower level of the development, could not see in through the relevant windows of the applicant’s property because of a 1.8m high fence on the boundary;
·a person inside Unit 7 would have difficulty seeing in through the relevant windows and could not see through to the outdoor recreational area;
·a person standing at the balustrade of Unit 7 could see in through the top third of the windows;
·a person standing at the edge of balustrade of Unit 7 might just see the edge of the pool and outdoor recreational area.
Parking
128. The applicants and objectors expressed concern about the development imposing more pressure on parking in the area. The adjacent commercial centre is often busy and parking spaces are at a premium. Part 9.2(a) of Part A of the Plan requires that the Tribunal carefully consider the ACT Parking and Vehicular Access Guidelines (“the Parking Guidelines”) that are included in the Register of Planning Guidelines. The Parking Guidelines, together with Performance Measure D2.5 requires 14 resident and 2 visitor car parking spaces for the proposed development. Mr Butt drew attention to the Basement Garage Plan which showed that the development meets this requirement but also to the fact that he had submitted revised plans (T-Documents 63 & 64) to provide two more visitor car parking spaces as required by Asset Management Services (T-Documents 154) one additional space in the basement and one at ground level accessed from the existing Hutchins Street driveway.
Storage
129. Performance Criterion P8.3 of the Code requires that:
A convenient area suitable to storage purposes shall be provided in order to protect the amenity of the block and the street in general
while the provision of an externally accessible storage area for each dwelling without a garage would satisfy Performance Measure D8.3.
130. The applicants and objectors submitted that the plans submitted with the DA did not show that this requirement had been met. Mr Butt gave evidence that the car parking spaces to be provided for each unit in the basement carpark of the proposed development were enclosed and gated and therefore constituted “garages” as defined in the Code. Consequently, separate storage areas were not required.
(iii) Consideration of planning issues
131. It is a central ingredient of the A10 policies that they make provision for more intensive development adjacent to commercial centres. The style of this proposed development appears to be in conformity with the objectives of the A10 policies. It is directly across the road from the commercial centre in Yarralumla. We consider that it does respect the streetscape. From Hutchins Street there will be a view of the two heritage properties with the new multi storey development behind, partly obscured by street trees. From Bentham Street, approaching from the west, the two story extension will be more prominent but the heritage property on Block 16 will be visible.
132. The existing front hedge of the proposed development that is to be retained, is outside the property line. The Tribunal considers that proposed gateposts should be built so that they comply with the relevant sightline requirements of AS-2890.1. The developer should submit new plans for achieving this and seek approval to their construction from Territory and Municipal Services. This will be made an additional condition of approval.
133. The proposed fences at the front of the ground floor units perpendicular to the Hutchins Street entry and between Unit 5 and the Hutchins street boundary do not comply with the fencing policy. A softer and more harmonious streetscape would be achieved by plantings and, since Mr Butt has agreed that this is possible, the Tribunal has decided to impose that as an additional condition of approval.
134. The Tribunal considers that the proposed development does not comply with the setback requirements of the Plan. We have given careful consideration to the overlooking and privacy issues the applicants have raised. Although this is likely to be an issue at all times of day, the main concern will arise after dusk when the occupants of Unit 7 may be using their terrace while the applicants and their family are using their family space. The Tribunal has regard to the practice of most suburban residents of drawing curtains and blinds to protect their privacy when lights are shining inside their dwellings and illuminating its contents to passers-by. While this does “close” a room, we note that the applicants have open access on the other side of the room. The Tribunal also has regard to the fact that a simple solution to the overlooking problem during daytime would be for the applicants and their family to lower the blinds in the affected room to the level of the fence, to obscure any view by the occupants of the adjoining property, but is cognizant of the fact that this would somewhat impede their access to daylight.
135. The Tribunal has decided that the burden should not be on the applicants to respond to the overlooking and privacy issues by drawing blinds, when the setback requirements have not been met. Since the proposed development is in breach of the side boundary setbacks for upper floors over 12m behind the UFL building line, the Tribunal concludes that the plans should be amended to provide for improved protection of the applicants from overlooking from the terrace of Unit 7. The options are for fixed louvres or obscure glass to be installed on that portion of the northern boundary of the terrace which is more than 12m beyond the UFL building line, that is, beyond a distance of 12m west from the gridline 4 shown on Drawing A05 (T-Document 425). We consider that fixed louvres at least 1.7m in height are to be preferred and we will make that an additional condition of approval.
136. The Tribunal has considered the effects of non-compliance with the specified setbacks on the occupants of Blocks 13 and 17. It has had regard to the fact that on Block 17 a parking area and driveway abut the subject land, while on Block 13 there is extensive established planting immediately adjacent to the proposed development and its residence is a considerable distance away from the relevant boundary. In these circumstances, the Tribunal does not consider it necessary to impose further conditions on the developer as there is unlikely to be any significant degree of overlooking of either private open space or dwellings.
137. The applicants and objectors expressed concern about the impact of traffic flow in the neighbourhood as the result of a greater number of residents living in the area should the DA be approved. The Tribunal was provided by the applicants and objectors with photographs showing traffic at the Yarralumla shops in Bentham Street near the proposed development. They show what appears to be some degree of congestion, at the time when they were taken. Mr Butt provided a traffic analysis report prepared by Bill Guy & Partners Pty Ltd, Consulting Engineers. The report concluded that:
the traffic volumes on the existing streets would not increase with the development during the peak times, however the daily traffic volumes would increase;
the total traffic volumes were still well within the theoretical capacities of the street system; and
there would be not significant increase in delays at the adjacent intersections associated with the proposed development.
138. In the absence of evidence from the applicants and objectors about the circumstances in which the photographs were taken and evidence contradicting the traffic analysis, we consider that we should accept the conclusion of the traffic engineers.
139. The proposed development is to be undertaken in an A10 area and more intensive development is allowed in such areas near to transport corridors so as to encourage greater use of public transport, cycle and pedestrian options as an alternative to reliance upon private motor vehicles and the traffic congestion which they cause. With that consideration in mind, the Tribunal does not regard the potential increase of traffic through the area as unacceptable.
Conclusion
140. Having regard to the evidence and submissions of the parties and the finding of facts made by the Tribunal, we conclude that, in general, the proposed development satisfies the objectives of the A10 policies as well as the conservation objectives of the Heritage Citation. However, we have identified several aspects of the 2007 DA which, in our judgment, do not comply with specific requirements of the conservation objectives of the Heritage Citation, or which are inconsistent with provisions of the Residential Design and Siting Code for Multi-dwelling Developments (Appendix III.2 to the Plan) or which should be modified to meet the requirements of Territory authorities.
141. We have therefore, decided to vary the decision by attaching the following additional conditions to those already imposed by the respondent in the decision under review:
That the following plans - Landscape Plan L01, Planting Plan L03, Lower Floor Level A04 and Site Plan Lower A01 - be amended to:
(a)remove the two “horizontal slat fence on metal frame” shown perpendicular to the Hutchins Street pedestrian entry to the site; and
(b)remove the “1800 high horizontal slat fence on metal frame” shown between Unit 5 and the Hutchins Street boundary;
and replace the fences with hedges or plantings of a species to the satisfaction of the ACT Planning and Land Authority.
That the following plans - Landscape Plan L01, Planting Plan L03, Lower Floor Level A04 and Site Plan Lower A01 - be amended and re-submitted for approval by the appropriate ACT authority showing the removal or relocation of those of the gateposts abutting the driveways which do not meet the sightline requirements of Appendix III.2 (AS 2890.1).
That the following plans - Section A08, Elevations A07, Upper Floor Level A05
be amended to show that portion of the northern boundary of the terrace of Unit 7 which is 12m beyond the Upper Floor Level building line (being a distance of 12m west from gridline 4 shown on plan Upper Floor Level A05) to have fixed louvres of at least 1.7m in height from the finished floor level of that terrace, designed to prevent direct overlooking of the windows of the family room of the residence on Block 11 Section 64 Yarralumla.
That car parking for residents and visitors be provided in accordance with the amended plans - Site Plan Lower AO1 and Basement Garage A03 – submitted by the developer as an amendment to the 2007DA on 4 October 2007 (T-Documents 54 to 64).
That the following plans – Landscape Plan L01, Planting Plan L03, Lower Floor Level Plan A04, Area Plan A10 and Site Lower Plan A01 – be amended so that not less than 40% of the area of the consolidated block is retained as planting area, such planting area to:
(a) include all areas of shrub planting (including shrub plantings in planter boxes and over basement car parking); and
(b) exclude any areas covered by
(i) buildings;
(ii) vehicle parking and manoeuvring areas;
(iii) any form of impermeable surface; and
(iv) any form of paving (including permeable paving).
That the following plans – Sections A08, Elevations A07, Upper Floor Level A05, Lower Floor Level A04, Basement Garage A03, Site Plan Upper A02 and Site Plan Lower A01 – be amended so that the relative level (RL) of any part of the roof of the proposed development is not greater than RL 577.600.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT07/56
APPLICANTS: STEVEN STONE & SUE STONE
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTIES JOINED: CHRIS FEENEY & MYRA CROKE; DOROTHY TAYLOR; MR & MRS TERRY CATCHPOLE; DEBBIE ARGUE; MARK HAUGHEY; MR RIC BUTT; YARRALUMLA PROJECTS PTY LTD; THE PROPRIETORS UNITS PLAN NO. 1204
COUNSEL APPEARING: APPLICANTS:
RESPONDENT: MR P WALKER
PARTIES JOINED: MS C SIMS (FOR R BUTT & YARRALUMLA PROJECTS PTY LTD)
SOLICITORS: APPLICANTS:
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTIES JOINED: CLAYTON UTZ
OTHER: APPLICANTS: MR I CLARKE
RESPONDENT:
PARTIES JOINED: MR I CLARKE
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
MS S TONGUE, SENIOR MEMBER
DR D MCMICHAEL, SENIOR MEMBER
DATE/S OF HEARING: 4-7 & 14 MARCH 2008 PLACE: CANBERRA
DATE OF DECISION: 10 APRIL 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
1
0
0