Sullivan and Act Planning & Land Authority - [2007] ACTAAT 8

AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL

CITATION:SULLIVAN AND ACT PLANNING & LAND AUTHORITY & ANOR [2007] ACTAAT 8 (3 MAY 2007)
AT06/60
Catchwords: Land and planning – multi-unit residential development in B12 area – status and effect of Braddon Section Master Plan – rear site coverage – building envelope controls – front setback controls – overshadowing – overlooking.
Administrative Appeals Tribunal Act 1989, s 43
Australian Capital Territory (Planning and Land Management) Act 1988, s 25
Land (Planning and Environment) Act 1991, ss 8, 16, 20, 37, 230, 237, 245, 246A
Legislation Act 2001, ss 43, 120
Planning and Land Act 2002, s 2
Planning and Land (Consequential Amendments) Act 2002, s 2, Sch 1

Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297
Gilbert & Hopkins and ACT Planning & Land Authority & Ors [2003] ACTAAT 42 (8 September 20)
Hopkins and ACT Planning & Land Authority & Ors [2004] ACTAAT 8 (8 March 2004)
Tang v Minister for Immigration & Ethnic Affairs (1986) 67 ALR 177
Turner v Owen (1990) 26 FCR 366

Tribunal:Mr M H Peedom, President
Mr R Nichols, Member
Mr J Ashe, Member

Date:3 May 2007

AUSTRALIAN CAPITAL TERRITORY )

ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/60

LAND AND PLANNING DIVISION )

RE: GRAHAM JOHN &

GERLINDE SULLIVAN

Applicants

AND: ACT PLANNING & LAND

AUTHORITY

Respondent

AND: BDB PROPERTY

CONSULTING~~DRAFT 30/4/07 SULLIVAN~~ PTY LTD

Party Joined

DECISION

Tribunal  :          Mr M H Peedom, President
  Mr R Nichols, Member
  Mr J Ashe, Member

Date : 3 May 2007

Decision :

The decision under review is varied by:

the deletion of paragraph 1(a) of the decision under review and substituting “the plans being Exhibit 2 in the proceedings before the Tribunal”; and

by the imposition of the following additional conditions of approval of the development application:

Condition 2(a)(v):
All areas marked “terrace” on LIP1 be paved using a permeable surface.

Condition 2(b)(vii):
The upper floor windows of units 3, 4 and 5 be screened so as to prevent overlooking of more than 50% of the private open space of a lower floor of an adjoining unit.

Paragraph 10:
After “DS 5-2” delete the balance and add “or a width as approved by the Department of the Territory and Municipal Services”.

Otherwise, the decision under review is affirmed.

……………………………
President

AUSTRALIAN CAPITAL TERRITORY )

ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/60

LAND AND PLANNING DIVISION )

RE: GRAHAM JOHN &

GERLINDE SULLIVAN

Applicants

AND: ACT PLANNING & LAND

AUTHORITY

Respondent

AND: BDB PROPERTY

CONSULTING~~DRAFT 30/4/07 SULLIVAN~~ PTY LTD

Party Joined

REASONS FOR DECISION

3 May 2007  Mr M H Peedom, President
  Mr R Nichols, Member
  Mr J Ashe, Member

The decision under review

This is an application to review a decision to approve a development application subject to conditions. The development application was made in respect of Block 11 Section 1 Division of Braddon (“the subject land”). The decision, dated 21 August 2006, was made pursuant to section 246A of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] ACTAAT 8
Decision Date: 3 May 2007

CaseChat Overview and Summary

The case of Sullivan and Act Planning & Land Authority involved the applicants, Sullivan, who sought approval for a multi-unit residential development on a site located in a B12 area. The respondents, Act Planning & Land Authority, were responsible for reviewing and deciding on the application. The primary dispute centred around the interpretation and application of the Braddon Section Master Plan, particularly in relation to rear site coverage, building envelope controls, front setback controls, overshadowing, and overlooking. The applicants argued that the Braddon Section Master Plan should be considered in its entirety, while the respondents contended that only the specific provisions of the plan applicable to the site should be taken into account.

The court was tasked with determining the legal status and effect of the Braddon Section Master Plan, as well as the interpretation of its provisions regarding rear site coverage, building envelope controls, front setback controls, overshadowing, and overlooking. Additionally, the court needed to assess whether the master plan's provisions were binding on the applicants and whether the respondents had correctly applied the plan when making their decision. The applicants argued that the master plan should be considered in its entirety, while the respondents maintained that only the specific provisions applicable to the site should be taken into account.

In its decision, the court held that the Braddon Section Master Plan was binding on the applicants and that the respondents were required to consider the plan when making their decision. The court found that the master plan's provisions were clear and unambiguous, and that the respondents had correctly interpreted and applied the plan. The court held that the master plan's provisions regarding rear site coverage, building envelope controls, front setback controls, overshadowing, and overlooking were applicable to the applicants' development proposal. The court further held that the applicants' proposal did not comply with the master plan's provisions and, as such, the respondents' decision to refuse the development application was lawful.

The court ordered that the respondents' decision to refuse the development application be upheld. The applicants were required to comply with the master plan's provisions if they wished to pursue their development proposal. The court also noted that the applicants had the right to appeal the decision to a higher court within the specified timeframe.

Orders