Sullivan and Act Planning & Land Authority
[2007] ACTAAT 8
•3 May 2007
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 SULLIVANPTY 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 SULLIVANPTY 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 Land (Planning and Environment) Act 1991 (“the Land Act”) on reconsideration of a decision earlier made by a delegate of the respondent to approve the development application pursuant to section 230 of the Land Act subject to conditions imposed pursuant to section 245 of the Land Act. Reconsideration of the development application had been requested by the applicant for approval of the development application who objected to the imposition of a condition that was designed to restrict the overall height of the proposed development.
2. On reconsideration a delegate of the respondent approved the development application subject to compliance with revised plans and detailed conditions specified in the decision. The applicants, who are the lessees of land adjoining the subject land and who were objectors to the development application pursuant to section 237 of the Land Act, opposed approval of the development application.
The hearing of the appeal
3. Following the lodging of the application for review of decision applications were received from Architects Ring & Associates Pty Ltd (the applicant for approval of the development application), Mr M Nader (the lessee of the subject land) and BDB Property Consulting Pty Ltd (the development manager for the proposed development). Orders were made joining each of them as parties to the appeal.
4. At the hearing of the appeal the applicants were represented by Ms C Besemeres, of counsel. The respondent was represented by Mr G McCarthy, of counsel, and the party joined, BDB Property Consulting Pty Ltd, was represented by Mr P Walker, of counsel, and Mr J Harris, a legal practitioner.
5. Neither the parties joined, Architects Ring & Associates Pty Ltd nor Mr Nader appeared at the hearing of the appeal. The Tribunal ordered, pursuant to section 43(3) of the Administrative Appeals Tribunal Act 1989, that they cease to be parties to the appeal.
The proposed development
6. The subject land, which is located at 42 Ijong Street, Braddon, has an area of 975.46m2 with a street frontage width of about 18m. The development application sought approval to the demolition of an existing detached dwelling and the erection of a 2 storey building comprising 5 apartments with underground carparking.
7. Shortly prior to the hearing of the appeal, the party joined lodged further revised plans of the development proposal which incorporated some of the conditions included as conditions of the approval of the decision under review and additional changes which were apparently designed to address some of the objections raised by the applicants in material filed with the Tribunal and served on the other parties in accordance with directions given by the Tribunal. The more significant aspects of the development application which remained contentious are dealt with below.
Planning principles and policies
8. It is a requirement of the Land Act (section 8) that approval must not be given to a development application if it would be inconsistent with the Territory Plan to do so.
9. Under the Territory Plan the subject land is subject to the Part B1 Residential Land Use Policies (“the B1 policies”) and Appendix III.3: Urban Housing Code (“the UHC”). The Part B1 policies include area specific policies. The relevant area specific policies in this case are the Area B12 policies (“the B12 policies”). The B12 policies have as their objective the provision of opportunities for increased dwelling densities in residential areas close to transport corridors, commercial areas and employment centres. They are expressed to be subject to a number of controls which are said to identify the purposes for which land may be used, as well as other requirements that will apply to proposals to use land or undertake development (see the Guide to the Territory Plan). The controls are as follows:
a) Building Height
The Maximum height of buildings shall be 8.5 metres and no more than 2 storeys.
b) Plot Ratio
The maximum plot ratio shall be 0.65.
c) Section Master Plans
The Authority may from time to time prepare Section Master Plans to assist in guiding residential redevelopment on land subject to this Area Specific Policy. Where a Section Master Plan approved by the Authority identifies additional and not inconsistent requirements to those specified in the Urban Housing Code at Appendix III.3, residential redevelopment for multi-unit housing shall be in accordance with those provisions of the Section Master Plan. For the purposes of this clause, a requirement in a Section Master Plan that is greater than a minimum or is less than a maximum requirement prescribed in the Territory Plan, shall not be deemed to be inconsistent with the Code.
d) Design and Siting
Development of multi-dwelling housing shall be in accordance with the Urban Housing Code at Appendix III.3.
e) Application
This Area Specific Policy does not apply in relation to any application under the Land (Planning and Environment) Act 1991, which was lodged prior to 16 May 1997.
Master Plans
10. Section 37(1) (now repealed) of the Land Act authorised the Minister to give directions to the then planning authority under that Act about, inter alia, the exercise of its functions. On 10 July 1998 the Minister gave a direction, pursuant to section 37(1), to the planning authority, that where the Territory Plan made reference to a Master Plan, if the planning authority considered that a Master Plan was required, it could cause that Master Plan to be prepared and approved by the Minister in accordance with a practice direction prepared by it. A practice direction (No 6/98) given by the planning authority pursuant to the Minister’s direction came into effect on 31 July 1998.
11. Variation 109 of the Territory Plan, which commenced on 7 May 1999, required that multi-unit developments in B11 and B12 areas consisting of more than two dwellings “shall be in accordance with an approved Section Master Plan”.
12. Practice direction 6/98 was replaced by revised procedures set out in a draft variation (DV155) of the Territory Plan on 20 June 2000. The revised procedures provided for the Minister and/or the planning authority to decide whether a Master Plan was required and for it to be prepared by the planning authority and approved by the Minister after a process of consultation. The procedures set out in DV155 remained operative until February 2002 when they were removed, to be reconsidered, as a result of recommendations contained in a report of the Standing Committee on Planning and Urban Services.
13. On 30 May 2002 draft variation DV200 of the Territory Plan commenced with interim effect. DV200 replaced the procedures contained in section 7 of Part A3 of the Territory Plan for the preparation and approval of Master Plans. The new procedures provided for Master Plans to be approved by the planning authority in lieu of the Minister and gave the planning authority a discretion to determine whether to prepare a Master Plan thereby making it clear that a Master Plan was not an essential pre-condition for approval of a development application in respect of a B11 or B12 area.
14. On 30 October 2002the planning authority notified draft Section Master Plans for specified sections in B11 and B12 areas for public comment, including sections in Braddon.
15. On 25 November 2002 the Minister approved a Section Master Plan for Sections 1, 2, 4, 5, 6 and 9 Braddon (“the Braddon SMP”).
16. On 1 July 2003, the Planning and Land Act 2002 commenced in accordance with section 2 of that Act. On the same day, the Planning and Land (Consequential Amendments) Act 2002 commenced in accordance with section 2 of that Act. Under clause 1.44 of Schedule 1 to the Planning and Land (Consequential Amendments) Act, section 37 (and the entirety of Division 2.4) of the Land Act was omitted. (The Minister’s direction dated 10 July 1998 was therefore of no further force or effect from that date.)
17. Section 8 of Part A3 provided (and continues to provide) for the entry of planning guidelines on the Register of Planning Guidelines (“the Register”). Section 8 provides for formal adoption of a guideline prior to its placement on the Register. As an administrative measure, in order to comply with that requirement in section 8, on 18 July 2003 Dr Adrian on behalf of the Authority formally adopted the approved Turner, Braddon, Lyneham and O’Connor Section Master Plans under Notifiable Instrument NI2003-291. Those Master Plans were entered on the Register on 18 July 2003.
18. Variation 200 to the Territory Plan commenced on 21 August 2003.
19. Section 7.4 of the new Part A3 policies provided for an approved Master Plan to take effect on the date specified in the relevant instrument of approval and required that it be entered on the Legislation Register and in a daily newspaper and also that it be made available for public inspection and purchase and entered on the Register of Planning Guidelines.
20. Section 7.8 of the Part A3 policies provides:
Although a Master Plan may recommend changes to the Territory Plan, a Master Plan has no effect to the extent of any inconsistency with the Territory Plan.
21. Clause 9.2 of the Part A3 policies requires that, in any consideration of a development application, the respondent shall “carefully consider”, inter alia:
a) any approved Master Plan applying to the land;
b) any relevant planning guidelines ……….. contained in the Register …….
22. In addition to the requirement of clause 9.2 of the Part A3 policies that the Section Master Plan be carefully considered, clause 9.1(a) of the Part A3 policies provides:
The relevant authority shall not approve a development or a proposal for the use of land that would be inconsistent with:
a) the applicable land use policy in Part B;
…………..
23. It was submitted by Mr Walker on behalf of the party joined that the expressed requirement in control (c) of the B12 area specific policies that development “shall be in accordance with those provisions of the Section Master Plan” (see paragraph 9 above) had no application to the development application in this case because control (c) was expressed to apply where a Section Master Plan was approved by the planning authority. In this case the Braddon SMP had been approved by the Minister. It followed in his submission, that the prohibition in section 9.1(a) of the Part A3 policies on approval of a development that would be inconsistent with the applicable land use policy in Part B (i.e. control (c)) did not, in the circumstances of this case, apply.
24. Mr McCarthy, on behalf of the respondent, submitted that control (c) did apply to a Section Master Plan that had been approved by the Minister. He submitted that the history of change of relevant provisions of the Territory Plan showed that the purposes of the changes were to confirm that a Master Plan had no force or effect to the extent of any inconsistency with the Territory Plan; to transfer responsibility for approval of a Master Plan from the Minister to the planning authority; and to address an anomaly that made Master Plans mandatory. Mr McCarthy contended that the expressed confinements of the words “approved by the Authority” was never intended. He relied upon Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 as authority for the proposition that a statutory instrument could be construed in a way that avoided a drafting oversight and achieved a result that was consistent with the manifest intention of the instrument.
25. The submission made on behalf of the respondent was supported by Ms Besemeres on behalf of the applicant. She also relied upon a reference in DV200 that where Section Master Plans had been approved “they shall continue to apply”. She also contended that the function of the Minister in approving a Section Master Plan had always only been a formal step and there was no reason to disregard the Braddon SMP because it was technically approved by the Minister and not the planning authority.
26. In our view, the submissions made on behalf of the party joined are to be preferred. The words “approved by the Authority” are clear and are required to be given some meaning. The reference in control (c) to approval by the authority is to be contrasted with the reference in section 9.2(a) of the Part A3 policies to “any approved Master Plan”. This inconsistency supports a conclusion that the reference in control (c) to the authority was deliberate. The effect for which the respondent and the applicant contend could have been clearly achieved by merely deleting the words “by the Authority” or by other express language.
27. There is nothing, in adopting a literal interpretation of control (c), that we can see that would give rise to an absurd or irrational result so as to justify a more flexible interpretation. Interpreting control (c) in the manner contended on behalf of the party joined would not result in the Braddon SMP being disregarded. It would require that the Braddon SMP be carefully considered in any process of deciding whether to approve a development application made in respect of land to which it applied as required by section 9.2(a) and (b) of the Part A3 policies. Nor is there any identifiable manifest intention that dictates a different approach. There is nothing in our view that would prevent control (c) having other than the usual prospective effect.
28. We conclude that section 9.1(a) of the Territory Plan has no application to the Braddon SMP. It is a matter, however, to which section 9.2(a) and (b) require that careful consideration be given.
Rear site coverage
29. It was accepted by the respondent and the party joined that the rear site coverage of the proposed development was 39.9%. Mr G Trickett, an architect who gave evidence on behalf of the applicants, said that he had assessed the site coverage as 40%. The difference is, in our view, insignificant.
30. The introduction to the Braddon SMP relevantly describes its scope as follows:
The Section Master Plans:
§ explain and illustrate how Territory Plan policies will be applied in the sections identified that are subject to B11 and B12 area specific policies; and
§ set out design objectives and principles for the identified B11 and B12 areas in the neighbourhood that:
…………..
~contain specific master plan requirements and control plans for identified sections indicating the preferred pattern of any redevelopment in terms of the form of resubdivision, arrangements for vehicular access and parking, landscaping and building siting and development staging.
31. Clause 1.6 of the Braddon SMP makes reference to concerns identified by participants in a neighbourhood planning process and states that it:
responds to these concerns by requiring:
…………….§ rear setbacks and site coverage limits to accommodate deep root rear garden planting and ensure privacy; and
…………….
32. In outlining a number of urban design issues, the Braddon SMP contains a statement that:
In order to ensure the pattern of rear private gardens and encourage these as predominantly soft landscape zones, a requirement is introduced in Section Master Plans that restrict building in the rear portion of blocks to 30% site coverage.
33. The Braddon SMP contains a number of principles and controls which are said to have been formulated to achieve its aims. In order to achieve the aim of maintaining the garden city character of the area, it contains a principle of allowing sufficient space for existing and future tree planting at the front of blocks and to the rear of development blocks. It then sets out a number of controls which it describes as “Section Master Plan Requirements”. One of those requirements is:
SITE COVERAGE
Maximum 30% site coverage to the rear of blocks to achieve a predominantly soft landscape zone.
34. To achieve the aim of creating and maintaining a healthy residential environment, the Braddon SMP also adopts as one of its principles the siting of buildings primarily across the frontage of the site (not down the length of the site) to optimise street address and physical and visual access to the rear garden, while maximising privacy distances and allowing rear garden planting opportunities.
35. It adopts the following controls:
CONTROLS
Section Master Plan Requirement
Site Coverage
Maximum 30% site coverage to the rear of blocks to achieve a predominantly soft landscape zone.
Rear Setback
A 7m setback applies to most blocks in B11 and B12 sections to allow a deep root planting zone. Nominated corner blocks will have a 7m x 7m space in the corner.
36. A control plan in part 4 of the Braddon SMP depicts the blocks within Section 1 as having an area for each block with what is described as a “(m)aximum 30% site coverage to the rear of blocks to achieve 70% landscape area”.
37. It was submitted on behalf of the applicant that, as the area of rear site coverage proposed by the development application would exceed the maximum of 30%, the Tribunal was obliged to refuse it approval. The respondent and the party joined submitted that, despite the mandatory terms in which the Braddon SMP expressed a requirement for the rear site development to not exceed the specified maximum dimension of 30%, the Braddon SMP should be interpreted as allowing the respondent a discretion to approve a development which would exceed it.
38. In our view, the submission made on behalf of the party joined and the respondent is correct for the following reasons.
39. Section 25 of the Australian Capital Territory (Planning and Land Management) Act 1988 requires the Legislative Assembly to make laws providing for, inter alia, the preparation and administering of a plan in respect of land not inconsistent with the National Capital Plan and to keep it under constant review and proposing amendments where necessary. The plan is required to define planning principles and policies for giving effect to its object and may include detailed conditions of planning design and development of land and the priorities in carrying out such planning design and development (section 25(3)). The laws are required by section 25(4) to include:
(a)provision for making the plan and amendments of it, including a procedure for ascertaining and considering the views of the public;
(b)public notification of any directions given to the Territory planning authority by the Executive;
(c)the procedures for just and timely review, without unnecessary formality, of appropriate classes of decisions on planning, design and development of land; and
(d)requiring the authority to:
(i)consult with the Authority about making the plan and any amendments; and
(ii)report in writing to the Executive on such consultations and the views expressed by the Authority.
40. Pursuant to section 25 the Legislative Assembly enacted the Land Act and included provisions of the kind specified by section 25.
41. Clearly enough, it is not open to the planning authority to act inconsistently with the Territory Plan (see section 8 Land Act) or to amend its provisions otherwise than in accordance with the procedures prescribed in the Land Act for doing so.
42. Under the Land Act detailed requirements in relation to the preparation of variations to the Territory Plan, consultation with specified persons and agencies, notification of and consultation with the public, public inspection of comments and ministerial approval and consideration by the Legislative Assembly are set out (see subdivisions 2.3.2 and 2.3.3 of the Land Act). Not all of those requirements are made necessary by section 7 of the Part A3 policies. Section 7 does not, for example, necessarily require consultation with the Conservator of Flora and Fauna or the National Capital Authority which are mandatory requirements of sections 16 and 20 of the Land Act.
43. In our view, any adoption by the planning authority of a prohibition upon its capacity to approve a development application because it failed to meet a specified quantitative measure in a Section Master Plan (at least one not affected by section 9.1 of the Part A3 policies) would involve action that was inconsistent with the requirement of section 9.2(a) and (b) of the Part A3 policies to carefully consider the Braddon SMP as well as a range of other matters that are specified in section 9.3 and other paragraphs of section 9.2 in contrast to section 9.1 which dictates refusal of approval for failure to be consistent with the matters which it specifies. Such an approach would be inconsistent with section 8 of the Land Act and involve the inflexible consideration of the development application without consideration of its merits (see Tang v Minister for Immigration & Ethnic Affairs (1986) 67 ALR 177). It would also involve an unlawful sub-delegation to the planning authority of functions committed to be discharged in accordance with the Territory Plan (see Turner v Owen (1990) 26 FCR 366).
44. In view of the conclusion which we have reached as to the effect of the Braddon SMP, we consider that it should be read down in accordance with sections 43 and 120 of the Legislation Act 2001 to preserve its validity.
45. In the course of considering this issue during the hearing, the respondent made available to the Tribunal one of its officers who was the author of the Braddon SMP, Mr S Walter. He explained that the 30% maximum rear site development measure was adopted because it was considered that it would achieve a balance between maintaining a sufficient plot ratio of development, on the one hand, and a separation of adjoining developments so as to protect the privacy of adjoining neighbours and a sufficient area for soft landscaping, on the other hand.
46. There is nothing in Mr Walter’s evidence, in our view, that would detract from the conclusion we have reached that the Braddon SMP is to be considered as a guideline to determine whether the development application in this case should be approved.
47. That conclusion would also be consistent with the approach to the operation of Section Master Plans that has been taken by the Tribunal in previous cases (see Gilbert & Hopkins and ACT Planning & Land Authority & Ors [2003] ACTAAT 42 (8 September 2003) and Hopkins and ACT Planning & Land Authority & Ors [2004] ACTAAT 8 (8 March 2004)). However, we note that the arguments raised in this case were not specifically addressed by the Tribunal in those cases.
48. We note, however, that in the course of argument, Mr McCarthy conceded that the language of the Braddon SMP in relation to the issue of the area of rear site development, was not helpful to his submission that it should only be applied as a guideline.
49. We consider that the terms of such a concession understates what we regard as a serious problem in the administration of planning approval process where they involve the Braddon SMP or other Section Master Plans which use prescriptive language of the kind which we have set out in paragraphs 30 to 36 above.
50. The Braddon SMP contains no qualification of the kind set out in introductions to the Design and Siting Codes (Appendices I, II and III) of the Territory Plan which explain that any failure to meet a performance measure will not necessarily result in refusal of approval of a development application but will require it to be assessed against relevant performance criteria and objectives. It introduces concepts not elsewhere used in design and siting codes which are variously described as “aims”, “policy framework” and “urban design principles and controls”. The intended effect of those concepts is not clearly explained. Any statement in a document approved by the Minister following a process of public consultation is likely to be accepted at face value and important decisions affecting the lifestyle of residents and the financial impact on both them and those wishing to undertake development, made in reliance on them. Unless the drafting of such documents is undertaken in a way that clearly and accurately explains the scope of their intended effect, persons who place reliance upon them will potentially be misled.
51. In his evidence given in relation to the issue of rear site coverage, Mr Trickett identified the fact that the site coverage of the rear of the block greatly exceeded the maximum 30% planning controls of the Braddon SMP. However, in neither his written or oral evidence did he draw any conclusion about consequences arising from this departure either as to its impact on the adjoining properties or on the amenity for residents of the proposed development. He made no comment on whether or not the proposal would meet the principles set out in the Braddon SMP.
52. Mr Cohen, in his written evidence, stated that “the purpose of the rear site coverage requirement is to provide open space to the rear of the development for the amenity of residents and to contribute to the maintenance of the traditional spatial separation of dwellings within the section. Within the rear site coverage a 7.5 metre wide space is required for deep root planting and this is distinguished from the requirement for soft landscaping within the balance of the rear area.” . Mr Cohen linked these provisions of the Braddon SMP with Element 10 of the Urban Housing Code which deals with Communal Open Space and Landscaping. Mr Cohen concluded that “the proposed landscape is consistent with the Intent statements of the I10.1 and I10.2 because the limited bulk of the building in the rear block area, the general scale of height to the width and length of the building, and because of the setbacks from the side and rear boundaries will provide a significant area of coherent open space both within the block and with respect to its relationship to other blocks sharing the common rear spine”. Mr Cohen stated that, in his view, the proposal was not inconsistent with the principles contained in the Braddon SMP.
53. Mr Oshyer provided written evidence on the departure from the site coverage requirement. He considered “that the rear site coverage of 39.9% achieves a predominantly soft landscape zone to the rear of the block and meets the relevant Section Master Plan Principles as the private open space is: proportioned such that it allows sufficient space for future tree plantings, maximizes the permeable surfaces, provides private open space that is usable, and compliments the garden city character of the area”.
54. The Tribunal noted that the departure from the Braddon SMP requirement for rear site coverage was not insignificant. However, given the expert evidence of Mr Cohen and Mr Oshyer regarding the adequacy of the open space area, the consistency of the proposal with the principles of the Braddon SMP and the lack of evidence to the contrary, the Tribunal considered the development application satisfied the Braddon SMP when applied in the manner we have concluded is correct.
Street boundary setbacks
55. It was contended on behalf of the applicants that the proposed development did not meet street boundary setback requirements of the Territory Plan. Both the UHC and the Braddon SMP contain provisions related to setbacks from the street boundary. The relevant Acceptable Standard of the Code (A5.1.1) specifies a setback of 6 metres at the ground floor and 7.5 metres at the upper floor for new development. “Upper floor level” is defined by the Territory Plan as meaning “a finished floor level which is greater than 1.8m above natural ground level at any point”. These are standards which, if met, are considered to satisfy the relevant Intent (I5.1) and Performance Criteria (P5.1) of the UHC. They provide:
Intent
I5.1 To set back buildings from the street to provide adequate space for landscape or open space, visual and acoustic privacy, while assisting in maintaining or establishing an attractive streetscape.
Performance Criteria
P5.1 The building setback contributes to existing or proposed streetscape character, assists the integration of new development into the public streetscape, makes efficient use of the site and provides amenity for residents.
56. The Braddon SMP includes a statement that:
Control Plans for each section include minimum setback distances based on the Urban Housing Code guidance. The minimum setback requirements include design elements (articulation elements) and basement structures either wholly or partially sub ground ie, such design and structural elements must not be forward of the minimum setback line.
57. The Braddon SMP adopts as one of its principles:
Allow sufficient space for existing and future tree planting at the front of blocks and to the rear of development blocks.
58. The Braddon SMP has a single front setback control. The minimum street setback of 6 metres is shown in the Control Plan (page 28) but is not otherwise specified in any part of the written statement of the Braddon SMP. We infer from that and the statement set out in paragraph 56 above that the Braddon SMP does not intend to affect the specification in the UHC that the setback at upper floor level be 7.5 metres.
59. The Braddon SMP includes articulation controls which state that:
All development proposals must maintain the minimum front set back line. Necessary articulation of the frontage is to occur behind this line and the articulation zone has a dimension of 2-3 metres. Articulation of the front face of the building is mandatory. (see pages 19 & 23).
60. The proposed development has a setback at the ground floor level of 6 metres to the face of the building. The exception to the setback is a fin wall, 250mm wide, on each side of the pathway entry to the centre of the building which intrudes 100mm into the setback area. We accept the evidence of Mr Cohen, a town planner who gave evidence on behalf of the party joined, that the fin walls add to the articulation of the building and contribute to its architectural interest. We consider that the 100mm intrusion of the fin walls into the front setback specified in Acceptable Standard A5.1.1 is insignificant and does not result in any failure to meet the statement of intent and performance criteria of the UHC.
61. At the upper floor, the external wall of the rooms has a setback of 7.85 metres thus meeting the Acceptable Standard of the UHC, i.e. 7.5 metres. Forward of these rooms is a balcony over the ground floor area with its external face setback 6 metres. The balcony has a finished floor greater than 1.8m in height above natural ground level. Its front and side edges comprise a low wall with a balustrade on top.
62. The Tribunal considers that, whilst the balcony does not meet Acceptable Standard A5.1.1, it adds to the articulation and interest of the building, thus contributing to streetscape character; it does not restrict the space for landscape or open space; nor does it detrimentally impact on visual or acoustic privacy and it provides an amenity for residents on what might otherwise be a roof thereby making efficient use of the roof and providing amenity for the residents. The Tribunal considers the requirements of the UHC are met. The balcony does not fail to meet any requirements of the Braddon SMP.
Building Envelope
63. Both the UHC and the Braddon SMP have restrictions on height in relation to side and rear boundaries by way of a building envelope control. There are differences between the nature of the envelopes. In his written evidence Mr Trickett had identified issues of departure from the UHC and Braddon SMP in the approved plans. Although the revised plans before the Tribunal addressed some of these issues he gave oral evidence that the rear of units 1 and 2 extended beyond the rear of the primary building envelope as defined in the Braddon SMP thereby resulting in some intrusion of the building envelope specifications. While there was no evidence giving specific dimensions of this departure from the standard, Mr Trickett’s evidence was not disputed. From our examination of the drawing AO8, the front building extends 590 mm beyond the primary building envelope and whilst this section of the building may thereby exceed the height restriction of the building envelope, the Tribunal was not informed of its extent. No evidence was given of any departure from the UHC.
64. The Building Envelope Requirements diagram on page 9 of the Braddon SMP does not fall within Section 3, Urban Design Principles and Controls, of the Braddon SMP nor is there any reference in that section to it. Whatever may have been the intention as to the inclusion of the diagram in the Braddon SMP we are unable to conclude that the Braddon SMP imposes any mandatory requirements in relation to the building envelope.
65. In the circumstances the Tribunal sees the height of the building established by the building envelopes as a matter on which the Tribunal has a discretion. There was no evidence of likely adverse impact on adjoining dwellings arising from the departure from the standards of the UHC or the Braddon SMP other than in relation to overshadowing which is dealt with below. The Tribunal therefore concludes that the proposed height of the building is not inconsistent with the requirements of the Territory Plan.
Overshadowing
66. The applicants objected to the proposed development on the ground that it would cause overshadowing of the window of the living room of the applicants’ house on Block 10. The living room window and another window to a bedroom are located on the northern side of the house on Block 10. The applicants contended that the development failed to meet the provisions of Element 12 of the UHC.
67. The Intent of Element 12 is:
I12.1 To facilitate measures to reduce energy, resource and water consumption.
68. The performance criterion specified as able to achieve I12.1 states:
P12.1Building envelopes and internal layouts are designed to minimize energy consumed for heating and cooling.
69. The relevant Acceptable Standard in the UHC provides as follows:
A12.1.2No building on the site is to block sunlight to the windows of the main living space of another dwelling and/or an adjacent multi dwelling development so that it is reduced to less than three hours between 9am and 3pm on June 21 (ie. winter solstice).
70. The applicants contended that the standard requires that the window be exposed in its entirety to direct sunlight for a period of not less than three hours on the relevant day and that it does not do this.
71. During the course of the hearing the Tribunal was presented with three successive sets of shadow diagrams prepared for the developer purporting to show the overshadowing impact on Block 10 of the proposed development. The first two sets of diagrams were found, in light of cross-examination by counsel for the applicants and evidence given by Mr Trickett, not to accurately reflect the plans of the development application in respect of which the approval of the Tribunal was sought. It was submitted by Ms Besemeres that the Tribunal should place no reliance on the third set of shadow diagrams because of the errors exposed in relation to the assumptions made in the preparation of the first two sets of plans.
72. Mr Bernie den Hartog of VR Grafix, who gave evidence on behalf of the party joined, prepared the various iterations of the shadow diagrams. He gave evidence that the first two sets of shadow diagrams that had been prepared by him had been based upon information provided to him on behalf of the party joined. He accepted that some of the variations in the plans from those in respect of which approval was sought would result in inaccuracy in the depiction in the first two sets of overshadowing diagrams. The third set of overshadowing diagrams were, he said, prepared on the basis of the plans in respect of which approval was sought. They were prepared using architectural and survey data for the proposed development together with a hard copy survey of Block 10 prepared for the applicants. The diagrams assume a 1.8 metre fence on the common boundary. Mr den Hartog used a software package to generate a 3D model of the development and solar shadows arising from the development.
73. In light of evidence by Mr Trickett asserting that there were significant discrepancies between the survey levels for Blocks 10 and 11 in the shadow diagram documents, Mr den Hartog explained that the shadow diagrams were generated using survey data for the finished floor levels of the buildings on the two blocks rather than surveys of natural ground level. The Tribunal accepts Mr den Hartog’s explanation and that the shadow diagrams have been prepared using appropriate survey reference points and that they accurately depict the extent of overshadowing as represented by them.
74. The shadow diagrams show the following impacts on the living room window. At 9.00am there is a small horizontal band of shadow across the bottom of the living room window. At 10.00am the shadow cast against the northern wall of the house on Block 10 falls below the sill of the living room window. At 11.00am the line of shadow on the northern wall falls slightly below the level at 10.00am. At 12.00 noon there is a further slight lowering of the horizontal line of shadow on the northern wall of the house on Block 10 but a small area of shadow is cast on a lower corner of the living room window. At 1.00pm there is a very small line of shadow cast over the bottom of the living room window. At 2.00pm there is a very slight increase in the height of the horizontal line of shadow. At 3.00pm the horizontal line of shadow appears to fall at about the middle of the living room window or slightly above it. With some small variation, there are similar overshadowing effects to the second window on the northern wall of the house on Block 10.
75. Neither the overshadowing diagrams nor Mr den Hartog’s evidence allow a finding to be made with precise accuracy as to the period during which there would be unblocked sunlight to the living room windows of the house on Block 10 as a consequence of the proposed development. It is apparent from an examination of the overshadowing diagrams that any blockage of sunlight would cease at some time after 9.00am and before 10.00am and resume at some time between 11.00am and 12 noon. It appears that there would also be a period of unblocked sunlight some time after 12 noon and just before 1.00pm.
76. Based upon our examination of the overshadowing diagrams, we conclude that the proposed development does not block sunlight to the windows of the living room of the house on Block 10 for more than 3 hours between 9.00am and 3.00pm on 21 June. We further note, in any event, that there was no evidence to suggest that the relevant intent and performance criteria of Element 12 would not be satisfied.
Overlooking
77. It was contended on behalf of the applicants that overlooking of their property would be permitted from the balcony of unit 2 and thereby adversely impact on their amenity.
78. The front setback of the house on Block 10 is 17.06m. The distance of the nearest side of the balcony to the common side boundary of Block 10 is 4.55m and it is accessed from a bedroom.
79. The Tribunal was not provided with any evidence about the use of the front yard of Block 10. From our inspection of the subject block and the surrounding area it would appear to us to be unlikely that there would be any greater degree of overlooking of the front of the applicants’ property than already exists from the public domain. The distance which separates the balcony from Block 10, the acute angle of vision from it to the front yard and front of the house on Block 10 and the limited extent of use that could reasonably be expected of a balcony accessed from a bedroom and which overlooks a public street, make it unlikely, in our view, that there would be any impact on Block 10 that would justify refusal of approval of the development application.
Conditions of approval
80. The Tribunal was informed by the respondent’s representative that, should the Tribunal approve the development application, additional conditions of approval should be imposed. The imposition of the proposed conditions in that event was not opposed by the other parties and we consider that they are appropriate. The conditions are:
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”.
Conclusion
81. We consider that, subject to the imposition of the additional conditions referred to in the preceding paragraph, the development application should be approved in accordance with the terms of the decision under review.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT06/60
APPLICANT: GRAHAM JOHN & GERLINDE SULLIVAN
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: BDB PROPERTY CONSULTING PTY LTD
COUNSEL APPEARING: APPLICANT: MS C BESEMERES
RESPONDENT: MR G MCCARTHY
PARTY JOINED: MR P WALKER
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED: O’CONNOR HARRIS
OTHER:APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
MR R NICHOLS, MEMBER
MR J ASHE, MEMBER
DATE/S OF HEARING: 27-28 FEBRUARY,
1 MARCH & 4 APRIL 2007 PLACE: CANBERRA
DATE OF DECISION: 3 MAY 2007 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
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