Sullivan v ACT Planning and Land Authority - [2018] ACAT 76

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SULLIVAN v ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2018] ACAT 76

AT 41/2017
Catchwords: ADMINISTRATIVE REVIEW – application for planning approval – mandatory rules in the Inner North Precinct Code – mandatory rules to be given effect, not construed or relaxed to achieve subjectively better outcomes – proposed development application non-compliant with mandatory rule concerning minimum block amalgamation – decision under review set aside

Legislation cited: Legislation Act 2001 ss 7, 138, 139

Planning and Development Act 2007 ss 50, 51, 115, 144

Subordinate
Legislation: Inner North Precinct Code rules 3, 4, 5

Cases cited:Capital Property Projects (ACT) Pty Ltd and Anor v Planning and Land Authority and Anor [2008] ACTCA 9

Tribunal: Presidential Member G McCarthy
Senior Member R Pegrum

Date of Orders:  2 November 2017
Date of Reasons for Decision:         27 July 2018
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )  AT 41/2017

BETWEEN:
GERLINDE SULLIVAN
Applicant

AND:
ACT PLANNING AND LAND AUTHORITY
Respondent

AND:
SVEN ERLIC
First Party Joined

MARGARET FISHER
Second Party Joined

TRIBUNAL: Presidential Member G McCarthy

Senior Member R Pegrum

DATE: 2 November 2017

ORDER

The Tribunal orders that:

The decision dated 27 June 2017 of the respondent is set aside.

………………………………. Signed.
Presidential Member G McCarthy

REASONS FOR DECISION

The first party joined, Mr Erlic, is the Crown lessee of Blocks 7 and 8, Section 1, Braddon (the subject sites or the site). On 23 January 2017, Mr Erlic submitted a development application to consolidate Blocks 7 and 8 and to construct a single building made up of five townhouses, basement garages and landscaping across the consolidated blocks.
On 27 June 2017 the ACT Planning and Land Authority (the respondent) approved the application with conditions.
On 20 July 2017 the applicant, Ms Sullivan, applied to the Tribunal for an order that the development application be refused.
On 2 November 2017, the Tribunal heard the application for review. At the conclusion of the hearing, the Tribunal ordered that the decision under review be set aside and gave oral reasons for its decision. The Tribunal stated at the time that it would provide written reasons for its decision, but subsequently advised the parties of its view that to provide written reasons was unnecessary in light of the reasons already given.
However, on 9 March 2018, the respondent disagreed with that approach and requested that the Tribunal provide written reasons. What follows is the Tribunal’s written reasons.

The Inner North Precinct Code

The respondent is a Territory authority. Section 50 of the Planning and Development Act 2007 (the P&D Act) provides that a Territory authority must not approve the doing of an act that is inconsistent with the Territory Plan. Under section 51(1)(a) of the P&D Act, the Territory Plan includes precinct maps and codes. Relevant for present purposes, the codes include the Inner North Precinct Code (the Precinct Code) which applies to multi-unit housing in the RZ3 Urban Residential and RZ4 Medium Density Residential Zones of Inner North Canberra. These zones include the subject sites. Under section 115(2) of the P&D Act, the Precinct Code takes precedence over a development code or a general code to the extent of any inconsistency of provisions between the codes.
The Precinct Code contains ‘Elements’ that address issues such as restrictions on use, building and site controls, built form, parking, site access and amenity. It also states that ‘each Element consists of Intents and Items under which are Rules and Criteria’. The Precinct Code also states:
In some instances, there are rules that are mandatory. For clarity of use, the mandatory rules are emphasised by the following words: “This is a mandatory requirement. There is no applicable criterion”. Non-compliance with these provisions will result in the refusal of a development application.
Element 2 of the Precinct Code addresses building and site controls. Rules 3 and 4 in Element 2 of the Code state:
Part B of the Precinct Code, referred to in rule 3, contains five Control Plans covering the suburbs of Braddon, Dickson, Lyneham, O’Connor/Turner North and Turner South. The Braddon Control Plan depicts by way of a map the residential blocks between Northbourne Avenue to the west, Wakefield Avenue to the north, Limestone Avenue to the east and Henty Street to the south. These residential blocks include Blocks 7 and 8 of Section 1, Braddon (the subject sites) and the adjacent Block 6, Section 1, Braddon.
On the Braddon Control Plan, Blocks 6, 7 and 8 of Section 1, Braddon are together surrounded by a dashed line. The legend to the Control Plan gives the meaning of the dashed line: “Required minimum block amalgamation”.
Mr Erlic is the Crown lessee of Blocks 7 and 8, but not Block 6.
The applicant contended that the development application could not be approved because it did not comply with rule 3 of the Precinct Code. She contended that under rule 3, by reference to the Braddon Control Plan, the consolidation of Blocks 7 and 8 (as proposed by Mr Erlic) required a “minimum block amalgamation” which included Block 6. The development application did not include Block 6. The Crown lessee of Block 6 is Ms Fisher, the second party joined. Ms Fisher made it clear that she did not want to sell her house and did not want to be ‘sandwiched’ between the existing three-storey multi-unit housing block to her east and the proposed three-story multi-unit housing block on the subject sites to her west.
The respondent contended that rule 3 applies only where one of the thresholds for block amalgamation in rule 4 is “triggered”. The respondent said that this interpretation “necessarily flows” from the following factors:
(a)Where particular blocks in a proposed consolidation are held by different lessees, consolidation is only possible with the agreement of each of the lessees;
(b)Individual lessees are entitled, subject to rule 4, to apply to develop their blocks without seeking to consolidate any blocks;
(c)In the present case, were she so inclined, the second party joined would be able to build multi-unit housing on Block 6 … without any block consolidation and without breaching rule 4, as demonstrated by the concept sketch plans submitted with the DA;
(d)Given that the DA relating to Blocks 7 and 8 does not breach rule 4, and in circumstances where Block 6 could be separately redeveloped to achieve an integrated redevelopment outcome, it would be nonsensical, and in effect would potentially permanently sterilised development of Blocks 7 & 8 to interpret rule 3 as precluding approval of the DA;
(e)The intended purpose of the requirements for block amalgamations is to achieve integrated redevelopment to ensure development sites can accommodate urban housing based on perimeter block development and efficient and effective site layout;
(f)It is not part of the intent underpinning rules 3 and 4 to deny a leaseholder a reasonable opportunity to redevelop land in circumstances where another leaseholder declines to participate in a block consolidation process;
(g)A narrow interpretation of rule 3 would be contrary to the objectives and intent behind the redevelopment requirements of Inner North areas and is not a desired planning outcome.
Applying this reasoning, the respondent submitted that “where rule 3 is construed in the manner outlined above, the DA is not inconsistent with either rule 3 or rule 4.”[1]
[1] Respondent’s statement of facts and contentions, paragraphs 61 - 62
Ms Jamaly, a development application merit assessment officer with the respondent, gave her opinion regarding rules 3 and 4 as follows:
I understand that the intent behind the requirement in R3 and R4 is to ensure an appropriate planning outcome as envisaged in the Inner North areas, and that the main purpose of block amalgamation is to achieve integrated redevelopment to ensure development sites can accommodate urban housing based on perimeter block development and efficient and effective site layout.
In my opinion, integrated redevelopment can be achieved without requiring the lessees of adjoining blocks to surrender their individual leases and subsequently consolidate the parcels of land comprised in the surrendered leases.
As a decision-maker, it is my opinion that, in a case where (as with Block 6 in the current matter) a block does not meet [rule 4 paragraphs] a), b) or c) and is able to be redeveloped on its own, resulting in a good outcome, to prevent the other two adjoining blocks from redeveloping may have the effect of ‘sterilising’ development in an area which has been specifically identified in the Territory Plan for that purpose.[2]
[2] Witness statement, 18 October 2017, paragraphs 64 - 66
The Tribunal suggested to the respondent that if, as part of a development proposal, Blocks 7 and 8 must be amalgamated in order to comply with rule 4a) as all parties agreed and still rule 3 did not require amalgamation of Block 6 with Blocks 7 and 8, rule 3 would be left without any purpose at all.
In reply Ms Jamaly agreed that rule 4a) required amalgamation of Blocks 7 and 8 because the ‘existing dwellings’ on those blocks have shared walls. She agreed also, on her interpretation, that rule 3 was therefore ‘triggered’, but contended that rule 3 still did not apply to require amalgamation with Block 6. She said:
My approach is that that trigger needs to be for the residual block, the block that is left, block 6 in this case. If it is not too small to be developed in future then it doesn’t need to be amalgamated. It doesn’t have to be part of that
..
we still need to take a reasonable approach that, okay, block 6 in this case is the isolated one, even though there is a shared wall between 7 and 8. In this case they are amalgamated. They are being amalgamated anyway. That’s being redeveloped so we have to look at that shared wall scenario, whether that exists for block 6 as well. If it doesn’t then all three don’t need to be amalgamated.[3]
[3] Transcript of proceedings, 2 November 2017, page 56, lines 28 – 31, page 57, lines 30 - 35
In closing submissions, Mr Hassall, counsel for the respondent, conceded:
…that on a plain or on a literal reading of rule 3 and the associated control plan…any development application involving multi-unit housing where more than one of those individual blocks is proposed to be developed, that, in fact, all three have to be amalgamated, to use the term in rule 3. It’s conceded that that’s the apparent interpretation of rule 3.[4]
[4] Transcript of proceedings, 2 November 2017, page 40, lines 31 - 36
Mr Hassall submitted however that a plain or literal reading should not be adopted and that a “purposive interpretation” should be applied, relying on the proposition that the aim of the Precinct Code is to progress “towards medium density housing providing opportunities for development.”[5] The respondent contended that rules 3 and 4 need to be read in this way. Mr Hassall submitted that the Tribunal should “interpret the rules other than in their apparent meaning.”[6]
[5] Transcript of proceedings, 2 November 2017, page 43, lines 12 - 15
[6] Transcript of proceedings, 2 November 2017, page 47, lines 24 - 25
In support, Mr Hassall relied upon sections 138 and 139 of the Legislation Act 2001 which state:
138            Meaning of working out the meaning of an Act—pt 14.2
In this part:
working out the meaning of an Act means—
(a)   resolving an ambiguous or obscure provision of the Act; or
(b)   confirming or displacing the apparent meaning of the Act; or
(c)    finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d)   finding the meaning of the Act in any other case.
139            Interpretation best achieving Act’s purpose
(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2) This section applies whether or not the Act’s purpose is expressly stated in the Act.
Section 7(1) of the Legislation Act states that an ‘Act’ is an Act of the Legislative Assembly. Section 7(3) of the Legislation Act states that a reference to an ‘Act’ includes a reference to a provision of an Act.
Mr Hassall relied also on the observations of the ACT Supreme Court, per Refshauge J, in Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority[7] in which his Honour said:
It appears that it is no longer enough to presume that one can start by assuming that the legal meaning of a legislative provision “will correspond with the grammatical meaning of the provision” (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384). A court has now to comply with legislative directives, such as in s 139 of the Legislation Act and s 30 of the Human Rights Act, which directives may require a construction that might not have arisen from the resolution of ambiguity: R v Lambert [2002] 2 AC 545.
[7] Capital Property Projects (ACT) Pty Ltd and Anor v Planning and Land Authority and Anor [2008] ACTCA 9 at [68]
Mr Hassall submitted that giving rules 3 and 4 their ordinary meaning would frustrate the zone objectives for the RZ3 zone, particularly objective (b), being to ‘provide opportunities for redevelopment by enabling changes to the original pattern of subdivision and the density of dwellings’.
The Tribunal discussed the respondent’s submission with Mr Hassall. The transcript reads as follows:
MR HASSALL:   I suppose it's part and parcel of this package of interpretation which is that if the correct position is that the owner of block 6 can develop without triggering rule 3 that makes the position of someone in Dr Erlic's position even more [absurd] On the one hand, the owner of block 6 can develop and get multi unit housing but the owner of blocks 7 and 8 can't.
PRESIDENTIAL MEMBER McCARTHY:   That seems to contradict your proposition, does it not? It would be an odd result that Ms Fisher can put up multi unit housing, perfectly free to do so without affecting rule 3, and yet Dr Erlich, who owns two blocks, can't.
MR HASSALL:   I think I'm accurate when I say that line of logic is relied upon by the decision-maker. So, the decision-maker says [if] the owner of block 6 can develop on their own, therefore, the owner of blocks 7 and 8 has to be able to otherwise it's just absurd. That's the pathway I suppose.
PRESIDENTIAL MEMBER McCARTHY:   So, in other words, amalgamation doesn't matter?
MR HASSALL:   I think it's fair to characterise [it] almost in that way.
PRESIDENTIAL MEMBER McCARTHY:   Which? What's the point in rule 3 then? If anybody can develop - - -
MR HASSALL:   I find that question difficult to answer.
PRESIDENTIAL MEMBER McCARTHY:   Yes. I do too, actually. What you're really saying is that you can do it on one block. You can do it on two blocks or you can do it on three blocks. It doesn't matter.
MR HASSALL:   I think that's a fair characterisation.
PRESIDENTIAL MEMBER McCARTHY:   So is rule 3 left with any purpose?
MR HASSALL:   I think it could apply more conventionally in relation to situations where there are two blocks.
PRESIDENTIAL MEMBER McCARTHY:   Say that again.
MR HASSALL:   I'm thinking out aloud which is always dangerous. I think arguably not.[8]
[8] Transcript of proceedings, 2 November 2017, page 54, lines 1 - 44
The Tribunal put a similar proposition to Ms Jamaly:
PRESIDENTIAL MEMBER McCARTHY:   I mean you're welcome, both, either of you, to answer, but when you say the amalgamation occurs or is required for blocks 7 and 8, because they have this adjoining wall that seems to engage rule 4(1) but still block 6 doesn't need to come in, that seems to leave rule 3 without any role at all. Am I right?
MS JAMALY:   Yes. If you read it that way, yes.
PRESIDENTIAL MEMBER McCARTHY:   Is there any other way that I can read it to give rule 3 a role in life?
MS JAMALY:   I guess that's where that reasonable approach or what is reasonable are (sic) what is the common sense approach. That comes into play and that's my argument possibly.
PRESIDENTIAL MEMBER McCARTHY:   So a commonsense approach, not to be giving any purpose or effect to rule 3?
MS JAMALY:   In this case, yes.[9]
[9] Transcript of proceedings, 2 November 2017, page 59, line 34 – page 60, line 8
The first party joined said he could see that by applying a strict interpretation of the law the development should not be permitted[10] but contended that the amalgamation of Blocks 7 and 8 only should nevertheless be allowed to proceed. He referred to the applicable Control Plan. It showed (except for Blocks 12, 13 and 14, Section 1, which ‘mirror’ blocks 6, 7 and 8 in Section 1) that all other blocks marked as requiring minimum block amalgamation involve only two blocks and sometimes only one block. He submitted that it was “particularly unlikely” that agreement could be reached to achieve amalgamation of three blocks in comparison to two blocks and that amalgamation of Blocks 7 and 8 was a “unique opportunity” to achieve medium density housing. He submitted that this was “an opportunity for Canberra and for the planning authority to get their long-term plan.”[11]
[10] Transcript of proceedings, 2 November 2017, page 88, lines 2 - 3
[11] Transcript of proceedings, 2 November 2017, page 86, lines 21 - 23
The Tribunal was not persuaded by the submissions of the respondent or the first party joined. They were an endeavour to achieve what they regarded as an appropriate outcome rather than applying the mandatory rule in the Precinct Code. Ms Jamaly appeared to agree:
PRESIDENTIAL MEMBER McCARTHY:   What I'm troubled by is that your submission seems to be asking us to hop the current law to what you think is a good outcome rather than apply the law. That is difficult, for me at least. I suppose it's because I'm a lawyer.
MS JAMALY:   I agree that, yes, it probably needs to be reviewed,
however - - -
PRESIDENTIAL MEMBER McCARTHY:   I don't know that it should or it shouldn't. I'm not a planner.
MS JAMALY:   But if it is impeding redevelopment in a manner which is the intended outcome for that area my argument is that maybe we look at the intent, what is the intent of that, the intent of the code, and apply it accordingly. Maybe the Interpretation Act gives us that out. [12]
[12] Transcript of proceedings, 2 November 2017, page 59, lines 18 - 32
In the Tribunal’s view, the Territory Plan and the codes that form part of the Plan including the Precinct Code need to be applied according to what they say, not what persons think they should say. If a provision needs to be reviewed and changed, so be it. But until it is changed, it must be applied. To illustrate, many rules in many codes are mandatory, for example rules concerning plot ratio, the number of dwellings on a block, the maximum height of buildings and the like. These clear quantitative rules are not to be varied or interpreted according to subjective perceptions of good planning outcomes. They state what they state, and must be applied accordingly.
So it is in this case. Rule 3 is a plain, ‘stand-alone’ and mandatory rule stating that if amalgamation is to occur which involves any of Blocks 6, 7 or 8, then all three blocks must be amalgamated. Rule 3 is not dependent upon the applicability of rule 4 which is also a plain, ‘stand-alone’ and mandatory rule.
Sections 138 and 139 of the Legislation Act, and the Supreme Court’s comments about them in Capital Property Projects, were of no real assistance: those sections concern provisions of an Act. Nor does the Tribunal consider that sections 138 and/or 139 permit an interpretation of a provision of an Act that defeats a clear, quantifiable mandatory requirement.

Although tangential to the primary obligation to apply rules 3 and 4 according to their terms, the Tribunal does not agree that rule 3 produces a ‘nonsensical’ result.
Rule 3 is the first of the rules and criteria in Element 2 of the Precinct Code concerning building and site controls. The Intent of Element 2 is stated in three paragraphs. The first is to allow sufficient space for existing and future tree plantings. The third is to maximise permeable surfaces. Neither is relevant to rule 3. The second, on which Ms Jamaly relied, states:
To ensure development sites can accommodate Urban Housing based on perimeter block development and efficient and effective site layout.
It would seem that rule 3 gives effect to the second intent. It seems to contemplate that if amalgamation were to occur involving only two of Blocks 6, 7 and 8 (each of which is relatively small), efficient and effective site layout would be defeated by leaving the remaining block stranded and (in the case of Block 6) sandwiched between multi-unit developments on either side.
Also, the Tribunal does not accept that rule 3 ‘sterilises’ development or creates a situation where, in the words of Mr Hassall, “the owner of Block 6 can develop and get multi-unit housing but the owner of Blocks 7 and 8 can’t.”[13] This circumstance arises, not from rule 3, but from the fact that the first party joined’s ‘existing dwellings’ on Blocks 7 and 8 have ‘shared walls’ which engages rule 4a). In other words, for the first party joined to proceed with multi-unit housing, rule 4a) requires him to amalgamate Blocks 7 and 8. Rule 3 then operates to require Block 6 to be included in the amalgamation. Block 6 is not treated similarly because, for it, none of the factual circumstances described in rule 4 apply.
[13] Transcript of proceedings, 2 November 2017, page 54, lines 4- 5
These kinds of outcomes are not uncommon. What is permissible, or not, depends on the facts and circumstances in each case. Many a person says it is ‘unfair’ that, for one reason or another, a neighbour can do what they cannot. It is not about ‘fairness’ or ‘unfairness’. It is about applying mandatory rules where applicable.
As noted previously and as stated in the Precinct Code, non-compliance with a mandatory rule must result in refusal of the development application. This was not a case as might occur with a mandatory rule that is quantifiable, for example a rule concerning plot ratio or building heights, where an amendment to the development proposal by reducing the gross floor area or height can achieve compliance with the rule. Here, the development application involved five townhouses in a single building across Blocks 7 and 8. Compliance with rule 3 could only be achieved by including Block 6 in the amalgamation. At the hearing, the Crown lessee of Block 6 confirmed that she did not and would not agree to amalgamation, but even if she had it would have been nonsensical then to approve the development application because the proposed building occupied only two of the three blocks.
For these reasons, the Tribunal found that non-compliance with rule 3 of the Precinct Code required it to set aside the decision under review.
It became unnecessary to consider many of the other objections to the proposed development, but the Tribunal comments a little further in deference to the submissions that were put.

Block 7, a corner block

Rule 5 of the Precinct Code provides:
Block 7 is a corner block identified in the Braddon Control Plan. The respondent accepted that rule 5 applied to the proposed development on Block 7.
The height of the proposed development on Block 7 was to be approximately 8.7m. The applicant submitted that the proposed development did not comply with rule 5 because the maximum height of buildings in the RZ3 Zone under rule 24 of the Multi Unit Housing Development Code (the MUHDC) is 9.5m and mandatory rule 5 requires the development to be built to the maximum height limit. She submitted that the purpose of the ‘corner treatment’, depicted by a thick black line on the Braddon Control Plan (including the corner occupied by Block 7), is to consolidate the urban form and make a strong statement of reinforcing the edges at certain intersections.[14]
[14] Transcript of proceedings, 2 November 2017, page 17, line 41 - page 18, line 9
Ms Jamaly noted in her evidence that the Precinct Code does not identify a maximum height requirement for the purpose of rule 5 which would be applicable to Block 7 in this case. She noted that rule 24 of the MUHDC specifies a maximum allowable height, and then gave her opinion that the proposed development did not need to be built to ‘exactly 9.5m’ and that as long as its height was within 9.5m it would comply with rule 24.[15]
[15] Witness statement, paragraphs 18 - 21
At the hearing, the respondent (properly) did not press Ms Jamaly’s viewpoint: such an approach demonstrated compliance with rule 24 of the MUHDC but would have rendered rule 5 of the Precinct Code purposeless.
Mr Hassall submitted that ‘maximum height’ for the purpose of rule 5 should be ‘informed’ by the site specific height controls in rules 27, 30, 33 and 34, Part C of the Precinct Code, each of which states “Maximum building heights are 2 storeys”. He submitted that these rules ‘informed’ rule 5, even though Part C does not apply to Block 7. On enquiry as to why that should follow, Mr Hassall stated “The only argument in support of that approach is that it’s using similar language.”[16]
[16] Transcript of proceedings, 2 November 2017, page 62, line 20 - page 63, line 27
The submission became problematic because the proposed development was to be three storeys, and so in breach of rule 5 on the respondent’s case. In reply, Mr Hassall drew on criterion 20b) in the MUHDC which is met if buildings, although not two storeys, provide ‘the appearance from the street of not more than two storeys’.
Mr Hassall submitted in the alternative that if the maximum height limit is that set out in rule 24 of the MUHDC (9.5m), then the words ‘must be built to the maximum height limit’ should be interpreted as meaning ‘may be built up to but may not exceed the maximum height limit’. Mr Hassall offered that this interpretation would put “a significant gloss” on the words ‘must be built’ and that he preferred to rely on the interpretation that the appearance of the buildings from the street should be of not more than two storeys.[17]
[17] Transcript of proceedings, 2 November 2017, page 65, lines 22 - 26
The Tribunal was not persuaded by the respondent’s submissions on this issue. Rule 5 mandates that developments on corner blocks “must be built to the maximum height limit” (emphasis added). The Introduction to the Precinct Code provides that the code “applies to multi-unit housing” in the applicable zones. Rule 24 of the MUHDC provides that the “maximum height of building” in RZ3 is 9.5m.
It follows in our view that the proposed development to be built only to 8.7m would have been non-compliant with rule 5. Where rule 5 is a mandatory rule, to increase the height of the proposed building by 0.8m on Block 7, or at least at the corner, would have substantially changed the whole design. Whilst the issue was not explored, the Tribunal had real concerns that the necessary changes would have been so substantial as to be outside what could be approved by way of amendment under section 144(2)(a) of the P&D Act. For this reason, in addition to non-compliance with rule 3, the Tribunal’s only option would have been to set aside the decision under review.

Other issues

The applicant submitted that the development proposal did not comply with the Territory Plan in many other respects. For example, she contended that the proposed rooftop terraces comprising an area exceeding 271m² did not comply with criterion 20 of the MUHDC which requires buildings more than two storeys to achieve consistency with the ‘desired character’ (as defined) and to achieve the appearance from the street of not more than two storeys for that part of the building facing the street; that the private open space and the principal private open space for townhouses 2 and 3 did not comply with mandatory rule 22 of the Precinct Code and/or rule 61 of the MUHDC, respectively; that the front setbacks did not comply with mandatory rule 14 of the Precinct Code; that the plot ratio for the proposed development exceeded mandatory rule 8 of the MUHDC; and that the proposed courtyard walls breached mandatory rule 7 of the Precinct Code.
It became unnecessary to address any of these issues for two reasons. First, the respondent and the first party joined offered variations to the development to address the objections, for example removal of the entire rooftop terrace,[18] separation of the courtyard walls from the stairs, substitution of the courtyard walls with hedges,[19] and walling in certain areas in the basement in order to exclude them from the calculation of gross floor area.[20] However, all of these issues became moot because the whole development did not comply with mandatory rule 3 of the Precinct Code.
[18] Transcript of proceedings, 2 November 2017, page 86, lines 37 - 39
[19] Transcript of proceedings, 2 November 2017, page 66, line 42 and page 68, lines 42 - 43
[20] Transcript of proceedings, 2 November 2017, page 76, line 25 – page 77, line 8
………………………………..
Presidential Member G McCarthy
HEARING DETAILS

FILE NUMBER:	AT 41/2017
PARTIES, APPLICANT:	Gerlinde Sullivan
PARTIES, RESPONDENT:	ACT Planning and Land Authority
FIRST PARTY JOINED	Sven Erlic
SECOND PARTY JOINED	Margaret Fisher
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	Mr M Hassall
COUNSEL APPEARING, FIRST PARTY JOINED	N/A
COUNSEL APPEARING, SECOND PARTY JOINED	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
SOLICITORS FOR FIRST PARTY JOINED	N/A
SOLICITORS FOR SECOND PARTY JOINED	N/A
TRIBUNAL MEMBERS:	Presidential Member G McCarthy Senior Member R Pegrum
DATE OF HEARING:	2 November 2017