TEMPLE & ACT PLANNING and LAND AUTHORITY (Administrative Review) - [2012] ACAT 54

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

TEMPLE & ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2012] ACAT 54

AT 12/30
Catchwords: ADMINISTRATIVE REVIEW – planning and development – refusal to issue controlled activity order – issues: building height, bulk and scale of building, Plot Ratio, setbacks
andbuilding envelope.

List of legislation: Planning and Development Act 2007, s.119

List of cases: Canberra Tradesmen’s Union Club & Ors v Minister of the Environment Land and Planning & Anor (1997) ACTSC 105

List of Regulations: Planning and Development Regulation 2008, Schedule 1
Part 1.3, and Schedule 1A
Territory Plan 2008
Residential Zone Single Dwelling Housing Development Code

Tribunal: Mr B. Loftus, Senior Member
Mr G. Trickett, Senior Member

Date of Orders:  15 August 2012
Date of Reasons for Decision:       15 August 2012
AUSTRALIAN CAPITAL TERRITORY  )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 12/30

BETWEEN:
ROBERT WILLIAM TEMPLE
Applicant

AND:
ACT PLANNING AND LAND AUTHORITY
Respondent

TRIBUNAL: Mr B. Loftus, Senior Member
Mr G. Trickett, Senior Member

DATE: 15 August 2012

ORDER

The decision under review is set aside and in lieu thereof it is ordered that amendments to the existing Development Application in relation to the building height be required by the Respondent taking account of the Tribunal’s findings set out in Paragraphs 88 and 89 of its Reasons.

The remaining issues referred to in Paragraphs 88 and 89 of the Tribunal’s Reasons for the Decision are remitted to the Respondent for reconsideration in accordance with the Tribunal’s directions and recommendations pursuant to sub paragraph 68 (3) (c) (II) of the ACT Civil and Administrative Tribunal Act 2008.

………………………………..
Mr B. Loftus, Senior Member
For and on behalf of the Tribunal

REASONS FOR DECISION

This is an application for review of the Respondent’s decision made 27^th March 2012 not to issue a Controlled Activity Order in respect of works carried out on Block 11 Section 18 Deakin. The Applicant is the adjoining neighbour on the southwest side of that block.
The Applicant was self represented and the Respondent was represented by

Ms Katavic of Counsel. The owner of the work complained about was not a party. The hearing took place on 11^th and 12^th July 2012.
One contention of the Applicant was that the private certifier Michael Collins engaged by the owner, was not impartial, and, in fact, biased in favour of the owner because he and the owner were both members of the ACT Fire Brigade. No evidence was offered and the Applicant withdrew the contention. Nothing further needs to be said about that.

The block concerned is 64 Stonehaven Crescent, Deakin, Block 11 Section 18. Stonehaven Crescent runs approximately northeast – southwest and Block 11 is on the northwest side, facing southeast.
The alterations and additions are to a single storey duplex house comprising, a new double carport forward of the original building line and up to the southwest block boundary; an extension to the northwest; a new covered deck to the rear, and a new upper level. The development extends across the full width of the block with building up to both side boundaries.
The site slopes from the front to the rear with a fall along the southwest boundary of just less than 3 meter (m). There are drainage and electrical easements along the rear boundary. A sewerage easement extends diagonally across the northeast side of the block in the rear third of the site.

Hearing

The Applicant contended that a Controlled Activity has occurred at Block 11 Section 18 Deakin, the subject site for the following reasons alleged:
a)the extensions to the house on Block 11 had been constructed other than in accordance with the Development Approval;
b)the development extended beyond the building envelope;
c)the Plot Ratio is greater than 50%;
d)external walls to the new living area and kitchen have been constructed so that they extend beyond both the side and rear setbacks; and
e)the maximum building height is exceeded, to the extent that the bulk and scale of the development impacts on the Applicant’s property.
At the commencement of the hearing, the Tribunal raised their concern with the Applicant that the correct method for determining the envelope was not being applied. In the Applicant’s Statement of Facts and Contentions, the drawings attached, A-01, A-02 and A-03, were adopting the natural ground level at the rear boundary rather than applying the natural ground level at the boundary directly perpendicular to the point of the building element from the boundary. The Applicant acknowledged the method adopted was incorrect, however, submitted that there were still parts of the building that extended beyond the building envelope.

The building height issue

The Applicant contended that the structure within the primary building zone extends beyond the building envelope by a height of 0.9m.
The Respondent relied on the evidence of Mr Samuel Bond, refer Exhibit 4.

Mr Bond is an inspector in the Investigation Unit of the Environmental and Sustainable Development Directorate.
The Tribunal enquired as to whether the level at the highest point of the development as constructed that had been measured by a surveyor against Australian Height Datum (AHD) was available. The Tribunal was informed that there was none and that this was not the normal practice by the ACT Planning and Land Authority (Authority).
The Tribunal notes that the drawings submitted as the Development Application by Mr Michael Collins, a principal building certifier, on behalf of the lessee, and included in the T documents are numbered 1 of 7 to 7 of 7. The Merit Track Approval process (Documentation Requirements Residential Zone Single Dwelling Housing Development Codes) states that for a second storey addition elevation drawings are, in addition to other items, required to provide the following:
·   Dimensioned heights including overall heights
·   Finished floor levels and ceiling levels.
·   Natural and finished ground levels related to Australian Height Datum.
·   Side and rear building envelopes.
The approval process also requires sections through the building which, in addition to other items, are also to include:
·   Finished floor levels and ceiling levels.
·   Natural and finished ground levels related to Australian Height Datum.
·   Side and rear building envelopes.
The approval process also requires a site plan that is in addition to the survey certificate. The site plan, in addition to other items, is to include the location of proposed buildings and structures with dimensions to block boundaries.
The side setbacks to the northwest boundary were shown on the floor plan (T448) and the floor level of the existing house of 599.03m was shown on what is a combined site plan/survey drawing (T454). Apart from these two items none of the above information or drawings formed part of the set of Approval Granted drawings, as stamped by the Authority delegate and numbered 1 of 7 to 7 of 7 in the T documents. Nor was the above information provided in any evidence given to the Tribunal by the Respondent.
Mr Bond gave evidence that he could not determine from the approved drawings, specifically what levels were approved. He stated that it was therefore necessary to “scale” from the approved drawings to determine the heights of floor levels, ceilings levels, building height and building envelope, that were approved.
The Tribunal has determined that it cannot rely totally on Mr Bond’s measurements as set out in his evidence for the following reasons.
Mr Bond relied on the site plan at T89 and from the notation he shows in red with a dimension of 8.8m he has assumed that the plan has a scale of 1:100. While the title block states the scale is at 1:100, the drawing as an A3 page is not to this scale. The Tribunal notes that the length of the new living room and kitchen southwest wall is stated at T448 to be 14.66m long. The length of the wall on the plan on T89 adopting a 1:100 scale is 9.5m long. The dimensions as noted by Mr Bond and that have been used to determine a height dimension at T89 cannot therefore be relied on by the Tribunal.
Mr Bond relied on the elevations at T86 and T91 and from the notation he shows in red he has made certain assumptions. The Tribunal notes that this drawing is not to scale, by a small but not insignificant margin, and that the drawing is inaccurate. The width of the ground level living room extension that is shown as 5.77m on T448 scales as 5.2m on the elevation. The width of the upper level that is shown as 7m on T449 scales as 6.8m on the elevations. The floor to ceiling heights shown in red have a small margin of error nonetheless are shown as 100mm greater than as drawn. The top dimension as shown in red by Mr Bond is 1.5m. While the 2.4m floor to ceiling heights are noted on the approval drawings, the 1.5m dimension is scaled from the drawings. The Tribunal has determined taking into consideration the scale variation, and other dimensions the height would be closer to 1.65m.
The Tribunal has determined that the approved height of the building is 150mm higher than as assessed by Mr Bond.
Mr Bond’s overall height of 8.62m as noted on the drawing is taken from the ground level at the rear of the additions rather than directly below the upper level roof highest point. This dimension scales as 8.3m at the roof high point (T86) rather than 8.62. If Mr Bond had included the top dimension as adopted by the Tribunal appropriate to the scale of the drawing the total height would be more likely 8.77m.
During the proceedings the Respondent relied on a table of dimensions regarding Block 11 Section 18 Deakin (Exhibit 7), which showed a reassessment of the building heights by Mr Bond in the Primary Building Zone, the area where the upper level extension is located. This table shows the approved height to be assessed as 7.84m and the actual height to be assessed as 8.09m.
The Tribunal has determined from the drawing numbered 7 of 7, the approved survey drawing (T454), that the natural ground level directly below the high point of the upper-level roof is 597.8m related to Australian Height Datum. This is a difference of 0.85m (597.8m-596.95) from Mr Bond’s ground level as adopted at T86. It is similar to the level Mr Bond determined at T88, though that dimension he adopted relates to the boundary of the site and was used to determine the height as shown at Exhibit 7.
The Tribunal has determined that the height of the development above natural ground level as approved is 7.92m (8.77m-0.85m).
The Tribunal will now assess the building height as built.
The upper floor level as built is noted on the survey drawing at T92 as 601.96m. The ceiling height, confirmed by Mr Bond’s evidence is 2.4m.
The Tribunal notes the requirements of Schedule 1 Part 1.3 - Exempt developments - of the Planning and Development Regulation 2008 which reads:
1.24 Buildings—roof slope changes
(1) A designated development for changing the slope of all or part of a building's roof if—
(a) the change does not do any of the following:
(i) change the slope by more than 2 ^o;
The Tribunal has carefully considered the height from the 2.4m high ceiling line to the top of the roof and has determined that unless the pitch of the roof was reduced by greater than 3 degrees, from the 11 degree pitch as can be determined from the approved plans, the height is most likely to be greater than the 1.5m as found by Mr Bond, and that matched Mr Bond’s interpretation of the approved design height at this point.
The Respondent did not indicate to the Tribunal that there had been a variation to the roof pitch approved or the structure, refer below.
The Tribunal also notes Mr Bond’s dimension of 3.12m drawn in green depicting the floor to ceiling height on the section he provided at T85 would appear to be incorrect and is rather the dimension from floor to floor.
The Tribunal notes the structural engineer required 300mm deep rafters to frame the roof as shown in the documents attached to the Building Approval Certification provided by Mr Michael Collins (T276).
The Tribunal notes on the development approved drawings submitted by

Mr Collins, that the ceiling level is shown as just below the roof line at the southwest side which would not allow for a realistic structure, while the ceiling is shown as flat. The Tribunal would have been assisted in understanding the roof form and structure by a section through the building, however, there appears to be none included in the Development Approval as required. The Tribunal notes that there are clerestory windows shown on the northeast elevation and has determined that the ceiling is most likely not flat but is raked. The T documents included photographs of the building while under construction (T232 and T233), however, these photographs were too dark to distinguish the roof structure.
The Tribunal has carefully considered the height of the structure with the inclusion of the 300mm deep rafters, roof battens and roofing and determined that the height from the 2.4m high upper-level ceiling to the top of the roof would most likely be 1.9m, if not altered from the evidence provided to the Tribunal.
The Tribunal concludes that the highest point of the building above natural ground level is 8.46m (601.96m + 2.4m + 1.9m less 597.8m).
The location of the highest point of the development from where the applicable siting criteria allow or require it to be sited is set out in Schedule 1A of the Planning and Development Regulation 2008, Permitted variations to approved and exempt developments: Schedule 1A.11 Permitted variations—height tolerances for buildings and structures - which reads:
1A.11 Permitted variations—height tolerances for buildings and structures
(1) This section applies to the vertical siting on a block of a building or structure that does not comply with the applicable height criteria.
(2) The building or structure must be vertically sited so that—
(a) for any point of the building or structure that the applicable height criteria allows or requires to be sited at a particular height—
(i) the point is sited wholly within the lease to which the point relates and is not more than 340mm above or below where the applicable height criteria allow or require the point to be sited.
(5) In this section:
"applicable height criteria", in relation to a point of a building or structure, means the criteria about the height of the point under—
(a) if the building or structure would be covered by a development approval other than for the height of the point—the approval.

Conclusion

The Tribunal did not have before it the advantage of a level or a measurement for the highest point of the development above natural ground level as determined by a surveyor and but has estimated that the height of the development above natural ground level is greater than the approved plans by 540mm (8.46m-7.92m). It is not greater than the maximum height in Rule 3 of 8.5m above natural ground level. Allowing for margins of error the Tribunal finds that the 340mm tolerance as set out in Schedule 1A of the Planning and Development Regulation 2008, Permitted variations to approved and exempt developments: Part 1A.11 Permitted variations—height tolerances for buildings and structures, seems not to have been met.

The bulk and scale of the building issue

The Applicant submitted that it was the bulk and scale of the building that was of most concern.
The Tribunal notes that there are a number of elements to the development that affect bulk and scale which were addressed by the hearing. These include Plot Ratio, building envelope, setbacks and building height. The Tribunal has addressed the building height.

Plot Ratio and application of the building construction tolerances permitted with respect to Plot Ratio

The approval was given for a development of 240.6sqm GFA (T454), on the site with a block area of 522sqm.
The Applicant contended that the application for approval prepared by Mr Collins did not include the additional area of the two roofed car spaces at 18sqm each as required in the Single Dwelling Housing Development Code (SDHDC).
At the commencement of the hearing the Tribunal raised with the Respondent its concern that the correct Plot Ratio was not applied at the time of approval in that there was no inclusion in the calculation, by either the lessee’s Applicant Mr Collins or the approval delegate, for the carport as set out in the SDHDC Rule 4 Note.
The term Plot Ratio is defined in the Territory Plan as the gross floor area in a building divided by the area of the site. The maximum GFA for the subject site is therefore 261sqm.
The Tribunal understands that the Development Application only considered the gross floor area as defined;
Gross floor area (GFA) means the sum of the area of all floors of the building measured from the external faces of the exterior walls, or from the centre lines of walls separating the building from any other building, excluding any area used solely for rooftop fixed mechanical plant and/or basement car parking.

The Tribunal notes the requirement of mandatory Rule 4 and the Note which reads:
R4
Maximum site density, on a standard block, does
not exceed a Plot Ratio of 50%.
Note. Where a maximum Plot Ratio is specified, the gross floor area of the development used in the calculation of the Plot Ratio shall be taken to be the gross floor area of the buildings plus 18m2 for each roofed open car space or car port provided to meet Territory requirements for resident car parking (not including basement car parking) and the area of any balcony that is roofed and substantially enclosed by solid walls.
The Tribunal notes the requirement of Rule 42 and the relevant parts of Rule 43 which read:
R42
Two car-parking spaces are provided on the site.
R43
a) Car-parking spaces:
b) One space is capable of being roofed and be behind the front zone.
c) Minimum dimensions of on-site car parking spaces are:
i) 6.0 x 3.0 m single roofed space
ii) 6.0 x 5.5 m double roofed space

The Respondent submitted that this was not a matter for the Tribunal in review of the Control Activity Order.
The Tribunal notes that at T504, Part 1 Conditions of Approval, it refers expressly to the mandatory Rule of a 50% Plot Ratio. The Tribunal has determined that the delegate intended that the Conditions of Approval are to be applied to the approved plans and these conditions are to be met by the development.
The Tribunal finds that the delegate when making the condition that the approval is based in part on there being no GFA allowance for the carport, has not understood the requirements of Rule 4 and cannot make the condition as set out for the following reasons.
The Tribunal notes that the Building Approval Certificate stated that the application was “revised to meet the mandatory Rule of a 50% Plot Ratio. Revised plans show the proposed carport without external walls.”
There is no discretion in the SDHDC Rule 4 Note for the area of roofed carport space to be excluded from the calculation of the GFA; it has to be included.
The Tribunal must determine what GFA is to be added in this development as set out in the Note at Rule 4.
The Tribunal notes the wording of the Note at Rule 4 “for each roofed open car space or car port provided to meet Territory requirements for residential car parking”. The requirement on this site is found at Rule 42 and it is for two spaces. The SDHDC does not require any space to be roofed; rather it requires at Rule 43 b) that one space is capable of being roofed. The minimum dimensions for roofed and unroofed spaces are set out at Rule 43 c) where it states that a single roofed space is 6x3m. This size equates with the 18sqm as set out in the Rule 4 Note.

The Tribunal has determined that the Rule 4 Note would require that where a development does not include a carport, an area of 18sqm must be added to the GFA and that where a development includes a single carport that an area of 18sqm must be added to the GFA.
The approval was for two roofed spaces with dimensions 6 x 5.91m which is greater than the minimum dimension at Rule 43 c) ii) 6 x 5.5m but would be less in area than the total of two 18sqm spaces, 36sqm.
The Tribunal reasons that the Note at Rule 4 is specifically included in the SDHDC in consideration that there is the potential for the total GFA of a development to increase were a carport to be enclosed later and is guided by Rule 42 and Rule 43. It is however unclear to the Tribunal as to whether the area to be added as required by the Note is for only one space [Rule 43b)] or for the two required spaces that have been roofed in this development.
The Applicant further submitted that the extension to the house has been constructed so that it extends beyond the side setback approved. The side setback on the southwest boundary adjoining the Applicant’s property on the approval was 1.5m. The Applicant submitted that the survey drawing (T92) shows that the building was constructed with setbacks of 1.3m and 1.32m. The Applicant submitted that this would have the effect of increasing the GFA.
The Tribunal notes that the development adjoins the neighbour on the other side boundary and as such the building as a whole cannot have been located further to the northeast and therefore is satisfied that the development has a greater floor area than that approved. As to whether this increase can be calculated by assuming that it is the kitchen and living area that has been increased for a length of 14.66m or whether the increase has occurred elsewhere can be reasonably determined from the plan at T448. The remaining ground level floor area including the wet areas and bedrooms are within the existing building structure. The Tribunal was not provided with any evidence that this area was demolished and rebuilt contrary to the approval. The area that the development has increased can be calculated to be 0.19m x 14.66m (the length of the wall), ie 2.8sqm.
The Applicant further submitted that the extension to the house has been constructed so that it extends beyond the rear setback approved. The rear setback on the approval documents was not dimensioned. The application for Merit Track Approval prepared by Mr Collins stated that the rear setback complied and would be greater than the minimum (T444-T446). The Applicant submitted that the survey drawing (T92) determined that the building was constructed with a rear setback of 2.735m (T92) which is less than the minimum stated in Rule 32 of the SDHDC of 3m for a lower level.
The length of the northwest wall of the living room is 5.77m (T448) which as determined above has been extended 0.2m further in length resulting in a length of 5.97m. The approval was for a setback greater than that required. The Tribunal, for reasons of caution, has assessed the dimension against the 3m minimum setback for a lower level which shows the development to extend at least 0.265m more than approved. The minimum area that the development has increased due to this relocation of the wall can be calculated to be at least 0.265m x 5.97m, ie 1.58sqm.
The Tribunal notes the requirements of Schedule 1A Part 1A.2 Permitted construction tolerances (2) Example –s (2) of the Planning and Development Regulation 2008 which reads:
Examples—s (2)
1 An exemption for the construction of a house requires a wall to be sited not closer than 900mm horizontally from the western boundary of the block. The house is constructed so that its western wall is 850mm horizontally from the boundary (50mm less than required). The siting of the house is within the allowed tolerance under par (a) (ii) because it breaches the siting requirement under the exemption by not more than 50mm.
3 If the resiting of the wall under example 1 increases the gross floor area of the house because the other walls of the house were not correspondingly resited, the resiting of the wall would not comply with this section if it breaches a requirement under the lease about Plot Ratio or the house's gross floor area (see general exemption criterion 5 (s 1.15 (a))).

Conclusion

The Tribunal has determined that Rule 4 Note requires that the one car space of 18sqm is to be included in the calculation of the GFA and that the development has also been increased in area to the living room and kitchen new extension by 2.8+1.58sqm. The total GFA for the development is 99.8+77.8+63+18 +2.8+1.58 resulting in a GFA of 263sqm and a Plot Ratio of 50.4%. The GFA is 2sqm above that permitted by R4 of the SDHDC.
The Tribunal has determined that the resiting of the side wall to the living and kitchen addition does not comply with Schedule 1A Part 1A.2 Permitted construction tolerances. The variation to the approved development is not permitted as it breaches a requirement under the lease about Plot Ratio or the house's gross floor area.

Side setbacks, rear setbacks and floor level of the living area

The Applicant submitted that the extensions to the house on Block 11, other than the carport, have been constructed so that they extend beyond both the side and rear setbacks, at the living room and kitchen, as set out in Rule 31 and Rule 32 respectively. The side setback on the southwest boundary adjoining the Applicant’s property on the approval was 1.5m. The Applicant submitted that the survey drawing (T92) determined that the building was constructed with side setbacks of 1.3m and 1.32m. The Applicant also submitted that the rear of the extension was approved as a lower level although it had an area of the floor at a height greater than 1.8m above natural ground level and as such the setbacks should have been assessed by the delegate at the development approval stage against the upper level setback requirements of the SDHDC.
The Tribunal will address the floor level first as this determines the setback requirements. The Respondent submitted that a measurement taken off the approved elevation drawing showed the floor level was approximately 2.07m above the natural ground level. It could then be assumed that the approval had been assessed against the criteria rather than the rule. That the development was approved with the floor level greater than 1.8m above natural ground level and as such this was not a matter for the Tribunal in review of the Controlled Activity Order.
Mr Bond gave evidence on behalf of the Respondent that he had measured the height at the rear of the lounge room extension and had determined that it was 2.07m above the adjoining ground level, refer Exhibit 6, and this was consistent with the approval.
The Tribunal notes the definition of an upper floor mean “a finished floor level, which is greater than 1.8 metres above natural ground level at any point.”
The Tribunal notes that the existing floor level of the original house was AHD 599.03m and that the design of the extension shows that it stepped down one step from this level to the addition of the new kitchen and living area (T448). The Tribunal also notes that the elevations on the approved plans do not show a change in level but rather that the floor to ceiling height is 2.4m and that the new floor level matches the existing floor level. As there was no Australian Height Datum level provided for the level of the new floor in the application, the Tribunal has determined that the step height could be no more than 190mm (the maximum height of one step under the Building Code of Australia). As such the living room floor level could not be lower than AHD 598.84m. The contour line that extends across the northern part of the extension is shown as AHD 597.0m (T454). The height of the floor above the natural ground level at, and northwest of, this line is 1.84mm or greater. The Tribunal notes that this information was available to the delegate at the time of assessing the application.
The Tribunal had before it the statements of the delegate in the Notice of Decision which specified, “approve subject to conditions the proposal for: Extension to ground floor living and kitchen area” (T486 and T503) and delegate Mr Sean Moysey in the Notice of Decision-Controlled Activity Order (T73) Point 2 Reasons for the Decision, where he stated that “The DA is for an extension to the upper level, ground floor living area and kitchen and an addition of a double carport.” The Tribunal considers that the delegate when making the assessment erred. The Territory Plan defines an upper floor and does not permit an assessment of a development as a ground or lower floor level where a floor level is greater than 1.8 metres above natural ground level at any point. The development was required to be assessed against the upper level setback rules and criteria.
The Tribunal had available to it the Authority’s document Change to the planning system (T56 and T57) that refers to building tolerances presently permitted of 340mm and where it Notes “It is NOT permitted to design to these tolerances”.
The Tribunal is satisfied that the development was assessed incorrectly as a lower or ground level development with respect to the living room and kitchen. The Tribunal determines that the development application is not permitted to be designed to the tolerances as submitted by the Respondent.
The Tribunal does not agree with the submission by the Respondent with respect to the side and rear setbacks. The application for Merit Track Approval prepared by Mr Collins stated that the side setback did not comply with R30 (sic) read R31, but did not address the side setback to the living room and kitchen with respect to C31, and stated that the rear setback complied and would be greater than the minimum (T444-T446).
Rule 31 reads at Table 4:
Side Setbacks for Upper Floors side boundaries within the Rear Zone
Block > 250m2
Upper floor level* 6 m.
* Where design incorporates blank walls, windows with sill heights ≥ 1.7 m from the floor or windows with permanently fixed.
C31 reads:
C31
a) Buildings and other structures are sited and reflect residential (suburban) scale, height
and length to ensure:
i) sufficient spatial separation between adjoining developments
ii) the protection of a reasonable amount of privacy and solar access to the dwelling
(or adjacent dwellings) and outdoor spaces (or adjacent outdoor spaces).
b) Setbacks are progressively increased as wall heights increase to reduce bulk and
scale of the building.
The side setback of 6m in R31 is 400% greater than the approved setback. As the 1.5m setback was less than required by Rule 31the development could have been assessed against the criteria and this assessment set out in the application and if approved then reasons given by the delegate. The Respondent did not provide evidence to the Tribunal to show that this process was followed.
The Tribunal has determined that the development was assessed incorrectly as a lower or ground level development with respect to the living room and kitchen and that the rear setback should have been as set out in R32 or C32 for an upper level in the rear zone and not what was shown, but not dimensioned, on the plans for a lower level in the rear zone. Rule 32 reads:
R32
Rear setbacks are a minimum of:
b) 6 m* or 9 m** to the upper floor level.
* Where design incorporates blank walls, windows with sill heights ≥ 1.7 m from the floor or
windows with permanently fixed panes.
C32 reads:
C32
Buildings and other structures are sited and reflect residential (suburban) scale, height and
length to ensure:
a) sufficient spatial separation between adjoining developments
b) the protection of a reasonable amount of privacy and solar access to the dwelling (or
adjacent dwellings) and outdoor spaces (or adjacent outdoor spaces).
The setback of 2.735m is less than the approved setback, given the statement at T446, and is less than the rear setback of 6m in R32 by a significant amount.
The Tribunal notes Section 119 of the Planning and Development Act 2007 which reads:
Section 119 identifies circumstances when approval must not be given to a proposal in the merit track:
(1) Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with—
(a)the relevant code; and
…
(2) Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under division 7.3.3
The Tribunal enquired of the Respondent as to whether the Merit Track development approval was referred to ACTEW. The Respondent informed the Tribunal that it was not referred to ACTEW. The Tribunal notes that the survey drawings at T454 and T93 depict easements to the rear of the property; what appears to be a combined drainage and electrical easement with a power pole and a separate sewerage easement. The sewerage easement extends diagonally across the northern area of the site. The Assessment Report (T483) states “The decision is not inconsistent with any advice given by an entity to which the application was referred under division 7.3.3 of the Act.”
The Tribunal notes the requirements of Part 1.2 (Schedule 1) of the Planning and Development Regulation 2008 which reads:
General exemption criteria 1.11
Criterion 1—easement and other access clearances
(1) A development must not cause any part of a building or structure to be located in—
(b) a utility infrastructure access or protection space.
Example 2 The water and sewerage service and installation rules made under the Utilities Act 2000 require access to stated utility infrastructure at the rear of a block to not be impeded by structures and an unhindered access route to the infrastructure of a stated width to be provided down at least one side of the block.
The Tribunal considers that had the application been referred to ACTEW, given that the existing house extended to the other side boundary, then the 1.5m setback for the living room and kitchen may have been inconsistent with their advice as access to these easements may have been required.
There was no evidence before the Tribunal to suggest that the delegate properly applied the criteria relevant to the setbacks in the circumstances or that the increasing departures from the standard would not lead to increasingly adverse impacts on the amenity of the Applicant or be compatible with and complement the built form, siting and scale of surrounding properties and provide sufficient spatial separation between adjoining developments.
The Tribunal notes the requirements of the Planning and Development Regulation 2008 Schedule 1A Permitted variations to approved and exempt developments; Part 1A.2 Permitted construction tolerances; A.11 Permitted variations—height tolerances for buildings and structures; which reads:
Example
Note 2 A change to the height of the finished floor level of the level immediately above a basement may mean that the space is counted as a storey and may also affect the calculation of gross floor area.

Conclusion

The Tribunal finds that the side and rear setback distances that were approved by the delegate are inconsistent with C31 and C32 of the SDHDC. The Tribunal does not consider that the degree of departure, over a significant length of the site can be regarded as minor given that there is a nil setback to the other side boundary.
The Tribunal finds that the height of the floor level above the natural ground level of the extension could only be approved as 1.8m above the natural ground level at any location. While having determined that the approval was inconsistent with the Territory Plan the variation in level is 270mm (2.07-1.8m) and is within the tolerance of 340mm.

Building Envelope.

At the commencement of the hearing the Tribunal raised with the Applicants its concern that the correct method for determining the envelope was not being applied. In the Applicant’s Statement of Facts and Contentions the drawings attached, A-01, A-02 and A-03, were adopting the natural ground level at the rear boundary rather than applying the natural ground level at the boundary directly perpendicular to the point of the building element from the boundary.
The Applicant acknowledged the method adopted was incorrect, however, submitted that there were still parts of the building that extended beyond the building envelope and that this adversely impacted on his amenity in respect of the bulk and scale of the development.
The Respondent submitted that a development may encroach the building envelope and be assessed against C3 of the SDHDC.
The Tribunal did not have before it drawings that showed the side and rear envelope other than those prepared by the Applicant. Mr Collins in his application stated that the development complied with Rule 3 while the approved drawings did not address this requirement of the approval application.
C3 reads:
C3
The built form does not adversely impact on the amenity of neighbouring properties by ensuring:
a) sufficient spatial separation between adjoining developments
b) the protection of a reasonable amount of privacy and solar access to adjacent dwellings
The Tribunal notes the wording of C3, C31 and C32 are similar. The Tribunal is satisfied that the building envelope measures a distinct spatial separation to that of the side and rear setback spatial separation.

Conclusion

No evidence was provided to the Tribunal that the delegate had address Rule 3 or Criteria 3.The Tribunal accepts the Applicant’s submission that the development extends at various locations beyond the building envelope, however, does not find that the extent is inconsistent with C3.
The Tribunal on the evidence available to it, is of the view that –
a.The Development Approval is inconsistent with the Territory Plan.
b.The building extends outside the building envelope.
c.The 50% Plot Ratio has been exceeded.
d.The side and rear setbacks ( while within the 340mm building tolerances ) exceed those permitted because those tolerances may not be applied if they result in a GFA exceeding 50% Plot Ratio.
e.The building height exceeds the construction tolerance permitted by the approved plan.
f.The finished floor level is within the 340mm building tolerance.

Arising from this the Tribunal finds as follows -

a.The Tribunal does not believe that it has the power to review the antecedent decision to approve the development (Canberra Tradesmen’s Union Club & Ors v Minister of the Environment Land and Planning & Anor (1997) ACTSC 105 ).
b.The encroachments outside the building envelopes (as appears from the buildings plans) are not significant and do not appear to significantly diminish the Applicants amenity. No technical evidence was presented by the Applicant to the contrary. Although this was his personal view, there was no expert or external evidence presented to corroborate it.
c.The fact that the Plot Ratio exceeds 50% has a flow on effect arising out of sub paragraph d following.
d.Though the locations of the side and rear walls as constructed may have the effect of causing the Plot Ratio to exceed 50%, the Tribunal is of the view that, if the rectification of this involved demolition, such would be disproportionately excessive when compared to the relatively minor improvement of the Applicant’s amenity.

e.An amendment to the existing development application in relation to the building height is necessary and should be required.
f.No further comment is necessary.

The views and conclusions set out in the preceding two paragraphs are based on the evidence before the Tribunal. This was not relevantly complete, as no survey was carried out of the building as constructed. Such a survey would have confirmed or otherwise the Tribunal’s estimates and findings as to various dimensions. The Tribunal has done the best that it can with the evidence available to it.

The Authority should reconsider the matter in the light of the Tribunal’s observations and findings.

………………………………..
Mr B. Loftus
Senior Member
For and on behalf of the Tribunal

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:	AT 12/30
PARTIES, APPLICANT:	Robert Temple
PARTIES, RESPONDENT:	ACT Planning & Land Authority
COUNSEL APPEARING, APPLICANT
COUNSEL APPEARING, RESPONDENT
SOLICITORS FOR APPLICANT
SOLICITORS FOR RESPONDENT	Mr L. Stawski ACT Government Solicitor
TRIBUNAL MEMBERS:	Mr B. Loftus, Senior Member Mr G. Trickett, Senior Member
DATES OF HEARING:	11 & 12 July 2012
PLACE OF HEARING:	Canberra ACT

PART B

RECOMMENDATION:

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

COMMENTS: