Thomas v ACT Planning And Land Authority and Anor (Administrative Review)
[2014] ACAT 78
•18 December 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THOMAS v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2014] ACAT 78
NO:AT 14/77
Catchwords: ADMINISTRATIVE REVIEW - Planning and Development – review of decision to approve amenity facility for sportsground – traffic and parking noise and amenity – built form and landscaping – not necessary to provide for worst case scenario – parking capacity is adequate – tribunal must consider noise and amenity impact of proposed development and not impact of use of the sportsground – noise impact minimal and occasional – GFA exceeded in minor way – no significant additional impact – new plantings required to soften visual impact – power to consider realistic alternate is not enlivened in absence of advice if referring entity – development meets each relevant code condition zone objectives subject to additional conditions
Legislation Cited: Planning and Development Act 2007 (ACT)
ss 50, 53, 55, 119, 120, 120(a), 141, 165, 408
Subordinate Law: Territory Plan 2008 PRZ1 Zone; Parks and Recreation Zones Development Code; Parking and Vehicular Access General Code; Crime Prevention Through Environmental Design General Code
Cases Cited:Scherl & ACT Planning and Land Authority & Anor [2011] ACAT 37
Amarso Pty Ltd & ACT Planning and Land Authority & Anor [2012] ACAT 9
Tribunal: Dr T. Foley – Senior Member
Date of Orders: 18 December 2014
Date of Reasons for Decision: 18 December 2014AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 14/77BETWEEN:
KEITH THOMAS
Applicant
AND:THE ACT PLANNING AND LAND AUTHORITY
Respondent
AND:BRENDA BERKELEY
Party Joined
TRIBUNAL: Dr T. Foley – Senior Member
DATE: 18 December 2014
ORDER
The Tribunal Orders that:
The decision under review is varied by imposing additional conditions of approval as follows:(a)A landscaping plan be prepared and submitted showing additional plantings to more adequately screen the development and so as to ensure one unbroken row of trees as a vegetation screening to the western side of the development. Plantings should consist of a minimum of 12 replacement trees of comparable tree species and of advanced size.
(b)A revised site plan, architectural drawing and 3D-view drawing based on the relevant drawings be submitted as part of the application showing additional visually interesting architectural treatment for the western façade of the development.
……………………………..
Dr T. FoleySenior Member
REASONS FOR DECISION
1.Keith Thomas (“the applicant”) and Brenda Berkeley (“the party joined”) sought review of a decision of the ACT Planning and Land Authority (“the respondent”) made on 1 August 2014, to approve, with conditions, Development Application (“DA”) No. 201324722 for the construction on Block 3 Section 20, Weetangera (“subject site”) of a single storey building containing change rooms, toilets and canteen facilities and associated works (“the amenity facility”).
2.Jurisdiction to review the respondent’s decision is conferred on the Tribunal by section 408 of the Planning and Development Act 2007 (“the Act”).
The Hearing
3.The matter was heard on 17 and 18 November 2014. The hearing commenced with a view onsite on the first day of hearing. The Tribunal had before it the documents provided by the respondent on which its decision was based (“the T Documents”), the Submissions and Statements of Facts and Contentions of the parties, witness statements and other exhibits tendered in evidence.
4.The applicants were self-represented and the hearing was conducted by the party joined.
5.The respondent was represented by Dr D. Jarvis. Evidence for the applicant was given by John Richardson and the party joined. Evidence for the respondent was given by Brian Ashcroft and George Cilliers.
Background
6.The subject site is a neighbourhood sports ground called Weetangera Oval. The proposed development is on the western side of Block 3 adjacent to, and accessible from an existing car park, which is accessed from Southwell Street near its intersection with Davis Street. The applicant resides in Davis Street. The party joined resides in Southwell Street and has lived there since the 1970s.
7.The oval has been used as sports fields since the early 1970s. Its use for organised sports ceased in the mid-1990s when irrigation was curtailed due to drought watering restrictions. Evidence was given by Mr Ashcroft, the manager of the Sportsground Maintenance and Improvement Section of Sports and Recreation Services which has responsibility for the maintenance and management of ACT Government sportsgrounds, that the sports usage of the oval had recently been revived. Funding had been approved to bring the ‘decommissioned’ oval back to use as a sports field so as to provide a home ground for Western Districts Rugby Union Club (“Wests”). Work separate to the DA to upgrade the oval to install light towers, irrigation, laying new turf and protective log barrier surrounds, together with the construction of practice cricket nets has been completed as public works exempt from development consent. The subject DA is not for the use of Weetangera Oval as sports fields but for the construction of amenities facility to support this purpose.
8.The sports fields consist of two parallel rugby fields oriented north-south, separated by a centre placed concrete cricket pitch. The use of the fields and the cricket pitch will be regulated through a prior booking arrangement. Evidence given was that anticipated use is for junior rugby games on Saturdays from 8am to 5pm in season, together with training for junior and senior rugby teams on Tuesdays, Wednesdays and Thursdays from 5pm to 9pm from approximately April to August. Use for cricket is for matches on Saturdays 9am-5pm in season, together with some as yet undetermined evening training from approximately October to March.
9.The DA was lodged in the merit track on 22 April 2014. Neighbouring lessees were notified on 30 April 2014 and 26 written representations were received during the public notification period. The issues raised in these representations in summary were (T38):
·Southwell Street is a minor suburban road not designed to carry traffic associated with sporting events;
·The proposal is close to an intersection where visibility will be impaired by vehicles parked along Southwell Street;
·The development is better located on the opposite side of the oval, so that it is accessed from Shumack Street which is a wider street;
·Trees and shrubs will be removed in what is a flood hazard area;
·There is already significant traffic and parking in Southwell Street due to the preschool and primary school;
·The location of the development on the opposite side of the oval adjacent to Shumack Street would enhance business in the Weetangera Neighbourhood Shops and make use of more existing parking there.
10.The issues raised in the representations were considered by the respondent in its initial assessment and additional information was then sought from the DA applicant under section 141 of the Act (T 181-182). The respondent sought a landscape management plan, a verge management plan and information on “any reason/justification for the selection of the site”. The DA applicant provided supplementary information (T172-177) in a landscape management and verge protection plan showing the planned removal of 12 trees facing Southwell Street together with a justification for the site location. The respondent then referred the DA together with a summary of the representations and section 141 submissions to its Major Project Review Group (“MPRG”) (T160-169) with a recommendation that the development be approved subject to conditions. On 8 July 2014 the MPRG “resolved to support the recommendation” (T165).
11.The development, subject to conditions for lodgement of revised site and landscape plans, was approved under section 165 on 1 August 2014 (T32-45). On 3 September 2014 the DA applicant lodged the required section165 amendment documents (T51-57) including plans showing line marking of the existing car park to identify 48 spaces.
Applicable legislation and policies
12.Development applications are subject to the Act, the Territory Plan 2008 (Territory Plan) and the relevant codes within the Territory Plan. Under section 50 of the Act, the tribunal, standing in the shoes of the original decision-maker, may not give approval to a development proposal that is inconsistent with the Territory Plan.
13.The DA is assessable in the merit track. The subject site is located within a PRZ1–Urban Open Space Zone (“PRZ1”) and is subject to its zone objectives. The applicable development code is the Parks and Recreation Zone Development Code (“the PRZ Code”). Approval may not be given if the proposal is found to be inconsistent with the code. Two additional general codes are relevant: the Parking and Vehicular Access General Code (“the Parking Code”) and the Crime Prevention through Environmental Design General Code (“the Crime Prevention Code”).
14.The relevant sections of the Act with respect to the consistency of developments with the Territory Plan and its zone objectives, development tables and codes is set out in Part 5.2 Contents of Territory Plan, specifically sections 53 and 55.
15.Section 53 of the Act relevantly states:
(1)The objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone.
(2)….
16.Section 55 states:
(1)A code (other than a general code or precinct code that is a concept plan) in the territory plan must contain either or both of the following:
(a)the detailed rules that apply to development proposals the code applies to;
(b)the criteria that apply to development proposals the code applies to, other than proposals in the code track.
(2)A code must be consistent with each objective for the zone to which the code relates.
(3)A code that sets out the requirements that apply to stated areas, or places, or states that it is a precinct code, is a precinct code.
(4)A code that sets out the requirements for types of development, or states that it is a development code, is a development code.
(5)A code that sets out requirements applicable to the Territory, the Executive, a Minister or a Territory authority is a general code.
(6)To remove any doubt, a general code may also contain—
(a)policies to be complied with; and
(b)rules and criteria applicable to development proposals the code applies to.
17.Division 7.2.3 Merit Track, specifically sections 119 and 120, sets out the considerations applicable when deciding development approval in the merit track.
18.Section 119 identifies circumstances when development 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 unless the person deciding the application is satisfied that –
(a) the following have been considered:
(i) any applicable guidelines;
(ii) and realistic alternative to the proposed development, or relevant aspects of it; and
(b) the decision is consistent with the objects of the territory plan.
19.Section 120 sets down a range of matters that the decision-maker must consider when making a decision on a development proposal in the merit track. They are:
(a)the objectives for the zone in which the development is proposed to take place;
(b)the suitability of the land where the development is proposed to take place for a development of the kind proposed;
(c)each representation received by the authority in relation to the application that has not been withdrawn;
(d)if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications)—the entity’s advice;
(e)if the proposed development relates to land that is public land—the plan of management for the land;
(f) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
PRZ1 zone objectives
20.Section 120(a) requires the decision-maker to consider “the objectives for the zone in which the development is proposed to take place”.
21.The objectives of the PRZ1 zone are:
(a) Provide an appropriate quality, quantity and distribution of parks and open spaces that will contribute to the recreational and social needs of the community
(b) Establish a variety of settings that will support a range of recreational and leisure activities as well as protect flora and fauna habitats and corridors, natural and cultural features and landscape character
(c) Allow for stormwater drainage and the protection of water quality, stream flows and stream environs in a sustainable, environmentally responsible manner and which provides opportunities for the community to interact with and interpret the natural environment
(d) Allow for ancillary uses that support the care, management and enjoyment of these open spaces including park maintenance depots, small-scale community activity centres
(e) Ensure that development does not unacceptably affect the landscape or scenic quality of the area, adequacy of open space for other purposes, access to open space, or amenity of adjoining residents
(f) Provide for integrated land and water planning and management
Issues for Consideration
22.The respondent’s Reasons for Decision in approving the DA (T36-37) incorrectly, and unhelpfully, specified that the relevant development code under which the DA was assessable was the Community Facility Zone Development Code (“the CFZ Code”). The applicant conceded at the hearing that this was not the applicable code, and that as a consequence substantial sections of his Statement of Facts and Contentions (Ex A2) were not strictly relevant. Allowance was made in the oral evidence of the applicant to address this.
23.The position of the applicant and the party joined was that while they welcomed the redevelopment of the Weetangera Oval and the amenity it would provide to residents, they took issue with the approval of the development on four grounds:
a.the development approval is not consistent with the code provisions as to traffic and parking;
b.the development approval is not consistent with the code provisions/requirements as to noise and amenity;
c.the development approval is not consistent with the code provisions/requirements as to built form and landscaping; and
d.the development would be better sited on the eastern side of Block 3 adjacent to, and accessible from, an existing shopping centre car park accessed from Shumack Street.
Traffic and Parking
24.At issue with respect to traffic and parking was the level of use organised matches at the oval would generate in terms of number of people attending and consequent traffic and parking, as well as noise and amenity.
25.Mr Richardson on behalf of the applicant gave evidence drawing from his long involvement with Wests and from his position as grounds marshall for junior home games in 2007 to 2008. His evidence was that Wests currently had 12 junior teams and 5 senior teams. The oval would be in use each Saturday of the season for junior games. Games would run between 50 and 80 minutes depending on the age of the players. Each team would field 15 players with 5 reserves. With the two fields used simultaneously, up to 80 players would be on site. By half time of the current games being played, the next batch of up to 80 players for the following games would also arrive onsite. Additionally, officials, parents and spectators would be present throughout. He anticipated that the first game would begin at 9.30am and the last game would finished at 4.30pm. The numbers present would swell further on ‘gala days’, though he did not know if any such days were proposed for 2015 and beyond. As to training evenings, his evidence was that each junior team would train twice per week from 4pm to approximately 6pm with 4 teams training simultaneously across the two rugby fields. Senior teams would also train two nights per week from 6.30pm until approximately 9pm-9.30pm. As a consequence, the oval would be used for training sessions from Mondays to Thursdays in season.
26.Ms Berkeley’s estimation on behalf of the applicant was that two games of rugby on the oval at any one time on a Saturday in season would attract 98 cars. This was based upon 34 players per field totalling 68 cars, 3 officials per field totalling 6 cars, 4 canteen staff totalling 4 cars, and 20 spectators totalling an additional 20 cars. In cross examination Ms Berkeley conceded that her calculations did not allow for a proportion of players coming in a single car, some players coming by public transport, ‘older junior’ players coming by bicycle, some of the spectators filling the roles of canteen staff, and a portion of players being ‘dropped off’ rather than arriving in cars that remained parked. Ms Berkeley did not concede that failing to account for these possibilities made her estimate ‘very unreasonable’. She did concede that 98 cars at any one time on a Saturday in season was ‘the worst case scenario’. Her further evidence was that while this level of traffic was attributable to play on the ovals, the location of the amenities facility would operate as a ‘honey spot’ with people naturally gravitating there to check rosters, to use change rooms and to make purchases from the canteen. These activities would have the effect of concentrating the traffic flow to the western side of the ground, whereas if the development was not sited in its proposed location traffic would be more broadly distributed.
27.Mr Ashcroft on behalf of the respondent estimated usage of the oval for approximately 12 Saturdays of junior rugby up to 8 hours in duration; with junior followed by senior rugby training on Tuesdays and Thursdays 5-9pm from April to late August, plus summer usage for cricket 9am-5pm from early October to mid-March. In his view cricket net training would typically occur two evenings a week in summer 5-7pm. His estimation of the highest usage would be on Saturday rugby days when two concurrent games would attract patronage of approximately 68 players (17 per 4 sides), 40 spectators and 10 officials. He considered this would likely attract 50 parked cars. He agreed the number of junior rugby teams could increase from its current 12 teams as a result of the upgrade of the Weetangera Oval and its designation as Wests’ homeground. Nonetheless the ovals’ configuration was such that it only allowed two games to be played at any one time. As distinct from rugby, the frequency of use of the cricket pitch would be regulated by ACT Junior Cricket, but no home team would be based at the ground.
28.In addition to the issue as to likely number of people and cars being attracted to the amenities facility, the adequacy of existing parking to cope with such traffic was at issue.
29.The applicant’s evidence from Ms Berkeley was that the estimate of 98 players, officials and spectators also equated to a need to park in “the worst case scenario” 98 cars. The applicant’s position in his statement of Facts and Contentions (Ex A2) was that a traffic and parking study should have been undertaken and that, in its absence, the DA should not have been approved (Ex A2, 53-56). The applicant anticipated that the existing 48 parking spaces in the oval car park would fill first and that the balance of the bulk of parking would then be sought on Southwell Street causing congestion. Ms Berkeley did not anticipate that many people would look further and use the 57 spaces she identified in the rear of the shopping centre car park in Shumack Street near the oval, as people would be reluctant to walk far.
30.Mr Cilliers’ evidence on behalf of the respondent was that the proposed amenities facility provides ancillary support for users of the oval, but does not generate its own traffic and parking. He disputed the applicant’s estimate of 98 cars being onsite at any one time on a Saturday. He considered the respondent’s assessment of parking need at 72 spaces (T127) as more reasonable. He considered this could be accommodated by the 48 spaces available in the oval car park and some of the total 82 spaces he calculated were available in the existing shop car parking area (front and rear) on the north-western side of the oval.
Noise and Amenity
31.The applicant’s evidence from Ms Berkeley was that noise and amenity impact could be expected from the proposed development because it was separated from residential housing by Southwell Street which is only a 6 metre wide roadway and because the development requires the removal of 12 mature trees. Both factors were seen as likely to increase noise and reduce amenity. Ms Berkeley conceded the measured distance from the rear wall of the amenities facility to the nearest residential dwelling as shown on the revised site plan (T56) was in fact more in the order of 20-25 metres.
32.The T Documents (T433-434) included colour coded mock up drawings submitted by the DA applicant showing the visual appearance of the planned amenities facility from various angles as seen from the oval. Unhelpfully there was no mock up drawing showing the perspective from residential homes facing it in Southwell Street. The applicant provided a photograph (Ex A2 Attachment 7) showing the rear wall of a recently completed smaller facility at Bonython Oval which the applicant says was similar, to address this deficiency.
33.A building floor plan (T445) of the development shows that the façade facing Southwell Street is to be articulated in 4 steps along its length so as to diminish in some respects its visual impact. Remaining trees from the existing grove will also shield the view of the rear wall for part of its length, however there remains a gap where trees removed reveal the façade from the street.
34.As to the respondent’s position on noise and amenity, Mr Ashcroft’s evidence was that the amenities facility would be “a high quality pavilion” colour coded to reflect Wests team colours. He distinguished the facility from that at Bonython Oval which he said is only a toilet block and is of poorer quality materials. Mr Cilliers conceded the development would have some amenity impact both in terms of noise and appearance but that in his view the impact was negligible. His evidence was that the distance between the nearest residential building line and the closest part of the facility was 32 metres. As to noise, the weekly garbage clearance would generate the highest noise. As to noise from the facility itself, his evidence was there was no air conditioning on site and that noise produced would be “mostly people noise” associated with the movement of people and vehicles, sports activity, cheering etc. His evidence was that the rear of the facility facing the street was not likely to generate noise.
Built form and landscaping
35.The issue as to built form and landscaping was not the subject of evidence clearly delineated from that adduced as to the effects on noise and amenity. The issues tended to be conflated.
36.The applicant’s Statement of Facts and Contentions (Ex A2, 104) took issue with the gross floor area (“GFA”) of the facility of 216m² which is in excess of the 200m² specified in rule 6. The applicant’s evidence was that the development also does not comply with the alternative criteria C6 as it does not adequately protect adjacent residential uses from overlooking, noise and other intrusions.
37.The applicant’s evidence with respect to materials and finish was that the development failed to meet the relevant criteria of the PRZ Code and that the appearance of the rear facing façade was not adequately ameliorated through elements such as colour, articulation or use of visually interesting materials (criteria C16), that high quality materials were not to be used (criteria C17), that the oval’s attractive and appropriate streetscape was spoilt by the removal of 12 trees from the existing grove (criteria C19) and that the bareness of the facing façade left it open to unsightly graffiti and vandalism (criteria C20, applying the requirements of the Crime Prevention Code) (Ex A2, 109-115). The applicant’s evidence as to landscaping also focused on the detrimental effects of the removal of the trees in terms of loss of visual appeal, loss of shade, and detrimental impact to the park like atmosphere of the oval (Ex A2, p116-119).
38.Mr Cilliers’ evidence on behalf of the respondent was that the development complies with criteria 6 requiring consistency with adjacent development. His evidence was that the building is single storey and of a size similar to, or smaller than, other residential development in the area and that the excess GFA of 16m² does not have any unacceptable impact on neighbouring uses. The respondent’s evidence with respect to materials and finish was that the PRZ Code imposes no applicable rule but rather provides indicative criteria (C16, 17 and 19). His evidence was that the active frontage of the building is towards the oval, the western street facing wall is articulated to follow the line of Southwell Street, and the structure is approximately 7 to 12 metres from that boundary and partly obscured by trees and vegetation. He did not see the material and finish proposed as inconsistent with surrounding development. His view was that a building such as an amenities facility should not be constructed so as to replicate or disguise it as a residence. The facility is not a replication and is therefore not absolutely consistent, but nonetheless it is not inconsistent.
Alternative locations
39.The applicant’s Statement of Facts and Contentions (Ex A2, 124-137) dealt at length with the suggestion that locating the facility on the opposite (eastern) side of the oval accessed from Shumack Street would be better suited to the proposed needs and uses of the facility and would better satisfy the elements of the relevant codes. The initial alternative location suggested by the applicant (Ex A2, Attachment 5) was located in an area within a CFZ–Community Facility Zone where such development is prohibited. During the view of the site the applicant suggested an alternative site further south on the eastern side of the oval which would take it into the PRZ1 zone. However this site was on a slope and would require significant excavation.
40.Regardless, the respondent’s submission (which the applicant conceded at the hearing) was that the tribunal’s purpose was to decide again whether a particular DA should be approved and not to consider alternative developments except where entity advice suggested such alternatives. As such this issue was not pressed.
Submissions
41.The respondent submitted that the DA must meet the PRZ1 objectives and that in meeting paragraph (d) ‘ancillary use’ to an ‘outdoor recreation facility’ in the PRZ1 Development Table, this requirement is satisfied. The respondent submitted that only one development code, the PRZ Code, is relevant. Compliance with the provisions of this code can be taken to establish that a proposal is consistent with the zone objectives. The respondent says this interpretation flows from the statutory framework provided by sections 53(1) and 55(2) of the Act. The objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable code (s53(1)). The code in turn is taken to be consistent with each objective for the zone to which the code relates (s55(2)). As a consequence, code compliance can be expected to satisfy zone objectives. Thus, if a proposal complied with the applicable development controls in the PRZ Code there would need to be a special reason for the tribunal to decide that the proposal did not meet the PRZ1 zone objectives. The applicant’s position is that there is a failure in code compliance and as such the PRZ1 zone objectives are not met. The respondent’s position is that code compliance exists.
Applicant’s submissions
42.Firstly, the stated position of the application that the development would be better sited on the eastern side of Block 3 adjacent to, and accessible from, an existing shopping centre car park accessed from Shumack Street was not pressed. The applicant conceded that in the absence of any referring entity giving advice inconsistent with approval, the power under section 119 for the tribunal to consider “any realistic alternative to the proposed development” is not enlivened.
43.As to traffic and parking, the applicant submitted there will be significant traffic and car parking generated by the development. At present there are no existing users of the oval for organised sporting activities. The applicant contended the development would therefore increase the number of vehicles using the oval from virtually none to a very large number of vehicles taking junior players to Saturday rugby matches, to summer Saturday cricket matches and to evening junior and senior training and that this will generate extensive additional traffic and overflow parking in and around Southwell Street. The applicant submitted that in the absence of a Traffic and Parking study to determine the likely level of additional parking that would be generated, the respondent could not make the necessary individual assessment of traffic flow required by Criteria 31(d) of the PRZ Code or of the parking requirements required by section 3.9.5 of the Parking Code. In the applicant’s estimation the development will attract a minimum of 98 cars at its highest use on some Saturdays. The applicant submits that this fails to meet the relevant criteria in the PRZ Code and the Parking Code.
44.As to noise and amenity, the applicant submitted the neighbouring residents in Southwell Street will suffer significant noise impact and lose significant amenity as a consequence of the proposed position of the amenities facility. In the applicant’s view, this impact is exacerbated by the narrowness of Southwell Street and that the facility will act as a “honey spot” attracting activity in a confined location. As a consequence it will impose adverse noise impacts on adjoining residents, and adverse safety impacts through packed kerbside parking on Southwell Street. This will restrict the view of oncoming traffic for residents reversing from their driveways and from vehicles using the single entry and exit point to and from the oval car park. The noise and visual impacts will be further exacerbated by the removal of shielding afforded by 12 mature trees from the existing grove.
45.The applicant submitted that the DA is not consistent with element 2.3 of the PRZ Code relating to its built form as the proposed facility has a GFA 16m² in excess of the GFA of 200m² specified in rule 6. The applicant contends that the DA also fails to comply with the alternative criteria C6 in that its visual form is inconsistent with adjacent developments and uses. The applicant submits the visual impact of a blank wall rear façade comprising unpainted blockwork, an open access for rubbish removal, security grating, and shadowing from the stepped wall construction is not sympathetic to the built form of adjoining residential properties. The applicant submits the design fails to comply with the requirements of criteria 16, 17, 19 and 20 in the PRZ code to ameliorate visual impacts of the development.
46.At to landscaping, the applicant submits that the removal of 12 mature trees from the grove planted some 40 years ago along Southwell Street proximate to the development is not consistent with the existing landscaping amenity in the surrounding open space of the oval and that this will have detrimental impacts in terms of loss of natural beauty, shade and park-like atmosphere.
The respondent’s submissions
47.The respondent’s position with respect to the issue of traffic is that the development satisfies the relevant criteria in the PRZ code, specifically criteria 22 and 31(d). As to evidence of capacity, the respondent cites the advice from Territory and Municipal Services Directorate (TAMS) (T70), from the DA applicant’s section 141 submission (T175) and from the evidence of Mr Cilliers that the “existing road network capacity [is] sufficient” to meet demand (Ex R2, 19). The respondent’s position with respect to the issue of parking is that the development complies with the relevant objectives in the Parking Code set out for “Other zones” in section 3.9. This does not set a numerical quantity of parking spaces for a “playing field” but specifies instead that the use be “subject to individual assessment” and that the location of “long stay parking” is either “on-site or within 200 metres”. The respondent’s position is that these requirements are met by the existing oval car park which has a capacity for 48 marked spaces when configured to accommodate two disabled parking spaces (T56). In addition at the eastern side of the oval there are additional spaces within the 200 metre location. On Ms Berkeley’s evidence there are 92 additional spaces there and on Mr Cilliers’ evidence 82 spaces. The respondent submitted that if the tribunal was not satisfied with this parking capacity, provision could be made for regulated overflow dry land grass parking ideally at the northern end of the oval.
48.The respondent’s position with respect to the issue of noise and amenity is that noise, if any, will be generated not from the presence of the amenities facility itself but from the activities associated with sporting events on the oval and that this noise is not referrable to the DA. The respondent says that the amenity impact generated will be a consequence of the mere presence or appearance of the amenities facility and that such loss, if any, can be ameliorated by the screening of retained mature trees, the distance between the facility and the building line of any residential dwelling, which on Ms Berkeley’s concession is a minimum of 25 metres and on Mr Cilliers’ evidence a minimum of 40 metres, and by the architectural treatment of the rear façade facing Southwell Street.
49.The respondent’s position with respect to the issue of building form is that the development satisfies the relevant criteria in the PRZ code, specifically criterion C31(i) requiring the DA to address “impacts on the amenity of surrounding land uses…”. The respondent says the necessary environmental assessment of these impacts is adequately addressed in statements and drawings accompanying the DA (T175-177).
50.The respondent submits that the tribunal does not have the power to substitute an alternative site for the development at a location on the eastern side of the oval adjacent to Shumark Street as suggested by the applicant. The respondent says the power under section 119 (2)(a)(ii) to consider “any realistic alternative to the proposed development” is only enlivened if an referring entity has given advice inconsistent with approval of the DA and that no such inconsistent advice has been given.
Consideration of the Issues
51.Section 120 of the Act requires the decision-maker, in this case the tribunal, to have regard to a range of matters. Section 120(a) requires the decision-maker to consider the zone objectives which in this case are the PRZ1 objectives. The respondent contends that the development need not meet each objective but submits it meets objective (d) to “allow for ancillary uses that support the care, management and enjoyment of these open spaces”. The tribunal accepts that meeting this specific objective for ancillary use would be sufficient compliance.
52.The respondent submitted that the statutory framework provided by sections 53(1) and 55(2) of the Act means that the zone objectives are met through compliance with the provisions of the relevant code to the zone, in this case the PRZ Code.
53.The tribunal accepts this submission and the position in Scherl & ACT Planning and Land Authority & Anor[1] (“Scherl”) that this is the correct statutory formulation and that such an interpretation of s120(a) does not empty it of significance given that the zone objectives themselves must be borne in mind when applying the Code and its provisions.
[1] [2011] ACAT 37
54.The matters at issue in the present case relate to such code compliance. The applicant submits that the development approval is not consistent with the relevant code provisions as to traffic and parking; noise and amenity and built form and landscaping. The respondent takes the opposite view.
55.As to traffic, the tribunal is satisfied that the only relevant criteria to be considered are in the PRZ code, namely criteria 22 and 31(d). Criteria 22 requires that “the existing road network can accommodate the amount of traffic likely to be generated by the development”. Criteria 31(d) requires the DA to provide an assessment of “the amount of traffic likely to be generated and its impact on the movement of traffic on the road system”. The tribunal accepts that a higher volume of traffic will be generated from that which has long been the case while the oval has been ‘decommissioned’. At its highest level (absent any evidence of the use of the oval for gala days) there will be a rugby game playing on each oval each Saturday of the season (April to August) running from approximately 9am to 5pm. This activity will generate a considerable increase in traffic. Nonetheless the tribunal finds that the existing road work can accommodate this time specific traffic increase and that its impact on parking and amenity can be managed.
56.As to parking, the tribunal accepts that the relevant Parking Code does not set a numerical parking provision rate and that the development’s need is therefore open to individual assessment. The tribunal accepts that the location of long stay parking is either on-site or within 200 metres. The tribunal has reached the view that at its peak there will be a call for parking in the order of 70-80 cars. The tribunal accepts the view stated in Amarso Pty Ltd & ACT Planning and Land Authority & Anor[2] that it is not necessary to provide for any “worst case” scenario with respect to parking capacity. The upgraded oval car park can accommodate 48 cars. When those attending sporting events cannot find a vacant space here some of the overflow will use the rear of the shopping centre car park accessible from Shumack Street. Some will park along Southwell Street adjacent to the oval. The parking envisaged in the photograph provided by the applicant showing Southwell Street on a busy school day activity (Ex A2 Attachment 3) may occur on busy Saturday mornings when by half time of one game, the next batch of players and supporters has arrived. However the tribunal accepts that the regulation of such street parking falls outside the development approval process. In the tribunal’s assessment the parking capacity is adequate and satisfies the location distance specified in the code. The tribunal is not satisfied that provision needs to be made for additional regulated overflow parking using adjacent dry land grass areas at the northern or southern ends of the oval.
[2] [2012] ACAT 9
57.As to noise and amenity, the tribunal accepts that the matter for consideration is the noise and amenity impact consequent on the development and not the existing or anticipated noise and amenity impact from the use of the oval for organised sporting events. The tribunal is satisfied that the relevant criterion in the PRZ code is C31(i) which requires the DA to address “impacts on the amenity of surrounding land uses…”. The rear of the development faces Southwell Street and the minimum distance between the rear face and the nearest residential building line is in the order of 20-25 metres. This is not adjacent. The tribunal accepts the evidence of Mr Cilliers that the noise generated by the development will in the main be “people noise” and that this noise will emanate from the front of the facility rather than the rear facing the street. The tribunal finds that this noise impact will be minimal and occasional. Minimal impact arises from the presence of an amenities facility with a GFA of 216m². As such its built form and its surrounding landscaping are related rather than distinct considerations. This is a minor excess of 16m² in its GFA. The tribunal does not consider this to be a significant excess and finds that it will not have any significant additional impact on neighbourhood uses.
58.The DA requires the removal of 12 mature trees from an existing grove which would otherwise give virtually the whole length of the rear façade a substantial shield from view for residential dwellings in Southwell Street. Criteria 16, 17, 19 and 20 in the PRZ code require steps to be taken to ameliorate visual impacts of the development. The tribunal finds that the rear façade articulation, the use of high quality materials, the use of varied colouring and the remaining tree screening provides some amelioration. Additional treatment to the western façade is required to further soften visual impact. At present the remaining landscaping following removal of 12 trees and construction leaves a gap in the screening line. The tribunal will make it a condition of approval that new plantings of vegetation and trees be added to close this gap.
59.The tribunal accepts the submission conceded by the applicant that the power under section 119 to consider “any realistic alternative to the proposed development” is not enlivened in the absence of any referring entity giving advice inconsistent with approval. In this matter no such entity advice was received and therefore no alternative site can be considered.
60.The tribunal finds the development, subject to additional conditions, meets each of the relevant code conditions and is therefore consistent with the PRZ1 zone objectives, specifically objective (d).
61.The Tribunal is satisfied that with the addition of appropriate further conditions the proposed development will not be inconsistent with the relevant codes within the Territory Plan and that there is no basis to refuse approval.
Decision
62.The Tribunal varies the decision under review to add further conditions relating to vegetation and landscaping.
………………………………..
Dr T. Foley
Senior Member
HEARING DETAILS
FILE NUMBER:
AT14/77
PARTIES, APPLICANT:
KEITH THOMAS
BRENDA BERKELEY (Party Joined)
PARTIES, RESPONDENT:
THE ACT PLANNING AND LAND AUTHORITY
COUNSEL APPEARING, APPLICANT
Self
COUNSEL APPEARING, RESPONDENT
Dr D R Jarvis
SOLICITORS FOR APPLICANT
Self
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Dr T Foley, Senior Member
DATES OF HEARING:
17 and 18 November 2014
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