Thomson and Act Planning & Land Authority
[2008] ACTAAT 27
•24 October 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:THOMSON AND ACT PLANNING & LAND AUTHORITY & ORS [2008] ACTAAT 27 (24 OCTOBER 2008)
AT08/51
Catchwords: National Capital Plan – Main Avenues and Approach Routes – Territory Plan – Corridors and Office Sites Policies – development on “landmark node” – overlooking and privacy – overshadowing and access to sunlight – setbacks – bulk and scale
Administrative Appeals Tribunal Act 1989, s 43B
Australian Capital Territory (Planning and Land Management) Act 1988 (Cwth), s 9
Old Narrabundah Community Council Inc. & Anor and ACT Planning & Land Authority & Ors [2008] ACTAAT 14 (13 May 2008)
Quaine & Okech and ACT Planning and Land Authority [2004] ACTAAT (21 September 2004)
Stoddart and Ors and ACT Planning and Land Authority & Anor [2007] ACTAAT 27 (21 December 2007)
Stone and ACT Planning and Land Authority & Ors [2008] ACTAAT 27 (10 April 2008)
Tribunal:Ms P O’Neil, Senior Member
Mr R Nichols, Member
Mr J Ashe, Member
Date:24 October 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/51
LAND AND PLANNING DIVISION )
RE: JUDY THOMSON
ApplicantAND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: DAVID BLAAZER
AMALGAMATED
PROPERTY GROUP
PTY LTD
Parties Joined
DECISION
Tribunal : Ms P O’Neil, Senior Member
Mr R Nichols, Member
Mr J Ashe, Member
Date : 24 October 2008
Decision :
The decision under review is varied as follows:
Insert a new Condition 10(a)(iv) to read:
“the proposed central and western 11-storey buildings re-sited so that the development shall allow for a minimum of 2 hours direct sunlight between the hours of 9am and 4pm to openings of all habitable rooms in adjoining developments and that the walls of the main facade (excluding portico, fin walls, balconies, shade devices and condenser units) are within no less than 15.5m of the boundary facing Goodwin Street.”
Insert a new Condition 10(b)(x) to read:
“all relevant revisions to the building to accommodate the revisions required by Condition 10(a)(iv) above.”
Amend Condition 10(c)(v) by deleting the words “contained within the basement” and substituting in lieu thereof the words “contained wholly within the block boundaries”.
Insert a new Condition 10(c)(xix) to read:
“all relevant revisions to the building to accommodate the revisions required by Condition 10(a)(iv) above.”
Amend Condition 10(e)(iii) by deleting the words “Environment Protection Regulation 1997” and substituting in lieu thereof the words “Environment Protection Regulation 2005”.
Amend Condition 12 by adding the words “to maximize the safe crossing of students” after the words “adjacent to Lyneham High School”.
Insert a new Condition 12(a) to read:
“that, prior to completion of works on-site, TAMS will complete a Traffic Management report for Goodwin Street for review of any potential adverse traffic impacts resulting from the development.”
Delete Condition 14 and substitute the following:
“Traffic Management
14(a)that at all times during construction, the site and surrounds shall be managed in accordance with a Temporary Traffic Management Plan, prepared by a suitably qualified person and approved by the manager, Asset Use, Territory and Municipal Services. The Plan is to address, as a minimum:
(i)measures to be employed during construction to manage all traffic, including construction traffic in and around the site;
(ii)provision of safe pedestrian movement around the site;
(iii)the provision of parking for construction workers; and
(iv)associated traffic control devices,
but will not include provision for left-out traffic (southbound) on to Goodwin Street nor right-in traffic to the site from Goodwin Street.
14(b)that a copy of the Temporary Traffic Management Plan will be forwarded by the manager, Asset Use, to Dr David Blaazer and Ms Judy Thomson for consideration prior to approval.”
………………………………
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/51
LAND AND PLANNING DIVISION )
RE: JUDY THOMSON
ApplicantAND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: DAVID BLAAZER
AMALGAMATED
PROPERTY GROUP
PTY LTD
Parties Joined
REASONS FOR DECISION
24 October 2008 Ms P O’Neil, Senior Member
Mr R Nichols, Member
Mr J Ashe, Member
This review is about a proposal by Amalgamated Property Group Pty Ltd (“the developer”) to undertake development at the intersection of Northbourne Avenue and Mouat Street, Lyneham. Block 1 Section 53 of Lyneham (“the block”) is 11,242 square metres and is currently occupied by the City Gate Motel. It is bounded by Goodwin Street to the west while to the south it faces Oliver Street in part, with the remainder of the southern boundary adjoining multi-residential development. The ACT Planning and Land Authority (“the respondent”) approved the development proposal but two nearby residents of Lyneham, Ms Judy Thomson and Dr David Blaazer, opposed the approval (“the objectors”).
The National Capital Plan & the Territory Plan
2. The ACT (Planning and Land Management) Act 1988 (Cth) at section 9 reads:
The object of the Plan is to ensure that Canberra and the Territory are planned and developed in accordance with their national significance.
3. The National Capital Plan, established under that Act, under the heading “Main Avenues and Approach Routes” states that:
A traveller’s first impression of a city’s character is gained upon approach and arrival. When arriving in Canberra it is important that the traveler is immediately aware of the special symbolic and functional significance of the National Capital.
It goes on to identify Northbourne Avenue as a “Main Avenue”, the object for planning and development of which is to:
…….... establish and enhance the identity of the approaches to the Central National Area as roads of National Significance and, where relevant, as frontage roads for buildings which enhance the National Capital function and as corridors for a future inter-town public transport system.
4. “Special Requirements” are prescribed for Northbourne Avenue including height requirements for the buildings flanking it and the identification of a small number of “landmark nodes” including at the intersection of Northbourne Avenue and Mouat Streets where the parapets of buildings may be up to 32 metres above natural ground level.
5. Variation 96 to the Territory Plan is specifically identified in the National Capital Plan as giving expression in the Territory Plan to the National Capital Plan’s development requirements for Northbourne Avenue. Introduced in June 1999, it amended Part B2E: Corridors and Office Sites Land Use Policies (“the policies”) of the Territory Plan. Consistent with the objectives in the National Capital Plan, the policies provide for buildings up to 25 metres along Northbourne Avenue, but at six “landmark nodes” located at major intersections on Northbourne Avenue, including this block, the building height shall be 32 metres.
6. A “landmark” is defined in The Macquarie Dictionary (3rd Edition) as:
1. a conspicuous object on land that serves as a guide, as to a vessel at sea. 2. a prominent or distinguishing feature, part, event, etc. 3. something used to mark the boundary of land.
7. Thus it is clear that this block has been identified by the Commonwealth and ACT legislatures as one of national significance with a requirement for the building on it be conspicuous or prominent one that marks the commencement of a main avenue into Canberra.
The Proposed Development
8. The developer’s proposal is for an apartment building comprising a series of three tower blocks, referred to below as Tower 1, Tower 2 and Tower 3, each being 32 metres high and sited at an angle on the block with curved sides addressing the intersection. Along the southern side of the block facing the existing nearby residential development but not visible from Northbourne Avenue is a three-level building, joined to two of the towers. The development would contain a total of 344 residential apartments, with underground car parking.
9. Southwell Park, an area of playing fields and sports facilities, lies to the north of the block across Mouat Street. To the south-east across the Northbourne Avenue major commercial buildings either have been, or are proposed to be, constructed. The Dickson Group Centre, including shops, restaurants and leisure facilities, is located nearby. The precinct to the south and west of the block is residential. It now consists of a mixture of detached and attached dwellings. Two and three storey residential redevelopment is allowed under the Territory Plan and there is evidence of a current proposal for that to occur in Oliver Street.
10. The objectors do not oppose the demolition of the existing motel buildings nor the proposed change of lease. Rather their opposition at the hearing was directed to the height and scale of the building in relation to nearby residential development and the related issues of setbacks, overlooking and overshadowing. The Tribunal received evidence from Ms Thomson and Dr Blaazer. Expert evidence for the developer was given by the project architect, Mr Christopher Millman and from Mr Paul Cohen, a qualified town planner. Mr Owen Pankhurst, an officer of the ACT Planning and Land Authority who had been responsible for the assessment of the proposal, gave evidence for the respondent.
Overlooking
11. Ms Thomson lives in a house in Goodwin Street, located 90-100 metres from the block. She is concerned that parts of her home and in particular her back yard will be overlooked from people on the balconies of the apartments in the tower blocks of the proposed development so as to interfere with her privacy. The Tribunal undertook a site inspection including a visit to Ms Thomson’s back yard. At the hearing, Ms Thomson illustrated her concerns by comparison with distances from the Tribunal’s premises to places on London Circuit. In response to questions from Ms Thomson, Mr Cohen opined that the sight of people on the balconies of the apartments would be drawn to distant vistas, rather than down into the backyards of residents of Lyneham.
12. Ms Thomson referred to Stone and ACT Planning and Land Authority & Ors [2008] ACTAAT 27 (10 April 2008) where impact of overshadowing and privacy on adjoining development was considered. In that case of a proposed development on an adjoining block the Tribunal decided that “the burden should not be on the applicants to respond to the overlooking and privacy issues by drawing blinds, when the setback requirements have not been met.” This case differed in that Ms Thomson’s concern about overlooking arises from proposed development at a much greater distance. Attention was also drawn to Stoddart and Ors and ACT Planning and Land Authority & Anor [2007] ACTAAT 27 (21 December 2007) which dealt with direct overlooking into a back yard. Mr Cohen said that the distances both horizontally and vertically in that case, where the proposed balcony was 9 metres from the common boundary and 3 metres above ground level, were not to be compared with the distances in this case. Mr Mossop referred in submissions to Old Narrabundah Community Council Inc. & Anor and ACT Planning & Land Authority & Ors [2008] ACTAAT 14 (13 May 2008) in which the Tribunal found that a distance of 20 metres was sufficient to minimise any potential impact of overlooking or loss of privacy. Both the respondent and party joined submitted that the distance of over 90 metres between Ms Thomson’s home and the proposed tower blocks was such as to render any overlooking of no significance in terms of the Territory Plan. We accept their submissions.
Setbacks
13. The setback controls applying to the proposed development are found in paragraph 4.1 of Part B2E of the Territory Plan. The setbacks vary depending on the particular frontage and the height of the elements of the buildings, ranging from 5 metres at the ground floor level on the southern side where the development adjoins Section 53 to 25 metres on the Northbourne Avenue frontage.
14. Schedule 2 of Part B2E includes the following performance criterion and acceptable standard:
Setback – Corridors
To maintain and enhance the quality of corridors by providing sufficient land for landscaping in front of buildings.
Acceptable StandardMinimum front setback: 10 metres except where alternative provisions are made in area specific policies.
15. There is a relevant Area Specific Policy in paragraph 4.1 (c) of Part B2E which provides for a minimum setback of 20 metres for parts of buildings over 3 storeys. Paragraph 4.1 (e) provides that balconies and awnings may extend up to 1.5 metres within the minimum setback provided they are lightweight in appearance and predominantly transparent. The only setbacks in contention in this case are those applying to the western side of Tower 3 where the development faces Goodwin Street.
16. As a consequence of the proposal, discussed below, to move Tower 3 to the west in order to improve the availability of sunlight to the houses to the south of Towers 2 and 3, parts of Tower 3 encroach on the 20 metre setback facing Goodwin Street. The main face of Tower 3 is in three planes with setbacks of 15.65, 15.81 and 16.3 metres. Therefore the maximum encroachment of the main face is 4.35 metres. An external fin wall is 15.5 metres from the boundary, i.e. an encroachment of 4.5 metres; the condenser enclosure is 12.6 metres from the boundary, i.e. an encroachment of 7.4 metres; and the balconies are 14.1 metres from the boundary, i.e. an encroachment of 5.9 metres or 4.4 metres once the allowance for balconies of 1.5 metres is taken into account.
17. Paragraph 11.2 of Part A3 of the Territory Plan provides as follows:
Where the relevant authority is satisfied that a proposal conforms fully with the intent of all applicable provisions of this Plan, will not cause any significant environmental impacts and achieves high standards of architectural and urban design, it may approve a minor departure from numerical controls applying to that proposal (emphasis added).
18. It has been necessary therefore for the Tribunal to consider whether the proposed encroachments constitute a minor departure from the 20 metre control and if so whether the requirements of paragraph 11.2 are met.
19. Dr Blaazer was of the view that the encroachments should be seen not as a merely numerical departure from the setback control but as real, physical encroachments. He submitted that the encroachments were so substantial as a percentage of the 20 metre setback provision that they could not be seen as a minor departure. He was also of the view that the proposed development could not be built without breaching the setback requirements or alternatively the requirements for provision of sunlight to the adjacent properties.
20. Mr Cohen noted that in Quaine and Okech (see further below) the Tribunal found that the most useful definition of ‘minor’ for the purposes of the Territory Plan is that from the Shorter Oxford Dictionary, as follows: comparatively small or unimportant. In his view the departure from the Territory Plan is acceptable because it is unimportant. Mr Cohen described a number of features of Goodwin Street that he considered relevant to the setback issue: there is a considerable canopy of trees in Goodwin Street, which means that the views of buildings are filtered through the trees; the houses on both sides of Goodwin Street are set back more or less uniformly between 7 and 8 metres from the front property line and clearly forward of the setbacks for the proposed development; the road reservation is 30 metres wide, which together with the 7-8 metres setback of the houses opposite Tower 3 means that there would be a distance of some 52 metres or more from the face of Tower 3 to the nearest house, which in his opinion is a substantial separation; this separation is greater than the proposed 32 metres height of the building, and where the distance between buildings is greater than the height of the proposed development, 4 metres is a minor consideration; the bulk of the building and its planned height would be such that in the view from the road the intrusion would not be discernible in the contrast between the tower to the east and the low rise buildings to the west. Mr Cohen was of the view that the proposed departure from the setback controls is acceptable and justifiable in order to maintain a high standard of architecture, and that fiddling with the design in order to meet the setback control was not justified in the circumstances of the proposed development.
21. Mr Pankhurst considered that the encroachments are only minor and meet the requirements of Part A3, paragraph 11.2 as they do not cause any significant adverse environmental impacts, and contribute to the high quality architectural features of the building’s bulk and scale, and do not have a significant visual impact on the streetscape. Mr Pankhurst agreed that from a design viewpoint it would be better if Tower 3 did not move back to the east, which was discussed as an option in the hearing, as he thought that the current proposal provides better separation between the apartments in Towers 2 and 3; his view was that the current proposal provides better visual separation between the two towers and is aesthetically superior. In response to Dr Blaazer, Mr Pankhurst affirmed that the proposed encroachments are minor both numerically and in terms of impacts.
22. Mr Millman’s view is that the development as currently proposed provides a better design outcome for the surrounding neighbours by allowing better sunlight penetration between Towers 2 and 3 and also for the residents of the proposed development. Mr Millman informed the Tribunal that if it were necessary in order to comply with the setback provision to move Tower 3 back to the east of its current proposed location that this would lead to interfacing issues between Towers 2 and 3 and would require the installation of privacy screens on the apartments on the upper three floors at the south-eastern corner of Tower 3. Mr Millman informed the Tribunal that the proposed condenser enclosure, which is the closest element of Tower 3 to the Goodwin Street boundary, encloses the condensers for the air conditioning units for each of the apartments; it removes them from the balconies and provides a visually superior and better noise outcome than the more common arrangement which puts the condenser units on the apartment balconies. Compliance with the setback requirement could require redesign of the condenser enclosure and possibly the placement of the air conditioning units on the apartment balconies. Mr Millman thought that there would be little difference in the effect on the Goodwin Street streetscape from the proposed development with encroachments compared with the alternative option without encroachments. He noted that Goodwin Street is a fairly wide street and that the proposed development would have a greater setback than the other buildings on Goodwin Street. He thought that a difference of 4 metres in the setback would make very little difference visually.
23. Mr Mossop submitted that the Tribunal should also have regard to the step-down effect of the 3‑storey element of the building facing Goodwin Street, which has a setback provision of 5.5 metres, and would be closer to Goodwin Street than the tower element of the building. He also submitted that the Tribunal should have regard to the future character of Goodwin Street, which is likely to change as a result of the zoning provisions in the new Territory Plan.
24. The question of what constitutes a ‘minor departure’ for the purposes of Part A3, paragraph 11.2 of the Territory Plan was considered by the Tribunal in Quaine & Okech and ACT Planning and Land Authority [2004] ACTAAT (21 September 2004). The Tribunal found in that case that the most useful definition of ‘minor’ for the purposes of the Territory Plan is the Shorter Oxford English Dictionary definition –– comparatively small or unimportant. The Tribunal has adopted that definition in the current case and takes the view that a departure from a numerical control can be considered to be minor if it is numerically small or unimportant in the sense that it does not have important or significant consequences.
25. The Tribunal has received persuasive expert evidence from Mr Cohen, Mr Pankhurst and Mr Millman that there would be no important or significant adverse consequences from a failure to meet the 20 metre setback requirement. The Tribunal has also heard that there would be significant adverse architectural and design consequences if it were necessary to move Tower 3 to the east in order to meet the setback requirement. Neither the applicant nor Dr Blaazer provided any persuasive evidence of adverse consequences flowing from the proposed encroachments. The Tribunal has concluded therefore that the encroachments constitute a minor departure from the numerical control.
26. In deciding whether to approve a departure from the numerical control, the Tribunal must also consider the other elements of Part A3, paragraph 11.2 as set out above. The Tribunal notes that Part B2E, Schedule 2 includes a performance criterion for the setbacks applying to developments in the Northbourne Avenue corridor: to maintain and enhance the quality of corridors by providing sufficient land for landscaping in front of buildings. The Tribunal is satisfied that even with the encroachments there will be sufficient land for appropriate landscaping and that this performance criterion is met. The Tribunal is satisfied that the proposed development conforms fully with the intent of all applicable provisions of the Territory Plan, will not cause any significant adverse environmental impacts, and that the proposed development achieves a high standard of architectural and urban design. For these reasons the Tribunal has concluded that it should approve the departures from the 20 metre setback facing Goodwin Street.
27. The design of the proposed development includes some other relatively small encroachments into the applicable setbacks. They are not in contention and in the Tribunal’s view are only minor departures from the numerical controls. The Tribunal is satisfied that the requirements of Part A3, paragraph 11.2 are met in relation to these encroachments and has concluded that they should also be approved.
Overshadowing
28. When the development application was notified for public comment, more than 20 objectors raised the issue of overshadowing that would be created by the development. Of these objectors 11 live immediately to the south of the subject land, on that part of a multi-unit development known as The Pines, which is number 26 Oliver Street. None of the persons likely to be affected by overshadowing appeared before the Tribunal and consequently there was no evidence or argument to support their letters of objection which formed part of the “T” documents made available to the Tribunal.
29. Shadow diagrams had been prepared by the developer and were available for public inspection and these were assessed by the respondent. Prior to determining the application the respondent assessed the overshadowing effect by applying the provisions of section 4.1 (d) of the Part B2E of the Plan. The relevant part of the provision is:
d) Side and Rear Boundary Setbacks
For buildings taller than 3 storeys, the side and rear setbacks shall be:
·A minimum of 5 metres from any southern boundary and shall allow for a minimum of 2 hours direct sunlight between the hours of 9am and 4pm to openings to all habitable rooms in adjoining developments;
30. The “T” documents reveal that the respondent approved the application but as a result of a submission from an adjoining owner subsequently realised that the overshadowing of adjoining dwellings, specifically Units 4, 5 and 6 at 26 Oliver Street did not meet the above standard and was in contravention of the Territory Plan.
31. The developer prepared amended drawings which moved the central tower 8.3 metres to the west and the western tower 4.15 metres to the west. Revised overshadowing diagrams indicated that a minimum of 2 hours of sunlight on the 21st June could just be achieved in relation to Units 4, 5 and 6 within The Pines. To reflect the amended plans, Mr Pankhurst for the respondent proposed that additional conditions be applied. The movement of the central tower resulted in a different impact on Blocks 1, 2 and 3 on the south side of Oliver Street. The revised shadow diagrams showed that these blocks also received a minimum of 2 hours’ sunlight on 21 June and in fact will achieve a minimum of over 3 hours’ sunlight if measured between the hours of 9.00 a.m. and 4.00 p.m. Mr Cohen and Mr Pankhurst confirmed that, in their opinion, the minimum requirement of 2 hours was met. Mr Cohen and Mr Pankhurst had both used the standard in section 4.1(d) in their assessment without expressing any doubt that it was the applicable statutory standard.
32. The Tribunal raised the question during the hearing as to why the standard of section 4.1(d) was applied to the overshadowing resulting from the part of the building proposal which was along the southern boundary, a front boundary to Oliver Street. The provision is one that apparently relates to side and rear boundaries. The Tribunal asked whether other standards should be used such as that found in the Urban Housing Code or the Apartment Guidelines (a guideline that applies to residential apartments buildings over 3 storeys). Both these documents use 3 hours between the hours of 9.00 a.m. and 3.00 p.m. as the appropriate standard for sunlight access at the winter solstice. The Tribunal understands that the standard is established at the winter solstice as this represents the minimum available sunlight hours and at all other times during the year available sunlight will be greater.
33. The Tribunal has made decisions in a number of cases where overshadowing of adjoining properties has been an issue of contention. The respondent has regularly argued that the desirable standard for solar access is 3 hours of sunlight between the hours of 9.00 a.m. and 3.00 p.m. Sometimes this has been the provision of a particular Code; but even where no such code has effect the respondent has argued that this standard should be applied and has justified it because it is the standard within the Australian Model Code for Residential Development (AMCORD).
34. Mr Mossop, in his submission, considered that “in strict terms” the provision 4.1(d) did not apply to the boundary on the north side of Oliver Street, but that the respondent had applied it consistently to the whole of the southern boundary. He commented that whilst section 4.1(i) of the Plan provided that “development may be required to meet relevant performance based elements of the Urban Housing Code” this was discretionary and the provisions themselves were not mandatory. Similarly the Apartment Guidelines were not mandatory nor in his view were they specifically designed for the type of development mandated for the landmark nodes.
35. Mr Walker put the development into the context of both the National Capital Plan and the Territory Plan in which the approaches to Canberra have special significance and that Northbourne Avenue has special controls arising from Plan Variation Number 96 that will result in buildings generally up to 25 metres in height being built along it. Additionally there are two intersections on the Avenue where landmark nodes are identified and which allow buildings to 32 metres in height. The subject land is a landmark node and as a consequence a building of 32 metres is expected. The whole site is defined as a node and the Plan provisions do not suggest simply a landmark building addressing the intersection. Mr Walker argued that the only overshadowing controls that should be used were those which were derived specifically in the context of the Northbourne Avenue redevelopment and that standards such as the Urban Housing Code and Apartment Guidelines were derived for other and more general application. The Tribunal accepts the force of this argument.
36. The Tribunal accepts the desirability of the additional conditions of approval suggested by Mr Pankhurst and referred to above, with some minor changes. In the absence of evidence from objectors about the design of their houses and the locations of habitable rooms and private open spaces or the specific impact on them, the Tribunal accepts that as the minimum standards of the Plan are met there is no inconsistency with the Plan.
Bulk and scale
37. Dr Blaazer submitted that the building was of inappropriate scale and height. He noted that the block was large and rectangular, with its frontage to Northbourne Avenue being shorter than those to other streets. He drew attention to specific references in planning documents to the corridor, to Northbourne Avenue and its intersection with Mouat Street in connection with the landmark nodes. Accordingly he argued that the provision of Part B2E should be applied only to the eastern end of the block closest to the intersection of Northbourne Avenue and Mouat Streets. At the western end away from Northbourne Avenue regard should be had to the provisions of section 3.6 of Part B1 governing development and redevelopment in suburban areas and should, he said, apply. He cited the following Objectives as relevant:
To ensure development respects characteristic features of existing attractive streetscape such as building scale, height and setbacks, landscape character and architectural style and is compatible with adjoining development.
To retain a limited level of flexibility to accommodate a variety of additional housing to meet changing community needs and preferences.
38. Dr Blaazer submitted that the proposed development, while meeting the objectives of a landmark development at its eastern end, did not respect the scale and height of the low rise residential development to its west and south. The solution, he submitted, was for a development of two towers only, with the western tower removed. The landmark character would be retained by two towers, while compatibility with the surrounding low rise residential area on Goodwin Street would be enhanced, access to sunlight for dwellings located to the south would be improved and any interface issues between the towers would be resolved.
39. It was pointed out by Mr Walker for the developer in response that the whole of the block is specifically identified as a landmark node. Control 4.1(b) in Part B2E reads:
Landmark nodes are identified along Northbourne Avenue where it intersects with Antill Street and Mouat Streets and Wakefield and Macarthur Avenues and include the following sites:
· Braddon – Section 7 Block 9
· Dickson – Section 1 Block 1
· Dickson – Section 33 Block 15
· Lyneham – Section 50 Block 12 and Section 53 Block 1
· Turner – Section 58 Block 8
40. Given that clear reference to the whole of Section 53 Block 1 as a landmark node, we accept that the B2E policies apply across all of the block. Nevertheless, we note that the development does contain a lower three level element at its rear which will not be visible from the corridor. It was argued for the developer that the landmark needed not only to be 32 metres so as to distinguish it sufficiently from other buildings along Northbourne Avenue where 25 metre high buildings are permitted but also that it should draw attention in other ways, for example in this case by its curved walls and open spaces created between the three towers. We accept the expert evidence that all three towers contribute to the landmark character of the proposed development and that to reduce it to two towers of 32 metres would reduce, although not remove, its impact as a landmark. Moreover it is not the task of the Tribunal to engage in redesign of proposed developments but to assess the proposed design against the relevant planning provisions.
41. Dr Blaazer referred to evidence that the landmark nodes were the only sites in the ACT, apart from those in town centres, where building 32 metres in height were permitted. Of the landmark nodes, only two were surrounded by low rise residential development. Of those two, only this landmark node had residential dwellings to its south. Thus he submitted that the imposition of landmark node policies on the whole of the block meant the residents of this area were receiving less favourable treatment than those of other parts of Canberra.
42. Mr Mossop for the respondent accepted that the effect of the Part B2E policies as they apply to landmark nodes could result in a different and lesser standard of residential amenity and respect for neighborhood character than may apply in other areas. Nevertheless, he submitted, the Territory Plan is clearly intended to operate so as to apply different standards to different areas. Mr Walker drew attention to the opening words of Part A of the Territory Plan, which are:
The fundamental purpose of the Territory Plan (Plan) is to manage land use change and development within the ACT ….
This area of the ACT is one where change is clearly anticipated in the Territory Plan.
Traffic
43. Concerns about traffic management were expressed by the objectors and other nearby residents when the development was being assessed by the respondent. Agreement was reached between the parties prior to the hearing before the Tribunal that, if the decision under review were to be affirmed by the Tribunal, conditions of approval would be amended to take those concerns about traffic into account.
44. As the parties have reached an agreement, confirmed in writing and in person before the Tribunal, as to the terms of part of the decision that is acceptable to them and as the Tribunal is satisfied that a decision consistent with those terms would be within the powers of the Tribunal, we have pursuant to section 43B of the Administrative Appeals Tribunal Act 1989 given effect to the terms of that agreement in our decision.
Findings
45. The Tribunal finds that the decision under review should be affirmed, subject only to the inclusion of additional conditions generally as proposed by the respondent in relation to the Goodwin Street setback, the location of the towers and visitor parking, and the amendments to the conditions relating to traffic agreed by all parties.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT08/51
APPLICANT: JUDY THOMSON
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTIES JOINED: DAVID BLAAZER; AMALGAMATED PROPERTY GROUP PTY LTD
COUNSEL APPEARING: APPLICANT:
RESPONDENT: MR D MOSSOP
PARTIES JOINED: MR P WALKER (FOR AMALGAMATED PROPERTY GROUP PTY LTD)
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTIES JOINED: CLAYTON UTZ
OTHER:APPLICANT: SELF
RESPONDENT:
PARTIES JOINED: SELF
TRIBUNAL MEMBER/S: MS P O’NEIL, SENIOR MEMBER
MR R NICHOLS, MEMBER
MR J ASHE, MEMBER
DATE/S OF HEARING: 22-24 SEPTEMBER 2008 PLACE:CANBERRA
DATE OF DECISION: 24 OCTOBER 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
2
0