Todd & Anor and Act Planning & Land Authority
[2008] ACTAAT 17
•15 May 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:TODD & ANOR AND ACT PLANNING & LAND AUTHORITY & ANOR [2008] ACTAAT 17 (15 MAY 2008)
AT08/8 & 14
Catchwords: Land and planning - review of decision approving multi-unit development in an A10 area – whether development application meets requirements of Residential Design and Siting Code for Multi-Dwelling Developments – impact on streetscape and amenity – traffic and safety –waste management collection arrangements – adequacy of private open space – overlooking – adequacy of on-site parking and impact of traffic noise on amenity of residents of proposed development.
Land (Planning and Environment) Act 1991, ss 230, 245
Planning and Development Act 2007
Downer Community Association and ACT Planning & Land Authority & Anor [2007] ACTAAT 20 (5 September 2007)
Tribunal:Mr B Hatch, Senior Member
Dr D McMichael, Senior Member
Date:15 May 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT08/8 & 14
LAND AND PLANNING DIVISION )
RE: DAVID TODD
Applicant in AT08/8RE: HONG NIAN JIN
Applicant in AT08/14AND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: CHERIE MALCOLM
Party Joined
DECISION
Tribunal : Mr B Hatch, Senior Member
Dr D McMichael, Senior Member
Date : 15 May 2008
Decision :
The decision under review is varied by:
amending paragraph 2 of section 2.0 to read:
“2.that within 28 days from the date of this decision, or within such further time as may be approved in writing by the ACT Planning and Land Authority, the applicant shall lodge with the Planning and Land Authority for approval revised architectural drawings, based on the relevant drawings listed in the previous condition, showing:
(i)proposed driveway relocated to be 1.5m from the northern side boundary;
(ii)driveway width of 5m for a distance of 7m from the front boundary;
(iii)revised design of proposed Unit 1 so as windows of habitable rooms are a minimum of 1.5m from the driveway;
(iv)revised design of proposed Units 4, 5 and 6 so as the driveway between Units 5/6 and 4 is widened to 9m;
(v) proposed garage doors for Units 1,2,3,4 and 5 widened to 2.7m;
(vi)an additional uncovered car parking space having dimensions of 4.9m by 2.6m, located next to the proposed two visitor parking spaces and assigned to Unit 3;
(vii)plantings of advanced stock of a species that has a mature height of 2.5m, adjacent to the fence on the northern half of the north-western side boundary;
(viii)details of an information sign within the block instructing residents to place recycling bins in the designated pick up area beside the driveway and to place refuse bins adjacent to the kerb in Mathieson Crescent on collection days;
(ix) internal reconfiguration of Unit 4 to be a one-bedroom unit;
(x)a fence along the eastern boundary, to be of masonry construction and at least 1.8m high
that are generally in accordance with the plan lodged for discussion on 11 December 2007 which was Attachment A to the respondent’s decision and which was folio 52 of the Tribunal documents, and with the undertakings of the party joined at hearing and the conclusions of the Tribunal.”; and
amending paragraph 7 of section 2.0 by deleting the words “and eastern” from the third line.
…………………………..
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT08/8 & 14
LAND AND PLANNING DIVISION )
RE: DAVID TODD
Applicant in AT08/8RE: HONG NIAN JIN
Applicant in AT08/14AND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: CHERIE MALCOLM
Party Joined
REASONS FOR DECISION
15 May 2008 Mr B Hatch, Senior Member
Dr D McMichael, Senior Member
Introduction
Mr David Todd and Mr Hong Nian Jin (“the applicants”) have separately sought review of a decision of the ACT Planning and Land Authority (“the respondent”) made on 21 December 2007 to approve with conditions Development Application 200702963 (“the DA”) which proposed the demolition of a single dwelling on Block 14 Section 14 Weetangera (“the subject land”) and the construction thereon of six one-storey units with associated parking and landscaping.
2. The street address of the subject land is 11 Mathieson Crescent Weetangera. Mr Todd’s residence is at 9 Mathieson Crescent, immediately to the north-west of the subject land while Mr Jin’s residence, at 6 Mathieson Crescent, is directly opposite.
3. Both appeals were heard concurrently. Ms Cherie Malcolm, the lessee of the subject land was joined as a party to the proceeding.
Relevant Law
4. The decision to approve the DA was made pursuant to section 230 of the Land (Planning and Environment) Act 1991 (“the Land Act”) and was subject to conditions imposed pursuant to section 245 of the Land Act.
5. Because the DA was lodged prior to 31 March 2008 it is subject to the provisions of the 2002 version of the Territory Plan (“the Plan”). The subject land lies within an A10 area and is therefore subject to the A10 Specific Area Policies as well as the general Residential Land Use Policies in Part B1 of the Plan. In particular, it is subject to the provisions of Appendix III.2 of the Plan - the Residential Design and Siting Code for Multi-dwelling Developments (“the Code”).
The Proposed Development
6. Mathieson Crescent, Weetangera, is a quiet suburban residential street of one and two storey houses, but with at least one recently developed dual occupancy. Section 14, Weetangera has been included in an A10 area and ten of the blocks in the section have a frontage to Mathieson Crescent, located generally to its north-east. All the other blocks fronting Mathieson Crescent fall outside the A10 Area.
7. The subject land is located on the north-eastern apex of a bend in Mathieson Crescent. It is a fan-shaped block of 1783m2 with a relatively narrow western frontage to Mathieson Crescent (about 18m) widening to a rear eastern boundary (about 45m) which abuts the Coulter Drive road reserve.
8. The plans submitted with the DA were for the construction of six units; four located to the south of the subject land and two to the north separated by a concrete driveway and manoeuvring area. The four to the south were all to be two bedroom units, each with an attached single garage while of the two to the north, one (Unit 6) was a one bedroom unit with an attached single garage and the other a two bedroom unit with an attached double garage. Two additional uncovered parking spaces for residents were located on the north side of the driveway opposite Units 1 and 2, and two parking spaces for visitors were located facing the eastern boundary. Each unit save Unit 1 had an area of private open space (“POS”) located to the north or north-east of the dwelling. Unit 1 had its POS located generally to the west of the dwelling, although some of it was located slightly south-west of portion of the dwelling.
9. The plans submitted had the driveway located on the northern block boundary adjacent to Mr Todd’s property. However a condition of approval was that the driveway be set back 1.5m from that boundary and be 5m wide for a distance of 7m from the front boundary. Another condition of approval was that the part of the driveway which serves as a manoeuvring area was to be increased to a width of 9m between Units 4 and 5/6. Revised plans submitted by the party joined as part of Exhibit 6 showed how these changes could be made.
10. Other minor changes to the original plans were required, either as a consequence of other conditions of approval or arising from the changes to be made to the driveway and these too are shown on the revised plans submitted by the party joined.
The hearing
11. Messrs Todd and Jin were self-represented. Mr G McCarthy, of counsel, represented the respondent. Mr D Shearer, a licensed real estate agent and residential development consultant represented the party joined.
12. Neither Mr Todd nor Mr Jin called any other witnesses to give evidence. Each of them relied on the factual matters set out in their statements of facts and contentions which were tendered in evidence. Mr Raymond Brown, Principal Officer (North), Development Assessment Office of the ACT Planning and Land Authority who had made the decision on the DA as delegate of the respondent, and Mr Marc-Ian Edwards, Administration and Development Applications Coordinator, Asset Acceptance Unit of the Department of Territory and Municipal Services (“TAMS”) who had approved the proposed waste management arrangements and driveway specifications, gave evidence for the respondent. The party joined called no witnesses but tendered documents in evidence, including plans indicating amendments to the proposed development, designed to satisfy the conditions of approval.
Issues of concern to the applicants
13. Despite the changes proposed by the party joined to meet the conditions of approval, a number of issues remained of concern to one or other of the applicants. The main issues may be summarised as:
- the impact of the proposed development on streetscape and amenity of the street;
- the impact of the vehicle movements generated by the development on safety of pedestrians and vehicles using Mathieson Crescent and in particular the arrangements for collecting and emptying of garbage and recycling bins;
- the adequacy of the POS to be provided for Unit 1;
- the impact on Mr Todd’s amenity arising from potential overlooking of his house and back yard;
- the adequacy of the on-site parking proposed to be provided; and
- the impact of traffic noise from Coulter Driver on the amenity of residents of the development.
These issues are dealt with seriatim below.
Evidence and contentions of the parties
The impact of the proposed development on streetscape and amenity of the street
14. Both Mr Todd and Mr Jin contended that the proposed development did not respect the existing streetscape and adjoining development, as required by one of the objectives of the A10 Area Specific Policy.
15. Mr Jin drew attention to Objective (d) of Part B1 of the Plan, which was to “safeguard the amenity, safety and special qualities and in particular the landscape character of established residential areas whilst carefully managing change in suitable locations” and submitted that the proposed development failed to achieve this objective. He described the existing streetscape of Weetangera as “low-density, low-rise and leafy character” and asserted that the party joined had failed to meet the respondent’s guidelines on DAs because there had been no analysis of the area’s key natural, built and social features nor were the desirable elements of the location’s current character identified.
16. In particular he contended that a development of six townhouses on one block would be a significant contrast to the housing and streetscape of Mathieson Crescent, in terms of number of properties per block of land. He further contended that because of changes to the Plan which came into effect on 1 April 2008, a development of this kind would not be approved in the future because of its narrow frontage. He also contended that the presence of a row of six garbage bins on the verge on garbage collection days would not respect the streetscape.
17. Mr Todd drew attention to the setbacks of dwellings from their front boundaries in the blocks adjacent to the subject land (Blocks 12, 13 and 15), all of which were substantially greater than the minimum 6m required by the Code. He contended that this was a design feature of the blocks around the corner of Mathieson Crescent and that the proposed development, with its 6m setback of the front of Unit 1 and a courtyard wall intruding further into that setback, did not respect that aspect of the streetscape. He considered that the courtyard wall would not contribute to the amenity of the street as required by Performance Measure D2.3 of the Code.
18. Mr McCarthy observed that the DA was to be assessed under the Land Act and the 2002 version of the Territory Plan and that the Planning and Development Act 2007 (ACT) and the 2008 version of the Plan had no relevance to the proposal.
19. In relation to the streetscape, Mr McCarthy drew attention to the very broad nature of the definition of “streetscape” in the Plan, observing that it could be summarised as what can be seen from the street. In this case, there was little uniformity in housing style, with a mix of one and two-storey houses exhibiting a variety of roof forms, building materials and colours. He drew attention to the Tribunal’s reasons for decision in Downer Community Association and ACT Planning & Land Authority & Anor [2007] ACTAAT 20 (5 September 2007) in which it was stated at paragraph 17 that:
It does not follow from the fact that a development proposes an observable difference to the existing style of development that it fails to respect it.
Because the proposed development comprised single storey buildings with hipped tiled roofs, which would be built of materials and use colours consistent with others in the neighbourhood, he submitted that it did in fact respect the streetscape.
20. As to the question of “amenity” (which is not defined in the Plan but which Mr Brown considered to mean the extent to which a property or place can be enjoyed by its users) he submitted that an aerial photograph tendered as part of Exhibit 6 showed that the majority of houses in the vicinity were built at or close to the minimum 6m setback and it was not unreasonable for the proposed development to adopt a similar setback, especially on what is a narrow frontage. From the street it would not appear different from nearby single dwelling developments.
21. As to Mr Jin’s concerns about the number of dwellings on the block, he reminded the Tribunal that the subject land is in an A10 area which was brought in to encourage more intensive development and a greater variety of dwelling types. He noted that it would be permissible to build a two-storey multi-dwelling development on the block with a plot ratio of 50%, whereas what was proposed were modest single-storey units occupying only 34% of the block.
The impact of the vehicle movements generated by the development on safety of pedestrians and vehicles using Mathieson Crescent and in particular the arrangements for collecting and emptying of garbage and recycling bins
22. Both Mr Todd and Mr Jin expressed concern about the possible impact of the increased vehicle movements and parking associated with the development on pedestrian and vehicular safety.
23. Mr Todd was principally concerned about the recyclable waste collection vehicles that would need to enter the driveway to empty the bins and then would be required to reverse onto the street before proceeding to other properties. He contended that the proposed manoeuvring area was not sufficiently large to allow a waste collection vehicle to turn on site as required by Performance Criterion 8.2.
24. He noted that TAMS had made no comments on road safety aspects when approving the waste management proposals, nor had the respondent specifically sought advice from them on safety. He observed that Mr Edwards had agreed that the size of the waste collection vehicle meant that the back section would be across the verge when collecting the recycling waste, and contended that this posed a risk to pedestrians using the verge (where there were no footpaths) especially when the truck was reversing out.
25. Mr Edwards however opined that there was little or no safety risk as the drivers used the left-hand driving position when collecting bins, from where they had a good view of what was happening nearby. In addition, the vehicles were fitted with reversing cameras, warning lights and reversing beepers and have proven to be very safe to date. Allowing such vehicles to reverse onto an access road such as Mathieson Crescent was common throughout Canberra, although each case was considered individually against the Development Control Code for Best Practice in Waste Management in the ACT.
26. Mr Jin contended that the proposal was inconsistent with objective (d) of the Part B1 Residential Land Use Policies, viz:
To safeguard the… safety…of established residential areas…
and failed to meet the safety objectives of the ACT Parking and Vehicular Access Guidelines, which are to ensure
no traffic hazards are created by the provision of access and parking facilities for a development, especially multi-uni development
and
the safety of all users, especially pedestrians and cyclists is considered.
27. Mr Jin’s main concern was with the proposed collection site for six garbage bins on the verge of Mathieson Street to the south of the driveway entrance. He contended that these bins would create an impediment to the sight-line to the south, for drivers of vehicles leaving the subject land and posed a risk to pedestrians and children on bikes, who might be hidden from view by the bins. They would also impede a driver’s view of approaching cars. Further, there was no way of ensuring that drivers would exit the block in a forward direction, and an even greater risk would arise if a driver was exiting in reverse. As evidence he tendered a photograph that he had taken showing six bins in the position proposed to be used and his own car in the current driveway which, he submitted showed that a typical driver would have difficulty in seeing anyone or a car approaching because of the bins.
28. Mr Jin was also concerned that there was inadequate parking provision for visitors to the development and that it was likely that some visitors would park in the street along the narrow frontage, which was situated on a sharp turning point of what was a narrow street. He contended that cars parked in such a position would also impede a driver’s sight-line yet there was no evidence that this aspect had been given any consideration by TAMS.
29. He submitted that the respondent had failed to seek specific advice on safety aspects from TAMS, despite the overwhelming number of objections to the proposal on safety grounds from residents of Mathieson Crescent, who were familiar with the extent of pedestrian usage of that portion of the street to access a pathway leading to Coulter Drive and the Belconnen Town Centre.
30. Mr Edwards gave evidence that, in his experience, pedestrians were more likely to walk on the inside of a row of bins awaiting collection and therefore would be readily visible to a driver exiting the subject land. He said that when assessing any DA, all aspects, including safety, were considered.
31. Mr Brown gave evidence that he had parked his car in the current driveway and found that his sight-line up the street was not impaired by one garbage bin that was on the verge at the time. He considered that while six bins there would create some impediment to viewing, the fact that Mathieson Crescent rises to the south meant that a driver exiting the development would get a good view of any traffic coming down the street. Because the driveway was to be 5m wide, it would contribute to efficient vehicle movements to and from the street as required by Performance Criterion P5.5. He agreed with Mr Jin that it was not possible to force drivers to exit the subject land in a forward direction, but considered that the design of the development would facilitate this. He acknowledged that the development would generate more traffic than was the case at present, but considered that Mathieson Crescent could cope with it as it was not a busy street.
32. Mr McCarthy submitted that what was at issue was not the safety of Mathieson Crescent as a street, but whether the proposed development gives rise to any concerns about safety and, in this case, he contended that the development made no appreciable difference. Its location on the outside curve of a bend in the street made it safer that it was now, as there were good views for exiting drivers in both directions and because cars approaching the bend were more likely to be travelling at a slower pace, whether rounding the bend or entering the subject land. The 5m wide driveway entrance was wide enough to allow entering and departing cars to pass, so there would be no need for entering vehicles to wait in the street for an exiting vehicle to leave. Within the development there would be ample room for vehicles to turn which would facilitate exiting in a forward direction and would be much safer that the present situation. In the absence of any persuasive evidence to the contrary, he submitted that safety was not an issue.
The adequacy of the POS to be provided for Unit 1
33. Mr Todd considered that the POS proposed for Unit 1 did not meet the requirements of the Code, because it “faces south-west” contrary to Performance Measure D4.3 of the Code. He further contended that the shadow diagrams submitted with the DA (T-Document 260) were inadequate as they failed to take into account the effect of the fence and courtyard wall surrounding the POS or a large conifer tree on his own property close to the boundary with the subject land.
34. He expressed doubt as to the accuracy of the estimate of the effect of the shadow cast by the conifer onto the subject land, contained in evidence concerning an aerial photograph tendered by the party joined as attachment (e) to Exhibit 6. That evidence, from Alex Kwong, the original designer of the development, was that he had calculated that the photo was taken between 11.15 am and 11.45 am on 6 May 2004, and that the shadow on 21 June would be little different (about 500mm longer) from that shown in the photograph (attachment (d) to Exhibit 6). Mr Kwong acknowledged that the conifer cast a shadow over the existing driveway of the subject land, but did not address its impact on the POS of Unit 1. Mr Todd said he had observed the shadow cast by the conifer and asserted that it would completely cover the POS by 2.00 pm on the winter solstice.
35. He also drew attention to new shadow diagrams that had been prepared by Crayon Pty Ltd using CAD software and tendered in evidence as attachment (f) to Exhibit 6. He contended that these showed that the POS of Unit 1 would be shadowed by the adjacent dwelling and the fence and courtyard walls for much of the day during the winter months, quite apart from the shadow cast by the conifer.
36. Mr Shearer’s statement of facts and contentions which was tendered in evidence (Exhibit 6) by contrast asserted that the POS of Unit 1 was consistent with the requirements of the Code. He claimed that it was not located to the south, south-west or south-east of the dwelling and was in excess of the size required. He contended that it would not be adversely overshadowed by the conifer on Mr Todd’s land, and that any future potential overshadowing could not be reasonably considered as a design constraint. He further contended that the POS of Unit 1 would be exposed to direct sunlight in excess of three hours on the winter solstice.
37. Mr Brown asserted that the POS of Unit 1 was located both to the south-west and north-west of parts of the dwelling, but noted that it had the greater part of 6m of its north-western side open to receive sunlight. As such, he considered it complied with section 4 [Private Open Space] of the Code. Mr McCarthy submitted that any problems arising from the conifer on Mr Todd’s land should not be a determining consideration.
The impact on Mr Todd’s amenity arising from potential overlooking of his house and back yard
38. Mr Todd was particularly concerned about the possibility that his backyard would be overlooked by the occupiers of Units 5 and 6. He drew attention to Performance Criterion 3.5 of the Code which required that “building walls were to be sited…to ensure no significant loss of amenity to adjacent dwellings and private open space”. He noted that the proposed development would be built at the minimum setback of 3m and with a finished floor level such that persons standing in the living areas of Units 5 and 6 would be able to look into much of his back yard and onto the rear of his dwelling where his child’s bedroom was located. He contended that this would significantly affect his amenity.
39. In his statement of facts and contentions, Mr Brown acknowledged that there would be a line of sight from the window of bedroom 1 [originally bedroom 2 but later renumbered as 1] of Unit 6 which would be approximately 0.3m above the height of a 1.8m fence, while from the living/dining area of Unit 5 there would be a line of sight of approximately 0.5m over such a fence. While such lines of sight, he contended, were not unusual between adjacent residences and he had not considered the original proposal unreasonable, in recognition of Mr Todd’s concern he had suggested that the inclusion of plants adjacent to the fence that would have a mature height of 2.5m, would block those sight lines and that such planting could be made a further condition of approval. He had not, however, specified any particular kind or size of plant but had in mind a row of plants sufficient to create a visual barrier.
40. Mr Todd did not consider this a satisfactory solution because it was unclear how long such plantings would take to grow to 2.5m. However, Mr McCarthy submitted that it would be unreasonable to refuse approval to the DA simply because it may take a little while for the proposed plantings to achieve their objective. He reminded that the Plan does not prohibit all overlooking; the requirement of Performance Criterion 3.5 was to avoid “significant” loss of amenity.
The adequacy of the on-site parking proposed to be provided
41. Mr Jin referred to his contention that the parking proposed for visitors to the development was inadequate and would lead to them parking on the street.
42. The Tribunal questioned whether the provisions of the Code would be met, given that there were to be 5 two-bedroom units requiring two spaces each, 1 one-bedroom unit requiring one space, and a requirement for 1½ visitor car spaces (rounded up to 2) making a total of 13 spaces. It noted that this number could be reduced only “where all parking is shared in a development of more than 2 dwellings” but in this case all the parking was not to be shared. The DA plans provided for only 11 spaces.
43. In his initial assessment Mr Brown had concluded that the proposal did meet the parking requirements of the Code as well as the ACT Parking and Vehicular Access Guidelines (“the Guidelines”) which are on the Register of Planning Guidelines and required to be “carefully considered” by the respondent. However, at hearing he conceded that it might not satisfy the provisions of the Code.
44. In his statement of facts and contentions he provided an analysis of the requirements of the Guidelines which revealed that the proposal conformed with the Guidelines only because four of the two bedroom units had a single enclosed garage and would be required to share the two uncovered parking spaces opposite Units 1 and 2. Two visitor car parking spaces were to be provided which met the requirements of both the Code and the Guidelines. Nevertheless, Mr Brown had taken into account the objector’s concerns and had suggested that an additional resident car parking space could be provided adjacent to the two visitor spaces, and allocated to Unit 4. This would bring the total number of spaces up to 12 and, he contended, would be the preferable decision.
45. During the hearing Mr Shearer advised the Tribunal that the party joined was prepared to redesign Unit 4 to be a single bedroom unit, and that this would reduce the Code requirements to the 12 spaces to be provided. It was further suggested that the additional space proposed by Mr Brown should instead be allocated to Unit 3, a two-bedroom unit which would then have the required two spaces, while Unit 4 would have the required one space in its garage, leaving the two spaces originally planned for visitors. Units 1 and 2 could then have one of the two original uncovered resident spaces as well as their single garage space.
The impact of traffic noise from Coulter Drive on the amenity of residents of the development
46. Mr Todd was concerned that the traffic noise from Coulter Drive would impact on the amenity of residents of the units to the rear of the development. He contended that because Coulter Drive was, at that point, sloping down towards Belconnen Town Centre there would be more than normal traffic noise as a result of vehicles accelerating uphill and braking downhill. During a site inspection, the Tribunal noted that there was obvious traffic noise on the subject land.
47. Mr McCarthy submitted that the noise level from Coulter Driver was irrelevant, as the landscape plan indicated that existing shrubs and trees along the Coulter Drive boundary of the block was to be retained and additional trees and shrubs planted, which would reduce the impact of any traffic noise.
48. However, the traffic noise from Coulter Drive had been assessed by Heggies Pty Ltd, Acoustical Consultants, whose report was tendered in evidence by the party joined as attachment (k) to Exhibit 6. The consultants found that the Coulter Drive noise level was above the Draft Noise Management Guidelines maximum recommended residential façade noise level at peak hour for Units 4 and 6 and that the noise level in the POS of Unit 4 would be above the Guidelines level for residential POS. They recommended that the fence along the eastern boundary of the subject land should be of solid construction at least 1.8m high, and that construction measures to reduce internal noise to acceptable levels should be used. However, it is not clear from their report just what Construction Category under Australian Standard 3671 – 1989 would be required. The consultants concluded that, provided their recommendations were implemented, they expected that the development would meet the requirements of the Draft Noise Management Guidelines (1996) which are on the Register of Planning Guidelines.
Other issues
49. Other issues raised by Mr Todd were:
- his concern that a Pin Oak on the verge adjacent to the proposed new driveway might be damaged by large construction vehicles and by waste collection vehicles;
- his belief that the development, as proposed, would encroach onto his lease; and
- his view that by effectively removing one of the three large blocks with a single residence from the section, the proposal was not increasing, but reducing housing diversity and hence was not consistent with the A10 objectives.
50. None of these issues were of a substantive nature because:
- the Pin Oak referred to is a street tree and would be managed by Canberra Urban Parks and Places as required;
- the approval is for the development to be undertaken within the surveyed boundaries of the subject land. The incorrect location of a sewer vent shown on the plans was of no significance; and
- an objective of the A10 policy is to accommodate a wider variety of additional housing close to facilities and services to meet changing community needs and preferences housing types. It is clearly aimed at increased density of housing in designated A10 areas and not at maintaining single houses on large blocks.
Consideration of the substantive issues
51. The Tribunal has carefully considered the submissions of the parties and the evidence before it. It visited the site and viewed both the subject land and the neighbouring properties. It has made findings on material questions of fact and reached conclusions about the issues raised, as indicated below.
The impact of the proposed development on streetscape and amenity of the street
52. The Tribunal does not consider that the proposed development, if constructed in accordance with the conditions of approval, will have an adverse effect on the streetscape, nor will the amenity of the street be diminished.
53. It finds that the view of the development from the street will be essentially that of a single-storey dwelling, similar in form, materials and colours to nearby houses. Although Unit 1 will be set back only 6m from the front boundary and will have a courtyard wall, while its immediate neighbours are set back a greater distance, it will not detract from the general streetscape which is quite diverse, or the amenity of passers-by. The width of the proposed driveway will not significantly alter the streetscape, nor will the presence once a week of a row of garbage bins awaiting collection.
54. We concluded that the development, as approved with conditions, in not inconsistent with the streetscape and amenity of the street provisions of the Code or the Plan.
The impact of the vehicle movements generated by the development on safety of pedestrians and vehicles using Mathieson Crescent and in particular the arrangements for collecting and emptying of garbage and recycling bins
55. There was no evidence to support the contention that the additional traffic movements generated by the increased number of dwellings would create any safety issues for traffic using Mathieson Crescent. It was clear to the Tribunal that Mathieson Crescent was not a busy street at the time of our inspection, nor was there any evidence presented to suggest that it was carrying any significant level of traffic at other times.
56. While the presence of a row of six garbage bins along the verge adjacent to the exit driveway may create some impediment to clear sight lines on the day when garbage is collected, they should not cause any problems for a driver exercising reasonable care and exiting the subject land in a forward direction. Naturally, if a driver chose to reverse from the development onto Mathieson Crescent, the risk would be increased, but it would not be significantly different from the risk which exists at present when all vehicles exit the block in reverse, and again the exercise of reasonable care should avoid any safety issues arising.
57. The evidence of Mr Edwards, who is qualified and experienced in waste management planning, satisfied us that the arrangements for the collection of waste were appropriate and met the requirements of the Development Control Code for Best Practice in Waste Management in the ACT. While it is impossible to avoid all risk when large vehicles are reversing in areas used by other vehicles and pedestrians, his evidence was that the waste collection vehicles used in the ACT have many safety features and have proven safe in operation.
58. We conclude that vehicle movements into and from the proposed development will not compromise the safety of pedestrians or vehicles using Mathieson Crescent provided reasonable care is taken by all concerned.
The adequacy of the POS to be provided for Unit 1
59. It is clear from the plans that the POS for Unit 1 cannot be described as being to the south, south-west or south-east of the dwelling. For the greater part it is to the west, though a small portion of it could be described as to the south-west of part of the living/dining area of Unit 1. Its dimensions and location in relation to a main living room satisfy the requirements of Performance Measure D4.3 of the Code.
60. The shadow diagrams prepared by Crayon Pty Ltd (attachment (f) to Exhibit 6) indicate that, while the POS will be shadowed at 9.00 am on 21 June, substantial sunlight will reach the POS by noon and will continue into the afternoon, although somewhat reduced by the shadow from the timber horizontal slatted fence on its north-west side. There will probably be some loss of sunlight later in the afternoon from the shadow of the conifer on Mr Todd’s land. At other seasons of the year, the POS will receive substantial amounts of sunlight each day.
61. Overall, we consider that the POS will receive adequate sunlight for the greater part of the year. We agree with Mr McCarthy that planning decisions about access to sunlight cannot be determined by the presence of vegetation on neighbouring leases, which can (and will) change over time.
The impact on Mr Todd’s amenity arising from potential overlooking of his house and back yard
62. The boundary between the subject land and Mr Todd’s block is presently marked by a wooden fence and substantial well-established vegetation. Towards the rear of the block on Mr Todd’s side there is a row of garden sheds which are slightly higher than the fence. In general, there is at present little capacity for overlooking of Mr Todd’s backyard from ground level on the subject land.
63. However, that will change if Units 5 and 6 are built. They will be set back only 3m from the boundary and will have a finished floor level at RL 613.4 which is about 1m higher than the present ground level. Mr Brown’s calculations of what view a person with an eye-height of 1.7m might have from Units 5 and 6 over Mr Todd’s fence appear to be reasonably accurate, as does his proposition that 2.5m high vegetation would provide screening of that view.
64. We find that the Plan does not prohibit any overlooking of neighbouring properties. Its objective is to prevent “significant” loss of amenity. The presence of well-established vegetation and a line of garden sheds in Mr Todd’s backyard already serve to reduce the capacity for overlooking. Nevertheless, we accept that plantings of the mature height proposed by Mr Brown would materially reduce any overlooking of Mr Todd’s backyard when fully grown and that this should be made a condition of approval. In order to minimise the time taken for them to reach full height, we will require that advanced stock is to be used.
The adequacy of the on-site parking proposed to be provided
65. We find that the on-site parking originally proposed would be insufficient to meet the requirements of either the Code or the Guidelines. However, if the additional space proposed by Mr Brown (adjacent to the two planned visitor spaces) is provided and allocated to Unit 3, and if Unit 4 is redesigned to become a one-bedroom unit as proposed by the party joined, then the parking will meet the requirements of both the Code and the Guidelines. We consider that it will be readily accessible and sufficient for both residents and visitors and should not normally result in parking of vehicles in the street.
66. We conclude that the proposals of the respondent for an additional parking space and of the party joined for redesign of Unit 4 as a one-bedroom unit should be made a condition of approval.
The impact of traffic noise from Coulter Drive on the amenity of residents of the development
67. We find that the noise arising from traffic on Coulter Drive will impact on the amenity of residents of the proposed development unless the mitigating measures recommended by Heggies Pty Ltd are undertaken.
68. We note that Condition 11 of Section 2.0 of the decision under review required the party joined to prepare a report addressing how the building structure would limit internal noise levels to specified levels, or comply with Australian Standard AS3761; Acoustics –Road Traffic Noise Intrusion, Building Siting and Construction (which is the higher standard) and that Condition 4 required the lodgement with the Planning and Land Authority for approval of design details and specifications showing how the building will comply with the recommendations of the report referred to in Condition 11. The Heggies Pty Ltd Report fulfils Condition 11 and we will leave unchanged Condition 4 which will ensure that those recommendations are implemented.
69. However Condition 11 referred only to limiting internal noise levels within habitable rooms and not to noise affecting POS. Consequently we will impose a condition requiring the construction of a solid fence at least 1.8 m high along the eastern boundary of the subject land and, to avoid uncertainty, we will specify that it is to be of masonry construction. We will vary condition 7 (Fencing) accordingly.
Conclusion
70. We conclude that, subject to the incorporation of the design modifications imposed as conditions of approval by the respondent and to the additional conditions indicated above, the development proposed will achieve the objectives of the A10 Specific Area Policy and meet the requirements of the Code and not be inconsistent with the Plan.
71. We will, therefore, vary the decision under review to include the additional conditions indicated, but otherwise affirm the respondent’s decision.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NOS: AT08/8 & 14
APPLICANTS: DAVID TODD/HONG NIAN JIN
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: CHERIE MALCOLM
COUNSEL APPEARING: APPLICANTS:
RESPONDENT: MR G MCCARTHY
PARTY JOINED:
SOLICITORS: APPLICANTS:
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED:
OTHER: APPLICANTS: SELVES
RESPONDENT:
PARTY JOINED: MR D SHEARER
TRIBUNAL MEMBER/S: MR B HATCH, SENIOR MEMBER
DR D MCMICHAEL, SENIOR MEMBER
DATE/S OF HEARING: 7 & 8 MAY 2008 PLACE: CANBERRA
DATE OF DECISION: 15 MAY 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
1
0