TORMEY & ACT PLANNING and LAND AUTHORITY (Administrative Review)

Case •

[2012] ACAT 79

•

3 December 2012

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

TORMEY & ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2012] ACAT 79

AT 12/21

Catchwords:             ADMINISTRATIVE REVIEW –– development application – objections to proposal for expansion of child care facility: noise, traffic and set back

List of legislation: Planning and Development Act 2007, S. 165

List of Regulations:   Territory Plan 2008, Parking and Vehicular Access General Code

List of cases:             Eames v ACT Planning and Land Authority
[2003] ACTAAT 43

Ergas and Bird v ACT Planning and Land Authority
[2004] ACTAAT 18

Tribunal:                  Mr R. Watch, Member

Date of Orders:  3 December 2012
Date of Reasons for Decision:         3 December 2012

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 12/21

BETWEEN:

PW & AMH TORMEY

Applicant

AND:

ACT PLANNING AND LAND AUTHORITY

Respondent

TRIBUNAL:            Mr R Watch - Member

DATE:  3 December 2012

ORDER

1.The decision under review is confirmed.

………………………………..

Ms L. Crebbin, General President

On and behalf of Mr R Watch, Member

REASONS FOR DECISION

Background

  1. This is an application made to the Tribunal by PW & AMH Tormey (the applicants) who are long time and retired residents of Campbell.

  2. They live directly opposite the entrance to the Campbell Cottage Child Care Centre which is located in Savige Street, Campbell (Campbell Cottage).

  3. The applicants bought their current property in 1967. When they bought their property, the property directly opposite was occupied by a pre-school which they say was attended by approximately 25 children, supervised by 2 staff.

  4. They say that approximately 20 years ago the pre-school was shut down and Campbell Cottage commenced operations at the site as a child care centre.  They say the centre has increased in size and that it now caters for 57 children and employs 11 staff. The site is owned by the Community Services Directorate of the ACT Government. The Young Women’s Christian Association of Canberra Ltd operates Campbell Cottage at the site under a licence.

  5. On 25 January 2012, a firm of architects made application (the DA) to the ACT Planning & Land Authority (the respondent) to develop the site by making alterations and additions to buildings so that the capacity of the centre could be increased to cater for 66 children and 14 staff; an increase of 9 and 3 respectively. The respondent described the proposal as one for minor extensions to the existing child care centre, to accommodate 9 more small children and to improve driveway access and other facilities including a small office and covered walkway.[1]

    [1] Respondent’s Summary of Submissions para 1

  6. The DA stated that the extensions would be used to accommodate babies rather than older children.

  1. The respondent considered the DA in the merit track. It was publicly notified. The applicants were the only people to make a written representation about the proposal.

  2. The respondent referred the DA to various entities and subsequently received advice from the Conservator of Flora and Fauna, the Environment Protection Authority, the Territory and Municipal Services Directorate (TAMS) and ACTEWAGL Electricity, Gas and Water and Sewerage. As a result of the advice given by TAMS and ACTEW, the applicant for the DA was required to provide more information about its proposal. Further advice was then obtained from TAMS and ACTEW before the DA was approved on 30 March 2012 (the decision).

  3. Approval was given for:

    ·additions and alterations to the existing child care centre to accommodate a maximum of 66 child care places, and

    ·a car park and associated landscaping, paving and other site works.

  4. The approval is subject to conditions set out in part 1 of the Conditions of Approval.  It is not necessary to set out the conditions here because they are not relevant to the application for review.

  5. The applicants applied to the Tribunal for a review of the decision to approve the DA. Neither the applicant for the development, nor the operators of Campbell Cottage, applied to be joined as a party to the proceedings.

The Hearing

  1. The application was heard on 18 July 2012. The applicants represented themselves in the hearing. The respondent was represented by Dr D. Jarvis of counsel.

  2. Before the hearing, the Tribunal made directions requiring each party to file and serve various documents.

  3. The respondent gave the Tribunal and the applicants copies of the documents (“T” documents) that it considered relevant to the decision under review. The documents included the detailed development application, plans and drawings, advice given to the respondent by other entities, further information provided by the applicant for the development, the written representation of the applicants, a statement of the findings made by the respondent and the notice setting out the respondent’s decision. The provision of the T documents ensures that the applicants have an opportunity to see and consider all relevant material before preparing their case.

  4. The applicants filed a statement of facts and contentions which also served as a statement of the evidence that they wished to give the tribunal. There were no separate witness statements and no reports or other documents from people with expertise relating to the matters they were concerned about.  They spoke to their statement at the hearing. No other witnesses were called to give evidence in support of their application.

  5. The respondent also filed a statement of facts and contentions together with a witness statement from George Cilliers, a technical coordinator for the respondent in its Planning Delivery Division. At the hearing, Mr Cilliers gave evidence as an expert witness. He has tertiary qualifications in planning and in environmental law. His curriculum vitae described approximately20 years of experience in development assessment and town planning roles in various jurisdictions.

Applicable Law

  1. The decision to approve the proposed development was made under the Planning and Development Act 1997 (the Act). Section 113 of the Act requires that it be assessed according to the provisions of the Act that are relevant to merit track applications.  Section 120 of the Planning Act sets out the factors that the decision-maker must consider for a development proposal in the merit track. Section 119 details the circumstances in which approval must not be given. Section 121 specifies that proposals in the merit track must be publicly notified and places a limit on review of decisions to approve proposals. The relevant parts of the sections are set out in detail below.

  2. Section 119 relevantly provides:

    119  Merit track—when development approval must not be given

    (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

    (b)...

    (c)if the proposed development will affect a registered tree or declared site—the advice of the conservator of flora and fauna in relation to the proposal.

    (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)any realistic alternative to the proposed development, or relevant aspects of it; and

    (b)the decision is consistent with the objects of the territory plan.

    (3)To remove any doubt, if a proposed development will affect a registered tree or declared site—

    (a)the person deciding the development application for the proposed development must not approve the application unless the approval is consistent with the advice of the conservator of flora and fauna in relation to the proposal; and

    (b)subsection (2) does not apply in relation to the conservator’s advice.

  3. I note that the Conservator of Flora and Fauna advised that no protected trees will be affected by the proposal.[2]  The proposed development is in a community facility zone. It has to be consistent with the Community Facility Zone Parking and Vehicular Access General Code.

    [2] T109

  4. The relevant matters to be considered in accordance with section 120 of the Act are as follows:

    (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 ...—the entity’s advice;

    ...

    (f)the probable impact of the proposed development, including the    nature, extent and significance of probable environmental impacts.

  5. Section 121(2) imposes limits on the right to review a decision to approve a DA as follows:

    (2) If there is a right of review under chapter 13 in relation to a decision to approve an application for development approval for a development proposal in the merit track, the right of review is only in relation to the decision, or part of the decision, to the extent that—

    (a) the development proposal is subject to a rule and does not comply with the rule; or

    (b) no rule applies to the development proposal.

  6. The decision to approve the DA was made under section 162 of the Act. It is identified as a reviewable decision in Schedule 1 of the Act and the applicants, as people who made a representation, are entitled to apply to the Tribunal its review.

  7. Section 68(2) of the ACT Civil and Administrative Tribunal Act 2008 provides that when the Tribunal is reviewing a decision, it may exercise any function that is given to the original decision maker. The Tribunal is required by section 68(3) to either:

    (a) confirm the decision; or
    (b) vary the decision; or
    (c) set aside the decision and—

    (i) make a substitute decision; or
    (ii) remit the matter ... for reconsideration by the decision-maker ...

The applicant’s case

  1. The applicants applied to the Tribunal to review the decision on essentially three grounds:

    a)traffic noise generated from vehicles arriving and departing the environs of the child care centre,

    b)noise generated from the child care centre, and

    c)traffic hazard because of the centre’s close proximity to two road junctions.

  2. The applicants did not suggest that, apart from these issues, the proposal was otherwise inconsistent with any of the relevant codes or any advice given to the respondent; or that the proposal did not otherwise satisfy the objectives set for community facility zones or that the land itself was otherwise unsuitable for the development. The applicants gave written submissions when making their application for review. I have had careful regard to those.

  3. In their oral submissions made at the hearing, the applicants stated that the noise that they believe will be generated as a result of the re- development is at the heart of their objection.

  4. In addition to seeking to stop the centre from expanding, the applicants submit that the centre should be required to erect effective noise abatement barriers around its playground perimeter.

  5. The applicants state that the Campbell Cottage is now a major commercial child care facility “radically different from the small local pre-school established by the suburb’s planners.”

  6. The applicants’ application was based on their own observations and experience, and on some calculations about likely traffic movements which would be brought about if the Campbell Cottage were to be extended in accordance with the development application. 

  1. The applicants estimated that the development will result in an increase of approximately 20% in daily traffic movements. They consider that this will in turn, result in further potential traffic hazard and noise.  Other than their calculations, they did not support their contention with any evidence.

  2. They also contend that there would be an increase in noise because of the increase in the number of children.  They object to the existing noise which they describe as grossly excessive. I accept that the noise is disturbing to them. They described in colourful terms the sounds emanating from the playground, particularly from the staff and the sounds made by parents and their car horns as children are dropped off and collected.

    They also expressed concern about:

    ·inadequate parking during peak periods; and

    ·difficulties experienced by service vehicles (such as rubbish trucks) accessing the site.

  1. They propose that noise abatement measures similar to the continuous clearview panels used along Fairbairn Avenue should be erected around the playground perimeter.

The respondent’s case

  1. The Respondent tendered a summary of submissions (Document R3) essentially stating that:

    a.the proposed extension is consistent with the objective for the relevant zone,

    b.the child care facility is not required under the Territory Plan to have a noise management plan,

    c.the number of children permitted at the centre is governed by the condition of approval and in turn is regulated by a licence to be granted under the Children & Young People Act 1999,

    d.the traffic flow and parking requirements were not objected to by the Territory and Municipal Services and that parking provisions in accordance with the Parking and Vehicular Access General Code can be met by existing on-street parking.

  1. The respondent relied on an expert report and oral evidence given by Mr Cilliers. His witness statement dated 20 June 2012 was marked as document R2. Having considered all of the material in the T documents, the relevant legislative provisions and the applicants’ submissions, I accept the evidence given by Mr Cilliers.

  2. I do not propose in these reasons to canvass all of the matters dealt with in Mr Cilliers’ written statement and oral evidence, save to note the matters set out below.

  3. The Community Facility Zone Development Code does not require that a development proposal for a childcare centre include a noise management plan. Noise is regulated under the Environment Protection Act 1997 (the EP Act).

  4. In the normal course of consideration of the development application, the proposal was forwarded to the Environmental Protection Authority (the EPA) for comment.  The EPA responded that it had “no comment”.

  5. The respondent regarded that as a comment to the effect that the EPA had no concerns about the proposal offending any requirements imposed under the EP Act.

  6. According to Mr Cilliers, if the EPA did have concerns about the proposal, it would have called for a report from an acoustic engineer who would have conducted an assessment based on the “worst use”.

  7. This Tribunal, in previous decisions of Eames v ACT Planning and Land  Authority [2003] ACTAAT 43 and Ergas and Bird v ACT Planning and Land    Authority [2004] ACTAAT 18 has adopted the approach that specific legislative requirements such as those provided about noise in the EP Act, take precedence over general provisions such as those set out in the Territory Plan.

  1. Advice was sought from TAMS about relevant traffic issues. No traffic hazard or safety issues were identified. The plans include modifications to the driveway of the childcare centre that will enhance access for vehicles such as waste trucks. While the applicants’ concerns about traffic safety and difficulties accessing the site are understandable, there is no evidence to support a conclusion that these issues are so problematic that the DA is thereby inconsistent with any code or the zone objectives.

Set back from the nearest boundary

  1. Whilst the development does not completely comply with the relevant requirements as to set back, the respondent considered that there was no unreasonable diminution of amenity of the neighbouring properties.  Mr Cilliers explained that this did not necessarily mean that there was no impact but rather, that any such impact was not unreasonable or unexpected.  Mr Cilliers suggested that the impact may be far worse for the owner to the north of the proposed development than for the applicants.  Mr Cilliers was asked to disregard the contiguous neighbour and to only have regard to the applicants, noting that their property was some 45 metres from the development. Mr Cilliers was asked his opinion about the diminution of amenity from the outdoor area.  Mr Cilliers stated that it would not be diminished in respect of the Code because the extension is to the west of the existing building and the impact on the applicant’s property would not be unreasonable.

Parking

  1. Mr Cilliers stated that, like the assessment officer, he concluded that the shortfall of parking spaces could be dealt with by on-street parking. He had no difficulty in saying that there was operational visitor parking within 100 metres of the child care centre and that such availability would comply with the Parking and Vehicular Access General Code.

  2. Mr Cilliers agreed with the applicants’ view about parking on the eastern side of Savige Street.  He stated that the impact of parking on the eastern of Savige Street, whilst not significant, would not be ideal.  His view was that he would accept parking on the eastern side of Savige Street but with certain limitations.

Number of children to use the development

  1. Mr Cilliers said that even though the proposed development extended the centre to provide sufficient space for 66 children, the operator of the centre still need to apply to the relevant authority for a licence to operate the centre with 66 children. The number of children accommodated at the site is ultimately a matter for that authority to determine - it is not determined as a consequence of the respondent’s approval of the DA.

Summary

  1. In his summary, Dr Jarvis on behalf of the respondent stated that the application before the Tribunal is concerned solely with the extension of the existing facility. The current use had been in existence for 20 years. The Tribunal has no jurisdiction to consider noise from, or any detrimental effect of, the existing facility.

  2. In this regard he submitted that much of the applicants’ case was an objection to the centre as it is. I am inclined to agree.

  3. I am satisfied that the respondent took all the required steps and considered all the relevant matters required under the Act when coming to its decision to approve the proposed development and that there is no basis for me to make a different decision.

Decision

  1. The decision under review is confirmed. Noting the acknowledged concerns about parking on the eastern side of Savige Street, I recommend that the respondent, in accordance with section 165(3)(n) of the Act, make it a condition of the development approval that ‘no parking’ zones be introduced on the eastern side of Savige Street between Blamey Crescent and Jacka Crescent.

………………………………..

Ms L. Crebbin, General President

On and behalf of Mr R Watch, Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A



FILE NUMBER:

AT 12/21

PARTIES, APPLICANT:

P.W & A.M.H Tormey

PARTIES, RESPONDENT:

ACT Planning and Land Authority

COUNSEL APPEARING, APPLICANT

COUNSEL APPEARING, RESPONDENT

SOLICITORS FOR APPLICANT

SOLICITORS FOR RESPONDENT

S. Gasser, ACT Government Solicitor

TRIBUNAL MEMBERS:

Mr R. Watch

DATES OF HEARING:

18 July 2012

PLACE OF HEARING:

ACAT Canberra

PART B

RECOMMENDATION:

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

COMMENTS:


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0