Village No 22 Pty Limited ACN 620 656 260 v ACT Planning and Land Authority
[2021] ACAT 43
•21 May 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
VILLAGE NO 22 PTY LIMITED ACN 620 656 260 v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2021] ACAT 43
AT 7/2020
Catchwords: ADMINISTRATIVE REVIEW – planning and land development – application by proponent developer to review primary decision of planning and land authority to refuse an application to subdivide a single block into 258 single dwelling blocks – consideration of Tribunal’s jurisdiction to review – consideration of Estate Development Code (EDC) – meaning of ‘desired character’ in criterion C1 a) of EDC meaning of ‘significant vegetation’ in criterion C1 e) of the EDC – whether criterion C50 of the EDC applies to an integrated development housing parcel – consideration of “any realistic alternative” for the purposes of section 119(2) of the Planning and Development Act 2007 – decision under review confirmed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 22A Community Title Act 2001 ss 30, 35
Environmental Planning and Assessment Act 1979 (NSW) s 112
Environment Protection and Biodiversity Conservation Act 1999 (Cth)Human Rights Act 2004 ss 21, 30
Legislation Act 2001 ss 126, 127, 130, 140
Nature Conservation Act 2014
Planning and Development Act 2007 ss 48, 50, 54, 55, 80, 81, 82, 83, 93, 94, 96, 112, 115, 119, 120, 121, 124A, 139, 144, 148, 149, 150, 151, 162, 407, 408A, 409, Schedule 1, Dictionary
Tree Protection Act 2005 ss 8, 68, 80, 81, 82, 83
Subordinate
Legislation cited: ACT Tree Protection (Guidelines for Tree Management Plans) Determination 2010
Community Facility Zone Development Code
Draft Variation No 306
Estate Development Code
Guidelines for the preparation of Estate Development Plans, May 2009
North Weston Concept Plan NI 2008-27
Planning and Development (Plan Variation No 281) Notice 2008 NI 2008-352
Planning and Development (Plan Variation No 6) Notice 2013
Residential Zones – Single Dwelling Housing Development Code
Residential Zones – Multi-Unit Housing Development Code
Tree Protection (Appeal Criteria) Determination 2006 (No 2)
Weston Precinct Map and Code NI 2008-27
Cases cited:Amarso Pty Ltd v ACT Planning and Land Authority [2012] ACAT 9
Anthony Worrall v Commissioner for Housing in the ACT [2001] ACTSC 72
Anthony Hordern and Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9
Australian Iron & Steel Ltd v Hoogland [1962] HCA 13
Bailey v The Forestry Commission of New South Wales (1989) 67 LGRA 200
Baptist Community Services v ACT Planning and Land Authority and Ors [2015] ACTCA 3
Baptist Community Services v ACT Planning and Land Authority and Anor [2013] ACTSC 103
Baptist Community Services Pty Ltd – NSW & ACT v ACT Planning and Land Authority & Ors [2016] ACAT 150
Christies Sands Pty Ltd v City of Tea Tree Gully [1975] 11 SASR 255
Collector of Customs v Agfa-Geveat Ltd [1996] HCA 36
Colonial Sugar Refining Co Ltd v Valuer-General (1939) 5 The Valuer 472
Deakin Residents Association Inc v ACT Planning and Land Authority & Anor [2015] ACAT 37
DJ v RHS and JF [2004] ACTSC 12
Glass v ACTPLA [2019] ACTSC 201
Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96
Houssein v Under Secretary, Department of Industrial Relations and Technology Sydney (NSW) [1982] HCA 2
Javelin Projects Pty Ltd v ACT Planning and Land Authority & Anor [2017] ACAT 87
Lee v Guo [2017] ACAT 60
Mason v ACT Planning & Land Authority and Ors [2009] ACAT 7
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority [2017] ACAT 44
Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority [2018] ACAT 95
Oberoi v ACT Planning and Land Authority [2015] ACAT 65
Re Wilcox; Ex Parte Venture Industries Pty Ltd and Ors (1986) 66 FCR 511
Rudder v ACT Planning and Land Authority & Ors [2010] ACAT 24
Russia Lutvey & Sons Pty Ltd v Valuer-General (1980) 7 QLCR 1
Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail Reit & Ors v ACT Planning and Land Authority [2018] ACAT 38
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Triguboff v Valuer-General [2009] NSWLEC 9
Weston v Snowy River Shire Council (1980) 41 LGRA 1
Whitby v Garlett and Others [2000] FCA 245
Worrall v Commissioner for Housing for the Australian Capital Territory [2002] FCAFC 127
List of
Texts/Papers cited: ACT Proponents Guide for Environmental Significance Opinions (2017)
Alan Hyam, The Law Affecting Valuation of Land in Australia (The Federation Press, 6th edition, 2020)
Australian Concise Oxford Dictionary (Oxford University Press ANZ, 1st edition, 1987)Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Buttersworth, 9th edition, 2019)
Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th edition, 2009)
Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 7th edition, 2017)
Tribunal: Presidential Member G McCarthy
Senior Member R Pegrum
Date of Orders: 21 May 2021
Date of Reasons for Decision: 21 May 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 7/2020
BETWEEN:
VILLAGE NO 22 PTY LIMITED ACN 620 656 260
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
WESTON CREEK COMMUNITY COUNCIL INC
Party Joined
TRIBUNAL:Presidential Member G McCarthy
Senior Member R Pegrum
DATE:21 May 2021
ORDER
The Tribunal orders that:
1.The decision under review is confirmed.
………………………………..
Presidential Member G McCarthy
For and on behalf of the Tribunal
Contents
REASONS FOR DECISION
Summary of decision
Acronyms
Standing
Jurisdiction
The Estate Development Code
The Estate Development Code - criterion 1 a)
The Estate Development Code - criterion 1 e)
The Estate Development Code – criterion 50
The Estate Development Code – criterion 51
The North Weston Concept Plan
Weston Precinct Map and Code
Planning and Development Act, section 119(2)
Conclusion
REASONS FOR DECISION
1.The applicant, Village No 22 Pty Ltd (Village), is the Crown lessee of Block 1 Section 82 Weston (the site).
2.The site is approximately 5.859ha in area with frontages of approximately 126m to Streeton Drive to the west, approximately 750m to Heysen Street to the south and approximately 750m to Unwin Street to the north. The eastern boundary of the site is approximately 230m long and adjoins land leased to the Australian National University. The site slopes downwards by approximately 22m from the south-eastern corner of the site to the north-western corner of the site. The slope is predominantly in the eastern half of the site.[1]
[1] Witness statement of Kenneth Ineson dated 14 July 2020 at [25], Exhibit A2
3.The site was previously occupied by the Australian Federal Police Training College (the College). The buildings and structures that comprised the College were constructed in 1978. The College operated on the site from 1980 until 2016 after which the site was sold to NEB Holdings Pty Ltd.
4.By contract dated 23 November 2017,[2] NEB Holdings on-sold the site to Village for $32.21 million. Between exchange of contracts on 23 November 2017 and settlement on 20 June 2018, the College buildings and structures were demolished and removed.[3] The site is presently a ‘brownfields’ site, consequent upon concrete tiering, foundations and uncontrolled fill that remain on the site particularly on the eastern half of the site.
[2] Witness statement of Kenneth Ineson dated 14 July 2020 at attachment B, Exhibit A2
[3] Witness statement of Kenneth Ineson dated 14 July 2020 at [31]
5.The site is zoned RZ4, Medium Density Residential Zone, under the Territory Plan. Among the permissible uses are multi-unit housing and single dwelling housing (where not exempt development or code track assessable).[4]
[4] T documents at pages 521-522, Exhibit R1
6.Land in the vicinity of the site is predominantly zoned RZ1 Suburban Zone. Nearby are two school campuses and a public park known as Fetherston Gardens, which was previously part of the School of Horticulture in the Canberra Institute of Technology.
7.By development application (DA) submitted on 11 October 2019,[5] Canberra Town Planning Pty Ltd (CTP) applied for approval of an estate development plan (EDP) comprising the following proposed works on the site:
[5] T documents at pages 457-2072, Exhibit R1
(a)Creation of 261 single dwelling blocks, seven communal blocks, two internal road/verge blocks and five communal open space blocks.
(b)Works to provide service connections.
(c)Removal of a number of on-site trees.
(d)Bulk earthworks and site grading to facilitate the creation of the proposed blocks and roads.
(e)Internal roads and connections to existing surrounding road network.
(f)Bioretention pond to the north-west of the site, including within adjoining unleased land (subject to a current direct sale application).
(g)Shared paths and landscaping (on-site).
(h)Ground signage.
(i)Shared paths within adjacent road reserves driveway crossings to Unwin Street.[6]
[6] T documents at pages 459, Exhibit R1
8.In the course of this proceeding, Village revised the proposed number of townhouses from 261 to 258,[7] however, the design remains the same. It depicts approximately 126 single dwelling blocks around the perimeter of the site and seven banks of townhouse blocks in seven parallel rows in the middle of the site. Each bank would comprise between 13 and 17 single dwelling townhouse blocks.
[7] See applicant’s closing submissions in chief dated 24 November 2020, annexure B at page 3, Revision F of the Block Compliance Plan. The reference to a total of 247 blocks in the ‘complaint’ column of the Block Compliance Plan appears to be a mathematical error. The total is 246
9.Vehicular access to the site would be by means of two access roads: one on the north side of the block and another on the south side. These access roads lead to an internal road network giving vehicular access to the rear end of each townhouse. The seven banks of townhouses are separated by an internal access road or a park area which also provide access through the site.
10.The current version of the Block Compliance Plan, supported by the Block Layout Design and site drawings, shows that the great majority of the proposed seven internal banks of single townhouse blocks would be comprised of townhouse blocks each with an area of 96m².[8] The architectural drawings show that these single townhouse blocks would be 4.4m wide and 22m long.[9] The majority of the banks of townhouse blocks on the perimeter of the site would be comprised of townhouse blocks each with an area of 116 m²-117m², although some are of varying sizes from 136m² through to 197m². Two blocks, blocks jp and jq, in the south-west corner of the site will now be 307m² and 278m², respectively, following Village’s decision towards the close of the hearing to convert four blocks into two blocks. Nine blocks in the north east corner of the site would each be 312m². Eleven blocks on the ends of the seven internal banks of townhouse blocks would each have an area of between 72m² and 127m².
[8] Applicant’s closing submissions in chief dated 24 November 2020, annexure B at page 59
[9] See witness statement of Chris Millman dated 14 July 2020, drawings prepared by Cox Architecture for the Type 1, Type 2 and Type 2A designs, Exhibit A5
11.The internal roads will, in most places, be approximately 5m wide. The three park areas that divide six banks of townhouses will be approximately 17m wide and 75m long, with concrete footpaths down each side of each park area.
12.The Block Compliance Plan also depicts 64 visitor carparking spaces in five areas across the site, with each area providing between seven and 23 car spaces.
13.Regarding the intention to remove “a number of on-site trees”, Village (as we understand it) removed all the trees that it was able to remove without approval, and then sought (in its DA application) approval to remove the remaining trees on the site that are regulated trees[10] under the Tree Protection Act 2005 (the Tree Act). These trees are predominantly if not entirely native trees, particularly different species of eucalypt. The trees are, in the main, approximately 40 years old. During this proceeding, Village revised its proposal such that four trees on the perimeter of the site in the south-west corner (trees 40-43) would be retained and the balance would be removed as part of Village’s bulk earthworks and re-grading work across the whole site.
[10] For the meaning of a ‘regulated tree’, see Tree Protection Act 2005, section 10
14.CTP lodged the DA in the merit track, being an assessment track for development proposals that can be assessed using the rules and criteria in the codes that apply to the proposal.[11]
[11] Planning and Development Act 2007, section 112(2)(b)
15.On 16 October 2019, consequent upon the lodgement of the DA in the merit track, the ACT Planning and Land Authority (the Authority) referred the DA to the entities prescribed under section 26(3) of the Planning and Development Regulation 2008 (the P and D Regulation). Those entities included Transport Canberra and City Services (TCCS), Access Canberra, the Climate Change and Sustainability Division of the Environment, Planning and Sustainable Development Directorate (CCSD) and the Conservator of Flora and Fauna (the Conservator). None of them supported approval of the DA.[12]
[12] T documents at pages 371-372, 376-377, 386-389 and 399-402, Exhibit R1
16.The Weston Creek Community Council Inc. (the Community Council) and several adjacent residents also objected to the proposed development.[13] The Community Council became the party joined in this proceeding.
[13] T documents at pages 336-370, Exhibit R1
17.On 9 December 2019, CTP lodged an amendment to the proposed works[14] pursuant to section 144 of the Planning and Development Act 2007 (the P and D Act). The amended DA entailed changes to the proposed works, and further information, to address the concerns of entities that did support the proposal. By this means, and by the provision of further amendments in the course of this proceeding,[15] the objections from the entities that objected were resolved save for the objections of the Conservator.
[14] T documents at pages 166-335, Exhibit R1
[15] See for example, amendments to the design of proposed townhouses to provide mobility access for disabled persons, consequent upon Eric Martin’s report dated 16 September 2020 (Exhibit A 16), and Village’s agreement to construct a brick wall facing Streeton Drive to mitigate traffic noise and provide greater privacy for proposed townhouses facing Streeton Drive.
18.The Conservator continued to object on the grounds that the amended DA proposed the removal of approximately 68 medium quality trees that are (or, in some cases, were) regulated trees under the Tree Act and where the criteria for their removal under the Tree Act were not met.[16]
[16] T documents at pages 116-117, Exhibit R1
19.On 7 February 2020, the Authority refused the amended DA (the Decision).[17]
[17] T documents at pages 8-20, Exhibit R1
20.By application dated 28 February 2020, Canberra Estates Consortium No 67 Pty Ltd (Consortium No 67) applied to the Tribunal for review of the Decision.[18] In its application, Consortium No 67 submitted that the Decision is wrong in fact and law and that the Tribunal should set aside the Decision and substitute a decision to approve the amended DA.
[18] T documents at page 4-7, Exhibit R1
21.At hearing, Village (substituted for Consortium No 67 as the applicant) submitted that the Tribunal should also approve proposed rules and criteria to be added to the Weston Precinct Code to facilitate Village’s development intentions and to allow the intended built form designs to progress as exempt development.[19]
[19] Applicant’s closing submissions in chief dated 24 November 2020, annexure B at pages 13-15; Applicant’s closing submissions in chief dated 24 November 2020 at [366]
22.The proposed rules and criteria are consistent with Village’s planning intentions and, if inserted in the Weston Precinct Code, would prevail to the extent of their inconsistency with existing rules and/or criteria in other codes, particularly the Single Dwelling Housing Development Code (the Single Dwelling Code).[20]
[20] Planning and Development Act 2007, section 115
23.Village submitted that upon inserting these additional provisions, the Tribunal could and should (then) substitute a decision to approve the amended DA on the basis that it would (then) be in accordance with the Territory Plan.
Summary of decision
24.The amended DA must not be approved if it is inconsistent with the Territory Plan.[21] That is so, irrespective of whether approval can also be refused as a matter of discretion under section 119(2) and/or section 120 of the P and D Act.
[21] Planning and Development Act 2007, sections 50 and 119(1)(a)
25.For the reasons given, the Tribunal was not satisfied that the amended DA or any variant offered during the hearing achieved compliance with C1 a), C1 e), C50 or C51 of the Estate Development Code (the EDC), meaning it is inconsistent with the Territory Plan. Such extensive non-compliance arose, in our view, from Village’s approach towards development of the site. Its focus was on a design that would, from a construction viewpoint, maximise development on the site. To that end, it considered different potential designs. Having settled on its preferred design, it then turned its attention to finding interpretations of the relevant provisions of the Territory Plan that would enable approval of its preferred design. In our view, there was no real attempt to engage with the substantive reasons for why others objected to the proposal or why it was refused. This was despite acceptance that a medium density development can and should proceed. As the Community Council stated:
6. Council and the community remain of the view that a plan that doesn’t consist of row upon row of parallel town houses but has diversity, useable open space, some diversity of dwelling type and acknowledges the interface with the surround areas would be welcomed by the community.[22]
[22] Letter dated 26 August 2020 from the Weston Creek Community Council, page 2
26.Village seemed to give very little initial consideration to what is permissible under the Territory Plan, save for zoning, and then formulating a design by reference to what is permissible under that regulatory framework.
27.We gave consideration to making amendments to the design under section 144 of the P and D Act that would overcome the non-compliance, but concluded that this was neither appropriate nor practical. Too many subjective choices about amendments need to be made. It is Village’s prerogative to make them. Accordingly, we concluded that the decision under review must be confirmed.
28.In these circumstances, it was not necessary to consider the discretionary factors in section 120 of the P and D Act or whether the Tribunal has jurisdiction to consider them. However, in deference to the extensive submissions that were made on the question, we have briefly explained why (in our view) the Tribunal had jurisdiction to do so.
29.In our view, the so-called ‘gateway approach’ to interpreting the limits on the Tribunal’s jurisdiction under section 121(2) of the P and D Act, as explained in Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor[23] (Noah’s Ark No 1), should be preferred to the ‘code compliance approach’, as explained in Sladic & Anor v ACT Planning and Land Authority & Anor[24] (Sladic).
[23] [2017] ACAT 44
[24] [2018] ACAT 38
30.Also, in our view, the ambit of the Tribunal’s jurisdiction to review does not vary, depending on whether it is considering a proponent’s application challenging a decision to refuse a development application (as in this case) or a third party’s application to approve a development application with conditions.
31.Arising from COVID-19 social distancing requirements and Village’s wish for more people to attend the hearing each day than could be accommodated in the Tribunal’s largest hearing room (18 people), the hearing was conducted in a conference room at a commercial hotel, save for the final two days (10 and 11 December 2020) when the Tribunal heard final submissions at its own premises.
32.Despite prior preparation at the hotel, a room festooned with recording microphones and a technician in attendance throughout the hearing, Epiq Global, which holds itself out as having the expertise and capacity to record court and tribunal proceedings, produced a transcript that bordered on farcical. Almost every page of the transcript of the hearing conducted on 21, 22, 26 and 27 October 2020 contains multiple entries stating “inaudible” and the time period for which no audible recording of what was said could be obtained. Mr Erskine SC, appearing for Village, said he has “been in litigation since 1982” and had “never seen a transcript as useless as this”.[25]
[25] Transcript of proceedings 9 December 2020, page 844, lines 29-31
33.Fortunately, the defective transcript did not preclude a proper determination of Village’s application. That arose, in part, from the commendable co-operation that occurred between all the parties and in part because the material facts were not in dispute. Our conclusion that the amended DA or any offered variant to it is inconsistent with the above-mentioned criteria of the EDC arose primarily if not entirely from our interpretations of those criteria and of section 119(2) of the P and D Act.
34.The “one area”[26] where there was disagreement about the transcript concerned whether Dr Coyne, who gave evidence in the Authority’s case, agreed that numbered tree 158 need not be retained. However, where we accept the statement from counsel for the Authority that Dr Coyne did not take issue with the Conservator’s position conveyed at the conclusion of the hearing that tree 158 did not need to be retained,[27] [28]and counsel for Village’s description of that statement as “small mercies”,[29] we concluded that any controversy about the transcript did not need to be resolved.
Acronyms
[26] Transcript of proceedings 9 December 2020, page 883, line 18
[27] Transcript of proceedings 9 December 2020, page 888, line 33
[28] We construed this to mean that removal of tree 158 would not be inconsistent with the Conservator’s advice
[29] Transcript of proceedings 29 October 2020, page 812, line 44
35.Conscious of the length of this decision and the quantity of acronyms used to limit its length, to assist with readability we note the acronyms used in alphabetical order:
(a)ASIC – Australian Securities Investments Commission.
(b)CCSD – Climate Change and Sustainability Division of the Environment, Planning and Sustainable Development Directorate.
(c)CTP – Canberra Town Planning Pty Ltd.
(d)DA – development application.
(e)EDC – Estate Development Code.
(f)IHDP – integrated housing development parcel.
(g)Multi-Unit Code – Multi-Unit Housing Development Code.
(h)NC Act – Nature Conservation Act 2014.
(i)P and D Act – Planning and Development Act 2007.
(j)P and D Regulation – Planning and Development Regulation 2008.
(k)PPOS – principal private open space.
(l)RZD Code – Residential Zones Development Code.
(m)Single Dwelling Code – Single Dwelling Housing Development Code.
(n)Tree Act – Tree Protection Act 2005.
(o)TPU – Tree Protection Unit.
(p)WP Code –Weston Precinct Code.
(q)WP Map – Western Precinct Map.
Standing
36.Section 408A of the P and D Act states:
An eligible entity for a reviewable decision may apply to the ACAT for review of the decision.
37.An ‘eligible entity for a reviewable decision’ is defined in section 407 of the P and D Act as follows:
“eligible entity”, for a reviewable decision—
(a) means an entity mentioned in schedule 1, column 3 for the decision; and
(b) for a reviewable decision in relation to a development application or development approval if the applicant is not—
(i)the lessee—includes the lessee; and
(ii)for a land sublease, the sublessee—includes the sublessee.
38.A ‘reviewable decision’ is defined in section 407 paragraph (a) to mean:
…a decision mentioned in schedule 1, column 2, made by a decision-maker.[30]
[30] Section 407(b) provides an exception which is not relevant for present purposes
39.Column 2 lists different kinds of decisions made under the P and D Act. In this case, the Decision is a decision under section 162 of the P and D Act “to refuse to approve the application”, that being one of two kinds of decisions described in item 3 of schedule 1. It follows that the Decision is a ‘reviewable decision’.
40.For the purposes of paragraph (a) of the definition of ‘eligible entity’, for a decision of a kind defined in item 3 to Schedule 1 (meaning, in this case, the Decision) the entity mentioned in item 3, column 3, is the “applicant for development approval”. In this case, the applicant for development approval was CTP. However, it did not apply to the Tribunal for review of the Decision.
41.For the purposes of paragraph (b)(i) of the definition of “eligible entity”, for a decision of a kind defined in item 3 to Schedule 1, Village (as the lessee of the site) is also an eligible entity. However, it too did not apply for review of the Decision.
42.Consortium No 67 did not have standing to apply for a review of the Decision. This circumstance led Consortium No 67 to apply, by application dated 20 March 2020, for Village to be substituted for it as the applicant in this proceeding. In support, CTP relied on a statutory declaration made on 20 March 2020 by Mr Ineson, the general manager of The Village Building Co Limited (VBC), who stated:
For accounting and risk management purposes, each new project acquired by VBC is purchased in the name of a fresh wholly-owned subsidiary company or a company held and controlled by VBC.
43.Mr Ineson explained that he “made a mistake”, when reading the records of VBC, by nominating Consortium No 67 as the applicant rather than Village. Mr Ineson stated (and we accept) that Consortium No 67 is a wholly owned subsidiary of VBC, as is Village.
44.The error was understandable. Records of the Australian Securities Investments Commission (ASIC) show that Village is but one of many subsidiary companies of VBC, sequentially numbered from Village No 1 Pty Limited through to Village No 32 Pty Limited, among other subsidiary companies. Village, together with Village No 23, Village No 24, Village No 25, Village No 26 and Village No 27 were all registered on 25 July 2017.
45.In response to Consortium No 67’s application, on 30 March 2020 the Tribunal made an order by consent to “correct” the name of the applicant from Consortium No 67 to Village. On the same day, the Tribunal ordered that the Community Council be added as a party joined.
46.In our view, despite being made by consent, the order was beyond power. The order did not “correct” the name of the applicant. It substituted one legal entity as the applicant for another, namely Village for Consortium No 67. Nothing in Chapter 13 of the P and D Act empowered Consortium No 67 to apply for review of the Authority’s decision or empowered the Tribunal to substitute Village for Consortium No 67 or to extend time for Village to apply for review. Section 409(3) of the P and D Act prohibited an extension of time for anyone to make an application for review, save for CTP which was the “applicant for the development application”. CTP did not apply for review.
47.In Australian Iron & Steel Ltd v Hoogland, the High Court per Windeyer J said:
Statutory provisions imposing time limits on actions take various forms and have different purposes. Some are for preventing stale claims, some for establishing possessory titles, some for the protection of public authorities, some in aid of executors and administrators. Some are incidents of rights created by statutes. Some prevent actions being brought after, some before, a lapse of time. It may be that there is a distinction between Statutes of Limitation, properly so called, which operate to prevent the enforcement of rights of action independently existing, and limitation provisions annexed by a statute to a right newly created by it. In the latter case the limitation does not bar an existing cause of action. It imposes a condition which is of the essence of a new right.[31]
[31] Australian Iron & Steel Ltd v Hoogland [1962] HCA 13 at [5]. See also, by way of example, DJ v RHS and JF [2004] ACTSC 12; Whitby v Garlett and Others [2000] FCA 245 at [18]
48.If we are correct, the application for review should have been dismissed at the outset. Nevertheless, in circumstances where views may differ, where the issue has not been previously raised and where the outcome of the application is the same, we concluded that we should continue to consider the application on its merits.
Jurisdiction
49.The Tribunal’s power to review government decisions is not large. It can review decisions only where empowered to do so and to the extent it is empowered to do so.[32]
[32] ACT Civil and Administrative Tribunal Act 2008, section 22A
50.For the purposes of the P and D Act, ‘reviewable decision’ is defined in section 407 to mean “a decision mentioned in schedule 1, column 2, made by a decision-maker”.[33] Schedule 1, column 2, lists different kinds of decisions that are amenable to Tribunal review. Each decision is referenced, in column 1, to an “item” number. Item 3, column 2, describes two kinds of decisions and “the extent” to which the Tribunal can review either of them as follows:
decision under s 162 to approve a development application in the merit track subject to a condition or to refuse to approve the application, to the extent that the development proposal—
(a) is subject to a rule and does not comply with the rule; or
(b) is not subject to a rule [emphasis added].
[33] The definition is subject to an exception, namely where the Minister decides that considering the application would not be in the public interest. That does not apply in this case.
51.Regarding paragraphs (a) and (b), debate has been occurring for more than a decade about the limits on the Tribunal’s jurisdiction arising from the materially similar words in sections 121(2)(a) and (b) of the P and D Act. Section 121(2) states:
(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.
52.Village submitted that the limits on the Tribunal’s jurisdiction under section 121(2)(a) and (b) to review a decision to approve an application for development approval for a development proposal in the merit track do not apply to an appeal brought by a “proponent” of a decision to refuse. In support, Village relied on explanatory statements[34] and comments in Hansard.[35] We agree. There is no need to consult extraneous materials. Section 121(2) is unambiguous to this extent.
[34][35] Hansard, 14 December 2006, pages 4141-4142
53.Village submitted that item 3 should be construed consistently. We disagree. Such a conclusion overlooks “the present basis for interpreting legislation”[36] stated by the High Court in SZTAL v Minister for Immigration and Border Protection[37] (SZTAL). In that case, Kiefel CJ, Nettle and Gordon JJ said:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose.[38]
[36] Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Buttersworth, 9th edition, 2019)
paragraph 2.1
[37] [2017] HCA 34
[38] SZTAL at [14] per Kiefel CJ, Nettle and Gordon JJ. See also Gageler J at [37]–[39]
54.In this case, we did not need to consider context or refer to extraneous materials in order to ascertain the two kinds of decisions described in item 3, column 2. The words are clear. Item 3 concerns:
(i)a decision under section 162 to approve a development application in the merit track subject to a condition, to the extent stated in paragraphs (a) and (b); and
(ii)a decision under section 162 to refuse a development application in the merit track, to the extent stated in paragraphs (a) and (b).
55.Whatever may be the meaning of the words of limitation in paragraphs (a) and (b) in item 3, column 2, the words apply equally to both kinds of decisions.
56.We were not persuaded by Village’s submission that if the legislature had intended to limit a proponent’s right of review in the same way that it limited third-party rights of review, it would have said so. The limitations already exist in item 3, meaning the legislature has already said so. If the legislature had wanted to remove those limitations from item 3, it would have done so. Instead, it left the limitations in place.
57.Village also submitted that a limitation on a proponent’s right of review “runs foul”[39] of sections 21 and 31 of the Human Rights Act 2004. The submission was somewhat perplexing. If that were true for a proponent’s right of review, we struggled to see why it would not be equally true for a third party’s right of review – which would compel a reader to disregard section 121(2)(a) and (b) and the jurisdictional limits on the Tribunal’s power to review the kinds of decisions stated in item 3, column 2, entirely. Nothing in sections 21 and 31 of the Human Rights Act 2004 suggests such an outcome.
[39] Transcript of proceedings 19 October 2020, page 189, line 44
58.The second and more difficult issue is the meaning of the limiting words. This issue has been the subject of many decisions of the Supreme Court and of the Tribunal. Varying interpretations have been expressed.
59.We begin with the words “is subject to a rule and does not comply with the rule” in item 3, column 2, replicated in section 121(2)(a).
60.Uncertainty exists about the extent to which the Tribunal can further consider an issue or point where it is the subject of a rule and is found to be compliant with the rule. In Glass v ACT Planning and Land Authority and Anor[40] (Glass) the Tribunal concluded that it cannot do so.[41] The Tribunal adopted that reasoning in relation to tree protection. On that subject, rule 21 of the Community Facility Zone Development Code required the Authority to refer the development proposal to the Conservator if the development was “likely to cause damage to or removal of any protected trees”. The Authority did so. Where there was compliance with the rule, the Tribunal found (pursuant to section 121(2)(a) of the P and D Act) that it had “no jurisdiction to review the Conservator’s response or the Authority’s subsequent actions or decisions.”[42]
[40] [2016] ACAT 96. It did so after reviewing the earlier decisions of the Tribunal in Mason v ACT Planning & Land Authority and Ors [2009] ACAT 7 and, on appeal, Rudder v ACT Planning and Land Authority & Ors [2010] ACAT 24.
[41] Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96 at [44]
[42] Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96 at [233]
61.On appeal to the Supreme Court, in Glass v ACTPLA,[43] Penfold J commented that the Tribunal’s observation about lack of jurisdiction to review subsequent actions or decisions “may go too far”.[44] Her Honour noted that sometimes it may be necessary to identify, exactly, what is the “point” or “issue”. Regarding rule 21, is it the referral of the development proposal to the Conservator or is it tree protection generally? Referring to an earlier Tribunal decision in Deakin Residents Association Inc v ACT Planning and Land Authority & Anor,[45] her Honour said:
The decision in Deakin …might suggest that the “point” or “issue” will be narrowly defined so as not to narrow ACAT’s review powers unduly. On the other hand, the real significance of Deakin may be not that the subject of a rule should be narrowly defined but that the significance of a rule and whether it has been complied with [will] disappear as soon as ACTPLA purports to exercise a discretion conferred separately from the rule (such as under s 119(2)).[46]
[43] Glass v ACTPLA [2019] ACTSC 201
[44] Glass v ACTPLA [2019] ACTSC 201 at [101]
[45] [2015] ACAT 37
[46] Glass v ACTPLA [2019] ACTSC 201 at [100]
62.We infer from her Honour’s opinion, given without the benefit of argument, that the Tribunal’s observation in Glass about lack of jurisdiction went too far. We agree with her Honour’s viewpoint.
63.The issue did not arise in Glass because the Conservator was taken to have approved removal of the regulated trees.[47] However, it would have been a different situation had the Conservator advised within the prescribed 15 working days that it opposed the development on the basis that it would require removal of nominated regulated trees. Had that occurred, as it has in this case, the Authority would have needed to consider, among other things, whether there was “any realistic alternative” to removal of the trees and the Tribunal on review would have had jurisdiction to consider that question. In other words, the Authority’s referral of the development to the Conservator, under rule 21, would not have defeated the Tribunal’s jurisdiction to consider the issue.
[47] Glass v ACTPLA [2019] ACTSC 201 at [20]-[24]
64.The parties in this case agreed, hence the extensive debate (discussed below) about whether the regulated trees on the site can and should be removed pursuant to section 119(2) notwithstanding that their removal would be inconsistent with the advice of the Conservator. No party suggested that the Tribunal lacked jurisdiction to determine that question.
65.Greater uncertainty exists about the meaning of the words “is not subject to a rule” in item 3, column 2 materially replicated in section 121(2)(b).
66.At present, the debate has distilled to two propositions:
(a)On review, the Tribunal can consider only whether a development proposal complies with all applicable rules and/or criteria in applicable codes – the so-called ‘code compliance approach’, as explained in Sladic.
(b)On review, if the Tribunal finds that a development proposal complies with all applicable rules and/or criteria, it can then consider the matters in section 120 in the same way that the Authority was required to do – the so-called ‘gateway approach’. This term was coined in Javelin Projects Pty Ltd v ACT Planning and Land Authority & Anor[48] (Javelin), and explained in Noah’s Ark No 1.[49]
[48] [2017] ACAT 87 at [117]
[49] at [230]
67.Where we have concluded that the development proposal in this case does not comply with four applicable criteria in the EDC, it was unnecessary to consider whether the Tribunal would have had jurisdiction also to consider the matters listed in section 120 had we found code compliance. However, in light of the extensive submissions made, we feel obliged to comment on which construction of paragraph (b) in item 3 – and inferentially section 121(2)(b) – should be preferred.
68.In this proceeding, Village submitted that Sladic was “wrongly decided”.[50] It did so on several grounds.
[50] Applicant’s submissions on jurisdiction, undated, at [92]
69.First, Village referred to the Supreme Court’s decision in Baptist Community Services v ACT Planning and Land Authority and Anor[51] and the Court of Appeal’s decision (on further appeal) in Baptist Community Services v ACT Planning and Land Authority and Ors[52] (Baptist Care) where the central issue was the manner in which the Tribunal should consider “the objectives for the zone” as the “decision-maker” is required to do under section 120(a) of the P and D Act. Village observed that everything the Courts wrote would be redundant if, as held in Sladic, the Tribunal lacks jurisdiction to consider zone objectives or any other factor in section 120. Village submitted it “defies belief” that none of the parties in the proceedings before the Supreme Court and/or before the Court of Appeal “noticed” that the Tribunal lacked jurisdiction.
[51] [2013] ACTSC 103
[52] [2015] ACTCA 3
70.Second, Village noted that in Noah’s Ark No 1 the Tribunal came to a “significantly different conclusion” which is not “so obviously wrong that it cannot be ignored.”
71.Third, Village put forward some “hypotheticals”[53] to highlight what it described as unexpected results that would or could occur if the Authority can rely on section 120 of the P and D Act when deciding to refuse a development application or to approve a development application subject to a condition, but the Tribunal does not have jurisdiction to review that reliance.
[53] Applicant’s submissions on jurisdiction, undated, at [75]–[86]
72.For example, if the Authority refused a development or imposed conditions by reference only to its consideration of a factor or factors in section 120, no appeal right to the Tribunal would lie.
73.As another example, if a development application is refused by reference to inconsistency with a relevant code (per section 119(1)(a) of the P and D Act) and with reliance on a factor in section 120, there would be no purpose in challenging the finding under section 119 because the refusal would remain in place under section 120, even if the Authority’s original finding regarding inconsistency with the relevant code affected the basis for the Authority’s finding by reference to section 120.
74.Village adopted as “correct” the Tribunal’s interpretation of section 121(2) in Noah’s Ark No 1.
75.The Authority joined with Village in submitting that we should adopt the Tribunal’s interpretation of section 121 in Noah’s Ark No 1.[54]
[54]76.The Authority acknowledged that the analysis in Noah’s Ark No 1 occurred by reference to the limiting words in section 121(2), but submitted that the analysis applies equally to the words of limitation in item 3 to Schedule 1 because the words in both provisions are materially the same.
77.The Authority also agreed with Village’s observation that the Baptist Care litigation occurred without any suggestion that the Tribunal’s jurisdiction to review proponent appeals is limited to code compliance. The Authority also agreed that the extraneous material concerning section 121 makes no mention of proponent appeals or the operation of item 3. It agreed too with Village’s observation, per its hypotheticals, about the significant procedural problems that could arise if a primary decision by reference to section 120 is immune from Tribunal review.
78.Having considered the submissions of the parties, in our view the Tribunal’s construction of section 121(2) in Noah’s Ark No 1 should be preferred. We reached that conclusion primarily by reference to the decisions of the Court of Appeal in Baptist Care, the Supreme Court in Glass and the Tribunal in Noah’s Ark No 1, reviewed in Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority & Ors[55] (Noah’s Ark No 2).
[55] [2018] ACAT 95
79.In Baptist Care, at paragraph 17, the Court stated:
The first question that needs to be determined by this Court is how s 120 of the Planning Act operates, specifically what is the significance of the statement that the decision-maker (in this case originally ACTPLA and now the Tribunal) “must consider”, among other things, the objectives for the relevant zone (s 120 (a)).[56] [emphasis added]
[56] Baptist Community Services v ACT Planning and land Authority and Anor [2015] ACTCA 3 at [17]
80.Implicit in this statement is that the Court of Appeal accepted that the “decision-maker” for the purposes of section 120 is the Authority at first instance and, on review, the Tribunal. The Court of Appeal then canvassed how consideration of zone objectives should occur, without any question or debate about whether the Tribunal has jurisdiction to do so. The Court of Appeal allowed the appeal, set aside the ‘first instance’ decision of the Tribunal and then made the following order:
(c) The matter is remitted to the Tribunal to deal with the development proposal in accordance with the Planning Act and the Territory Plan, having regard to the views expressed at [58] and [59] above about s 120 of the Planning Act and at [69] to [71] above about RZ1 zone objective (a).[57]
[57] Baptist Community Services v ACT Planning and land Authority and Anor [2015] ACTCA 3 at [78(c)]
81.True, there is no mention of section 121 in the judgment. It would appear that the question of jurisdiction was not raised. It does not “defy belief” (as Village submitted) that the Court did not notice the lack of jurisdiction. Rather, the Court, as it states, determined the appeal by reference to “the only matters remaining in issue between [the parties] and requiring determination by the Court”[58] being “the correct approach to s 120” of the P and D Act and “the difference in the parties’ interpretation of RZ1 zone objective (a)”.[59]
[58] Baptist Community Services v ACT Planning and Land Authority and Anor [2015] ACTCA 3 at [9]
[59] Baptist Community Services v ACT Planning and Land Authority and Anor [2015] ACTCA 3 at [9]
82.Nevertheless, we cannot overlook the Court’s statement at paragraph 17 of its judgment quoted above. In our view, the Tribunal’s jurisdiction to consider the factors in section 120 is implicit, if not express, in this statement. Also, at paragraphs 59 and 71 of its judgment referred to in its remittal order, the Court concluded that section 120 gives a “discretion to approve or reject a proposal that is code-compliant”. The remittal order would have been frustrated if the Tribunal did not have jurisdiction to consider the matters stated in section 120 (which picks up consideration of zone objectives) and (if it thought fit) to exercise the discretion that the Court determined it grants.
83.On remitter, the Tribunal approved the development application. It did so, after finding code compliance. It also did so:
[O]n the basis that under section 120 of the Planning Act compliance with the relevant codes is not sufficient; regard also needs to be had to other matters, including the zone objectives. Inconsistency with a zone objective does not mandate rejection of a proposed development, but it may provide a basis for discretionary rejection of a proposal, even one which is code-compliant.[60]
[60] Baptist Community Services Pty Ltd – NSW & ACT v ACT Planning and Land Authority & Ors [2016] ACAT 150 at [259]
84.Then there is the comment of Penfold J in Glass v ACTPLA “that the significance of a rule and whether it has been complied with will disappear as soon as ACTPLA purports to exercise a discretion conferred separately from the rule”. True, her Honour refers to ACTPLA exercising the discretion in section 119(2), but the comment was by way of querying the Tribunal’s observation about its lack of jurisdiction. It is implicit in her Honour’s comment that the Tribunal has power, on review, to exercise a discretion conferred separately from a rule.
85.Then there is the decision of the Tribunal in Noah’s Ark No 2.[61] In that case, the Tribunal – constituted by the President and a Senior Member – “carefully considered”[62] Sladic and decided to proceed by reference to its earlier interpretation of section 121, as stated in Noah’s Ark No 1.
[61] [2018] ACAT 95
[62] Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority and Anor [2018] ACAT 95 at [32]-[33]
86.These decisions all support preference for the so-called ‘gateway approach’ to the Tribunal’s jurisdiction when interpreting section 121(2)(a) and (b) and, by extension, the limiting words in paragraphs (a) and (b) of item 3, Schedule 1.
87.Village’s hypotheticals did not, in our view, assist the debate. Village characterised the outcomes of its hypotheticals as unexpected results, but why? Nothing in the limiting words suggests an intended outcome. It could equally be said, as applicants for development approval have often done, that the legislature intended to restrict the Tribunal’s jurisdiction to review of applicable rules and criteria. The limiting words in item 3, column 2, do not have one meaning for a decision to approve a development application subject to a condition and another meaning for a decision to refuse to approve an application.
The Estate Development Code
88.Village had different options for developing the site. It could have retained it as a single block and developed it under the Multi-Unit Housing Development Code (the Multi-Unit Code). It chose to apply for approval to subdivide the site into smaller blocks. This choice required preparation of an estate development plan.[63] Having chosen this path, Village needed to demonstrate compliance with the EDC. The Introduction to the EDC states:
This code applies to all proposals in the ACT for the subdivision of land requiring the preparation of an estate development plan.
[63] Per section 94(1) of the Planning and Development Act 2007, an estate development plan sets out the proposed development of the estate, and the creation of blocks in the estate, in a way that is consistent with applicable codes. The “note” to section 94(1), stating that a development application must be accompanied by an estate development plan per section 139(2)(r) of the Planning and Development Act 2007, is incorrect to the extent that the reference should be to section 139(2)(s).
89.That may be so, but what compels compliance with it? Ordinarily, compliance with codes is mandated under section 119(1) of the P and D Act, which states:
(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)if the proposed development relates to land comprised in a rural lease—any land management agreement for the land; and
(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.
Note 1An application cannot be approved if it is inconsistent with the territory plan
(see s 50) or the National Capital Plan (see Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), s 11).
Note 2 Relevant code —see the dictionary.
90.‘Relevant code’ is defined in the Dictionary to the P and D Act as follows:
relevant code, for a development proposal, means a code that the relevant development table applies to the proposal.
91.With reference to the definition of ‘relevant code’, ‘relevant development table’ is defined in the Dictionary to the P and D Act as follows:
relevant development table, for a development proposal, means the development table that applies to the proposal.
92.With reference to the definition of ‘relevant development table’, ‘development table’ is defined in the Dictionary to the P and D Act as follows:
development table, for a development or development proposal, means the development table in the territory plan that covers the zone in which the development or development proposal is to take place (see s 54).
93.With reference to the definition of ‘development table’, section 54 of the P and D Act states (with examples omitted):
Development tables
(1) A development table for a zone must set out—
(a)the minimum assessment track that applies to each development proposal; and
Note Assessment tracks are dealt with in ch 7.
(b)development that is exempt from requiring development approval; and
Note Exempt developments are further dealt with in div 7.2.6.
(c)development that is prohibited; and
(d)the code that development proposals must comply with.
(2) A development table may exempt a development proposal from requiring development approval subject to a condition.
(3) The assessment tracks, from minimum to maximum, are as follows:
(a) code track;
(b) merit track;
(c) impact track.
94.Section 54 does not provide a pathway out of this maze: it only takes the reader back to the beginning (meaning the relevant code). The only code noted in the RZ4 development table with which “development proposals must comply” is the Residential Zones Development Code (the RZD Code) which nowhere picks up the EDC. To the contrary, in relation to subdivision and consolidation, Part D of the RZD Code sets out rules and criteria to be met in order to approve the subdivision, but states that they do not apply to “proposals lodged as an estate development plan”.
95.Rule 1 of the RZD Code requires compliance with the Single Dwelling Code for single dwelling housing (as proposed in this case), but it does not require compliance with the EDC for the purpose of single dwelling estate development.
96.The development table that applies to the development proposal in this case is the RZ4 – medium density residential zone development table. Under that development table, the relevant code is the RZD Code.
97.Village said that the requirement to comply with the EDC seems to arise simply from the general statement in section 50 of the P and D Act that the Authority, and the Tribunal on review (among others), cannot do any act or approve the doing of an act, “that would be inconsistent with the Territory Plan”.[64] Where the EDC is part of the Territory Plan and “applies to all proposals in the ACT for the subdivision of land requiring preparation of an estate development plan”, the amended DA must be consistent with it.
[64] Applicant’s closing submissions in chief dated 24 November 2020 at [326]
98.That accords with the requirement under section 94(1)(b) of the P and D Act, which requires an estate development plan, as this is, to be consistent with “any other code that applies to the estate”. The EDC is such a code.
The Estate Development Code – criterion 1 a)
99.Criterion 1 (C1) of the EDC requires that the proposed “subdivision layout and movement networks achieve all” the outcomes stated in paragraphs a) – k) of C1 [emphasis added].
100.C1 a) states:
blocks that are suited to their intended use and are consistent with the desired character of the relevant land use zone.
101.To ‘achieve’ the outcome stated in C1 a), the (proposed) blocks must satisfy the two stated factors:
(a)suitability to their intended use; and
(b)consistency with the desired character of the relevant land use zone.
102.Regarding suitability, the intended use is residential townhouses.
103.Village submitted that the proposed single dwelling blocks are suited to their intended use because “the dimensions of the proposed blocks readily enable them to have townhouses of the kind proposed in the indicative designs built on them”.[65] Village referred to its planning controls plans that will ensure that the eventual built form will “match” that which is proposed in its drawings. On this basis, Village submitted that the proposed blocks are suited to their intended use.[66]
[65] Applicant’s closing submissions in chief dated 24 November 2020 at [342]
[66] Applicant’s closing submissions in chief dated 24 November 2020 at [342]
104.The Authority disputed that the proposed blocks are “suited to their intended use”. By reference to the latest version of the Block Compliance Plan, we calculated that at least 196[67] of the 258 proposed blocks will be less than 6m wide, that being the minimum width for a compliant compact block under the block compliance tables in appendix A to the EDC, referred to in R47 of the EDC.[68] The Authority noted that 170 of the 196 non-compliant compact blocks will be oriented east-west and so not receive any northern sun. It also noted that for some of the proposed townhouses the principal private open space (PPOS) will be on the first floor of the townhouse or on its southern side.
[67] Most of the non-complaint blocks at the ends of the internal banks of townhouses seem also to be less than 6m wide.
[68]105.Almost all the blocks to which the Authority referred form part of Village’s integrated housing development parcel (IHDP). Village submitted that the Authority’s reliance on the block compliance tables in appendix A, picked up by R47, is misplaced because that rule does not apply to blocks in an IHDP – an issue to which we will return.
106.In our view, Village’s submission about suitability avoids the issue. Suitability is to be assessed by reference to intended use, not suitability for the intended structures. Were it the latter, any purpose of the first limb of C1 a) would be defeated because compliance would often (as in this case) be self-fulfilling.
107.In the context in which it is used, the ordinary meaning of ‘suited’ is “to be or prove satisfactory, agreeable, or acceptable; to satisfy or please”, “to be appropriate or suitable; accord”, “to be satisfactory, agreeable or acceptable”.[69] To be ‘suited’ entails a positive assessment of a block for its intended use, not mere possibility or capability, in the same way that some plants are ‘suited’ to an environment or an aspect, but not another, even if their survival is possible in an unsuitable environment.
[69] Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th edition, 2009)
108.We acknowledge that views can reasonably differ about whether a block is ‘suited’ for use as a residential townhouse, especially in terms of size, dimensions and orientation. Townhouses in areas such as the older parts of inner Sydney or Melbourne often have tiny widths, poor solar access and little (if any) private open space, and yet (for reasons of age and location) are suited for their use. They are desirable and valued. In other places, for example semi-rural areas, blocks of such a small size would not be suited for use as a townhouse or residential use generally.
109.Whether proposed blocks in an intended subdivision are “suited to their intended use” should be determined objectively by reference to relevant considerations such as siting, aspect, zoning, surrounding uses, size, accessibility and compliance with other applicable planning requirements.
110.In this case, Village’s design drawings[70] show that it is possible to construct a two or three level townhouse on each of the proposed blocks, but we were not satisfied that the blocks (as opposed to the site as a whole) are ‘suited’ for use as residential townhouses. For example, the Type 1, Type 2 and Type 2A townhouses are intended to be constructed on single dwelling blocks oriented east-west that are 22m long and 4.4m wide giving an area of 96.8m². That is, on any view, an extremely small single dwelling block. We calculated that 68 of the intended 258 blocks[71] will be of those dimensions. Most of the remaining blocks in the IHDP have areas of between 104m² and 116m².
6
26
8