Watson and Act Planning and Land Authority and Ors
[2008] ACTAAT 24
•1 October 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:WATSON AND ACT PLANNING & LAND AUTHORITY & ORS [2008] ACTAAT 24 (1 OCTOBER 2008)
AT08/50
Catchwords: Land and planning - appeal against approval of multi-unit residential building complex designed to provide affordable housing in Holt - requirements of the Territory Plan relating to lease or development conditions - whether proposed development compatible with adjacent development - density of development - appropriateness of boundary setbacks and adequacy of private open and communal space in light of adjacent public open space - whether pervious surfaces required in car parking areas- impact of proposed development on traffic in adjacent street.
Land (Planning and Environment) Act 1991, ss 7, 8, 13, 227, 230, 245
Land (Planning and Environment) Regulation 1992
Coghlan and ACT Planning and Land Authority & Ors [2004] ACTAAT 7
Nowicki v Martyn and Johnston (1996) 131 FLR 88
Tribunal:Ms S Tongue, Senior Member
Mr R Nichols, Member
Mr J Ashe, Member
Date:1 October 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/50
LAND AND PLANNING DIVISION )
RE: ALISON WATSON
ApplicantAND: ACT PLANNING AND
LAND AUTHORITY
RespondentAND: HARRY & JUDY REDFERN
CHC AFFORDABLE
HOUSING
Parties Joined
DECISION
Tribunal : Ms S Tongue, Senior Member
Mr R Nichols, Member
Mr J Ashe, Member
Date : 1 October 2008
Decision :
The Tribunal varies the respondent’s decision of 2 May 2008 as follows:
adding to condition 3(a)(iii) the words: “including opaque fencing adjacent to private open spaces of ground floor units”;
deleting condition 3(a) (ix);
adding a condition 3(a)(ix) that: “subject to evidence of support from the Manager, Asset Acceptance, TaMS, a flared driveway design for the entry to the central carpark”;
adding a condition 3(e): “an external colour scheme in accordance with the scheme lodged as an exhibit with the Tribunal”;
adding a condition 3(f): “a revised on-site stormwater detention plan including run off from surface carparks providing for water reuse on site”.
…………………………
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/50
LAND AND PLANNING DIVISION )
RE: ALISON WATSON
ApplicantAND: ACT PLANNING AND
LAND AUTHORITY
RespondentAND: HARRY & JUDY REDFERN
CHC AFFORDABLE
HOUSING
Parties Joined
REASONS FOR DECISION
1 October 2008 Ms S Tongue, Senior Member
Mr R Nichols, Member
Mr J Ashe, Member
Introduction
Mrs Alison Watson (“the applicant”) has sought review of a decision of the ACT Planning and Land Authority (“the respondent” or “the authority”) to approve Development Application (“DA”) 200705237 (“the 2007 DA”). Approval was sought to construct a multiunit development on Block 18 Section 21 in the Division of Holt at 12 Davison Place (“the subject land”).
2. The decision to approve the application 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 (“the original decision”).
3. The applicant, who opposes the development, is the current lessee of Block 2, Section 20 in the Division of Holt and resides at 9 Davison Place. Mr Harry and Mrs Judy Redfern, who are the current lessees of Block 1, Section 20 in the suburb of Holt, and reside at 11 Davison Place, were joined as parties who oppose the proposed development (“the parties joined”). The applicant and the parties joined (“the objectors”) live directly across the road from the southern boundary and entry points to the subject land.
4. The DA was made by CHC Affordable Housing, which was joined as a party to the proceedings (“the developer”). This is a non-profit company limited by guarantee and a charity whose charter includes the development of affordable housing. It was represented in the proceedings by its project officer, Mr Andrew Short.
5. In the hearing before the Tribunal the applicant, the objectors and the developer were self-represented and Dr Douglas Jarvis instructed by the ACT Government Solicitor appeared for the respondent.
Applications and documents relating to the proposed development
6. The applicant lodged the 2007 application with the respondent on 5 November 2007. Objections to the development were received from residents of Davison Place and Griffiths Street and other residents. The application was approved on 2 May 2008 subject to compliance with conditions. In response to these conditions the developer made changes to the proposed development and prepared amended plans. Meanwhile an appeal against the decision was made to the Tribunal.
7. The developer has lodged a further Development Application (“the 2008 DA”) in relation to the subject land, the application has been notified and the Tribunal was told that objections have been, or are being made, to that proposal.
8. Prior to, and at the commencement of the hearing in relation to the 2007 DA, the objectors requested that the Tribunal not consider the amended plans prepared by the developer in response to the conditions imposed by the respondent. The Tribunal decided that the amended plans would illustrate how improved compliance with the Territory Plan could be achieved. As this would assist the Tribunal in its task of reaching the correct or preferable decision it decided to admit the documents into evidence.
Applicable Law and Policy
9. As this application was lodged prior to 31 March 2008 the 2002 Territory Plan (“the Plan”) applies.
10. The Plan is established by section 13 of the Land Act. Its framework is usefully described in Nowicki v Martyn and Johnston (1996) 131 FLR 88 (“Nowicki”). The object of the Plan is described in section 7(1) of the Act as providing the people of the Territory with an “ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation”. Pursuant to section 7(2)(a) the Plan sets out planning principles and policies for giving effect to its object. When it considers whether to approve an application pursuant to section 230 a Territory authority must not make a decision inconsistent with the Territory Plan.
11. Part A of the Plan sets out general planning principles and policies and Part B contains specific objectives and policies for giving effect to the planning principles and policies set out in Part A. The objectives are a formal statement of the planning aims sought by the land use policy and the controls are specific policy provisions identifying the purposes for which land may be used and planning criteria that apply to development proposals in the relevant land use policy area.
12. Section 8 of the Land Act requires the Tribunal not to approve any act inconsistent with the Plan. Clause 9.1(a) of Part A3 of the Plan provides that a DA cannot be approved if it is inconsistent with the applicable land use policy in Part B which is the B1 Residential Land Use Policies (“Part B1”). Part A3 section 9.1 provides that “the relevant authority shall not approve a development or proposal for the use of land that would be inconsistent with” a list of matters. A “relevant authority” includes the Tribunal and the use of the mandatory word “shall” makes it incumbent on the Tribunal to pay particular attention to the matters listed which include, inter alia:
(d)for proposals in a Residential Area, the relevant provisions of any Residential Code at Appendix III;
Appendix III.2 is the Residential Design and Siting Code for Multi-Dwelling Developments (“the Code”).
13. The subject land is located in an A10 Core Area and the A10 Residential Core Policies, which are Area Specific Policies, are also in Part B1. The Objectives of the A10 policies include:
•To ensure development respects existing streetscapes and adjoining development, or contributes to the desired future suburban character of the area as defined by an approved master plan.
•To retain a moderate level of flexibility to accommodate a wider variety of additional housing close to facilities and services to meet changing community needs and preferences.
•To assist in creating a more sustainable pattern of urban settlement by providing for more housing to be developed close to identified commercial centres.
14. The A10 policy control (g) states that the maximum site density for residential development on a standard block “shall not exceed a plot ratio of 0.5:1 (50%)....”.In A10 areas in addition to the general controls in clause 3.5 of the Residential Land Use Policies, there is a control that multi-unit housing redevelopment on standard blocks shall not be approved on blocks with an area less than 1400m2 in Residential Core Areas. A standard block is a term defined in the Plan as “a block with an area greater than 500m2 that was originally leased or used for the purpose of single dwelling housing”. The subject land is not a standard block as it has not been leased or used previously and consequently the above controls do not apply. They do however give some guidance as to appropriate block size and plot ratio in A10 areas.
15. As was explained in Nowicki (p 28), “(T)he Code itself is divided into objectives, performance criteria and performance measures. Performance measures are stated in the introduction to the Code to be sufficient to satisfy the objectives and relevant performance criteria (presumably of the Code only) in most cases, and (that) normally an applicant does not have to provide evidence beyond compliance with the performance measures. Compliance with performance measures will be ‘normally considered to meet the objectives and performance criteria’ relevant to those performance measures.” However, a failure to meet performance measures is not necessarily fatal if the objectives and criteria are met.
16. The objectives, performance criteria and performance measures in the Plan that are relevant to the issues in this matter are set out below.
17. Part A3 of the Plan, section 9.2 provides that:
(t)he relevant authority shall, in relation to an application to undertake a development to a proposal to use land, carefully consider the following matters:…
……….
b)any relevant planning guidelines or interim guidelines contained in the Register of Planning Guidelines;
………
Part A3, section 9.3 requires careful consideration by the Tribunal of:
……….
d) impacts on the amenity of surrounding land uses…;
e) impacts on the visual amenity and landscape or streetscape of the area;
………
18. Section 245(3) of the Land Act gives the Tribunal the power to require that the approval given by the authority for the development does not take effect unless a specified approval is revoked, amended or given and also gives the Tribunal the power to impose a condition that a specified controlled activity be conducted to the satisfaction of a specified body.
19. The subject land is also subject to Lease and Development Conditions attached to the lease when the developer acquired it. The Land Act section 227 requires that the authority maintain a register of such conditions and they are referred to in the Land (Planning and Environment) Regulations 1992 (“the Regulations”). Part A3 paragraph 9.3 of the Plan requires that a relevant authority must consider (emphasis added) a range of matters and:
In addition to the matters in paragraph 9.2, the relevant authority shall carefully consider those of the following matters that are relevant to the proposal:
……….
x) The provisions of any Lease or Development Conditions applying to the area.
20. The status of Lease and/or Development Conditions was discussed by the Tribunal in Coghlan and ACTPLA & Ors [2004] ACTAAT 7 (“Coghlan”). The Tribunal agrees with the comments made by the Tribunal at paragraphs 21 to 28 inclusive and the conclusion reached at paragraph 28 that the intention of the authors of the Plan was to require the relevant authority to carefully consider any Lease and/or Development Condition that had been approved in relation to a block of leased land.
21. As the Tribunal explained in Coghlan, in the Plan “Lease” is defined as having the same meaning as in the Land Act. “Lease Condition” is not defined but Development Condition is defined as:
any condition subject to the Land Act, contained in a lease or agreement collateral to a lease, or in a lease or an agreement collateral to the lease that was made prior to the commencement of the Land Act.
The punctuation in this provision could be clearer. However it is sufficient for this case that a development condition includes a condition subject to the Land Act which is contained in an agreement collateral to a lease.
Description of the Proposed Development
22. The subject land has an area of 1467.19 square metres with a frontage to Davison Place of 45.5 metres. The block falls approximately 3 metres from Davison Place down to the Trumper Street frontage of 15.8 metres to the north of the block. On the northern, eastern and western boundaries there is public open space. The nearest adjacent property at the Trumper Street end is located 20 metres away on the eastern boundary. There is a public footpath on the western boundary. There are mature trees in the public open space.
23. On the Davison Place frontage the objectors’ properties are directly across the street. The parties joined have enjoyed uninterrupted views across the vacant land for 35 years. The residence at Block 17 Section 20 with a frontage to Davison Place is separated from the subject land by public open space and there is a garage and planting on the western side of that property.
24. The proposed development consists of 7 two-bedroom units and 1 one bedroom unit contained in two buildings. Unit 1 is an adaptable unit. There are car parking spaces allocated to each unit and two visitor parking spaces on the site. A communal open space and driveway is between the two buildings. All of the units have north-facing decks and the private open spaces and communal open space faces north.
25. The proposed building closest to Davison Place has an irregular front facade generally set back more than 6 metres from the street boundary but with a small corner element set back 5.38 metres from the street boundary. The building comprises Unit 1 which is an adaptable unit, which means that it has features to enable use by people with a disability. Unit 2 is at the ground floor level and above it are Units 3 and 4. Units 1, 2 and 3 are two-bedroom units and Unit 4 is a one-bedroom unit. Unit 1 and Unit 3 have decks adjacent to the eastern boundary of the subject land. The deck of Unit 2 is adjacent to the communal open space and the deck of Unit 4 overlooks that space. This building is not parallel to the eastern boundary but at two corners it is 1.052 metres from the boundary.
26. The other proposed building is located on the northern portion of the block, set back from Trumper Street. It contains 4 two-bedroom units facing northeast. Car parking facilities are at the front of the units and the bedrooms face the western and eastern boundaries of the subject land. The building is not parallel to the eastern boundary but at its closest point it is a distance of 1.58 metres from it and it is 1.6 metres from the western boundary.
27. There are two driveway entrances onto Davison Place with one for the adaptable unit and one for the other units. A driveway runs down the western edge of the property to the rear building in a north-south direction.
28. There are no protected trees on the subject land but it is proposed that mature trees will be retained, apart from a tree in front of Unit 2. The developers propose to take advantage of the borrowed landscape. Some evergreen trees, eucalyptus, acacia and other trees will be planted. There will also be extensive planting of small trees and shrubs inside the property boundary. It is proposed that the boundary fence will consist of a combination chain link and opaque material to provide screening for private open spaces and open vistas where appropriate.
29. Both buildings have flat roofs. As the land falls about 3 metres from south to north the buildings are stepped down the block.
The issues, including evidence and findings
30. The Tribunal had before it the documents prepared by the applicant, respondent and parties joined. The Tribunal visited and inspected the subject land and heard oral evidence from: the applicant; the objectors; Mrs Ravi Singh, who is an ACTPLA senior assessment officer; Mr John Randall, who is a traffic expert called by the developer; and Messrs Short and Carr representing the developer.
31. The applicant and the parties joined lodged the same statement of facts and contentions. They called no expert witnesses to support their contentions, relying on the evidence of their own experience, the information contained in the Tribunal documents, the written statements and testimony of the developer’s witnesses, their interpretation of the provisions of the Plan and the Assessment Report of the proposed development prepared by Mr Ken Hungerford, an assessment officer in the respondent’s office.
32. The applicant and the parties joined gave evidence that they have lived in Davison Place for 32 and 35 years respectively. They based their objections to the proposed development on a range of matters set out in their statement of facts and contentions, which were tendered in evidence, save for paragraph 7 which referred to discussion during mediation in the Tribunal and was expunged from the document.
33. The developer outlined the compliance of the development application with the Territory Plan, explaining the changes that had been made to the plans to comply with the conditions imposed by the respondent.
34. The evidence and argument focussed on the following issues.
(a) Streetscape
35. The A10 specific policies in the Plan include a number of objectives:
·To ensure development respects existing streetscapes and adjoining development, or contributes to the desired future suburban character of the area as defined by an approved master plan.
·To retain a moderate level of flexibility to accommodate a wider variety of additional housing close to facilities and services to meet changing community needs and preferences.
·To assist in creating a more sustainable pattern of urban settlement by providing for more housing to be developed close to identified commercial centres.
36. The explanatory statement to the A10 policies states their aim is:
………. to retain opportunities for developing more housing close to the facilities and services contained in the commercial centres and to assist over time in creating a more sustainable pattern of urban settlement for Canberra.
37. A control in the A10 policies states that proposals involving subdivision or consolidation of standard blocks for multi-unit housing must be accompanied by information that demonstrates how the proposed development fits with the existing streetscape character or statement of desired future suburban character as defined by an approved master plan. There is no master plan for Holt and the block is not a standard block but the objective and control regarding streetscape act as a guide. “Streetscape” is defined in Part D of the Plan as follows:
Streetscape includes the visible components within a street (or part of a street) including the private land between facing buildings, including the form of buildings, treatment of setbacks, existing trees, landscaping, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.
38. The objectors argued that the proposed development was incompatible with the existing streetscape primarily because of its appearance. The parties joined referred to it being “in our face”. Davison Street consists of 10 single storey dwellings and Trumper Street is similarly configured. The houses were all privately built.
39. A main concern of the objectors is the density of the development on the block. They argue that, by reducing the number of units to 6, traffic pressure would be alleviated, communal and private open space would be increased for unit residents, the amenity of neighbours would be improved and the development would be more compatible with the streetscape.
40. The objectors argued that the use of a more attractive building material than colour bond cladding such a brick or cement render would help the dwellings fit in to the surrounding area.
41. The respondent’s evidence was that the proposed development met the requirements of the Plan in terms of height and compliance with the building envelope requirements. Colour bond roofs are commonly used throughout the suburbs of Canberra and exist side by side with tiled roofs. While cladding may not be used on existing dwellings it is being used in newer developments and is not necessarily a reflection of cheaper materials.
42. The developer provided a new schedule of exterior finishes for the proposed development that has been prepared for the 2008 DA for the subject land in response to the objectors’ concerns. It shows alternative finishes that are acceptable to the objectors and can be provided at a moderate cost to the developer.
43. The respondent gave evidence that the density of 8 units on a block of this size complied with the Plan. There is no mandatory requirement or criteria of the provision of communal open space but the accessibility of public open space provides an additional open space amenity.
44. In addressing the issue of the impact of the proposed development on the streetscape, the Tribunal considers all the objectives of the Plan including the need to provide a wider variety of housing close to commercial centres to meet changing community needs and preferences. The proposed development meets the requirements of the Plan and, while it will be different from existing dwellings in the area, the Tribunal accepts the respondent’s evidence that it is consistent with development in newer areas of Canberra. The Tribunal accepts that the changes in exterior finishes proposed by the developers make the development more appropriate to the streetscape of Davison Place. In considering the height of the proposed development the Tribunal has had regard to the slope of the subject land and the compliance of the development with the Plan as it fits within the building envelope. In considering the density of the proposed development the Tribunal has regard to the fact that this development is not on a standard block but, in any event, the development does not exceed a plot ratio of 50%.
(b) Height
45. The objectors were concerned about the height of the buildings. Existing residences in Davison Street and Trumper Street are one storey.
46.The relevant objective, performance criteria and performance measure of the Code are:
O1.1 To provide an appropriate residential scale within a locality.
O3.3To ensure scale, height and length of a building and walls relative to side and rear boundaries are of appropriate residential character.
P1.1Buildings to be limited in height to ensure compatibility with adjacent development.
P3.5Building walls to be sited and to be of length and height to ensure no significant loss of amenity to adjacent dwellings and private open spaces.
D1.1Buildings not exceeding two storeys in height.
46. We have already addressed the issue of the impact of the proposed development on the streetscape. Our examination of the plans of the development application, the site inspection which we undertook and the evidence presented at the hearing indicates that the height of the building is acceptable. A view of a two storey dwelling on adjoining land is not an unusual feature of a residential environment and two storeys meets the performance measure D1.1. We therefore consider that the development is of appropriate residential character having regard to the kind of residential development permitted by A10 policies and that it meets objective 1.1 and performance criterion 1.1.
(c) Traffic and Safety
47. Section 7 of the Land Act states the object of Plan as follows:
The object of the plan is to ensure, in a way not inconsistent with the national capital plan, that the planning and development of the ACT provides the people of the ACT with an ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation...
48. Part A3 clause 9.3 of the Plan (Plan Administration Policies) requires, among other things, that consideration be given to:
The amount of traffic likely to be generated and its impact on the movement of traffic on the road system.
49. The Residential Land Use Policies at Part B1 of the Plan include the objective to:
d)safeguard amenity, safety and special qualities .... of established residential areas while carefully managing change in suitable locations .
50. A main concern for the objectors was the traffic and related safety issues from the addition of 8 units in a cul-de-sac street that currently contains 10 houses. The objectors noted that there is not a “No through Road” sign on the street and some vehicles drive into the street expecting to be able to access Holt shops. The objectors were also concerned about the problems that would be caused by the increase in visitors’ vehicles parking on the street and causing congestion, particularly when service vehicles, such as garbage trucks, seek access to the 8 units.
51. The applicant argued that the traffic problems would be reduced by providing access to the development through Trumper Street and by reducing the number of units. The parties joined gave evidence that the proposed development contains two driveway entrances on Davison Place, both of which are opposite their residence at 11 Davison Place. They question whether two driveways are needed and are concerned about vehicle lights at night, general vehicle congestion and possible accidents as the age of the parties joined increases.
52. The respondent noted that one of the driveways is an entrance to the adapted unit, the site has an unusual shape and the additional driveway will not compromise the safety of pedestrians and vehicles.
53. The developer submitted that two visitor parking spaces had been allocated, an improved vehicle entry arrangement devised for the rear units and planting planned to soften the visual impact of parking bays. During the hearing the developer proposed a variation on the driveway entrance to Unit 1 to alleviate the concerns of the parties joined about traffic light at night, although the applicant was concerned that this might increase their impact on her enjoyment of her property.
54. Mr Randall gave evidence that the standard number of trips estimated for a single unit dwelling is 8 per day and a multiunit dwelling is expected to generate slightly fewer. This estimate is based on the Future Urban Areas Residential Subdivision Development Code traffic table. It was pointed out that, whilst this Code is part of the 2008 Territory Plan and therefore not directly applicable, the table has been included in previous documents of a similar kind, and the relevant provisions have been unchanged for some years. The Tribunal notes that this Code relates specifically to new estates in Future Urban Areas. However it is useful as an indicator of acceptable traffic volumes in local streets. Based on this table the 10 current houses in Davison Place are expected to generate 80 trips per day and the multiunit dwelling 48 trips per day which brings the total for the street to 128 per day. Under the Code it is an “Access Street A” with the capacity of up to 300 trips per day which brings Davison Place well within the acceptable range for vehicle movements on a street with no footpaths.
55. The respondent agreed with the evidence given by Mr Randall, stating that Davison Place has the capacity to accommodate the additional traffic generated by the proposed development. Mrs Singh’s evidence was that it is considered safe for pedestrians to walk on a street without footpaths when the verge widths are the distance of those in Davison Place (approximately 5 metres at the north and 8 metres at the south) and where the sightlines comply with the Australian Standard (AS2890).
56. It is clear that there will be an increase in traffic in Davison Place from the proposed development but the evidence is that the traffic flows will be within the acceptable range. The interference with the objectors’ amenity from headlights on vehicles emerging from the proposed development can be alleviated in part by flaring the driveway to Unit 1. During the hearing the developer provided a sketch showing a possible driveway design solution that can be explored.
(d) Setbacks of buildings and driveway
57. The setback requirements are contained in the Plan’s objectives, performance criteria and performance measures.
58. Objective 2.1 is:
to provide attractive streetscapes which reinforce the functions of the street and enhance the amenity of dwellings.
59.The relevant performance criteria are:
P2.1The setback from the street to be appropriate to the streetscape character, the efficient use of the site and the amenity of residents.
P3.1 The privacy of dwellings and outdoor areas to be protected.
P3.2Dwellings to be sited to enable their northern facades to receive adequate sunshine in winter.
P3.3Dwellings to be sited to ensure good sunlight access to their main private open space.
P3.4Buildings to be sited to minimise overshadowing of northern facades of adjacent dwellings and private outdoor spaces.
P3.5Building walls to be sited and to be of length and height to ensure no significant loss of amenity to adjacent dwellings and private open spaces.
60.Performance Measure D2.1 states:
Minimum setback of buildings from street front boundary:
All street frontages: lower floor level 6 metres
upper floor level 7.5 metres
except
………as shown on ……….development conditions included in a lease or agreement collateral to a lease;
……….
61. The objectors referred to Mr Hungerford’s Assessment Report and argued that Unit 1 is 5.38 metres from the front boundary instead of 6 metres and Unit 3 is 6.86 metres from the boundary instead of 7.5 metres. Some objectors are concerned about overlooking of their houses.
62. The respondent argues that the Lease and Development Conditions contain setbacks that are less than the setbacks contained in the Code and, in any event, there is compliance with the Code.
63. The respondent told the Tribunal that when the lease over the subject land was being drawn up it contained draft development conditions which included setbacks that varied from those in the Code, having regard to the adjacent public open space. The respondent and developer submit that this was an agreement collateral to the lease. Mrs Singh told the Tribunal that these were “dropped” when the lease was finalised. The Tribunal was later told that the conditions appear on a register but the Tribunal made its own investigations and was unable to locate those conditions.
64. The respondent submits that the Plan provides that proposals that do not meet the Plan’s performance measures may still be considered in terms of whether they meet the Plan’s objectives and performance criteria. Further, it is argued the location of the development at the end of the cul-de-sac, where the street widens, pushes the frontage forward. Finally it argued that the encroachment does not have a significant detrimental impact.
65. One of the objectors’ main concerns is their perception that concessions have been made to the developers. They argue that the setbacks allowed by the respondent on the eastern, northern and north-eastern boundaries are a concession that would not be given to an ordinary citizen seeking to build on a residential block. They also refer to the concessions on the setbacks on the front boundary and driveway (see below).
66. The respondent submits that the relevant boundaries are adjacent to public open space and, in the case of the eastern boundary, a significant distance from screened boundaries of neighbours. The respondent cites the provision in the Plan for the measures in the Lease and Development Conditions to prevail over the performance measures in the Plan. The respondent refers to performance criteria P2.1.
67. There is a small encroachment of the driveway within the 1.5 metre setback for a short distance on the north-western side of the property.
68. The side boundary setbacks of the Plan aim to deal with the issues of privacy, day lighting, prevention of overshadowing and loss of amenity of adjacent dwellings and their private open spaces (see performance measures P3.1 to 3.5 above). In this development, adjacent dwellings are separated by more than 20 metres of urban open space which is well in excess of the distances achieved under the performance measures. The Tribunal is therefore of the view that the performance criteria and objectives of the Plan are met.
69. In any event the evidence before the Tribunal was that conditions preceded the lease and were “dropped” once the lease was entered. There is no current evidence of the conditions being attached to the lease. The Tribunal finds they are in an agreement collateral to the lease and these conditions vary the setbacks imposed by the Plan.
(e) Private Open Space
70. Objective 4.1 of the Plan refers to the requirement to provide each dwelling with private open space that meets the reasonable recreational, service and storage needs of residents. Performance criteria 4.1 to 4.4 inclusive relate to location and use of private open space for the enhancement of enjoyment of the dwelling by its occupants and to take advantage of the site. Performance measure 4.1 relates to the minimum dimensions of the private open space.
71. The objectors argue that the private open space requirements for the ground floor and upper floor units are not met.
72. The respondent submits that, while the ground floor units do not strictly meet the 6 square metres private open space requirement they meet the reasonable needs of residents, are directly accessible to indoor daytime living areas and located to the north of the units. Given the communal open space and the location of the development in public open space the respondent considers the private open space allowance acceptable.
73. The developers are willing to amend the fencing plans to provide a combination of opaque fencing adjacent to private open spaces of units and chain-link fencing to allow access to the vistas of the public open space.
74. The need to strictly apply the performance measures in relation to access to private open space and communal open space are alleviated in this case by the access to public open space on three sides of the subject land. The Tribunal finds that the objectives and performance criteria of the Code are met in relation to private open space and communal open space.
(f) Surface of parking areas
75.Performance Measure 5.6 states:
Surface parking areas and access ways are designed, surfaced and graded to facilitate stormwater infiltration on-site, and minimise the areas of hard surfacing materials.
76. This requires that the surface of parking areas and access ways allow infiltration on-site and that areas of hard surfacing material are minimised. The developers have provided for concrete on the relevant surface areas which will allow water to flow into underground tanks to provide water for the landscaped areas. At the hearing Mr Short said that he could investigate whether the provision of pervious material was possible.
77. Mrs Singh said that the respondent interpreted the word “infiltration” to mean that porous material must be provided but conceded that this interpretation could be examined.
78. The Tribunal interprets performance measure 5.6 regarding infiltration of stormwater on site to mean that surfaces must allow water from storms to be collected on the site and channelled into the ground. This is the commonsense interpretation of that provision. Since the developer’s solution for collecting rainwater from parking areas allows recycling of water to grow plants on site the Tribunal accepts that the requirements of the Plan have been met.
(g) Site facilities including waste management and postal deliveries
79. Objective 8.1 is to provide site facilities and design them to be convenient and visually attractive, blend with the development and street character and require minimal maintenance.
Performance criterion 8.1 requires the location and design of site facilities including garbage bin enclosures and mail boxes to be co-ordinated and complementary to the overall building design. Criterion 8.3 requires a convenient area suitable for storage purposes to be provided in order to protect the amenity of the block and the street in general. Performance measure 8.2 requires that garbage handling and storage meet the requirements of Waste Management of the Department of Urban Services.
80. The objectors raised concerns about the access of service vehicles to bins set out for waste collection on Davison Street and the location of bins within the complex. The respondent had sought the approval of a waste management plan by TaMS to alleviate their concerns about waste management and the developer provided evidence that approval had been given to such a plan.
81. The Tribunal is satisfied that the waste management plans for the site meet the requirements of the Plan.
82. The objectors questioned the suitability of proposed letterbox arrangements. The respondent provided evidence that Australia Post is satisfied with the revised arrangements for deliveries. Mrs Singh gave evidence that this does not necessarily mean that compliance with the Australian Standard has been achieved.
83. The Tribunal accepts that the letterbox arrangements meet Australia Post’s standards. However, they do not appear to the meet the Australian Standard which is necessary to complement the overall building design in accordance with performance criterion 8.1. The Tribunal therefore imposes a condition in this regard.
(h) Other Issues
84. The objectors argued that this development was premature and should be integrated with other potential adjacent development which would impact on traffic flows. This included the redevelopment of Holt Primary and preschool which are scheduled to close and the opening of the “super school” on Starke Street.
85. The objectors argued that the introduction of affordable housing would reduce property prices in the area. The respondent said there was no evidence that this occurs. The developer told the Tribunal that affordable housing is targeted at those who are ineligible for government housing assistance but are on moderate incomes.
86. The Tribunal’s task is to decide whether the 2007 DA meets the requirements of the Plan. Other matters raised by the objectors are outside the scope of this review.
Conclusion
87. The subject land is in an A10 area and the lease relates to land available for affordable housing. Unlike many applications before the Tribunal involving objections from close neighbours abutting the side fence of the proposed development, the subject land is in an island of open space. Block 24 Section 21 is public open space. The adjacent dwelling on Block 17 is separated from the proposed development by a large garage and mature plantings. The dwelling adjacent to the southern end of the proposed development is located at a distance of approximately 20 metres and some screening already exists for that property.
88. The developers have provided amended plans in response to the conditions imposed in the original decision and in response to concerns of the objectors. The changes they have made are reflected in the 2008 application which is not before this Tribunal.
89. The Tribunal has carefully considered the concerns of the objectors about the 2007 DA. It has had regard to the objectives, performance criteria and performance measures in the Plan including the objectives for A10 areas which include increasing the diversity and density of housing close to commercial facilities and providing a wider range of affordable housing.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT08/50
APPLICANT: ALISON WATSON
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTIES JOINED: HARRY & JUDY REFERN; CHC AFFORDABLE HOUSING
COUNSEL APPEARING: APPLICANT:
RESPONDENT: DR D JARVIS
PARTIES JOINED:
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTIES JOINED:
OTHER:APPLICANT: SELF
RESPONDENT:
PARTIES JOINED: SELVES; MR A SHORT
TRIBUNAL MEMBER/S: MS S TONGUE, SENIOR MEMBER
MR R NICHOLS, MEMBER
MR J ASHE, MEMBER
DATE/S OF HEARING: 9-10 SEPTEMBER 2008 PLACE:CANBERRA
DATE OF DECISION: 1 OCTOBER 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
1
0