Wheen v ACT Planning and Land Authority; Carrick v ACT Planning and Land Authority (Administrative Review)
[2024] ACAT 19
•2 February 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WHEEN v ACT PLANNING AND LAND AUTHORITY; CARRICK v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2024] ACAT 19
AT 79/2023
AT 80/2023
Catchwords: ADMINSTRATIVE REVIEW – review of decision to approve amended development approval – dual-occupancy development on former ‘Mr Fluffy’ block – FFL of ground floor increased within permissible height tolerance – whether open to consider privacy issues unrelated to proposed amendments – existing landscaping adequate to achieve reasonable privacy – whether area of the building comprising a 2.3-metre-high sub-floor space with doorway access, lighting and a gravel base should be included in calculation of GFA – meaning of “floor” in the context of Territory Plan definition of GFA
Legislation cited: Building Act 2004 s 50
Planning and Development Act 2007 (repealed) s 198
Subordinate
Legislation cited: Building (General) Regulation 2008 sch 3 pt 3.2
Planning and Development Regulation 2008 (repealed) s 1A.11
Territory Plan 2008 (repealed)
List of
Texts/Papers cited: Macquarie Dictionary (8th ed, 2020)
Tribunal:Senior Member M. Orlov
Senior Member A. Wilson
Date of Orders: 2 February 2024
Date of Reasons for Decision: 19 February 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 79/2023
BETWEEN:
DAVID WHEEN
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
FRANCIS SUPPLE
Party Joined
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 80/2023
BETWEEN:
FIONA CARRICK
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
FRANCIS SUPPLE
Party Joined
TRIBUNAL:Senior Member M. Orlov (presiding)
Senior Member A. Wilson
DATE:2 February 2024
ORDER
The Tribunal orders that:
The decision made on 4 August 2023 to approve amendments to development approval DA202037990 dated 30 March 2021 is varied as follows:
Amendment no. 1 – landscaping altered
(a)Paragraphs 4(b), 6(a) and 6(b) of the conditions of approval are deleted and substituted by:
The landscaping alterations [at page 165 of the T-docs] are approved subject to a revised landscape plan being submitted to show the full extent of existing boundary planting of mature Capital Pear instead of Callistemon King Park Special.
Amendment no. 3 – privacy screen added
(b) Paragraphs 4(a) and 5(a) of the conditions of approval are replaced by:
The privacy screen on the western boundary must be located in its present position as depicted in the west elevation of residence 1 [at page 166 of the T-docs] but extending south to screen the full width of both the sliding door opposite the laundry and the living room window of residence 1.
(c)Paragraph 5(b) of the conditions of approval is amended to read:
The privacy screen height must be at least 1.8 metres above the finished floor level of the living area of residence 1 subject to an overall height limit of 2.3 metres above ground level.
(d)Add a new condition:
The 1800 mm high opaque screening device to the alfresco areas depicted in the west elevation of residence 1 and the east elevation of residence 2 may be opaque or translucent glazing to match the frosted glass balustrade but must not comprise perforated panels.
Amendment no. 9 – sub-floor door added
(e)Add a new condition:
The doorway to the enclosed space under the alfresco areas for residence 1 and residence 2 depicted in the west elevation of residence 1 and the east elevation of residence 2 must be removed and replaced by a sub-floor access door to each space with a height and width no greater than 600-650 mm for access to services.
……………(signed)…………..
Senior Member M. Orlov
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
This is an application for review of a decision by a delegate of the land and planning authority (ACTPLA) to approve, subject to conditions, amendments to development approval DA202037990, dated 30 March 2021. The original development approval was for a dual occupancy development constructed on a former ‘Mr Fluffy’ block in Torrens. The proposed amendments relate to an increase in the finished floor level (FFL) of the elevated alfresco areas at the rear of each residence and associated privacy screens, relocation of alfresco stairs, laundry stairs and associated privacy screening and landscaping changes and the addition of a door to the subfloor area under the alfresco area of each residence.
The applicant in AT 79/2023, David Wheen, lives two doors down from the development on the eastern side, opposite residence 2. His primary objection to the development is claimed loss of privacy to his principal private open space, which is partly visible in winter through a relatively narrow gap in the trees and shrubs growing on his property. He sought orders requiring the developer to address privacy and overlooking issues by installing fixed, opaque screens on the windows of the family and living rooms of residence 1 and residence 2, which face west and east respectively, to a height of 1.8 metres above floor level. Only the east facing windows of residence 2 could potentially affect him.
The applicant in AT 80/2023, Fiona Carrick, lives next door to the development on the western side, opposite residence 1. Her primary objection is to overlooking and privacy concerns, particularly from the windows of the family and living rooms. She sought orders requiring the developer to make the windows on the western and eastern side of the development “comply with the setback and privacy laws to allow the neighbours to enjoy their dwellings and private open space”. Only the west facing windows of residence 1 could potentially affect her. Ms Carrick contended that proposed evergreen screen planting of advanced stock was inadequate to ensure privacy. Among other things, she contended that it would be grown in an enclosed area with clay soil and there was no guarantee that it would survive. She sought orders setting aside the decision to approve the amendments and substituting a decision that addresses the findings of the Tribunal’s review.
The developer, Francis Supple, was joined as a party to each application.
The Tribunal’s jurisdiction on review of a decision to amend a development approval is governed by section 198 of the Planning and Development Act 2007. This requires the Tribunal to consider the application as if the development originally approved had been completed and the application for amendment were an application for approval of a development proposal to change the completed development to give effect to the amendment. The original decision to approve the development is not up for review. Changes to the approved development that do not require development approval are not open to review either. The Tribunal must consider only the proposed amendments for which approval is sought and decide whether the decision to approve them should be confirmed, set aside, or varied, or the matter remitted to the planning authority for reconsideration.
Neither applicant conducted their case on that basis. Ms Carrick, in particular, sought to raise issues relating to perceived deficiencies in the consultation and assessment process for the original development approval and to open up the question whether the approval should have been granted, including because of overlooking and privacy concerns related to the east and west facing windows of the two residences. She also sought to raise issues relating to the construction of the development, including an allegation that residence 1 involved fundamentally non-compliant building work[1] that should not have been approved by the building certifier.[2]
[1] Building (General) Regulation 2008 sch 3 pt 3.2 provides for when building work is fundamentally non-compliant
[2] Building Act 2004 s 50
The Tribunal declined to deal with these issues because they are outside the limited scope of review permitted by section 198 of the Act. It is not necessary to say any more about them here.
In the interests of procedural fairness, the Tribunal gave each applicant the opportunity at the hearing to state their position in relation to the specific matters the Tribunal must decide and for Mr Francis and ACTPLA to respond.
A preliminary issue
As constructed, the FFL of residences 1 and 2 was raised by 340 mm, rendering approximately 1.4 metres of the rear of the ground floor of residence 1 an upper floor level subject to a 6-metre, rather than 3-metre, side boundary setback. The building certifier approved the increase in height under section 1A.11 of the Planning and Development Regulation 2008, which determines when the vertical siting on a block of a building or structure that does not comply with the applicable height criteria in an approved development is permissible without requiring an application to amend the development approval. The maximum permissible height increase is 340 mm subject to limited exceptions, including where the height increase results in the addition of a storey.
Following a hearing on 22 January 2024, the Tribunal, constituted by Senior Member Orlov sitting alone, determined that on the proper construction of section 1A.11, the increase in height did not require an amendment to the development approval, in spite of the fact that it resulted in a breach of R30 of the Multi Unit Housing Development Code (MUHDC) which requires a 6-metre rather than 3-metre setback for an upper level. Breach of the setback rule is not one of the exceptions for which section 1A.11 provides. Reasons for the decision were given orally on the same day.
Amendment 1 – landscaping altered
The approved landscape plan provided for hedge planting of Abelia Grandiflora adjacent to the eastern, northern and western boundaries of the site. Abelia Grandiflora is a medium sized evergreen shrub that grows to a maximum height of 1.8 metres and therefore does not provide any screening above the 1.8-metre-high fence line.
The amended landscape plans submitted for approval provided for a small number of Callistemon King Park Special to be planted on the eastern and western boundary opposite the elevated alfresco area of residences 1 and 2 and substituted Pyrus Calleryana Capital (Capital Pear) for Abelia Grandiflora elsewhere on the boundary to improve screening. Capital Pear is an ornamental tree with a narrow, upright growth habit and tolerates growing in narrow restricted areas such as median strips. It grows to a maximum height of 8 metres with a 2 to 3-metre spread. The tree is deciduous, generally losing its leaves in late July until early spring.
As constructed, advanced stock of Capital Pear – about 3.6 metres high – has been planted along both side boundaries and the rear boundary, including where the amended plans provide for the planting of Callistemon King Park Special.
The conditions of approval required the proposed evergreen screen planting of an advanced stock of Callistemon King Park Special to be extended along both side boundaries to the extent shown on attachment 2 to the Notice of Decision – extending for the full length of the windows to the family and living room of each residence – to address the privacy and overlooking concerns of the neighbours. Part C of the Notice of Decision states:
Parts of Residence 1 is UFL with windows and not setback 6m – privacy impacts
Increase in FFL by 0.34m renders approximately 1.4m of the rear end of Residence 1 with living room windows as UFL requiring a 6m setback. But the dwelling has already been approved by the Building certifier under building tolerances as permitted by the Planning and Development Regulation 2008 and therefore are not part of this Reconsideration DA. However, evergreen planting of an advance stock that can grow up to 4m has been proposed in front of the living room window along the side boundary. The proposed planting along the side boundary has been strengthened by a condition to ensure privacy to the adjoining block.
Overlooking & privacy
The proposed screens to the alfresco areas prevent overlooking of adjoining blocks to both sides. Overlooking issues are also addressed by proper positioning of the proposed privacy screen and additional advance stock evergreen planting (subject to conditions imposed) and the required 1.8m high boundary fences.
The rationale apparent for imposing a condition requiring evergreen planting of advanced stock is to improve privacy to the adjoining blocks. A condition of that kind can be imposed only if it is required to ensure that the proposed amendments for which approval is sought comply with the relevant rules and criteria.
The applicants referred to R30/C30 and R60/C60 of the MUHDC as the basis for their concerns about privacy and overlooking.
R30, read with table A6, requires an upper floor level to have a side setback of 6 metres. Where this is not achieved, C30 requires building and other structures to be sited to achieve, among other things, reasonable privacy for dwellings and principal private open space on adjoining residential blocks.
R60 provides that a person with an eye height of 1.5 metres standing at any point on the extremity of an unscreened element (such as a window or balcony) of one dwelling shall not have a direct line of sight to more than 50% of the minimum principal private open space of any other dwelling with a direct line of sight of 12 metres. Where the rule is not met, C60 requires evidence to be provided demonstrating that reasonable privacy of the principal private open space is achieved through a design solution, which does not include installing high sill windows, obscured glass or angled louvres.
Mr Wheen’s house is not on an adjoining block and therefore R30/C30 does not apply to him. Although Mr Wheen complained of overlooking affecting his principal private open space, R60/C60 does not apply to him because his principal private open space is well outside the 12 metres direct line of sight.
Ms Carrick’s house is on an adjoining block. However, because development approval is not required for the increase in height of ground floor windows facing her property, neither ACTPLA, nor the Tribunal standing in ACTPLA’s shoes as the decision maker, has power to impose a condition to achieve compliance with C30 or C60. As the Tribunal explained at the hearing, privacy and overlooking issue related to the increased FFL of the ground floor of the residences is not open to be reviewed by the Tribunal, except insofar as it relates to the alfresco areas, where the height increase was more than 340 mm and therefore requires development approval. We discuss this later.
Where the 340 mm height increase did not require development approval, neither R30/C30 nor R60/C60 provides a basis to impose a condition on approval of the amendment application requiring the developer to provide evergreen planting to a height of 4 metres on the boundary to address the privacy and overlooking concerns of neighbours from the windows to the lounge and living areas, much less to extend the evergreen planting further, including along the full length of the rear boundary, as Ms Carrick said she wanted.
In any event, there is no right to complete privacy, nor any obligation on a developer to do more than provide reasonable privacy for dwellings and private open spaces on adjoining blocks. What is reasonable in any given set of circumstances is a matter of degree. The current planting of advanced Capital Pear will provide a tall, dense screen for about 10 months of the year. The short time when the trees are bare of leaves coincides with the period when outdoor spaces subject to overlooking are least likely to be used, minimising the intrusion on privacy. The Tribunal considers that the existing planting achieves reasonable privacy. If Ms Carrick wishes to have complete privacy, she can do so by planting appropriate evergreen species on her side of the fence. It emerged during the hearing that Mr Francis had offered for his landscaper to plant trees or shrubs of Ms Carrick’s choice on her side of the fence at his cost to address her concerns but Ms Carrick refused. Mr Francis remained ready to do so but Ms Carrick stated to the Tribunal that she was not there to “do a deal” but rather to “enforce the law”. Unfortunately for her, she misjudged the extent of her legal rights.
Mr Supple made it clear his preference is to retain the existing planting of advanced Capital Pear without the need to provide additional planting of advanced evergreen stock.
Landscape design is governed by C40 of the MUHDC. Relevantly, landscape design must achieve all of the following: planting of trees of semi-mature stock; planting of trees with a minimum mature height of 4 metres; a contribution to energy efficiency by providing substantial shade in summer, especially to West-facing windows and admitting winter sunlight to outdoor and indoor living areas, especially to the north; reasonable residential amenity; reasonable visibility along paths and driveways; visual interest in pavement materials and finishes; and species with appropriate growth habits and mature height in relation to site conditions.
The Tribunal is satisfied that the existing planting of Capital Pear along the side boundaries and the rear boundary achieves all of those requirements. The preferable decision in those circumstances is to delete paragraphs 4(b), 6(a) and 6(b) of the conditions of approval and substitute a decision to approve the landscaping alterations, which are shown at page 165 of the T-docs, subject to a revised landscape plan being submitted to show the full extent of existing boundary planting of Capital Pear and removal of Callistemon King Park Special.
Amendment 3 – privacy screen added
The FFL of the alfresco areas increased by approximately 480 mm, which means they do not comply with the side setback requirements in R30. A 1.8- metre high opaque privacy screen is to be provided to the western side of the residence 1 alfresco area and the eastern side of the residence 2 alfresco area to achieve compliance with C30. The Tribunal is satisfied that the screens will provide reasonable privacy for dwellings and principal private open spaces on adjoining residential blocks.
The Tribunal considers it appropriate to add a condition to allow opaque or translucent glazing to match the frosted glass balustrade.
Ms Carrick and Mr Vincent agreed that the privacy screen on the western boundary should remain in the position shown in the west elevation of residence 1 at page 166 of the T-docs but be extended south to screen the full width of the sliding door opposite the laundry and the living room window of residence 1. As the screen is to be at least 1.8 metres above the FFL of the living area and be constructed as part of the boundary fence, the Tribunal has imposed an overall height limit of 2.3 metres above natural ground level, which is the maximum permissible height without requiring development approval.
Amendment 5 – balustrade altered
The proposed amendment is to provide a 1.2-meter high frosted glass balustrade to the north facing side of the alfresco areas. Ms Carrick proposed that a 1.8-metre frosted glass balustrade should be provided to protect the privacy of the neighbour at the rear. As the alfresco areas comply with the rear setback requirements in R30, there is no basis to require any change to the proposed balustrade.
Amendment 6 – alfresco FFL
As noted earlier, the increased FFL of the alfresco areas created a side setback issue. This is adequately addressed by the provision of privacy screens as part of amendment 3.
Amendment 9 – subfloor door
The addition of a door into the subfloor area under each alfresco area raises an issue whether the floor area must be considered in calculating the gross floor area (GFA) for the development. It was common ground that if the floor area is included, the development would exceed the maximum permissible GFA of 50%.
The subfloor areas are non-habitable spaces extending the width of the alfresco areas and approximately 2.3 metres high. The ground has been levelled and a gravel base installed. Electric lighting has been provided. Doors have been provided ostensibly for access to services – specifically a water and gas connection for an outdoor kitchen to be installed in each alfresco area. Whatever may be the developer’s subjective intentions, the spaces are useable (and likely would be very useful) as well-lit lockable storerooms.
GFA is defined as the sum of all areas of all floors of the building measured from the external faces of the exterior walls, or from the centre lines of walls separating the building from any other building, excluding any area used solely for rooftop fixed mechanical plant and/or basement car parking.
The respondent submitted that the floor area should be excluded from the calculation of GFA because the space was not habitable and did not have a “finished floor” – i.e. a floor made of timber, concrete or similar material.
Mr Francis submitted that the surface on which one stands upon entering the subfloor area is the “ground” and not a “floor”.
Whether a space is habitable is irrelevant to the calculation of GFA. The issue is whether the space has a “floor” which is a “floor of the building”.
“Building” is defined in the Territory Plan 2008 and includes an addition to a building, a structure attached to a building and a part of a building. The alfresco areas are part of the building. Functionally, the enclosed space below each alfresco area can serve as a storage room and clearly is part of the building also.
“Floor” and “subfloor” are not defined in the Territory Plan 2008. The Tribunal considers that where the word “floor” is used in the definition of GFA, it does not have a special meaning and is used in its ordinary sense – namely, “that part of a room or the like which forms its lower enclosing surface, and upon which one walks”.[3]
[3] Macquarie Dictionary (8th ed, 2020) meaning 1
The Territory Plan definition of “finished floor level” does not change the ordinary meaning of “floor”. Finished floor level – meaning the level of the upper surface of the relevant floor – refers to the height of the upper surface of the floor measured by survey and not to its composition or method of construction. The upper surface may be comprised of timber, concrete, stone, earth or, as in this case, gravel and is the surface upon which one walks.
The Tribunal is satisfied that the subfloor space under each alfresco area serves, or can serve, as a storage room that is part of the building and has a gravel floor which must be included in the calculation of the GFA.
Where access to services will remain necessary, it is appropriate to require the existing door to be removed and replaced by a sub-floor access door with a height and width no greater than 600-650 mm. In effect, this makes the subfloor area a crawl space that is not included in the calculation of GFA.
Amendment 10 – updated GFA
As the removal of the door into the subfloor area resolves the GFA issue, it is not necessary to say more on the subject.
Other proposed amendments
No objection was raised in relation to the approval of amendment 2 (stairs altered), amendment 4 (retaining wall added) or amendments 7 and 8 (alfresco stairs to residences 1 and 2 altered).
Disposition
For the reasons stated earlier, the Tribunal considers the preferable decision is to vary the decision to approve the proposed amendments to the development approval in the manner stated in the orders made on 2 February 2024.
………………………………..
Senior Member M. Orlov
For and on behalf of the Tribunal
| Date of hearing: | 30 January 2024 |
| Applicants: | In person |
| Party Joined | In person |
| Counsel for the Respondent: | Ms A Costin, Blackburn Chambers |
| Solicitor for the Respondent: | ACT Government Solicitor |
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