Whitfield and Act Planning & Land Authority

[2008] ACTAAT 5

AUSTRALIAN CAPITAL TERRITORY

ADMINISTRATIVE APPEALS TRIBUNAL

CITATION:WHITFIELD AND ACT PLANNING & LAND AUTHORITY & ORS [2008] ACTAAT 5 (26 FEBRUARY 2008)

AT07/53

Catchwords:   Land and planning – multi-unit development in A10 area – streetscape – scale and height – overshadowing – safety and convenience of driveway

Administrative Appeals Tribunal Act 1989, s 37

Land (Planning and Environment) Act 1991, ss 230, 245

AMC Projects Pty Ltd and ACT Planning & Land Authority & Ors [2006] ACTAAT 13 (2 May 2006)

Tribunal:Mr M H Peedom, President

Dr E McKenzie, Senior Member

Mr R Nichols, Member

Date:26 February 2008

AUSTRALIAN CAPITAL TERRITORY                   )

ADMINISTRATIVE APPEALS TRIBUNAL )          NO:     AT07/53
LAND AND PLANNING DIVISION  )

RE:      CONNIE WHITFIELD
Applicant

AND:   ACT PLANNING &

LAND AUTHORITY

Respondent

AND:   RAG (ACT) PTY LTD
  MR & MRS WG

MAHONEY

HELEN CLOTHIER &

DALE COOPER

Parties Joined

DECISION

Tribunal  :          Mr M H Peedom, President
  Dr E McKenzie, Senior Member
  Mr R Nichols, Member

Date  :          26 February 2008

Decision  :

The decision under review is varied as follows:

1. delete subparagraphs (a), (b) and (c) of paragraph 7 and substitute:

“(a)     drawings by Hugh Gordon Architect, Project No. 2051:

·    Site and Tree Management Plan DWG No. DA01.5

·    Landscape Plan DWG No. DA02.5

·    Ground Floor Plan DWG No. DA03.5

·    Upper Floor Plan DWG No. DA04.5

·    Basement Floor Plan DWG No. DA05.7

·    Elevations DWG No. DA06.5

·    Elevations DWG No. DA07.5

·    Sections DWG No. DA08.5”

1. delete subparagraphs (a) and (b) of paragraph 8 and substitute:

“(a)plans of a safe movement management system for the driveway using automated traffic signals in accordance with any applicable Australian

standards and to the satisfaction of a traffic engineer approved by the planning and land authority.”

……………………….

President

AUSTRALIAN CAPITAL TERRITORY                   )

ADMINISTRATIVE APPEALS TRIBUNAL )          NO:     AT07/53
LAND AND PLANNING DIVISION  )

RE:      CONNIE WHITFIELD
Applicant

AND:   ACT PLANNING &
  LAND AUTHORITY
Respondent

AND:   RAG (ACT) PTY LTD
  MR & MRS WG

MAHONEY

HELEN CLOTHIER &

DALE COOPER

Parties Joined

REASONS FOR DECISION

26 February 2008  Mr M H Peedom, President
  Dr E McKenzie, Senior Member
  Mr R Nichols, Member

The decision under review

The applicant in this case, Ms C Whitfield, has applied for the review of a decision made by a delegate of the respondent on 27 September 2007 to approve a development application pursuant to section 230 of the Land (Planning and Environment) Act 1991 (“the Land Act”) subject to conditions imposed pursuant to section 245 of the Land Act.

2.  The applicant and the parties joined, Mr and Mrs W G Mahoney and Ms H Clothier and Mr D Cooper, were objectors to the development application.  The party joined, Rag (ACT) Pty Ltd, is the lessee of the land on which the development is proposed.

The development application

3.  The development application was made in respect of two blocks of residential land, Block 11 and Block 12 Section 41 in the Division of Mawson (“the subject land”).  It proposed the consolidation of the two blocks; the inclusion in the consolidated lease for the subject land of a condition to permit the construction of no less than 2 and no more than 9 dwellings; the demolition of the existing two single detached dwellings and outbuildings; the erection of a two storey building containing eight 3 bedroom units each with a study and one 2 bedroom unit, basement car parking for 23 vehicles and associated landscaping, paving and other site works.  The proposed development has a plot ratio of 44%.

4.  The subject land has a frontage of 45.6m to MacRobertson Street and an area of 2162m².  It has a fall from north-east to south-west of approximately 4m.  It is in close proximity to the Mawson Group Centres and within an area that is subject to the A10 Core Area Specific Policy in the Territory Plan.  It is in close proximity to other multi-unit developments within Sections 34, 35, 40 and 47 Mawson.  Residential redevelopment has also occurred in Section 6 Mawson.  The development application, if approved, would permit the first residential redevelopment in Section 41 Mawson.

The hearing

5.  The application was heard by the Tribunal on 12, 13 and 14 February 2008.  At the hearing the applicant represented herself.  The party joined, Rag (ACT) Pty Ltd (“the lessee”) was represented by Mr C Erskine of counsel.  Mr and Mrs Mahoney represented themselves.  Ms Clothier, who attended the Tribunal for part of the hearing represented herself and Mr Cooper.  The respondent was represented by Mr P Walker of counsel.

6.  The Tribunal had before it the statement of the respondent’s reasons for the decision under review and other material in support of it that were required to be lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1989 and a statement of facts and contentions tendered in evidence on behalf of the applicant and the other objectors to the development application.  Evidence was given at the hearing by the applicant and Ms Clothier.  Evidence was also given on behalf of the lessee by Mr H F Gordon, Mr P D Cohen and Mr G Shoobridge.  The Tribunal also undertook an inspection of the subject land and the surrounding area in the presence of the parties and/or their representatives and considered the submissions made by or on behalf of each of the parties.

7.  A number of grounds of objection to the development application were raised by the applicant and the parties joined who also objected to the development application.  We have addressed those issues and set out our conclusions in relation to them below in these reasons for the Tribunal’s decision.

Streetscape

8.  The A10 area specific policies in the Territory Plan include a number of specified objectives.  The objective upon which the applicant placed emphasis provides:

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.

9.  That objective is complemented by a control contained in the A10 policies which states:

e)Proposals involving subdivision or consolidation of standard blocks for multi-unit housing must be accompanied by information that demonstrates how the proposed development fits in with the existing streetscape character or statement of desired future suburban character as defined by an approved master plan.

10.  There is no master plan for the area.  Accordingly, the objective on which reliance is placed is that the development respects existing streetscapes and adjoining development.  “Streetscape” is defined in Part D of the Territory 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, fencing, existing trees, landscaping, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.

11.  In their statement of facts and contentions the applicant and the objectors said that there were two broad areas of Mawson with distinct characteristics.  To the north of Mawson Drive the streetscape character had been influenced by recent development which included newly developed two storey, dual occupancy dwellings as well as single storey residences.  They described the area as “varied and wide – although a trend towards more contemporary two storeys, detached dual occupancies had occurred over the past few years” although a multi-unit development on Power Street was an “exception to this typology”.  On the southern side of Mawson Drive, of which the subject land is part, they said that the street typology was characterised as predominantly single storey large homes, although a number of two storey detached dwellings did exist.  Most of the homes, they said, were of brick construction, with hipped tiled roofs, set back with wide frontages, clearly viewed from the tree-lined streets and with wide separation between adjoining properties.  The exceptions were the multi-unit developments known as ‘Belmont’ and ‘Shackleton Park’ but they were single storey detached dwellings with wide separation between adjoining properties within ‘Shackleton Park’.

12.  They said that, apart from one single storey detached dual occupancy development and one two storey home, the dwellings in MacRobertson Street were single storey detached dwellings with hipped tiled roofs.  They pointed out that of the 32 blocks in Section 41, there were only 8 in MacRobertson Street that were subject to the A10 policies.  The remainder were subject to normal residential land use policies.  They contended that, if the development application was approved, its contrasting style and scale with that of existing development would result in a disconnection between a small length of MacRobertson Street which included the 8 blocks subject to the A10 policies and the greater length of the street that was not subject to those policies.

13.  Mr Cohen gave evidence in relation to the streetscape issue (and other issues) on behalf of the lessee.  Mr Cohen holds a master of urban and regional planning degree.  He is the director of a company which carries on the business of town planning and landscape architecture consultancy.

14.  Mr Cohen said that houses in MacRobertson Street were generally of brick construction, with their long axis parallel to the road and were of single storey with hipped or gable and roofs.  A number of them were raised with a garage under the dwelling.  The view from the road was of a well developed street tree regime which, together with the domestic landscaping, provided filtered views of the houses on either side of the road.  He said that because of the sloping topography and the existence of a number of crests and curves, MacRobertson Street divided into a number of distinct streetscape units.  Based on his assessment of MacRobertson Street, Mr Cohen considered that there was no visible connection between that part of it between its intersections with Hoseason Street and Shackleton Circuit with the rest of MacRobertson Street and there was no need for there to be a uniform streetscape for the entire length of the street.

15.  Mr Cohen had calculated from the plans of the development application that the parapet of the proposed building would stand about 1.2m above the ridge line of the single storey building on the adjoining land (Block 13, the property of Mr and Mrs Mahoney) to the south and not above the level of the adjoining land (Block 10, the property of Ms Clothier and Mr Cooper) to the north.  He considered that the proposed building would fit in with the streetscape with respect to its height relative to the adjacent buildings.

16.  He noted that the front setback of the proposed development was 10m and about the same as that of the existing residences on the subject land (9.15m and 10.52m) although there would be some courtyard walls, the closest being 3m to the boundary.

17.  Mr Cohen considered that the degree of articulation shown by the front elevation drawings, the provision of courtyard walls, free-standing front screens, light weight partially open terraces and low pitched skillion roofs pivoting from the front would minimise the appearance of bulk in the building and create a scale that reflected the existing buildings in the street.  In his opinion the siting of the building so as to reduce its apparent height in the streetscape, the articulation which would diminish the appearance of its bulk and the generally light weight nature of the building accentuated by its partially “floating” roof elements, created a scale of building that would respect the existing streetscape.  He considered that the curve of the road, its significant incline towards Shackleton Circuit, the elevation of other houses above the street and the well developed verges and domestic landscapes would enable the proposed development to fit in with the existing landscape.

18.  In addressing the issue of the impact of the proposed development on the streetscape, we consider that the objective of the A10 policy referred to in paragraph 8 above, should not be read in isolation.  The other objectives of the A10 policies are:

·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.

The explanatory statement to the A10 policies states that 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.

………...

The policies permit a wider range of housing to occur subject to the general controls on redevelopment, the specific controls relating to the core areas and the relevant provisions in the residential codes.  Over time this will help support those centres as well as improving access to facilities and services and reducing reliance on car usage.

19.  As the Tribunal noted in AMC Projects Pty Ltd and ACT Planning & Land Authority & Ors [2006] ACTAAT 13 (2 May 2006):

23.  It is apparent that, in order to balance the competing planning objectives of providing for continuing development without further urban expansion, on the one hand, and protection of the existing low density character of most residential areas, on the other hand, one strategy to achieve those objectives has been to identify parts of some residential areas with specific features which are to lose the kind of protection considered appropriate for most residential areas.

20.  It is to be expected, therefore, that more intensive development of the kind proposed in this case, provided that it meets the requirements of the relevant design and siting code and does not fail to respect the existing streetscapes and the adjoining development, will be permitted in areas to which the A10 policies apply.  It would not meet the overall objectives of those policies to require development proposals to replicate the style and scale of development undertaken in accordance with the policies they have replaced.

21.  There are many architectural features of the proposed development which are different from those of existing dwellings in the streetscape which Mr Cohen and the applicant and the objectors described in their evidence.  We accept, however, Mr Cohen’s evidence and conclude that the proposed development does show appropriate consideration for the streetscape and adjoining development and refrains from interfering with it.  Whether in other cases the application of different planning policies within the same street, as has occurred here, calls for a transition in the style of development from a residential core area to a residential area not subject to the A10 policies so as to avoid one part of the street being disconnected with the other part of the street is not a matter about which we need to make further comment.  We are satisfied that within that part of MacRobertson Street which is visibly connected to the subject land, the proposed development will respect that streetscape and the adjoining development.

Scale and height

22.  The applicant contended that the scale and height of the proposed development would be excessive, particularly in its relationship to the house on Block 10.  She proposed that the upper level unit on the southern end of the building be removed as a means of addressing the objectors’ concerns.

23.  In the absence of detailed drawings of a re-design to reflect the change proposed by the applicant we are unable to adequately assess it.  We think it likely, however, that such a change would result in an unsatisfactory architectural design outcome.

24.  The relevant objective and performance criterion of the Code are:

O3.3To ensure scale, height and length of a building and walls relative to side and rear boundaries are of appropriate residential character.

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.

25.  We have already addressed the issue of the impact of the proposed development on the streetscape.  We consider that the development is of appropriate residential character having regard to the kind of residential development permitted by the A10 policies.  Our examination of the plans of the development application, the site inspection which we undertook and the evidence presented at the hearing suggests that from the private open space identified by Mr and Mrs Mahoney as the particular area of their property which was of concern to them, only a relatively small section of the rear upper level of the proposed development would be visible to them from that area.  A view of a dwelling on adjoining land is a not unusual feature of a residential environment and not sufficient to justify a refusal to approve a development application.  We have addressed the potential for overshadowing of Block 10 below.

26.  Apart from minor intrusions the side setback requirement of the Residential Design and Siting Code for Multi-Dwelling Development – Appendix III.2 of the Territory Plan (“the Code”) for the proposed development on the southern side is satisfied and the building is contained well within the limits of the building envelope calculated in accordance with Performance Control 1 of the Code.  The fact that the height of the proposed development is greater than the height of the house on Block 10 is partly attributable to the slope of the land.  We note also that the Residential Design and Siting Code for single dwellings would permit the construction of a two storey single residence of the same and greater height than that which is proposed for the subject land.

27.  We conclude that the scale and height of the proposed development does not warrant refusal to approve the development application.

Overshadowing

28.  According to the objectors’ statement of facts and contentions, the party joined, Mr and Mrs Mahoney, who live at Block 13 which adjoins the subject land on its southern side, spend much of their time in retirement in their home.  It was contended by the objectors that Mr and Mrs Mahoney would be adversely affected by a loss of sunlight access to their private open space by the overshadowing of it by the proposed development.  They identified a paved area adjoining living space at the rear of their house as the area that would be affected.

29.  Performance Control 3 of the Code contains a performance criterion relevant to the issue of overshadowing.  Performance criterion P3.4 provides:

Buildings to be sited to minimise overshadowing of northern facades of adjacent dwellings and private outdoor spaces.

30.  Shadow diagrams prepared by the architect of the proposed development showed the extent of the shadow cast by the proposed development over Block 13 at one hourly intervals from 9.00am to 4.00pm on 21 June, the winter solstice.  The shadow diagrams do not show the height to which any shadow would be cast on to the northern façade of the house on Block 13 if at all.  It is apparent, however, that there could be no overshadowing of the northern façade of the house on Block 13 because a carport is attached to the wall on its  northern side for the full length of the wall.

31.  An examination of the plans and the evidence given in relation to them by Mr Gordon, the architect of the proposed development, shows that any overshadowing of the area in question attributable to the proposed development would be insignificant.  Such overshadowing of the area as might occur would be attributable to the Mahoney’s residence and carport and the fence on the boundary that is common with the subject land and vegetation along it.  Mr Mahoney informed the Tribunal that he was not concerned with the development proposal in so far as it proposed the replacement of the existing side boundary fence with a 1.8m high timber fence.

32.  We conclude that the proposed development would not fail to meet performance criterion P3.4.

Driveway

33.  The development application provides for an entrance driveway to the subject land along its northern boundary, adjacent to Block 10, which leads to a ramp to a car parking basement under the building.  Approximately 12m of the length of the driveway from MacRobertson Street to the front (north-east) corner of the proposed development is constructed along the northern boundary.  Beyond that distance it curves so as to continue along the side boundary but set back 1.5m from it.  It continues at a downwards slope of 15º around a 180º curve to the basement carpark entrance.  The driveway width varies from approximately 3.2m at the waste enclosure at the front building line to about 5m at the garage entrance except for a relatively level section of approximately 10m in length commencing at the kerb where it is uniformly 5m wide.  A 1.8m high masonry screen wall is shown by the site plan as extending along the northern side boundary for a length of 13m from the front boundary.

34.  Performance Control 5 of the Code contains provisions relating to vehicle parking and access to multi-unit developments.  The objective of the control is:

O5.4To ensure streets and access ways provide safe and convenient vehicle access to dwellings and provide for service vehicles.

35.  Performance criterion P5.5 and performance measure D5.4 and D5.13 provide:

P5.5Car parks, access ways, driveways and internal roads to allow comfortable, safe and efficient vehicle movement and good connections to the existing street network, while minimising loss of on-street parking.

D5.4As specified in AS 2890.1 – The Australian Standard for Off-Street Parking.

D5.13Shared driveways and car parks of other dwellings setback a minimum of 1.5 metres from external block boundaries and windows to habitable rooms of dwellings.

36.  In his findings the delegate of the respondent who made the decision under review concluded that the failure of the driveway arrangement to meet the 1.5m setback from the northern side boundary for its entire length and the width of the driveway did not warrant any change although it was made a condition of approval of the development application that the masonry wall on the northern side boundary be extended by 6.5m towards the rear boundary and that it be demonstrated that the driveway ramp complied with relevant Australian Standards.  In his assessment of the driveway, the delegate considered that it was of adequate width because within the basement and at the foot of the driveway there was sufficient width to permit a vehicle to wait while another vehicle passed.

37.  A plan of the house on Block 10 that was admitted in evidence shows that the bedrooms are located on the northern side and that the living room on the southern side adjacent to the subject land at its nearest corner is approximately 4.5m from the driveway.  That distance of separation increases considerably towards the rear of the house because of its angle to the side boundary.  We consider that any impact of the location of the driveway within the 1.5m setback distance specified in performance measure D5.13 is not significant and will be offset by the masonry wall proposed to be constructed on the northern side boundary.

38.  It was suggested by the objectors that vehicles turning from the south in MacRobertson Street into the driveway would cause headlight glare or wash into the living area of the house on Block 10.  No evidence was produced to the Tribunal in support of the suggestion.  We note that the living area of the house on Block 10 is at an upper level above an area of space formerly used as a garage and well above the level of MacRobertson Street.  We are unable to make any finding that there would be any loss of amenity to the residents of Block 10 due to vehicle headlight glare or wash.

39.  In relation to the width of the driveway, Mr Shoobridge was requested to give evidence on behalf of the lessee.  Mr Shoobridge is a civil engineer with experience in road and infrastructure design and traffic engineering.  He assessed the driveway arrangements against the requirements of the Australian Standard AS 2890.1.  He concluded that the access ramp alignment did not appear to meet the requirements of clause 2.5.2 of the Standards as there appeared to be insufficient width to accommodate the width of turning vehicles and clearance when tested using the Autoturn swept path program.  Sketches which he prepared of the path of a vehicle entering and leaving the basement carpark along the proposed driveway clearly show that in the area of the curve of the driveway the driver of a vehicle would have inadequate vision of a vehicle proceeding in the opposite direction with a potential of danger to both vehicles.  It would also create difficulty in reversing or otherwise manoeuvring either or both vehicles along a safe and convenient pathway to allow their continued safe passage.  He produced further drawings which showed a driveway of sufficient width in the area of the curve to allow both vehicles to pass alongside each other when travelling in the opposite direction as a means of overcoming the problem.

40.  In his evidence Mr Gordon explained that the solution proposed by Mr Shoobridge to the problem identified by him would involve the extension of the driveway for part of its distance across an easement on the subject land and would extend the driveway into the private open space of one of the ground level units.

41.  The further solution proposed by Mr Shoobridge to address these concerns was to implement a safe movement management system installed on the driveway ramp using automated traffic signals.  Such a system would ensure that vehicles intending to use the driveway would be required to stop to await the safe passage of a vehicle given precedence by the traffic lights to travel in the opposite direction.

42.  We note that, having regard to the volume of traffic assessed by Mr Shoobridge as likely to use the driveway, the length of driveway of a width of 5m from the kerb should be sufficient to avoid the need for vehicles intending to enter the driveway from queuing in the street.  In light of the detailed explanation given by Mr Shoobridge in answer to questions asked of him at the hearing, we consider that such a system would provide safe and convenient vehicle movement along the driveway.

43.  It was proposed that any safe movement management system be approved by the respondent.  In order to better answer the safe and convenient operation of the system, we consider that the preferable course would be for such a system to be approved by a qualified traffic engineer approved by the respondent.  The decision of the Tribunal makes provision for the inclusion of such a condition as a condition of approval of the development application.

44.  For greater completeness, we note that during the course of the hearing the applicant cross-examined the respondent’s witnesses with a view to supporting her suggestion that such problems as were associated with the driveway could be eliminated by deleting unit 5 of the proposed development and relocating the driveway to the centre of the subject land.

45.  We are unable to agree that such an amendment of the development proposal would be acceptable.  All of the witnesses identified a number of architectural and practical difficulties that might be associated with such a modification.  They included a reduction of the area required for carparking spaces sufficient to meet the requirements of carparking guidelines under the Territory Plan, the creation of a tunnelled appearance of the front façade of the building and the elimination of a large area of private open space provided for residents.

46.  In the absence of detailed plans of such a modification and a detailed assessment of them, we are not in a position to know whether such a modification would comply

with the requirements of the Territory Plan or give rise to a requirement for consequential modifications to the design proposal that would not satisfy those requirements.

FORM 33

PUBLICATION DETAILS

TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________

PART A  FILE NO:      AT07/53

APPLICANT:  CONNIE WHITFIELD

RESPONDENT:                   ACT PLANNING & LAND AUTHORITY

PARTIES JOINED:             RAG (ACT) PTY LTD; MR & MRS WG MAHONEY;

HELEN CLOTHIER & DALE COOPER

COUNSEL APPEARING:    APPLICANT:

RESPONDENT:       MR P WALKER

PARTIES JOINED: MR C ERSKINE (FOR RAG (ACT) PTY LTD)

SOLICITORS:  APPLICANT:

RESPONDENT:       ACT GOVERNMENT

SOLICITOR

PARTIES JOINED: TRINITY LAW

OTHER:APPLICANT: SELF

RESPONDENT:       

PARTIES JOINED:  SELVES

TRIBUNAL MEMBER/S:   MR M H PEEDOM, PRESIDENT
  DR E MCKENZIE, SENIOR MEMBER
  MR R NICHOLS, MEMBER

DATE/S OF HEARING:      12-14 FEBRUARY 2008       PLACE: CANBERRA

DATE OF DECISION:        26 FEBRUARY 2008             PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( )               CASE NOTE ( )        UNREPORTED DECISION (X)

COMMENT: