Ymer and Tucker & Act Planning and Land Authority & Ors - [2013] ACAT 45

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

YMER AND TUCKER & ACT PLANNING AND LAND AUTHORITY & ORS [2013] ACAT 45

AT 12/106
Catchwords: ADMINISTRATIVE REVIEW – development approval – Residential Zone 3, urban residential zone – multi unit housing development – preliminary issues: issue about front or side boundary, advice of Conservator of Flora and Fauna outside of the statutory time limit, and relevance of Turner Neighbourhood Plan – consideration of matters set out in section 120 of the Planning and Development Act 2007: zone objectives, representations, entity advice, and probable impact of proposed development – matters for compliance under relevant codes: traffic generation, overlooking, driveways, solar access, acoustic separation, ventilation, accessibility, setback and articulation, neighbourhood plan, storage, living space, and circulation

List of Legislation:

Planning and Development Act 2007 ss 50-56, 119-121,

149-151 and 156

Tree Protection Act 2005, ss 82 and 83

List of Regulations: The Territory Plan
Inner North Precinct Code
Multi Unit Housing Development Code

RZ3 – Urban Residential Zone – Zone
Objectives
Territory Plan Turner Neighbourhood Plan: A sustainable future for Turner (November 2002) NI2003-372 under the Land (Planning and Environment) Act 1991 (repealed)

List of Cases: Amarso Pty Ltd v ACTPLA [2012] ACAT 9
Edquist v ACTPLA [2011] ACAT 64
Griffith and Narrabundah Community Association v ACTPLA & Anor (Administrative Review) [2011] ACAT 61
Ymer & Tucker v ACTPLA & Ors [2011] ACAT 46

List of Texts/Papers: Building Code of Australia

Tribunal:Ms W Corby - Senior Member (Presiding)
Mr G Trickett - Senior Member

Date of Orders: 24 May 2013
Date of Reasons for Decision: 5 July 2013
Date of Amended Reasons for Decision: 16 July 2013

AUSTRALIAN CAPITAL TERRITORY )

CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: AT 12/106

RE:SANIE YMER & WILLIAM TUCKER
Applicants

AND:ACT PLANNING & LAND AUTHORITY
Respondent

AND:MASTER PROPERTY DEVELOPMENTS PTY LTD
Party Joined

ORDERS

Tribunal: Ms W Corby - Senior Member (Presiding)
Mr G Trickett - Senior Member

Date of Order 24 May 2013

The Tribunal orders that:
1.The decision under review, being the Respondent’s decision dated 6 December 2012 to approve Development Application No. 201222179 with conditions, is set aside and substituted with a decision that Development Application No. 201222179 is refused.
.......................................
Signed Ms L Crebbin
General President
For the Tribunal

AMENDED REASONS FOR DECISION

The Applicants seek review of a decision by the Respondent’s delegate on 6 December 2012 (the ‘reviewable decision’) to approve subject to conditions Development Application No. 201222179 (the ‘DA’).
The reviewable decision specifically approved:
a.demolition of two existing dwellings on two blocks;
b.consolidation of Blocks 20 and 21 Section 63 Turner (the ‘subject site’);
c.lease variation to permit a maximum of 16 dwelling units;
d.construction of 16 unit development in a two storey building with basement for storage and parking; and
e.paving, landscaping and other site works (the ‘proposed development’).
The subject site is located on the east side of Hartley Street in Turner ACT. Hartley Street is a relatively short street that runs predominantly north/south and ends in a ‘T’ intersection with David Street in the north and Condamine Street in the south. The subject site, which is the consolidation of two blocks, is immediately south of a public pedestrian way that runs predominantly east/west between Hartley Street to the west and MacLeay Street/Towns Crescent to the east. North of the subject site is a multi unit development that runs from the north side of the public pedestrian way through to David Street in the north.
South of the subject site on the west side of Hartley Street, in Section 63, are eight blocks with single dwellings and these run to the southern end of Hartley Street where it meets Condamine Street.
The subject site and the blocks to its south form the western part of Section 63 Turner. The blocks to the east of the subject site, which form the eastern part of Section 63 and which face MacLeay Street, consist predominantly of multi-unit developments. Section 63 is zoned RZ3-Urban Residential Zone under the Territory Plan. The proposed development would be the first multi-unit development to be undertaken in the blocks on the western side of Section 63 that face Hartley Street. The development to the north of the subject site on Hartley Street is in a different Section. The area between Hartley Street and Northbourne Avenue to the east of the proposed development consists of mostly multi-unit developments and the zoning goes from RZ3 to RZ4 and then CZ5 along Northbourne Avenue.
West of the subject site on the opposite side of Hartley Street is the Turner Primary School. Adjacent to and west of the School is an open public area which runs west until just before McCaughey Street. From there, to the west of McCaughey Street, the zoning is mostly RZ1 and is characterised by residential blocks with, mostly, single dwellings.
The Applicants assert that for the reasons set out in their Application to the ACT Civil and Administrative Tribunal (the ‘Tribunal’), dated 28 December 2012, the approved DA does not meet various rules and criteria of the Multi Unit Housing Development Code (‘MUHDC’) and the Inner North Precinct Code (‘INPC’), and it does not meet the applicable zone objectives [‘ZOs’] of RZ3. Therefore, the DA is not consistent with the Territory Plan and the Applicants say the reviewable decision should be set aside or varied.
In the Reasons for Decision, attached to the Respondent’s Notice of Decision dated 6 December 2012 (T40-46), the Respondent’s delegate:
a.confirms that the merit track is applicable to the assessment of the DA;
b.confirms that in considering the DA the delegate gave consideration to compliance with the Territory Plan, entity advice, representations and proposed variations to the Crown lease;
c.concludes that subject to the conditions imposed by the Respondent in approving the DA, the DA meets the MUHDC, INPC and the Territory Plan; and
d.says that to the extent that the approval is inconsistent with advice received from the Conservator of Flora and Fauna, the decision complies with section 119 of the Planning and Development Act 2007 (the ‘PD Act’).
The Applicants made representations to the Respondent prior to approval of the DA pursuant to section 156 of the PD Act. The Applicants reside on the western side of Hartley Street, several blocks south of the proposed development in Section 63, Turner.
The Applicants, in their Statement of Facts and Contentions, filed on 25 March 2013, assert that:
a.the conditions imposed by the Respondent in approving the DA:
i.do not, in all cases, achieve the desired outcome; or
ii.in other instances, achieve the desired outcome, but create other issues; and
b.the proposed development is not consistent with the RZ3 ZOs. This is particularly relevant in the context of the decision to approve the DA notwithstanding that the approval is inconsistent with advice provided by an entity.
The Applicants say that the proposed development fails to meet several of the rules of the MUHDC and INPC. Where it does so, it does not adequately address the relevant criteria and does not respond to the key strategies of the Turner Neighbourhood Plan.
It is the Applicants’ contention that there are too many units proposed and that these do not reflect, being one and two bedroom units, the need for three or more bedroom dwellings to accommodate and attract families to the area. Particularly relevant, in the Applicants’ view, is the proximity of the development to the Turner Primary School.
The Applicants assert that the nature of the development and many of its design features are not in keeping with, and will negatively impact on, the existing neighbourhood. Among other issues the Applicants say that the size of the development and the anticipated parking and traffic issues it will create or exacerbate are among those negative impacts. Further, the Applicants consider that the amenity of the proposed residents of the development will be sub-optimal because of its design. They identify issues including limited solar access, access to and enjoyment of private and communal open spaces, as well as restricted ventilation and noise issues.
The Respondent says the Tribunal should be satisfied that the reviewable decision is either correct or that, if the Tribunal considers it appropriate, it could be varied to include some additional or amended conditions to respond to any variations that may be considered appropriate to achieve compliance with the Territory Plan.
The Party Joined, which is the lessee of the subject site and the developer, also asserts that the reviewable decision should be affirmed, or varied to include some different or additional conditions and the DA should then be approved subject to those conditions.

Order of the Tribunal 24 May 2013

The matter was heard on 15,16, 17 and 20 May 2013. The matter commenced with a site visit by the Tribunal on 15 May 2013. The parties and their representatives were present. The site and surrounding neighbourhood were viewed. At the conclusion of the hearing the Tribunal reserved its decision.
On 24 May 2013, the Tribunal made the order that the reviewable decision is set aside and that the DA is not approved. The Party Joined has asked for written reasons for the Tribunal’s decision.

The Hearing

The Applicants were self represented and both attended at the site visit and the hearing, although Ms Ymer had to leave at about 5:15pm on 20 May 2013 and Mr Tucker then appeared, with Ms Ymer’s consent, on behalf of both Applicants until the hearing was completed at about 6:45 pm on 20 May 2013.
Dr Jarvis of counsel appeared for the Respondent. Mr Walker of counsel appeared for the Party Joined. The Tribunal notes that a second Party Joined, Mr Mark Palu, the previous lessee of the block immediately south of the proposed development, withdrew before the hearing.
The Applicants’ only witness was Robert Edwards, who was an authorized representative Turner Primary School Board.
The Respondent’s witnesses were:
a.Mr George Cilliers, technical coordinator in the Planning Delivery Branch of the ACT Planning and Land Authority (‘ACTPLA’, the Respondent). Mr Cilliers made the reviewable decision, although he was not the assessing officer of the DA. Mr Cilliers provided oral and written evidence.
b.Mr Lingam Jatheendran, Chief Engineer, Asset Acceptance in the Operational Support Section of the Territory and Municipal Services Directorate (‘TAMS’), who provided oral and written evidence.
The Party Joined’s witnesses were:
a.Mr Vratislav Kasparek, architect with Kasparek Architects who were commissioned by the Party Joined to design the proposed development. Mr Kasparek provided oral and written evidence,
b.Mr Petrus Johannes van der Walt, Senior Town Planner, who provided oral and written expert evidence in relation to planning and design aspects of the proposed development,
c.Mr Graeme Shoobridge, Civil Engineer, who provided oral and written expert evidence in relation to aspects of traffic and parking, and
d.Mr Rodney Stevens, an acoustics expert who provided written evidence in relation to steps needed to achieve acoustic separation.

Approach to review in the Tribunal

The Tribunal considered sections 119, 120 and 121 of the PD Act.
119Merit track—when development approval must not be given
(1)Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with—
(a)the relevant code; and
(b)if the proposed development relates to land comprised in a
        rural lease—any land management agreement for the land; and
(c)if the proposed development will affect a registered tree or
        declared site—the advice of the conservator of flora and fauna
        in relation to the proposal.
Note 1An application cannot be approved if it is inconsistent with the territory plan (see s 50) or the National Capital Plan (see Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), s 11).
Note 2Relevant code—see the dictionary.
(2)Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under division 7.3.3 unless the person deciding the application is satisfied that—
(a)the following have been considered:
(i)any applicable guidelines;
(ii)any realistic alternative to the proposed development,
            or relevant aspects of it; and
(b)the decision is consistent with the objects of the territory plan.
(3)To remove any doubt, if a proposed development will affect a registered tree or declared site—
(a)the person deciding the development application for the
proposed development must not approve the application unless
the approval is consistent with the advice of the conservator of flora and fauna in relation to the proposal; and
(b)subsection (2) does not apply in relation to the conservator’s
advice.
120Merit track—considerations when deciding development approval
In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:
(a)the objectives for the zone in which the development is proposed to take place;
(b)the suitability of the land where the development is proposed to take place for a development of the kind proposed;
(c)each representation received by the authority in relation to the application that has not been withdrawn;
(d)if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications)—the entity’s advice;
NoteAdvice on an application is given in accordance with section 149 if the advice is given by an entity not later than 15 working days (or shorter prescribed period) after the day the application is given to the entity. If the entity gives no response, the entity is taken to have given advice that supported the application (see s 150).
(e)if the proposed development relates to land that is public land—the plan of management for the land;
(f)the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
121Merit track—notification and right of review
(1)To remove any doubt, if a development proposal is in the merit track, the application for development approval for the proposal must be publicly notified under division 7.3.4.
(2)If there is a right of review under chapter 13 in relation to a decision to approve an application for development approval for a development proposal in the merit track, the right of review is only in relation to the decision, or part of the decision, to the extent that—
(a)the development proposal is subject to a rule and does not comply with the rule; or
(b)no rule applies to the development proposal.
The relevant provisions of the PD Act set (sections 51-55 and sections 119-121) set out the approach to be taken in the current matter. It is agreed that:
a.the relevant zone where the proposed development is to occur is Residential Zone 3 – Urban Residential Zone (‘RZ3’),
b.the proposed development is in the merit track, and
c.Parts A(3), B and C(3) of the Residential Zones - Multi Unit Housing Zones -Development Code (‘MUHDC’) and the Inner North Precinct Code (‘INPC’) apply as do several other codes which will be referred to as required. Where there is any inconsistency, the INPC has precedence over the Development Code which takes precedence over a General Code.
Section 120 of the PD Act sets out the matters that the Tribunal, as decision-maker, must consider. The Tribunal stands in the shoes of the decision-maker and must determine for itself what is the correct and preferable decision.
Section 119 of the PD Act states that approval for a development in the merit track must not be given unless approval is consistent with the relevant code and, except in certain circumstances, is consistent with the advice of the Conservator of Flora and Fauna or other relevant entity advice.
Section 121(2) of the PD Act restricts review by the Tribunal to that part of the reviewable decision where a rule applies and is not met, or no rule applies. Therefore, subject to the Tribunal being satisfied that a rule has indeed been met, if the development is compliant with a rule then that aspect of the reviewable decision will not to be further considered by the Tribunal.

Preliminary issues

At the commencement of the hearing, the Party Joined requested that the Tribunal determine three issues.
a.Whether the north boundary of the proposed development is a ‘front’ boundary or a ‘side’ boundary.
b.Whether the advice of the Conservator of Flora and Fauna –
i.should be deemed pursuant to section 150 of the PD Act to support the approval of the DA; or
ii.is not inconsistent with approval of the DA.
c.Whether the development is required to demonstrate a response to the key strategies of the Turner Neighbourhood Plan?
The Tribunal made orders in respect of these matters on 15 and 16 May 2013 during the hearing as follows:
“Date of Order : 15 May 2013
The Tribunal orders that:
1.The advice provided by the Conservator of Flora and Fauna (Tribunal document T208) is deemed pursuant to section 150 of the Planning and Development Act 2007 to be advice that the entity supports the development application.
2. The Tribunal will consider in so far as it is relevant and permitted the
Turner Neighbourhood Plan 2003.
3............................”
“Date of Order : 16 May 2013
The Tribunal orders that:
1.The northern boundary of the subject block (Block 21, Section 63 in Turner in the Australian Capital Territory) is a ‘front boundary’ within the meaning of the Territory Plan 2008.
2...................”
a. Whether the north boundary is a front or side boundary?

The definition of ‘front boundary’ and ‘side boundary’ in the Territory Plan are as follows.
Front boundary means any boundary of a block adjacent to a public road, public reserve or public pedestrian way.
Side boundary means a block boundary extending from a street frontage and adjacent to one other block only.

Clearly the western boundary of the development, which faces Hartley Street, is a front boundary. The north boundary of the development extends from Hartley Street and is adjacent to a public pedestrian way which runs east/west along the full length of the north boundary. The pedestrian way is identified as Block 22 Section 63 Turner in the ACT Planning and Land Authority’s (ACTPLA) block and section plan. The north boundary could fall within the definition of either ‘front boundary’ or ‘side boundary’.
The Respondent accepted that the preferred definition is ‘front boundary’. The Respondent conceded at the hearing that it had changed its view in that regard since making the reviewable decision where it had operated on the basis that the north boundary is a side boundary.
The Party Joined suggested that it could be either a front or side boundary, but submitted that the preferred approach was to determine the application on the basis that the northern boundary is a side boundary. The Applicants submitted that both definitions could, and should, be applied.

Given the specific reference to ‘public pedestrian way’ in the definition of ‘front boundary’ in the Territory Plan, the Tribunal concluded that the northern boundary of the proposed development is a ‘front boundary’.

b.Whether approval would be inconsistent with the advice of the Conservator of Flora and Fauna and if so whether s119(2) applies

The relevant provisions considered by the Tribunal are sections 149 and 150 of the PD Act, sections 151, 151A and 151C of the Legislation Act 2001, and sections 82 and 83 of the Tree Protection Act 2005.
PD Act
149Requirement to give advice in relation to development applications
(1)This section applies if a development application, including an amended application, is referred to an entity.
NoteAn amended application may be required to be referred to an entity under s 145.
(2)The entity must give the planning and land authority the entity’s advice in relation to the development application not later than 15 working days after the day the authority gives the application to the entity or, if a shorter period is prescribed by regulation, not later than the end of the shorter period.
Note 1A written agreement to a development proposal under section 148 (2) (b) is taken to be advice given in accordance with this section in relation to a development application for the proposal (see s 148 (3)).
Note 2For how documents may be given, see the Legislation Act, pt 19.5.
150Effect of no response by referral entity
For this Act, if an entity fails to provide advice in accordance with section 149 in relation to a development application referred to the entity, the entity is taken to have given advice that the entity supports the application.
Legislation Act 2001
151Working out periods of time generally
(1)This section applies in working out periods of 1 day or longer for an Act or statutory instrument, whether the period is a period in the future or the past.
Note 1The following definitions in the dictionary, pt 1 are also relevant to periods of time:
·     business day
·     calendar month
·     calendar year
·     financial year
·     midnight
·     month
·     named month
·     quarter
·     working day
·     year.
Note 2The Standard Time and Summer Time Act 1972 deals with the meaning of a reference to a time.
(2)A period of time described as beginning at, on or with a stated day, act or event includes the stated day or the day of the stated act or event.
(3)A period of time described as beginning from or after a stated day, act or event does not include the stated day or the day of the stated act or event.
(4)A period of time described as ending at, by, on or with, or as continuing to or until, a stated day, act or event includes the stated day or the day of the stated act or event.
(5)A period of time described as ending before a stated day, act or event does not include the stated day or the day of the stated act or event.
(6)A reference to a number of days between 2 events does not include the days when the events happen.
Example
A court rule requires a notice of motion to be served 2 days before the return date for the application. If the return date is Friday, that day and the day the application is served are not counted in working out the 2 days. For service to be valid, the application must be served on or before the Tuesday before the return date.
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s 126 and s 132).
(7)Despite subsection (3), if, under an Act or statutory instrument, something must or may be done within a particular period of time after a stated day, the thing may be done on the stated day.
(8)This section is a determinative provision so far as it applies to an applicable law or applicable provision.
NoteSee s 5 for the meaning of determinative provisions, and s 6 for their displacement.
(9)In this section:
applicable law means an Act enacted, or statutory instrument made, after 1 January 2006.
applicable provision means a provision inserted after 1 January 2006 into an Act or statutory instrument that is not an applicable law.
inserted, for a provision, includes inserted in substitution for another provision.
151APeriods of time ending on non-working days
(1)This section applies if—
(a)under an Act or statutory instrument, something must or may be done on a particular day or within a particular period of time; and
(b)the day, or the last day of the period, is not a working day.
(2)The thing must or may be done on the next day that is a working day.
(3)This section is a determinative provision so far as it applies to an applicable law or applicable provision.
NoteSee s 5 for the meaning of determinative provisions, and s 6 for their displacement.
(4)In this section:
applicable law means an Act enacted, or statutory instrument made, after 1 January 2006.
applicable provision means a provision inserted after 1 January 2006 into an Act or statutory instrument that is not an applicable law.
inserted, for a provision, includes inserted in substitution for another provision.
public entity means—
(a)a court or tribunal; or
(b)an administrative unit; or
(c)a statutory-office holder; or
(d)any other entity established for a public purpose under a law.
working day means—
(a)for doing something at an office (however described) of a public entity where the thing must or may be done—a day when the office is open; and
(b)for doing anything else—a day that is not—
(i)a Saturday or Sunday; or
(ii)a public holiday at the place where the thing must or may be done; or
(iii)if the thing is to be done by or in relation to an authorised deposit-taking institution—a day observed by the institution as a bank holiday at the place where the thing must or may be done.
Example—par (a)
filing a document at a court registry
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s 126 and s 132).
151CPower to extend time
(1)This section applies if, under an Act or statutory instrument—
(a)something must or may be done on a particular day or within a particular period of time; but
(b)a court or other entity has power to extend the time (the relevant time) for doing the thing.
(2)A person may apply to the court or other entity for the relevant time to be extended even though the relevant time has ended.
(3)The court or other entity may extend the relevant time even though the relevant time has ended.
(4)This section is a determinative provision.
NoteSee s 5 for the meaning of determinative provisions, and s 6 for their displacement.
(5)This section applies only to an applicable law or applicable provision.
(6)In this section:
applicable law means an Act enacted, or statutory instrument made, after 1 January 2006.
applicable provision means a provision inserted after 1 January 2006 into an Act or statutory instrument that is not an applicable law.
inserted, for a provision, includes inserted in substitution for another provision.
Tree protection Act 2005
82Advice about tree protection on land subject to development
(1)This section applies if the conservator is satisfied, on reasonable grounds, that a development involves, or is likely to involve, an activity that would or may—
(a)damage a protected tree; or
(b)be prohibited groundwork in—
(i)the protection zone for a protected tree; or
(ii)a declared site.
(2)The conservator may give the planning and land authority written advice in accordance with section 83 about the development.
NoteIf the planning and land authority refers a development application to the conservator under the Planning and Development Act 2007, s 148, the conservator must, not later than 15 working days after being given the application, give the planning and land authority its advice in relation to the development application (see Planning and Development Act 2007, s 149).
83Requirements for conservator’s advice about tree protection
(1)This section applies if the conservator gives advice—
(a)under section 82 in relation to a development; or
(b)under the Planning and Development Act 2007, section 149 in relation to a development application.
(2)The advice must include advice about tree protection requirements for each protected tree with a protection zone on, or partly on, the land subject to the development.
(3)Without limiting subsection (2), the advice may—
(a)include information about the trees on the land; and
(b)set out the changes (if any) the conservator considers should be made to any tree management plan or proposed tree management plan that relates to the development application, having regard to—
(i)the guidelines approved under section 31; and
(ii)the advice (if any) of the advisory panel; and
(iii)anything else the conservator considers relevant.

The Party Joined submits that the request for advice was sent by the Respondent to the Conservator of Flora and Fauna on 6 August 2012 (T307). The response was dated 31 August 2012 (T208). This is outside the 15 working day period required by sub-section 149(2) of the PD Act. Consequently, the Party Joined says that section 150 operates so that the Conservator is taken to support the application.
The Respondent basically agreed with this submission. The Respondent confirmed, by reference to the Legislation Act, that the 15 working day period would have ended before 31 August 2012. The Respondent did note that an entity can apply for, and the Conservator on other occasions has applied for, an extension of time within which to provide the advice. However, the Conservator did not do so on this occasion.
The Party Joined also submitted that given sub-section 83(2) of the Tree Protection Act, the response by the Conservator which stated (at T208),
The demolition plan states that all the trees will be removed. There is no non-development reason to remove regulated trees numbered 6 & 8 ..

is such that approval of the development application would not be inconsistent with it.

The Applicants submit that the fact that it is possible for an entity to make an application to provide advice ‘out of time’, this should be considered as having occurred. In relation to the nature of the advice, the Applicants assert that the Respondent had operated on the assumption that the approval was inconsistent with it and therefore that the development could only be approved if section 119(2) of the PD Act applied.
The Tribunal accepts that the advice provided by the Conservator of Flora and Fauna was provided outside the 15 working day time period set out in section 149 of the PD Act. Accordingly, section 150 of the PD Act operates so that the Conservator is taken to support the development application. Section 119(1)(c) of the PD Act would be satisfied if the development were approved. The Tribunal is of the view that even if the Conservator’s advice had been provided within time, given the nature of the advice provided the approval of the development application would not be inconsistent with that advice.

c. Is it necessary to consider the Turner Neighbourhood Plan (‘TNP’)?

The relevant criterion is Criterion 21 (C21) of the INPC.
C21
Where a Neighbourhood Plan exists,
development demonstrates a response to the key
strategies of the relevant Neighbourhood Plan.

There is no applicable rule. The Party Joined made submissions based on C147 of the MUHDC Part C(3), however the terms are identical to C21 of the INPC. The Party Joined asserted that the TNP, as compared with other Neighbourhood Plans, does not identify ‘key strategies’ and, therefore, the criterion does not apply to the DA.
The Party Joined submits that the strategies in the TNP which the Applicants identified as being relevant [at paragraphs 43-45 of the Applicants’ Statement of Facts and Contentions filed 25 March 2013] were all matters that were otherwise dealt with in the MUHDC or INPC. The Party Joined submits that generally compliance with a rule or criterion of the relevant code should ‘end the matter’. Therefore, the term ‘key strategies’ in C21 should be applied precisely, otherwise it was possible that notwithstanding a rule or criterion in the relevant code is met, it might be that compliance was nonetheless ‘overturned’ because of a strategy in a neighbourhood plan. The Party Joined referred the Tribunal to the decisions in Edquist v ACTPLA [2011] ACAT 64 and Griffith and Narrabundah Community Association v ACTPLA & Anor (Administrative Review)[2011] ACAT 61 (at paragraph 105) in support of these assertions.
Alternatively, the Party Joined submits that if C21 does apply then the development ‘demonstrates a response’ to the strategies of the TNP and is therefore compliant.
The Respondent generally agreed with the submissions by the Party Joined noting the terms of C21 of the INPC were identical to C147 of Part C(3) of the MUHDC.
The Applicants submitted that neighbourhood plans had been prepared by various neighbourhood groups in 2003 and 2004. The format of these had changed and those, such as the TNP, prepared in 2003 had not adopted use of the term ‘key strategies’. The Territory Plan dated 2008 and the relevant codes had included criteria such as C21 of the INPC, and C147 and C87 of the MUHDC. This demonstrates the intention that neighbourhood plans were to continue to have impact notwithstanding that many of the matters they identified as issues had been incorporated into the Territory Plan and related codes.
The Applicants assert that the term ‘key strategy’ in the criteria was not to be interpreted as restricting application of the code to those neighbourhood plans that use the specific term, but rather as being reference to a ‘strategy’ that could be regarded as ‘key’ in the relevant neighbourhood plan.
The Tribunal accepts the Applicants’ submissions. It is relevant to note that C21 of the INPC requires demonstration of a ‘response’ to the relevant neighbourhood plan. It is that ‘response’ which amounts to compliance with the criterion. C21 does not require compliance with the identified key strategy.
The Tribunal concluded that C21 of the INPC does apply and that the development would need to demonstrate a response to those strategies which the Tribunal identified as ‘key strategies’ in the TNP and that were relevant to the proposed development.

Consideration of matters set out in section 120 of the PD Act

Sections 50, 51, 52, 53, 54 and 55 PD Act are relevant for considering matters set out in section 120 of the PD Act.
50Effect of territory plan
The Territory, the Executive, a Minister or a territory authority must not do any act, or approve the doing of an act, that is inconsistent with the territory plan.
Note 1The Territory, or a territory authority, is prevented from doing anything inconsistent with the national capital plan.
Note 2The Territory, the Executive, a Minister or a territory authority are also prevented from doing anything inconsistent with some draft variations of the territory plan (see s 65 and s 72).

51Contents of territory plan
(1)The territory plan must include the following:
(a)a statement of strategic directions;
(b)objectives for each zone;
(c)development tables;
(d)codes;
(e)a map (the territory plan map).
NoteFor more about development tables, see s 54. For more about codes, see s 55. For more about a territory plan map, see s 56.

(2)The territory plan may, but need not—
(a)identify future urban areas and include the structure plans that apply to those areas; and
(b)identify areas of public land reserved in the plan (whether in a map or elsewhere in the plan) for a purpose mentioned in section 315 (Reserved areas—public land); and
(c)to give effect to the object of the plan—provide for other matters relevant to the exercise of the powers of the Territory, the Executive or a territory authority under a territory law; and
(d)make provision in relation to affordable residential housing; and
(e)include anything else relevant to the object of the territory plan.
52Statement of strategic directions
(1)The statement of strategic directions in the territory plan may contain planning principles covering areas of national, regional and Territory interest, including principles for sustainable development.
(2)The function of the statement of strategic directions is to—
(a)contain broad strategic principles to guide long term planning for the ACT; and
(b)guide the preparation and making of variations to the territory plan; and
(c)guide environmental impact statements, planning reports and strategic environmental assessments.
(3)The statement of strategic directions in the territory plan should promote the planning strategy.
53Objectives for zones
(1)The objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone.
(2)Each objective for a zone must be consistent with the statement of strategic directions.
54Development tables
(1)A development table for a zone must set out—
(a)the minimum assessment track that applies to each development proposal; and
NoteAssessment tracks are dealt with in ch 7.

(b)development that is exempt from requiring development approval; and
NoteExempt developments are further dealt with in div 7.2.6.

(c)development that is prohibited; and
(d)the code that development proposals must comply with.
(2)A development table may exempt a development proposal from requiring development approval subject to a condition.
Example of possible condition
A development proposal is exempt from requiring development approval if the building plans for the proposal comply with a code that applies to single residences in the development table that applies to the proposal.
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3)The assessment tracks, from minimum to maximum, are as follows:
(a)code track;
(b)merit track;
(c)impact track.
55Codes in territory plan
(1)A code (other than a general code or precinct code that is a concept plan) in the territory plan must contain either or both of the following:
(a)the detailed rules that apply to development proposals the code applies to;
(b)the criteria that apply to development proposals the code applies to, other than proposals in the code track.
(2)A code must be consistent with each objective for the zone to which the code relates.
(3)A code that sets out the requirements that apply to stated areas, or places, or states that it is a precinct code, is a precinct code.
NoteA concept plan is a precinct code (see s 93 (b)).

(4)A code that sets out the requirements for types of development, or states that it is a development code, is a development code.
(5)A code that sets out requirements applicable to the Territory, the Executive, a Minister or a Territory authority is a general code.
(6)To remove any doubt, a general code may also contain—
(a)policies to be complied with; and

(b)rules and criteria applicable to development proposals the code applies to.

Each of the matters set out in section 120 of the PD Act must be considered by the decision maker, in this case, the Tribunal, as part of the process in deciding a development application.
Section 120(a) states that the Tribunal must consider the ZOs. The Territory Plan includes ZOs as well as development tables and codes (section 51 of the PD Act). The ZOs set out the policy outcomes intended to be achieved by applying the applicable development table and code (section 53 of the PD Act). The development table sets out the relevant assessment track and the code/s that the development must comply with (section 54(1), PD Act).
A code sets out rules and/or criteria (section 55(1) of the PD Act). A code must be consistent with each ZO for the zone to which it relates (section 55(2) of the PD Act). Codes relating to stated areas are ‘precinct codes’ and to particular types of developments are ‘development codes’ (sections 55(3) and 55(4) of the PD Act). Zones and precincts are identified in a territory plan map (section 56 of the PD Act).
These provisions of the PD Act support the assertion that to the extent that a development complies with the relevant code the development will, or should, be consistent with the ZOs. However, the Tribunal does not accept that compliance with the code necessarily means, in all cases, that the ZOs are satisfied by the development.
In the introduction to the MUHDC and the INPC which, among others, are the codes applicable to the proposed development, it states that:
Codes provide additional planning, design and environmental controls to support the zone objectives and assessable uses in the development tables.
A development application must not be approved unless it is consistent with the relevant code (section 119(2) of the PD Act). The Applicants in the current matter assert that certain aspects of the proposed development do not comply with relevant controls in the INPC or the MUHDC. The introduction to the MUHDC and the INPC confirm that a development must be refused if it does not comply with a mandatory rule. However where the proponent has the option to meet a criterion:
..the onus is on the applicant to demonstrate, by supporting plans and written documentation, that the development satisfies the criteria and therefore the intent of the element.
Given the above, prior to considering the RZ3 ZOs pursuant to section 120(a) of the PD Act, the Tribunal will consider compliance with the relevant codes.

Is the proposed development consistent with the relevant codes?

The Applicants submit that the development failed to meet the following rules or criteria:

The Tribunal also considered the following rules or criteria:

Storage - R163/C163, MUHDC, Part C(3)
Living space of two bedroom dwellings – R113/C113, MUHDC,
Part C(3)

a. Traffic generation – C37, MUHDC, Part B

The following is C37 of the MUHDC, Part B:
The existing road network can accommodate the
amount of traffic that is likely to be generated by
the development.
The Applicants assert that there are currently traffic and parking issues in Hartley Street, which is adjacent to the subject site. The two driveways to the proposed development are accessed from Hartley Street. The driveway at the north end of the development adjacent to the pedestrian pathway leads to the basement car park for residents and visitors. At the south end, the driveway leads to the waste disposal area for residents and provides access for waste removal vehicles.
The Applicants submit that there is insufficient information for the Tribunal to be satisfied that the existing road network of and around Hartley Street can accommodate the traffic and ‘on street’ parking that is likely to be generated by the development.
The Applicants’ witness, Mr Edwards, was authorized to give evidence on behalf of the Turner Primary School Board. His email statement dated 6 May 2013 was tendered (Exhibit A1). His written and oral evidence included his assessment of the traffic and parking issues in the area. The Turner Primary School is located with street frontage to, and driveway access from, Hartley Street, Condamine Street and David Street in Turner. Mr Edwards said that the school had concerns about the use of the school parking areas for overflow parking from developments such as the proposed development.
Mr Edwards said that the anticipated traffic to be generated by the proposed development would add to the congestion during the morning and afternoon peak periods when students and teachers were arriving at or leaving the school. There was also concern as to how service, delivery and removalist vehicles attending the proposed development would be accommodated. He also raised concerns about pedestrian safety given these issues.
Expert evidence in relation to traffic to matters was given by Mr Jatheendran from TAMS on behalf of the Respondent, and Mr Shoobridge on behalf of the Party Joined.
Mr Jatheendran gave oral evidence and provided a written statement dated 12 April 2013 (Exhibit R4). He confirmed that Hartley Street is a local street with a capacity of 1000 vehicles per day. He estimated, by reference to traffic generation tables, that the proposed development would generate additional vehicle movement of up to 80 vehicles per day, and an estimated 8 vehicles in the morning and afternoon ‘peak’ hour, which for the school is considered to be 8:15 to 9:15 am and 2:30 to 3:30 pm.
Based on traffic observations undertaken in Hartley Street by TAMS between 8:00am and 4:00 pm on 13 March 2013 (Exhibit R4, Attachment D & E), Mr Jatheendran concluded that the most traffic movement occurred for about 30 minutes during the morning (154 vehicles) and afternoon (100 vehicles) peak periods. He said that this dropped to about 20 vehicles per hour ‘after the school activity hours’. Although the Tribunal considers, by reference to the figures in Attachment D to Mr Jatheendran’s Statement (Exhibit R4), that this figure is probably more like 25 vehicles per hour during school hours, the Tribunal accepts that an average figure of 20 vehicles per hour over a full day, outside the peak school periods, is probably accurate.
Based on Mr Jatheendran’s evidence the total estimated vehicle use of Hartley Street currently is approximately 700 vehicles per day. If the development generates an additional 80 vehicles, then this is within the 1000 vehicles per day capacity of Hartley Street.
Mr Jatheendran concluded (Exhibit R4, paragraph 18) that no complaints had been made to Roads ACT regarding vehicle and pedestrian traffic in Hartley Street. The Tribunal accepts that the Applicants did on 15 December 2010 lodge a written complaint with Roads ACT expressing concern about traffic movement, congestion and pedestrian safety in Hartley Street. The results of a search undertaken by the Respondent, using the Applicants’ names, were tendered on day 2 of the hearing (Exhibit R2). The Respondent provided a copy of the document lodged by the Applicants and the response provided by Roads ACT.
Mr Jatheendran confirmed that it had become apparent that the search of the database relied on use of the name of an individual. The Tribunal accepts that people other than the Applicants may have made complaints to or enquiries of Roads ACT, but that these would only become apparent if the name of the person was used in the search.
The Applicants submit that they reside in Hartley Street and have observed traffic congestions when parents drive along Hartley Street attempting to drop off or collect their children from the school. Parking on the eastern side of Hartley Street is not permitted between 7:30 am and 6 pm week days. On the western side, it is restricted to 3 hours between 8:00 am and 5:30 pm weekdays. The Applicants assert that during these hours some vehicles are illegally parked. Hartley Street is 7m wide. The Applicants said that when vehicles are parked on both sides there is room for only single lane traffic. They say that even if vehicles are parked legally on the western side, because Hartley Street is narrow, this presents restriction to the flow of two-way traffic.
In Roads ACT’s response to the Applicants’ complaint about such matters (Exhibit R4) it is suggested, and Mr Jatheendran in his oral evidence endorsed, that the 40 km/h school zone speed limit, and indeed the presence of the legally parked vehicles, presented traffic ‘calming’ measures which had the effect of increasing safety for pedestrians, such as school children.
Mr Shoobridge is an experienced civil and traffic engineer. He was engaged by the Party Joined to provide expert evidence. His statement dated 15 April 2013 (Exhibit PJ10) addressed, among other things, issues raised by the Applicants relevant to C37 concerning:
a.vehicle movement and traffic generation associated with the proposed development;
b.the safety for children attending the Turner Primary School; and
c.parking issues.
Mr Shoobridge undertook observations of Hartley Street and the surrounding roads in March and April 2013. He noted that the morning peak period for the school, between 8:35 am to 9:15 am, would present the period of greatest conflict in terms of traffic congestion and movement. He considers that the proposed development would generate up to 13 vehicles per hour during peak periods. Mr Shoobridge took the view that Hartley Street is a local street with a capacity of 2000 vehicles per day. He concluded that there is relatively low use of Hartley Street outside the peak school periods.
Mr Shoobridge considers that Hartley Street and the adjoining road networks can accommodate the traffic likely to be generated by the proposed development. This is particularly, so he says, as it is not likely that the generated traffic will ‘significantly coincide with the school traffic and other peak period activity in the vicinity of the school’ (Exhibit PJ10, paragraph 17). He therefore did not consider that the traffic or parking associated with the proposed development would impact on pedestrian school children since the most activity associated with the development is likely to occur outside school hours and on weekends. Further, the 40km/h speed limit reduces risk and from his observations pedestrian movement across Hartley Street did not present concerns.
Mr Shoobridge considers that the proposed development has sufficient parking and thus will not exacerbate any parking issues. Mr Shoobridge does consider that, given its width (which he said was 7m), parking should not be allowed on both sides of Hartley Street and that Condamine Street is ‘nearing its environmental capacity’. Nonetheless he concludes that the existing road network of Hartley Street, David Street and Condamine Street can accommodate any traffic likely to be generated and C37 is met.
The Tribunal considers that if it accepts:
a.that Hartley Street is 7m wide and has a daily traffic capacity of 1000 vehicles; and
b.that the maximum traffic likely to be generated by the proposed development is 80 vehicles per day, of which it will generate a maximum of 13 vehicles during the morning and, perhaps, afternoon school peak periods; and
c.that the current total of vehicle movement is during the morning and afternoon school peak periods (2 hours) is approximately 254 and outside these periods there are approximately 20 vehicles per hour (20 x 22hours);
then the total anticipated traffic movement is 80 + 254 + 440 = 774. This is
within the capacity of Hartley Street, and will be less during school holidays.
The Tribunal is satisfied that C37 is met.
The Tribunal accepts that Hartley Street is a narrow street with a bend which is near to the northern driveway of the proposed development and close to the Hartley Street driveway to the Turner Primary School. Hartley Street appears to be ill designed to accommodate ‘on street’ parking and the kind of traffic associated with delivery and collection of primary school aged children. Perhaps more suitable arrangements could be made for this purpose, and for parking, at the David Street and Condamine Street entrances to, and parking areas provided at, the school. There might be merit in reviewing the current ‘on street’ parking arrangements in Hartley Street. However, these are not matters for decision by the Tribunal.
b. Overlooking – R128/C128, MUHDC, Part C(3)

The Tribunal considered the following, the extracts of which are set out below.
Definition of ‘Private Open Space’, Part B Definition of terms in the Territory Plan,
Element 3: Built Form, Intent: f) (in the MUHDC, Part C(3)),
Element 5: Amenity, Intent: c), MUHDC, Part C(3),
Element 5:Amenity Intent: a), INPC, and
R148, 128 and C128, MUHDC, Part C(3)).
Definition of ‘Private Open Space’, Part B Definition of terms in the Territory Plan
Private open space means an outdoor area within a block useable for outdoor living activities, and may include balconies, terraces or decks but does not include any area required to be provided for the parking of motor vehicles and any common driveways and common vehicle manoeuvring areas. Up to 25 per cent of any part of private open space may be roofed over, except that a balcony may be entirely roofed over.
Element 3:Built Form, Intent: f) (in MUHDC, Part C(3))
Element 3: Built Form

Intent:

f) To provide adequate separation between dwellings and windows for privacy

Element 5: Amenity, Intent: c), MUHDC, Part C(3)
Element 5: Amenity

Intent:

To ensure
.......

c)   Dwellings are provided with private and useable private open space that is
      integrated with, and directly accessible from, the living areas of the
      dwelling

................

Element 5:Amenity Intent: a), INPC
Element 5: Amenity

Intent:

a)   To provide for private open space as part of urban dwellings that
        is useable, compliments the desired urban characteristics of the
        area as well as the garden city character

.....................

R148 and Rule 128 and Criteria 128 from MUHDC, Part C(3)

5.3 Private Open Space

R148

The area of private open space for ground level dwellings are:

a)   a minimum of 30 m2 in RZ3 zones b)
     a minimum of 24 m2 in RZ4 zones c)
       a minimum dimension of 4 m x 4 m

d)   screened from public view

e)   directly accessible from a main daytime
       living area of the dwelling

f)    able to achieve a minimum 3 hours of
       direct sunlight onto 50% of the ground
       between the hours of 9.00 am and 3.00
      pm on 21June (winter solstice).

C148

The area of private open space is:

a)     large enough to suit the projected

requirements of the dwelling’s occupants and to accommodate outdoor recreation needs and service functions such as clothes drying

b)   capable of serving as an extension
       of the function of the dwelling and
       of being accessed from a main
       living area of the dwelling

c)    oriented to enable solar access and
       helping to achieve comfortable year
       round use by the dwelling’s
       occupants.

Rules Criteria

R128

Outlook from windows and balconies of an upper floor level dwelling are designed, screened or obscured to prevent overlooking of more than

50% of the minimum private open space of a lower floor level dwelling directly below and within the same development.

Where screening devices are to be utilised to limit overlooking they are to be solid translucent screens or perforated panels or trellises which have a maximum of 25% opening and which are:

a)   permanent or fixed

b)   the same colour as the associated
       building.

C128

Direct overlooking of private open spaces of other dwellings is limited by building layout, location

and design of windows and balconies, screening devices and landscape, or remoteness.

The Applicants submit that the development does not meet R128 as a person standing adjacent to the balcony balustrade of the first floor units can overlook more that 50% of the POS of the unit below. The Respondent and the Party Joined agreed that R128 was not met.
The 50% referred to in R128 is calculated by reference to R148 a) of the MUHDC which requires the provision of an area of POS of 30m², 50% of which is 15m^2.
Mr Cilliers refers (at T49 paragraph (u)) to the condition of approval of the DA A2 (a) (xv) (T25) which states:
(xv) design details of the balustrades for the upper level balconies to prevent overlooking of more than 50% of the minimum private open space of the lower dwellings.
The wording of the condition suggests that an effective response would result in compliance with R128. However in his statement (Exhibit R3, paragraph 18) Mr Cilliers notes that the DA applicant would need to provide details to “confirm compliance with Rule (or Criterion) 128)”.
Mr Cilliers’ evidence suggests that if the balustrade is approximately 1.5m high (Exhibit R3, paragraph 19) and is constructed of material that would obscure views of the units below, rather than clear glass, then this would restrict overlooking of the units below whether a person was standing or sitting on a first floor balcony.
Mr Kasparek gave evidence (Exhibit PJ2, paragraphs 24 and 25) about the design of the balustrades referring to revision note 2.2q. The Tribunal has reviewed the drawings and was not able to locate this note, however note 2.3c) states that the clear glass to the balustrades is to be changed to translucent or obscure glass.
The Tribunal has reviewed drawings 06 and 07 in attachment D of Exhibit PJ2. The balustrade height as depicted appears to be approximately 1m rather than 1.5m high. The Tribunal was unable to find any reference in the documents that states that the balustrade height will be amended to a height of 1.5m above the balconies. The Tribunal was not provided with an alternate design of the balustrade height.
The Tribunal accepts the submission of the Party Joined that an area of approximately 12m² of POS of the east and west facing ground floor units is not overlooked. Included in this 12m² is approximately 3m² in front of each ground floor living room, which is less than 1m wide.
The Tribunal considers that although R128/C128 are within Element 3: Built Form in the MUHDC, these controls endeavour to ensure that privacy in the use of POS of other dwellings is achieved. R148 is under Element 5: Amenity. Intent c) states that it is ‘to ensure’ that dwellings are provided with ‘private and useable’ POS. The INPC Element 5:Amenity, Intent a) also refers to useable POS. It is the Tribunal’s view that the approximately 3m²in front of the living room should not be taken into account for the purpose of C128.
The Tribunal has determined that apart from unit 1, no ground level unit has an area of usable POS greater than approximately 9-10m² that is not capable of being overlooked when a person is standing on the balcony of the unit above adjacent to the balustrade, even if the balustrade is constructed in a solid or obscure material.
The Tribunal considers that as the POS of unit 1 has an area of POS greater than 15m² that is not overlooked from the unit above, R128 is met. Units 2 and 3 each has a patio area in front of the 2^nd bedroom which is overlooked from the bedroom of the unit directly above (bedroom 2 of units 10 and 11 respectively).
C128 does not specify an area of POS. It requires that ‘direct overlooking’ of the POS of ‘other dwellings’ must be limited. The recessed patios of the ground floor dwellings are an attempt to meet the criterion through building layout. However, it is not, in the Tribunal’s view, sufficient to merely reduce overlooking opportunities without regard to the use of the POS impacted. The design of the unscreened balconies directly above the POS of units below does not limit overlooking to a sufficient degree in a number of the ground floor units. The Tribunal is not persuaded that the area of usable POS, approximately 9-10m², which is not overlooked in these units, is sufficient to satisfy C128. From the information available to the Tribunal, it is not apparent that condition A2(a)(xv) has impacted on this conclusion.

In its closing submissions, the Party Joined specifically stated that it had ‘opted to [be] assess[ed] against the criterion.’ (see paragraph 80, Party Joined’s Submissions dated 20 May 2013). It is incumbent upon the proponent to demonstrate compliance with the criterion. In the Tribunal’s view it has not done so.
c. Driveways – R135/C135, MUHDC, Part C(3)
Relevant provisions to consider are R135/C135 of the MUHDC, Part C(3), and R50/C50 and R51/C51 of the MUHDC Part B.

Rules Criteria

R135

In relation to driveways, access/internal roads and car parks:

a)   Walls of dwelling incorporating an opening to a habitable room are to be setback are to be setback a minimum of 1.5 m. This setback may be reduced to 1 m where there is an intervening fencing 1.5 m high or greater, or where the window sill is a minimum of 1.5 m above the driveway, access/internal road and car park.

b)   the minimum width of driveways and access roads is 3 m

c)    where there are changes in direction or intersections, the internal radius of the driveways and access road are at least 4 m

d)   where more than 10 car spaces are served and the driveways and access road connects to a public road, the entrance is at

least 5 m wide for a distance of 7 m from the street front boundary to allow vehicles to pass each other

e)   a turning space is provided so cars can

enter and leave in a forward direction where a driveway:

i) serves 5 or more car spaces, or ii) connects to a major road.

C135

Driveways allow safe and efficient vehicle movement and good connections to the existing street network as well as providing a high quality pedestrian priority environment.

Rules Criteria

7.1 Waste Management

R50

Where the development will generate a total of 20 cubic metres or greater of demolition and/or construction waste and/or excavation material,

the application is accompanied by a Statement of Compliance from the Department of Territory and Municipal Services stating that the waste facilities and management associated with the development are in accordance with the current version of the Development Control Code for

Best Practice Waste Management in the ACT.

C50

Development is in accordance with the current version of the Development Control Code for Best Practice Waste Management in the ACT. If the development will generate a total of 20 cubic metres or greater of demolition and/or construction waste and/or excavation material

and a Statement of Compliance is not provided, the application will be referred to the Department of Territory and Municipal Services in

accordance with the requirements of the Planning and Development Act 2007 for assessment against the above code.

7.2 Servicing and Site Management

R51

In accordance with section 148 of the Planning and Development Act 2007, the application is accompanied by a Statement of Endorsement from the relevant agency stating that the waste facilities and management associated with the development are in accordance with the Design Standards for Urban Infrastructure.

C51

If a Statement of Endorsement is not provided the application will be referred to the relevant agency in accordance with the requirements of the Planning and Development Act 2007.

The Applicants questioned whether the driveway to the basement located at the northern end of the proposed development complied with R135/C135. Changes to the northern driveway to achieve compliance with C135 were proposed by the Party Joined as depicted in a diagram (Exhibit PJ11) which was tendered on the last day of hearing. After reviewing these proposed changes, Mr Jatheendran confirmed that TAMS would approve the safety aspects of the driveway entrance and safety ramp of the changes as proposed in Exhibit PJ11.
The Tribunal accepts that the northern driveway, if constructed as proposed in the amended diagram, as set out in Exhibit PJ11, would comply with either Rule or Criterion 135.
There had also been changes to the southern driveway of the development, which provides access to the waste disposal for waste removal vehicles. Because of these changes the endorsement previously provided by TAMS in relation to Rule 50/Criterion 50 and Rule 51/Criterion 51 of the MUHDC, Part B, required review. Mr Jatheendran provided a written endorsement (Exhibit R5) dated 20 May 2013 which confirmed that the changes proposed would be endorsed.
The Tribunal accepts that R50 or C50, and R51 of the MUHDC, Part B have been met.
d. Solar access – R146/C146, MUHDC, Part C(3) (The Tribunal also considered R145/C145.)
The Tribunal considered the definition of “Building” in Part B of the Territory Plan, Element 5: Intent: b) in Part C(3) of the MUHDC, and R145/C145 and R146/C146 of the MUHDC
Definition of “Building”, Territory Plan, Part B
Building includes:
a) an addition to a building;
b) a structure attached to a building; and
c) a part of a building.
Element 5: Intent: b), MUHDC, Part C(3)
Element 5: Amenity
Intent:
To ensure:
a) ..............
b) Development is sited and designed to optimise solar access to private open space and living areas of dwellings
...........................
R145/C145 and R146/C146, MUHDC, Part C(3)

Rules Criteria

5.1 Solar Access

R145

North-facing windows to main living areas are setback from any building on the same block so that the building is sited within a plane projected at 30 degrees above horizontal from 750 mm above floor level at the window for a lateral distance of up to 30 degrees east and west of north, or set back at least 3 m from any boundary to the north.

C145

Building envelopes and dwelling layouts optimise energy efficiency.

R146

Development is sited to allow a minimum of 3 hours of direct sunlight onto the floor or wall of the internal primary living space and the private open space of any dwelling within the development and any dwelling/s adjacent the subject site, between the hours of 9.00am and

3.00pm on 21 June (winter solstice).

C146

Optimum winter sunlight to north-facing windows of living areas and private open spaces is achieved.

Rules

Criteria

R90

Except as provided for in Rule 92, an area of private open space with a minimum dimension of at least 6 metres is:

a) screened from public view

b) not forward of the building line except where permitted by, and illustrated in, an approved estate development plan

c) located

(i) not to the south, south-east or south- west of the dwelling, or

(ii) to maintain a minimum three hours sunlight onto 50% of the ground between the hours of 9:00am and

3:00pm on 21 June (winter solstice)

C90

a) Private open space is capable of enabling an extension of the function of the dwelling for relaxation, dining, entertainment and recreation

b) Private open space forward of the front building line ensures the amenity of the private open space and the dwelling is protected whilst maintaining opportunities for passive surveillance.

c) Private open space is to take account of outlook, natural features of the site and neighbouring buildings or open space and to provide for maximum year round use.

The Party Joined asserts that the development complies with Rule145 as all north facing windows are set back 3m or more from the north boundary. The Party Joined urged the Tribunal to take an approach to R145 similar to the approach which had been taken in decisions concerning Rule 90 (the Party Joined acknowledges R90 is not applicable to the current DA) –

R90 identifies three features of a POS that must be addressed. In relation to one of those features, R90(c), there are two, alternative options. R145 is one of the controls within MUHDC Part C(3), specifically aimed at ‘ensuring’ Intent b) of Element 5: Amenity. In the Tribunal’s view, it is only if no ‘building’, which includes part of a building, on the same block falls within the plane described by R145 that the relationship of north facing windows to the north boundary becomes relevant. This is the ‘alternative’ situation that the ‘or’ in R145 relates to.
The walls to the north of and parallel to the north facing windows of units 3, 4 and 5 are more than 6 m high. The wall attached to:
a.unit 4 is approximately 2m to the north of the balcony above unit 5;
b.unit 3 is approximately 3m to the north of the balcony above unit 4; and
c.unit 2 which is about half the width of the other two walls is approximately 3m to the north of the balcony above unit 3.
The Tribunal has considered the shadow drawings provided by Mr Kasparek in Exhibit PJ2, Attachment E. The Tribunal has compared these with the plans at Exhibit PJ2, Attachment D. The shadow diagrams do not include the louvres which are to be located at the northern end of the patios of units 3, 4 and 5. These louvres are designed with blades angled at 30 degrees to allow maximum direct sunlight to pass through at midday on winter solstice. The Tribunal notes that because of the combined effect of the building envelope, the orientation of the development and the layout of the individual dwellings, there will be no direct sunlight to units 4 and 5 (after 11:15 am) and unit 3 (after 11:45 am) on winter solstice, and the louvres will have no impact on this. However, the Tribunal considers that the louvres will, to some extent, reduce the amount of direct sunlight to the northern windows of units 3, 4, and 5 prior to midday on winter solstice due to the lower angle of the sun.
The Tribunal concludes that only units 2, 9 and 10 meet R145. Unit 1 could be made to comply if the western wall above the driveway were appropriately altered. None of the other units meet R145. The upper level units fail to meet R145 as they do not provide the lateral requirement to the east for the western units or to the west for the eastern units.
C145 is not restricted to north-facing windows. As 12 of the 16 units have extensive glazing either to the east or to the west the Tribunal considers that the layout of these dwelling does not optimize energy efficiency. The summer heat gain to the living areas will not be mitigated by the building envelope or the dwelling layout. As will be seen from the discussion below regarding R146/C146 the Tribunal considers that for some dwellings the solar access in winter is not optimal. As a result, it is likely that these dwellings may require mechanical cooling in summer as well as heating in winter to achieve a high level of amenity for the residents. Additional artificial lighting may also be required. These are issues for energy efficiency. The Tribunal is not satisfied that R145 or C145 is met by the development.
R146/C146, MUHDC, Part C(3)
The Applicants submit that the development does not meet R146 for units 3, 4 and 5 and since further options have not been considered, it does not satisfy C146. Both the Party Joined and the Respondent agree that these units do not meet R146, however they submit that C146 is met by the development.
The Party Joined relies on the Tribunal decision of Amarso Pty Ltd v ACTPLA [2012] ACAT 9 (at pages 183 and 185) to support the assertion that it is by reference to the development as a whole and not individual dwellings that the assessment in relation to C146 is made.
The Tribunal notes that the decision in Amarso concerned a quite different development within a CZ2 zone. Rule/Criterion 222 in Part C(5) of the MUHDC applied:
R222/C222, MUHDC, Part C(5)

Rules Criteria

5.2 Solar Access

R222 (replaces 5.1 Solar Access in Part C(1))

Development is sited to allow a minimum of 3 hours of direct sunlight onto the floor or internal wall of the main daytime living area and the front edge of any associated private open space of at least 70% of apartments between the hours of

9.00am and 3.00pm on 21 June (Winter Solstice).

C222

Buildings are to be sited and designed to optimise solar access to north facing windows of living areas and to private open space.

The wording of R222 and C222 are different from R146/C146. The Tribunal considers that this aspect of the decision in Amarso is of limited relevance to the current matter. If each dwelling within or adjacent to the subject site does not meet R146, then the proponent must satisfy C146.
The Party Joined says that, in relation to the subject development, 13 of 16 units are rule compliant as compared with the circumstances in the matter of Ymer & Tucker v ACTPLA & Ors [2011] ACAT 46, where 50% of units were non- compliant.
Whilst the Tribunal agrees that it would be incorrect to suggest that a development must comply with R146 given it is not a mandatory rule, if the development is rule non-compliant it is then necessary to consider the solar access of the dwellings that are not rule compliant in order to assess the development’s response to C146.
R146 requires a ‘minimum of 3 hours of direct sunlight’. The rule is aimed at
           maximizing, not restricting, the level of solar access. R146 and C146, as well
           as R144/C144 and R145/C145, are to be read within the context of, and as
           being intended to achieve, the outcomes described by:
MUHDC, Part C(3) Element 5: Amenity, i.e.
Intent:

To ensure:
……….
b) Development is sited and designed to optimise solar access to private
              open space and living areas of dwellings; and

RZ3 – Urban Residential Zone objectives of
………………………
(d) Achieve developments with a high standard of residential amenity.
……………
(g) Promote energy efficiency and conservation and sustainable water use
…………………..
C146 refers to ‘optimum’ sunlight. This term is not defined. The definition of ‘optimum’ is ‘best or most favourable’ in the Oxford English Dictionary.
R146 does not specify how the 3 hours of direct sunlight is to reach the living area and POS of dwellings. It does not require that the sunlight enter from a particular aspect. However, consideration of C146 is limited to north-facing windows. In other words, in the Tribunal’s view, R146/C146 operate as follows:
a.if the development does not meet R146 for any dwelling within or adjacent to the development, then
b.in order to satisfy C146 it is necessary to achieve ‘optimum winter sunlight to north-facing windows of living areas and private open spaces’ of dwellings.
The Tribunal accepts that as long as all dwellings in a development or on an adjacent site satisfy either (a) or (b) then the criterion is met. However, it is the Tribunal’s view that if a dwelling within a development:
a.does not meet R146; and
b.does not have north-facing windows to the living areas;
then there is no basis for consideration of C146. The development is not capable of satisfying C146.
In the current matter, each of the non-rule compliant units has north-facing windows to living areas. The question to be asked is whether ‘optimum sunlight to the north-facing windows of living areas’ and the respective POS of those dwellings is ‘achieved’?
The Tribunal accepts that in answering this question, it should not apply to C146 the same requirements as R146 i.e. ‘3 hours of direct sunlight onto the floor or wall’. The rule is not mandatory. However, the mere presence of north-facing windows in the living areas of a dwelling will not suffice. The assessment is whether the sunlight ‘to’ those windows and POS is optimum. The Tribunal notes C146 does not require the sunlight to penetrate inside the dwelling.
The following conditions were imposed by the reviewable decision.
A2(a)(v) – replacement of roof with pergola on upper level balconies, and A2(a)(vi) - removal of north facing walls of units 11, 12 and 13 to ‘improve solar access in these balconies’.
The Party Joined removed the roofs as required and replaced the walls of units 11, 12 and 13 with slatted louvres in order to improve solar access but maintain privacy. These efforts have not greatly impacted on the level of sunlight available to the north facing windows of units 3, 4 and 5.
The presence of the balconies overhead, and the south eastern, two storey external walls of the units to the north of units 3, 4, and 5 reduce the effectiveness of the north facing windows in these units.
It is this design which results, in the Tribunal’s opinion, in a less than optimum outcome being achieved. It is the design which constrains the level of sunlight exposure to the north facing windows. The design should be such that it achieves an optimum outcome and compliance with either R146 or C146.
The Party Joined’s witness, Mr Kasparek, conceded that a better outcome could have been achieved had the north facing windows of the three east facing units (units 3, 4 and 5) been able to be positioned further east than the units to their north. However, he gave evidence that he was constrained because the development was at the limit of the permitted 30% of building into the rear zone of the development (R13, INPC). R13 and C13 of the INPC are:

Rules Criteria

2.6 Site Coverage

R13

Site coverage in the rear zone does not exceed 30%.

This rule does not apply to:

a)   Braddon Sections 15, 16, 58
       and 59
b)   O’Connor Section 40

c)    Lyneham Section 46 Block 1 and 2.

Note: A basement structure that projects into the Rear Zone is included in calculations of site coverage.

C13

This criterion applies only to a site where at least one regulated tree is proposed to be retained within the primary building zone. In all other cases the rule is mandatory.

Sufficient space on the block is provided to retain or introduce large-canopy trees and create a treed backdrop to development.

Compliance with this criterion is demonstrated by a report from a suitably qualified person.

A regulated tree is defined under the Tree

Protection Act 2005.

It is the Tribunal’s view that this constraint is a consequence of the building design, not an inherent limitation of the site or development requirements. The Tribunal notes that on or about 18 December 2012, R13, previously a mandatory Rule in all situations, was changed. The Tribunal notes that the change was subsequent to the reviewable decision. However, the current form of R13 would mean that, if the development applicant chooses to retain one or more of the regulated trees, the 30% is no longer a mandatory rule. There may be alternative design options that offer improved solar access for all dwellings.
The Tribunal accepts the submission by Mr Walker on behalf of the Party Joined, that it is not a question of deciding what is the ‘absolute best’ that could be achieved, or insisting on changes that achieve no more than an infinitesimal improvement, but rather, it is the optimum outcome on a reasonable assessment. Does it achieve an optimum outcome given the intent 5(b) of the MUHDC Part C(3) which is set out above? For the reasons set out below the Tribunal is not satisfied that it does.
Units 3, 4 and 5 are ground floor units that face south of east with one living space to each unit. The living spaces have east and north facing glazing. The northern glazing to each unit is located below the approximately 3m deep balcony of the unit above. Mr Kasparek gave evidence (Exhibit PJ2, paragraph 36-43) in which he referred to shadow drawings (Exhibit PJ2, Attachment E). These include 3D drawings of the eastern façade of the development and depict the sunlight which would enter the 6 eastern units. Mr Kasparek gave evidence that although the three eastern ground floor units, units 3, 4 and 5, were not rule compliant they would receive a ‘good amount’ of sunlight on their eastern face.
The drawings (Exhibit PJ2, Attachment E) show that units 4 and 5 receive direct sunlight prior to 11:15 am on 21 June and that after this time they do not receive any direct sunlight onto the floor or wall of their internal primary living space. The drawings show that unit 3 receives direct sunlight prior to 11:45am on 21 June and that after this time does not receive any direct sunlight onto the floor or wall of the internal primary living space.

Given the overlooking of the pedestrian laneway provided by the balconies and living areas of units 9 and 10, the Tribunal is satisfied that C17 of the INPC is also satisfied.
Encroachment into the specified minimum front setback to the west street front boundary
In relation to the basement driveway at the northern end of the development, the Respondent’s witness Mr Lingam Jatheendran confirmed in his written statement (Exhibit R4, paragraph 32) that, because changes to the plans were proposed at the time of his statement, the vehicle crossing and driveway would need to be checked at the design acceptance stage before it could be approved by TAMS. During the hearing Mr Jatheendran was shown revised plans (Exhibit PJ2, Attachment D Drawing 03). He agreed with the Tribunal that the driveway as depicted in the revised plans would not meet the department’s requirement. Inside the block, at the western boundary where the driveway meets the verge, the driveway is required to be 5m wide and on a relatively flat level for 6m. This is a safety requirement. It ensures that a vehicle can wait inside the block boundary should another vehicle enter from the verge crossing and that the two vehicles can then pass safely within the block boundary. Mr Jatheendran said the driveway would not be approved unless amended to comply with the department’s requirements.
Later in the hearing, the Tribunal was provided with a sketch in red pen over a 1:100 detailed plan (Exhibit PJ11) produced by Mr Kasparek. The sketch (Exhibit PJ11) shows how the driveway could be made to comply with the TAMS safety requirements. Mr Jatheendran was shown the sketch (Exhibit PJ11) and by reference to these proposed amendments Mr Jatheendran gave evidence that the northern basement driveway and verge crossing could meet the departmental safety requirements.
R6 of the INPC applies to the western façade of the development which faces Hartley Street and is a front boundary. R6 is a mandatory rule and requires a minimum setback of 6m. R7 of the INPC, also a mandatory rule, requires that no structure is to be built forward of the minimum front setback. The amendments proposed to the driveway (Exhibit PJ11) appear to require the driveway to extend up to a position immediately adjacent to the pedestrian access ramp that leads to the ‘front door’ of the development on Hartley Street.
The pedestrian access ramp is shown on Exhibit PJ2, Attachment D, Drawings 06 and 08. The walls supporting the access ramp are shown to extend approximately 1m above ground level and are forward of the specified minimum front setback of 6m. Exhibit PJ2 Attachment D, Drawing 12 which predates the proposed changes shown in PJ11, shows an area of landscaping between the ramp and the driveway. If the Tribunal were to approve the development, the Tribunal would make it a condition of that approval that the pedestrian access ramp be constructed so that the ground level extended up to the top of any wall associated with the ramp to comply with mandatory R122 of the MUHC Part C(3), which is:

R122

Free standing walls or fencing are not permitted forward of the building line unless previously approved in an estate development plan or consistent with a relevant precinct code.

This is a mandatory requirement. There is no applicable criterion.

As set out below, the Tribunal considers that it may be a consequence of the proposed amendment Exhibit PJ11 that if the condition suggested by the Tribunal were imposed then the north driveway would not comply with the mandatory R7 of the INPC.
As a result of the amendment to the northern driveway (Exhibit PJ11) to meet TAMS’ safety requirements, the area between the pedestrian ramp and the northern driveway that was to be landscaped will now be used for driveway. Consequently, the depth of the pedestrian access ramp wall will be increased to more than 1m in height to retain the site so that the driveway can extend down into the basement. The Tribunal considers that it is likely that this amendment means that this wall, being part of the basement ‘structure’, as defined, will not comply with R7, a mandatory rule. The condition of approval that the Tribunal has proposed would be difficult to achieve because the descent of the driveway beginning at a position 2.5m forward of the front minimum setback, of 6m imposed by R6, would breach R7 of the INPC.
The Tribunal considers that the proposed changes to the northern driveway, which are necessary to meet TAMS safety requirements, will probably result in noncompliance with R7 of the INPC, a mandatory rule.
North front boundary, consideration of C105 MUHDC Part C(3)

The Tribunal has determined that the applicable northern front setback of R105 of the MUHDC is 4m for both the lower and upper floor levels. Mr Cilliers’ statement (Exhibit R3, paragraph 36) supports the contention that the north boundary setback is 4m as it is adjacent to a pedestrian laneway. He further contends that the encroachment into the setback is very minor and limited to the balcony and walls above the driveway. He concludes that the north boundary satisfies both C105 and C123.
The Party Joined submits that the encroachment consists of a small fin wall at the lower level and the retaining wall of the driveway ramp.
The Tribunal has determined that the natural ground level (NGL) at the northern end of the western wall of the ‘balcony’, as defined, to unit 1 as shown in Exhibit PJ2, Attachment D, Drawing 03 is Australian Height Datum 569.25m. Exhibit PJ2, Attachment D, Drawing 08 shows that for unit 1 there is no change in floor level between the inside of the unit and the balcony. Unit 1 is designated as ‘adaptable’. The floor level is shown as 570.00m. The Tribunal therefore concludes that the balcony to unit 1 is set at 0.75m above NGL at the north-west corner. The balcony is also the roof over part of the basement driveway. This raised floor level is shown on Exhibit PJ2, Attachment D, Drawing 08. Exhibit PJ2, Attachment D, Drawing 06, shows that the western wall of the balcony extends to the upper floor level. It is approximately 3.75 m high. The wall extends for at least 1.5m into the north setback and the balcony, in a triangular plan area, for a maximum length of at least 4m.
Mr Kasparek told the Tribunal that the drawings 02 and 03 (see Exhibit PJ2, Attachment D and PJ3 Attachment A) incorrectly depict a retaining wall to the north of the driveway kerb along the boundary. Mr Kasparek says that the retaining wall does not commence until beyond the ‘elbow’ in the basement driveway, which is located on the front boundary behind the minimum front street setback, for the west boundary, of 6m. The Tribunal has determined that the retaining wall angles back from the north front boundary in an easterly direction for approximately 9m, part of which is below the balcony of unit 1, forward of the 4m setback.
The Tribunal has determined that the development encroaches into the north front setback. The Tribunal does not agree with Mr Cilliers’ assessment that the encroachment into the north front setback of 4m referred to in R105 is ‘very minor’. The proposed development does not comply with R105 of the MUHDC and must therefore satisfy C105.
From Hartley Street, what is visible of the northern face of the development is predominantly the structure above the basement driveway and the western wall of the unit 1 balcony. In the Tribunal’s view, this part of the development can not be said to positively contribute to the streetscape. The replacement, with a hedge, of the fence that currently runs along the pedestrian way adjacent to the north boundary of the site will enhance the view of the development from the laneway. To the extent that the hedge and the area between the development and the pedestrian laneway is visible from Hartley Street, it is the Tribunal’s view that it will probably contribute to the ‘streetscape’, as defined, and character, and assist to integrate the development.
C105 raises for consideration whether in relation to the set back from the north boundary the proposed development makes ‘efficient use of the site’ and provides ‘amenity for residents’. The Party Joined submitted, and the Tribunal accepts, that the northern driveway is located in approximately the same area as the existing driveway which serves a single residence. The existing driveway extends adjacent to the northern boundary for more than half the depth of the site (Exhibit PJ 2, Attachment D, Drawing 01). As the proposed driveway descends to the basement entrance, the only structure that is above ground level and in clear view from the pedestrian pathway will be a meter high balustrade. Mr Kasparek informed the Tribunal that this balustrade is a safety requirement under the BCA as there will be a drop in level of greater than 1m starting at some point along the retaining wall of the driveway adjacent to the northern boundary. The Tribunal notes the requirements of R122 and that a balustrade could be considered to be a fence.
The Tribunal accepts Mr Kasparek’s assertion that, by locating the basement driveway at the northern end of the development, where the boundary to the only neighbouring property in the north is separated by the 6m pedestrian way, and is faced by a mostly blank southern wall of that development, the driveway provides least disturbance to neighbours. It will disturb fewer of the proposed development’s residents than a centrally located driveway. It also allows for retention of existing street trees.
The Tribunal considers that the wall on the western end of the balcony to unit 1, which is approximately 3.75m high at its greatest point of encroachment into the front setback, does not contribute positively to, maintain or enhance the streetscape. If the Tribunal were to approve the development, it would impose a condition that the wall be constructed so that it did not extend into the setback. The amenity of the residents of unit 1, which has been designed to be located directly above the basement carpark entry, could be maintained by amending the area of private open space that the wall partly encloses to achieve visual separation from the descending driveway.
The Tribunal does not accept that the wall and balcony of unit 1, to the extent that they are nearer than 4m distant from the north boundary, satisfy C105. The location of the wall and balcony do not reflect an ‘efficient use of the site’. C105 must be considered in the context of the Intents of Element 2: Building and Siting, including:
Intent:
b) To ensure buildings are designed and sited to:
    i) provide privacy between neighbours and between occupants and the
       public
      ...............
iv) maintain or enhance the streetscape character in existing areas
The location of the balcony and wall of unit 1, which in the Tribunal’s opinion is not consistent with Intent b)i) and b)iv) respectively, does not reflect a response to constraints of the site. It is noted that as a result of the reviewable decision, the entire development was moved 1m to the north. This 1m move was a condition of the reviewable decision (Condition A2 (a)(i)). This condition was imposed to reduce the amount of overshadowing to, and to increase the distance of the waste disposal area from, the residence and block directly to the south of the development. When making this condition the ACTPLA was under the misconception that the northern boundary was a side boundary and not a front boundary. The result is that the distance between the north boundary and the development was further reduced from what was originally envisaged.
Notwithstanding the issues discussed above in relation to proximity of the development to the north boundary, the Tribunal has concluded that the development could, with conditions, satisfy C105.
Free standing walls & fences forward of the building line
During the hearing the Tribunal asked all parties to consider R122 of the MUHC with respect to the northern front boundary. The Respondent, in making the conditions A2(a)(iv) and B5 (T42 and 43), was under the misconception that the northern boundary was a side boundary and not a front boundary. The Party Joined provided to the Tribunal an amended sketch drawing as part of Exhibit PJ6 which depicts the replacement of the northern courtyard walls and front fences with hedge planting. The Tribunal considers that this amendment to the development meets R122. Accordingly, if approved, it would be a condition that the development comply with the changes proposed in Exhibit PJ6.
i. TNP (Exhibit R1) and C21, INPC (C21 is set out below)
C21, INPC

Rules Criteria

5.1 Neighbourhood Plans

There is no applicable rule.

C21

Where a Neighbourhood Plan exists,

development demonstrates a response to the key strategies of the relevant Neighbourhood Plan.

The Applicants assert that the development does not provide an adequate ‘response’ to the TNP (Exhibit R1) as required by C21 of the INPC. The TNP provides general background information about the suburb and the context of the vision, and the objectives and strategies proposed to meet that vision. The TNP provides some strategies which apply to the Turner neighbourhood generally. It then divides the neighbourhood into 5 geographic precincts, the proposed development falls within the area identified as Precinct 4 (‘North-East of Haig Park) and borders the area identified as Precinct 2 (Haig Park/Sullivans Creek). From the description provided in the TNP of Precincts 2 and 4 (Exhibit R1, pages 23 and 24) there is some overlap of these areas.
For the purpose of considering C21 of the INPC, the Tribunal does not consider that there is any reason to adopt a strict approach to the interpretation of the TNP. In so far as any ‘key strategy’ of the TNP is relevant to the proposed development, the Tribunal does not consider that whether that strategy is referred to in relation to Precinct 4 or otherwise is determinative. The Applicants identified the Turner Primary School (see Exhibit R1, pages 2 and 19) as being a community facility of primary importance to the Turner Neighbourhood and identified strategies - set out in Goal 1 and Goal 2 (Exhibit R1, pages 29 & 31) relating to the neighbourhood as a whole, and within Precinct 2 (Exhibit R2, page 37) and Precinct 4 (Exhibit R1, page 39) - which they considered were relevant to the consideration of C21 of the INPC. In the Tribunal’s view, the strategies identified by the Applicants can be regarded as ‘key strategies’ for the purpose of C21 of the INPC and relate to the proposed development.
The following specific strategies were identified by the Applicants:
a.In relation to the general Turner neighbourhood:
·Building setback contributes to streetscape character and the opportunities for front garden planting. The maintenance of generally uniform building alignment will be achieved by responding to the setback of existing adjoining development. … (Exhibit R1, page 29)
·Privacy between dwellings and maintaining solar access for adjacent developments is to be a priority. (Exhibit R1, page 31)
b.In relation to Precinct 2 (Exhibit R1, page 37) –
P2-9 Enhance the Turner School as a much-valued asset for the neighbourhood by supporting its function as a school, a community asset and a part of the Sullivan Creek open space network.
c.in relation to Precinct 4 (Exhibit R1, page 39) -
P4-1 Maximise landscape setting by protecting key elements of the existing landscape and encouraging high quality landscaping in new residential developments.
P4-6 Ensure clear and easy networks for pedestrians, cyclists and vehicles.
P4-9 Provide a safe and accessible route of travel for residents to facilities.
P4-12 There is to be no redevelopment of the western blocks of Section 63 for seven (7) following the endorsement of the Turner Neighbourhood Plan by the Minister for Planning.
P4-18 Protect, maintain and replace street trees.
The Party Joined, in its application for approval of the proposed development submitted to the Respondent, provided a response to the TNP (see T400-402). In that response the Party Joined inadvertently refers in the opening paragraphs to Precinct 5, rather than Precinct 4, however this is clearly a typographical error as the Party Joined then goes on to refer, and provide its response, to the strategies identified in Precinct 4.
The Applicants assert that the proposed development does not ‘respond’ to the strategy to maintain a generally uniform building alignment, as it does not respond to the setback of existing adjoining development south of the pedestrian laneway on the eastern side of Hartley Street. The Tribunal’s view is that provided the development meets mandatory R6 and R14 of the INPC this would be an effective response to this strategy. Whilst the Tribunal has raised some issue as to whether, given the changes proposed to the northern driveway of the development, R6 and R14 are met, it is the Tribunal’s view that these code controls ensure the necessary response to the TNP in this regard.
In relation to the Precinct 2 strategies, the Tribunal’s view is that nothing in the key strategy identified relates to or requires a response by this development. In so far as traffic issues might be considered, this has been discussed above. The Tribunal does not accept that in any other way the development would operate to negatively impact on the Turner Primary School.
The Applicants identify the strategy in the TNP in relation to issues of privacy between dwellings in the development and solar access of the southern neighbour, which issues they say require a response. The Tribunal is satisfied that the condition that the development be moved 1m north (See reviewable decision, Condition A2(a)(i)) is aimed at improving solar access and amenity for the residents of the adjoining block to the south. It is the Tribunal’s view that issues of amenity and solar access of residents within and neighbours of the proposed development are adequately addressed by the code controls and the TNP does not give rise to additional issues which require response. To the extent that the development meets or satisfies the code controls and criteria in this regard, it will provide an adequate response to the TNP.
The moratorium on redevelopment of the blocks on the western side of Section 63 in Turner was lifted after 7 years in 2010. The blocks affected include the subject site, the block where the Applicants’ reside and several other blocks, all currently have single dwellings. The affected Section 63 blocks are zoned RZ3. The Tribunal accepts that in relation to this development and the strategies in the TNP which relate to it, provided this development complies with the relevant codes and building controls that apply to it, it will provide the necessary response to the TNP for the purpose of C21 of the INPC.
The Tribunal notes that the TNP came into effect in 2003. The Territory Plan and the relevant codes, including the MUHDC and INPC, post-date the TNP. The deliberate inclusion of the reference to Neighbourhood Plans in the MUHDC (e.g. C87, C147) and the INPC (C21) suggests that there are matters which remain relevant in these documents which are not otherwise addressed in the Territory Plan or applicable codes. However, the Tribunal is of the view that many of the matters which are referred to in the TNP, and which might otherwise have required a direct response by the proposed development, are now covered by the specific controls in the applicable codes. If a development achieves compliance, in respect of such matters, with the applicable code control, then in the Tribunal’s view there is not a further requirement to separately address these matters by reference to the TNP. Rather, it is that code compliance which provides the response to the TNP.
Whilst the Tribunal accepts that there may be additional matters in a Neighbourhood Plan requiring response by a development proposal, the Tribunal does not consider that situation arises in this matter. The Tribunal finds that C21 is satisfied, except insofar as the development fails to comply with a rule or criterion of an applicable code which addresses matters relevant to key strategies in the TNP. The Tribunal’s conclusion in relation to code compliance is set out in these reasons.
j. Circulation - R142/C142, MUHDC, Part C(3)

The Tribunal considered R142 and C142, and Intent b) of Element 4: Parking and Site Access, of the MUHDC, Part C(3) - which are reproduced below:

4.3 Circulation

R142

Shared entries (e.g. interior stairways, corridors or balcony walkways) serve a maximum of nine dwellings.

C142

a)   Building design provides residents with a sense of personal address, shelter and transitional space at the entry to a dwelling.

b)   Dwelling entry is easily identifiable and accessible for visitors.

Element 4: Parking and Site access Intent: b), MUHDC, Part C(3)
b) To provide convenient, accessible and safe access and parking to meet the
           needs of the residents and visitors and service vehicles

The Applicants submit that the development does not comply with R142 and the Tribunal should not be satisfied that it meets C142. The Party Joined submits that because there are three points of access into the development R142 is met, alternatively that C142 is met due to the design of the development. The Respondent’s witness, Mr Cilliers, accepts that because after a short distance inside the shared entry to the development, a person is directed to stairs which lead to eight (8) units, or a corridor that leads to eight (8) units, the development is either rule or criterion compliant.
The Tribunal is not satisfied that the development complies with R142. Once inside the development there is unrestricted access to all sixteen (16) units. The development is not rule compliant.
There is little evidence to support how the development meets C142. Whilst the Tribunal accepts that it may be possible for the dwelling entries to be made easily identifiable, the Tribunal is not satisfied that C142(a) is met. The Tribunal considers that, by reference to Intent b) of Element 4, the safety of residents is not addressed. Each of the three shared entries provides unrestricted access to all sixteen (16) units in the development.
Mr Cilliers’ conclusion that there is only a limited area immediately inside the entrance which might be regarded as a ‘shared’ area, is not, in the Tribunal’s view, accurate. This is particularly true when a person enters the premises via the basement car park or rear door of the development. The Tribunal does not accept the Party Joined’s submission that, because there are three entries, the Tribunal should in effect accept that each serves access to one third of the units. It appeared to the Tribunal from the evidence provided by Mr van der Walt (Exhibit PJ8, paragraphs 60-64), Mr Kasparek (Exhibit PJ2, paragraphs 33-35) and Mr Cilliers (Exhibit R3, paragraph 38) that they did not understand what needs to be addressed in responding of C142.
The Tribunal concludes that R142 is not met. Based on the information provided the Tribunal does not accept that C142 is satisfied.
k. Storage - R163/C163, MUHDC, Part C(3)
Extracts of R163 and C163 of the MUHDC are set out below.

R163

An enclosed space for storage is provided as follows:

a)     (a) studio and one bedroom dwellings:

     4 m2with a minimum 2 m height

b)   two and three+ bedroom dwellings:
     5 m2with a minimum 2 m height.

C163

An enclosed space of 8m2 per dwelling is provided exclusively for external secure storage. This space may form part of a carport or garage.

During the hearing the Tribunal asked all parties to consider R163 and C163 of the MUHDC with respect to storage. Exhibit PJ2, Attachment D, Drawing 02 showed elongated 2m² areas of storage at the end of the designated parking spaces in the basement and a bicycle storage area of about 10.5 m². Exhibit PJ2, Attachment D, Drawings 03 and 04 showed cupboards inside the units.
The Tribunal considers that in order to comply with the R163 or C163 ‘an’ enclosed space of at least the stated dimension is required within (R163) or external to (C163) each dwelling. The Party Joined then provided an amended sketch drawing (Exhibit PJ9) which depicts the specific storage areas within each unit. The Tribunal has determined that this amendment to the development meets R163. If the development is approved it would be a condition of approval that the development includes the amendments proposed in Exhibit PJ9.

l. Living space of two bedroom dwellings – R113/C113, MUHDC, Part C(3)

R113 and C113 of the MUHDC, Part C(3), are given below:

R113
Dwellings with two bedrooms:

a) provide a minimum of two

bedrooms that can accommodate a double bed

b) separate bedrooms from each other with bathrooms or other rooms, or by locating them next to walls with minimum noise transmission

c) provide more than one living space or a living-dining space that can be functionally divided

d) arrange rooms off a central circulation space connected to the entry.
C113
Dwellings designed for more than one person are adaptable to suit a range of household types, by maximising potential for personal space and privacy.

During the hearing, the Tribunal asked all parties to consider R113 part c) and C113 of the MUHC with respect to the two bedroom dwellings. Exhibit PJ2, Attachment D, Drawings 03 and 04 show that the four two bedroom units are designed with one open plan living area where the living space is combined with the dining space. The Party Joined provided an amended sketch drawing (Exhibit PJ9) which depicts the ability of these units to have a 1.8m high mobile partition or bookshelf positioned so as to functionally divide the open plan space within each two bedroom unit.
The Party Joined submitted that this dividing structure, which would sit between the northern windows of the units and the remaining living area, would be open in design so that it did not negatively impact on ventilation or solar access to the internal area of the living space. The Tribunal determined that the inclusion of this amendment to the development meets R113. Any approval of the development would be subject to the condition that dividing structure, which would not need to be fixed, would be included as set out in Exhibit PJ9.
Conclusion – development not consistent with code/s re section 119(1)(a) PD Act
The Tribunal has determined for the reasons set out above that the development does not meet several of the rules or criteria of the relevant codes. For the reasons set out below, the Tribunal has concluded that the development is not consistent with the relevant codes as required by s119(1)(a) of the PD Act.

Consideration of section 120 factors

S120(1)(a) RZ3 ZOs

For the proposed development the relevant RZ3 ZOs are a, b, c, d and g.
For RZ3 – Urban Residential Zone
Zone Objectives
a)        Create a wide range of affordable and sustainable housing choices to
           accommodate population growth and meet changing household and
           community needs in locations that create a transition area between low
           and higher density housing areas
b)        Ensure development respects and contributes to the neighbourhood
           and landscape character of residential areas whilst carefully
           managing change in suitable locations
c)        Provide increased opportunities for medium density residential
           development, particularly in areas close to commercial and
           employment centres
d)        Achieve developments with a high standard of residential amenity
.......................
g)        Promote energy efficiency and conservation and sustainable water use
The Applicants say that they do not take issue with the fact that the proposed development consists of multi-unit housing, but rather their concern is the type of multi-unit housing proposed.
The Applicants submit that, by reference to the RZ3 ZO, by providing only one and two bedroom units, the proposed development does not provide the diversity or kind of housing that is contemplated by RZ3 ZO (a) and (b). In addition, because of the various issues raised, and discussed above in relation to code compliance, as well as some issues such as acoustic separation and privacy which is not covered by a specific code control, they say that the development does not provide the residential amenity referred to in ZO (d). They submit that the northern driveway of the proposed development presents safety concerns for children using the public pedestrian way adjacent to the north boundary of the development.
The Tribunal accepts the submissions of the Respondent and the Party Joined that R2 of the INPC deals specifically with the size of dwellings required and this restriction should not be inferred as being applicable to developments that are not addressed by R2.
ZO objectives state the outcome to be achieved by the proper application of the code controls to developments. ZO (a) talks about the kind of housing that code compliant development will deliver and recognizes that compliant development will respond to increased population and changing needs. Approved RZ3 development will operate as a transition between lower and higher density accommodation. The Tribunal does not accept this should be read as prescribing any particular kind of dwelling, provided it is otherwise code compliant.
ZO (b) refers specifically to the ‘development’. Whilst noting that a development needs to ‘respect and contribute’ to the residential area, ZO (b) also acknowledges that in some instances this will involve change. In the Tribunal’s view, being the first of the blocks on the western side of Section 63 to undergo redevelopment, it is inevitable that the need to ‘carefully manage’ change will arise. The Tribunal considers that, subject to code compliance, a development of the kind proposed, being a two storey multi-unit development, could be consistent with ZO (b).
The Tribunal is of the view that a development of the kind proposed could meet the description of ‘medium density residential development’ referred to in ZO (c). It is geographically close to commercial and employment areas in Civic and Dickson. It also provides easy access to the public transport facilities along Northbourne Avenue and in Civic and from there to destinations throughout Canberra.
The Tribunal agrees with the Applicants that the development does not meet ZO (d) or (g). The Tribunal has determined that the development fails to meet or satisfy several of the rules and criteria in the MUHDC and possibly INPC. This is discussed in detail above. It is the Tribunal’s view that the consequence is that the development is not consistent with the code/s and, because of this, does not achieve a ‘high standard’ of residential amenity in at least three, and in some cases more, of the units. In some instances, such as solar access and ventilation, the development does not promote energy efficiency.
S120(1)(b) - Suitability of the land
The Tribunal is satisfied that if it were code compliant, the development would be appropriate for the subject site.

S120(1)(c) – Representations

Four representations were received within time (T216-T233):
a.a joint representation made by the Applicants and two other residents of Hartley Street, I and C Macintosh;
b.a representation from the former lessee of the property which adjoins the subject site on the south, Mr Mark Palu, who had been joined as a party to this application but withdrew;
c.a representation sent by Robert Edwards on behalf of the Turner Primary School Board; and
d.a representation from a resident of Section 46 Turner, Roy McAndrew.
The matters raised by Mr Palu (T232-233) primarily concerned the impact of the development on his property. The issues he raises in his representation concern proximity of the waste disposal area and impact on solar access. These concerns are largely addressed by the conditions in the reviewable decision (Condition A2(a)(i) and (ii)) requiring the development to be moved 1m to the north and to require landscaping and the construction of a fence. Both conditions are intended to provide a greater separation between the development, its waste disposal area and the southern neighbour.
At the hearing Mr Edwards, as representative of the Turner Primary School Board, gave written (Exhibit A1) and oral evidence on behalf of the Applicants in relation to the impact of the development on the Turner Primary School. He confirmed that his evidence would incorporate and to some extent expand on the matters raised in the representation dated 29 August 2012 (T213).
The matters raised by Mr McAndrew are similar to those raised in the joint representation submitted by the Applicants, and I and C Macintosh. The Tribunal considers that the issues raised in these representations formed the basis of the Application to the Tribunal and that these matters have been considered in detail by the Tribunal.
The Tribunal has considered, as required by section 120(1(c), the representations made in so far as the issues raised in these representations are either dealt with by the conditions imposed in the reviewable decision or have been addressed before the Tribunal at the hearing and in its decision.
S120(1)(d) - Entity advice
The Tribunal has determined that the entity advice provided by the Conservator of Flora and Fauna (T208) was not in accordance with section 149 of the PD Act in that it was not provided within the required 15 working day period. In any event the Tribunal has determined that had the advice been within time, the approval of the development would not be inconsistent with that advice. The Tribunal is satisfied that the development is otherwise consistent with the entity advice received.
S120(1)(g) Probable impact of proposed development
The Tribunal is satisfied that if the development had been code compliant it would not have had a detrimental impact. Although the Applicants raised concerns about the impact of the development on the ‘neighbourhood’ in relation to traffic and parking issues, and the proposed development’s ‘impact’ on the Turner Primary School, the Tribunal is not persuaded that the development would have negatively impacted on either the neighbourhood or Turner Primary School.

Conclusion

The Tribunal has determined that the development is not consistent with the MUHDC, and perhaps the INPC. In those circumstances, the Tribunal is precluded by operation of section 50 and section 119(1)(a) of the PD Act from approving the development.
The non-compliance with the rules and criteria of the MUHDC which is discussed in detail above has the result that the development does not provide the high standard of residential amenity, nor does it sufficiently promote energy efficiency, which are outcomes that are identified by RZ3 ZO (d) and (g).
Although the Tribunal did consider whether in some cases appropriate conditions could be imposed so that compliance could be achieved and the development could be approved, the Tribunal has decided against this approach. During the review of this matter it became apparent to the Tribunal that the consequences of the operation of some of the conditions imposed as part of the reviewable decision had given rise to further issues. This effect was also apparent when the Tribunal considered the impact of some of the conditions that it considered might have been imposed to achieve code compliance.
The Tribunal notes that subsequent to the reviewable decision, R13 of the INPC was amended. R13 is no longer necessarily mandatory for this site. It may be possible, given that the Party Joined on several occasions referred to the constraints it perceived were presented by the restriction on building into the rear zone dictated by R13, that this change to R13 may assist the Party Joined in considering alternative development proposals.

Order

For the reasons set out above the Tribunal orders that the reviewable decision is set aside. The development application is refused.

……………………………..
W. Corby – Senior Member
For and on behalf of the Tribunal

Rules	Criteria
R135 In relation to driveways, access/internal roads and car parks: a) Walls of dwelling incorporating an opening to a habitable room are to be setback are to be setback a minimum of 1.5 m. This setback may be reduced to 1 m where there is an intervening fencing 1.5 m high or greater, or where the window sill is a minimum of 1.5 m above the driveway, access/internal road and car park. b) the minimum width of driveways and access roads is 3 m c) where there are changes in direction or intersections, the internal radius of the driveways and access road are at least 4 m d) where more than 10 car spaces are served and the driveways and access road connects to a public road, the entrance is at least 5 m wide for a distance of 7 m from the street front boundary to allow vehicles to pass each other e) a turning space is provided so cars can enter and leave in a forward direction where a driveway: i) serves 5 or more car spaces, or ii) connects to a major road.	C135 Driveways allow safe and efficient vehicle movement and good connections to the existing street network as well as providing a high quality pedestrian priority environment.
Rules	Criteria
7.1 Waste Management
R50 Where the development will generate a total of 20 cubic metres or greater of demolition and/or construction waste and/or excavation material, the application is accompanied by a Statement of Compliance from the Department of Territory and Municipal Services stating that the waste facilities and management associated with the development are in accordance with the current version of the Development Control Code for Best Practice Waste Management in the ACT.	C50 Development is in accordance with the current version of the Development Control Code for Best Practice Waste Management in the ACT. If the development will generate a total of 20 cubic metres or greater of demolition and/or construction waste and/or excavation material and a Statement of Compliance is not provided, the application will be referred to the Department of Territory and Municipal Services in accordance with the requirements of the Planning and Development Act 2007 for assessment against the above code.
*7.2 Servicing and Site Management*
R51 In accordance with section 148 of the Planning and Development Act 2007, the application is accompanied by a Statement of Endorsement from the relevant agency stating that the waste facilities and management associated with the development are in accordance with the Design Standards for Urban Infrastructure.	C51 If a Statement of Endorsement is not provided the application will be referred to the relevant agency in accordance with the requirements of the Planning and Development Act 2007.