Ymer and Tucker & Act Planning and Land Authority & Ors (Administrative Review)
[2011] ACAT 46
•24 June 2011
wACT CIVIL & ADMINISTRATIVE TRIBUNAL
YMER AND TUCKER & ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2011] ACAT 46
Case Number AT 10 of 2011
Catchwords: ADMINISTRATIVE REVIEW – planning and land development – land in Inner North Precinct of RZ3 Zone- Tribunal’s power to review the decision to approve the development application with conditions - whether proposed development is consistent with zone objectives – whether development would adversely affect solar access to adjacent dwelling – whether front façade of development is articulated in accordance with Precinct Code – whether development meets requirements of Crime Prevention through Environmental Design General Code – whether road network can accommodate traffic generated by development – issues related to amenity including solar access to private open space and north facing windows; adequacy of private open space; adequacy of communal open space; separation of driveway from adjacent dwelling, bedrooms and openings to habitable rooms; and storage – size and location of basement – maintenance of a regulated tree.
List of Legislation Planning and Development Act 2007 (ACT), ss 50, 53, 54, 55, 113, 114, 119 120, 121 and 193.
List of Regulations The Territory Plan 2008 including the Residential Zones - Multi Unit Housing Development Code and the Inner North Precinct Code; and the Crime Prevention through Environmental Design General Code.
List of Cases Catherine Rudder & the ACT Planning and Land Authority & Ors (Administrative Review) [2010] ACAT 24
Mason & ACT Planning and Land Authority & Ors (Administrative Review) [2009] ACAT 7
Raphael & Ors & ACT Planning & Land Authority (Administrative Review) [2010] ACAT 89
Other Sources Report of the Standing Committee on Planning, Public Works and Territory and Municipal Services “Inquiry Into RZ3 and RZ4 Residential Redevelopment Policies – Inner North Canberra” (February 2011)
Tribunal: Dr Don McMichael Presiding Member
Mr Graeme Trickett Member
Date of Orders: 24 June 2011
Date of Reasons for Decision: 24 June 2011
AUSTRALIAN CAPITAL TERRITORY ) AT 10 of 2011
CIVIL & ADMINISTRATIVE TRIBUNAL )
BETWEEN: SANIE YMER & WILLIAM TUCKER
Applicants
AND: ACT PLANNING AND LAND AUTHORITY
Respondent
AND: OZTAL ARCHITECTS PTY LTD
First Party Joined
AND: DOMINIC, MARIA, MARIA– ELIZABETH & SEBASTIANO PELLE
Second Party Joined
TRIBUNAL: Dr Don McMichael Presiding Member
Mr Graeme Trickett, Member
DATE: 24 June 2011
ORDER
1.The decision under review is set aside and substituted with a decision that Development Application No 201017334 is refused.
………………………………..
Dr Don McMichael
Presiding Member
REASONS FOR DECISION
Introduction
Ms Samie Ymer and Mr William Tucker (“the applicants”) have sought review of a decision of the ACT Planning and Land Authority (“the respondent”) to approve, with conditions, Development Application (“DA”) 201017334 made on 21 December 2010. Oztal Architects Pty Ltd, who had designed the proposed development, and members of the Pelle family, who were the lessees of the subject land, were joined as parties who supported the decision under review.
The DA sought approval to vary the lease of Block 7 Section 63 Turner (“the subject land”) to permit 8 residential units; to demolish the existing dwelling and outbuildings on the block; to erect on it a two-storey building containing eight residential units with basement car parking; and to undertake associated landscaping, paving and other site works.
The DA was originally refused by the respondent on 3 September 2010, on the grounds that it was inconsistent with the advice of the Conservator of Flora and Fauna (“the Conservator”) and with the relevant Code, the Multi Unit Housing Development Code (“the Multi Unit Code”) and because the proponent had failed to provide the respondent with further information requested under s 141 of the Planning and Development Act 2008 (“the Planning Act”). Upon receipt of additional information from the proponent and further advice from the Conservator, the respondent approved the DA with conditions under section 193(1)(b)(i) of the Planning Act. It is this decision that is the subject of this review.
The matter was heard on 2, 3 and 4 May. The applicants were self-represented and called no witnesses in support of their position, relying instead on their statement of facts and contentions, their submissions, and cross-examination of other witnesses. The respondent was represented by Dr D Jarvis of Counsel. Evidence for the respondent was given by Mr Greg Garrett, a qualified town planner who is an Assessment Officer with the respondent but was not responsible for the original assessment of the DA. The Pelle family was represented by Mr D Robens, a solicitor with Dibbs Barker. He called as witnesses Mr Dominic Maiuto, the Managing Director of Oztal Pty Ltd, and Mr Frank Parisi, a Director of Oztal Pty Ltd, both of whom had been involved in overseeing the design of the proposal and in preparing the DA for lodging. Oztal Pty Ltd was unrepresented, other than by Mr Maiuto and Mr Parisi. The Tribunal inspected the subject land and the adjacent properties in the presence of the parties and their representatives and had before it the documents provided by the respondent on which it had based its decisions (“the T Documents”).
The applicants concerns centered mainly around two aspects of the decision – whether or not the respondent had given adequate attention to the matters it was required to consider under section 120 of the Planning Act; and whether the proposed development complied with various provisions of the relevant Codes. They were also concerned about a tree in the back yard of the subject land which they wanted retained.
Applicable law
The proposed development is subject to the provisions of the Planning Act and the Territory Plan 2008 (“the Territory Plan”). Section 113(2) of the Planning Act provides that a DA must be assessed in an applicable assessment track, while
section 114(1) requires that the assessment track is to be ascertained from the appropriate zone development table. Section 54 provides that the development table for a zone must set the minimum assessment track that applies to each development proposal. In this case, the relevant zone is the RZ3 Urban Residential Zone of the Plan and the minimum track for multi-unit housing prescribed for that zone is the Merit Track and the relevant code is the Multi Unit Code. Because the assessment is in the Merit Track, section 120 of the Planning Act sets out a number of matters that a decision maker must consider when deciding a DA, while section 121(2) places some limitations on the Tribunal’s right to review the decision.In addition to the general provisions in parts A and B of the Multi Unit Code, some specific provisions apply to development in Inner North Canberra in Part C3 of the Multi Unit Code and additional provisions are contained in the Inner North Precinct Code (“the Precinct Code”), within which the subject land lies.
Section 50 of the Planning Act prohibits the respondent and the Tribunal from approving the doing of any act that is inconsistent with the Territory Plan.
In considering the various issues arising in this matter, it will be convenient to deal with those falling under section 120 of the Planning Act first, and then those which arise under the provisions of the Territory Plan and finally, the tree.
Section 120 issues
The applicants contended that the respondent had not given adequate consideration to the matters that it was required to consider under section 120 of the Planning Act, in particular subsection 120(a) which reads:
the objectives for the zone in which the development is proposed to take place.
This raised the question of the application of section 121(2) to the Tribunal’s powers of review and whether it may consider the matters listed in section 120. It seems appropriate to consider this question before turning to the applicants’ specific concerns.
Dr Jarvis drew attention to section 53(1) of the Planning Act which provides that
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
while section 55(2) provides that a code
must be consistent with each objective for the zone to which the code relates.
In his submission, compliance with the relevant code should be taken, except perhaps in some exceptional circumstance, to establish that a proposal is consistent with the zone objectives. He agreed that section 120 sets out a range of relevant matters that must be considered by the decision maker, and allows the possibility that a development proposal may be refused even though compliant with the relevant code.
However, he noted that section 119 is decisive. It mandates consistency with the detailed rules and criteria applicable to the proposal, by prohibiting development approval unless the proposal is consistent with the relevant code. By contrast,
section 120 merely establishes a list of matters that must be considered, and which may be given such weight as the decision maker thinks fit but they are not decisive. He submitted that while one could conceive of circumstances in a residential zone where the “impact” (section 120(f)) of a compliant residential proposal may be unacceptable, such circumstances would be rare because compliance with the code is designed to ensure that impacts from such things as proximity and scale are acceptable and so it was within the zone objectives – compliance with the code is itself designed to achieve them.He observed that this approach does not mean that section 120(a) is emptied of significance. The zone objectives must be borne in mind when applying the codes, but submitted that the codes must be interpreted as “consistent with” the zone objectives as this is mandated by section 55(2). He referred to the Tribunal’s decision in Raphael & Ors & ACT Planning & Land Authority (Administrative Review) [2010]ACAT 89 where at [23] in relation to the density of development proposed, the Tribunal wrote:
The Tribunal …affirms that the task before it is to determine whether the proposal meets either the Rules or the Criteria listed in the code rather than any other measure of density. The Tribunal also accepts the submission… that while the Rules are specific, the Criteria require a measure of judgement to be exercised and in doing so they can be construed by reference to the Intent. The Intent is not to be seen as some separate or additional grounds for consideration. The reference to “density” in the intent should therefore be seen as an outcome defined by application of the controls.
Dr Jarvis submitted that this was the correct approach to the relationship between the detailed controls of the code and the various statements of policy that can be found in the Zone Objectives, the Intents, or in such statements as the Key Strategies of a Neighbourhood Plan.
The Tribunal has considered the application of section 121(2) in a number of previous cases, commencing with Mason & ACT Planning and Land Authority & Ors (Administrative Review) [2009] ACAT 7. In that case, the Tribunal concluded at [29] that it
does not have the same responsibility as the original decision maker in relation to approval ...of the DA...Section 121(2) of the Planning Act makes it clear that any review is to be limited to the extent that the proposed development complies with the relevant Rules and Criteria..
However, it left open the question as to whether this was the correct interpretation of
the law.
That decision was reviewed on appeal in Catherine Rudder & the ACT Planning and Land Authority & Ors (Administrative Review) [2010] ACAT 24, where it was found that the position set out in Mason was incorrect. The Appeal Tribunal wrote:
[14] When the original tribunal referred to the “responsibility” of the Tribunal it was referring to the ACAT’s jurisdiction in these matters. That issue and the interpretation of Section 121(2) of the Planning and Development Act 2007 (Planning Act) was further considered in detail by the ACAT in the decision of Thomson v ACT Planning and Land Authority [2009] ACAT 38. We accept and adopt that decision.
[15] That decision confirms that the Tribunal’s jurisdiction to review decisions about development proposals in the merit track is limited by section 121(2) of the Planning Act and that the limiting factor is compliance with a relevant rule. If a development proposal complies with a relevant rule, the Tribunal cannot review the decision to approval (sic) the proposal on that point. Compliance with relevant criteria does not limit the Tribunal’s jurisdiction. The original tribunal’s statement was incorrect in so far as it referred to compliance with relevant criteria as a limitation on the Tribunal’s jurisdiction. While it is important that the error is acknowledged and corrected so that readers of the decision are not misled, it does not follow that the error should lead to the setting aside of the decision of the original tribunal....
[21] In this case, an examination of the reasons for decision of the original tribunal shows that it did not act on its misstatement of the effect of section 121(2) of the Planning Act. The original tribunal reviewed the decision of the respondent in so far as the decision related to whether the development proposal complied with relevant criteria. When doing so, it took account of the considerations in section 120 of the Planning Act. Express references to relevant sub-sections of section 120 may have made that more obvious, but ultimately, the text speaks for itself. The representations received by the respondent formed part of the evidence before the original tribunal in the “T” documents. They are referred to at paragraphs 4, 10, 32 and 52 of the reasons – the lack of express reference to section 120(c) is irrelevant. The reasons show that the advice of entities was considered – the tribunal did not need to flag that it was doing so in accordance with section 120(d). Likewise, the reasons when read as a whole show that the considerations listed in section 120(a), (b) and (f) were taken into account indirectly and in some paragraphs, directly. Section 120(e) was not a relevant consideration for this DA.
We have adopted the above approach in the matter under review. Where a Rule has been met, we have not reviewed it other than to satisfy ourselves that the Rule has indeed been met. But where there is no Rule, or where the proponent has relied on the Criteria, we have considered both whether those Criteria have been met and to the extent that is relevant, and whether the matters listed in section 120 have been adequately considered.
A major concern of the applicants was whether the development proposal complied with the zone objectives (section 120(a)). They contended that there was no evidence that the respondent had considered it against the zone objectives, other than the bald statement in the Section 120 Assessment report that “The application meets all of the objectives of the zone”.
Their particular concern was that the proposed development comprised eight one-bedroom units whereas the zone objective (a) is to
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 between low and high density housing areas.
In their view, this development would contribute to the on-going reduction in housing choices in an area already dominated by 1 and 2 bedroom units. They contended that this will result in limited accommodation options between detached housing and 1 or 2 bedroom units, as there are no 3 or more bedroom units in the RZ3 zoned area. Such an accommodation mix does not meet current or likely future community needs, particularly noting its proximity to the Turner School.
They identified a number of developments in the area that comprised mainly 1 bedroom units and relatively few 2 bedroom units. They contended that the respondent could have verified this lack of larger units and townhouses from the data it has on developments in the area and should have considered it when deciding the DA.
They further contended that the absence of larger units reduced housing affordability for families (and others) who wanted accommodation other than small units in the closest residential area to the Turner School, which has approximately doubled its student numbers in recent years and which offers a special needs program. They claimed that a number of families had moved out of Turner, but still brought their children to the school, and this indicated that they had been unable to find large enough accommodation in the vicinity. However, they were unable to provide anything other than anecdotal evidence about this.
Dr Jarvis responded by observing that there were a number of 3 bedroom units in the area, but agreed that they were sought after. However, he submitted that, in relation to housing range and affordability, the Plan leaves a range of matters to commercial and market forces, other than as set out in Rules R2 and R3 of the Inner North Code. The former is a mandatory requirement and reads:
On a block greater than 3,000 m2, a variety of dwelling sizes must be provided i.e. 1, 2 and 3 bedroom units are required
while R3 specifies that certain blocks are to be amalgamated, and the Rule is mandatory.
He submitted that the respondent could not be expected to carry out a market analysis and make a finding about the “needs” of households or the community in respect of each DA. Nor was such an analysis required of the decision maker, who need only consider the zone objective as a statement of the outcome intended to be achieved by the application of the Code.
He opined that demographic and social needs studies are done at the strategic planning level - the work that goes into the preparation of the Plan itself and variations of it – and that it is at this stage that planners consider the projected needs of the population and population trends such as decreasing size of families. In his submission, the RZ2 and Inner North Residential Zones are, in themselves, a response by planners to these kinds of projection.
Mr Garrett gave evidence that, in his opinion, the proposed development complies with this objective because it provides a housing product that will be suitable for smaller households and accommodate population needs. It was considered that the provision of 1 bedroom units in this locality was consistent with the principle of housing diversity because it would meet the needs of a particular demographic entity. In his view, the contention of the applicants that the proposed development contributes to an on-going reduction in housing choices in the area cannot be accepted, because they disregard the distribution of land use zoning within the wider suburb of Turner and do not acknowledge that different areas within the suburb are zoned differently to cater for different household types.
He observed that more intense/higher density residential developments (CZ5, RZ4, and RZ3 Zones) are generally located within close proximity to Northbourne Avenue, while the Turner School and a linear north-south corridor of open space separates these higher intensity land uses from the lower density land uses towards the western side of the suburb, which is predominantly RZ1 Suburban Zone.
The applicants also contended that the proposed development was inconsistent with RZ3 zone objective (b) which reads:
Ensure development respects and contributes to the neighbourhood and landscape character of residential areas whilst carefully managing change in suitable locations.
In their view, the proposal did not respect the neighbourhood character nor reflect careful management of change, because it failed to take account of the increase in size of the Turner primary school or the cumulative impact of other developments in the area, reflected in such things as increased on-street parking and traffic congestion. However, they provided no new evidence in support of this contention.
They also contended that the proposed development was inconsistent with RZ3 zone objective (c) which reads:
Provide increased opportunities for medium density residential development, particularly in areas close to commercial and employment centres.
In their view, the fact that the development would leave Block 8 Section 63 (immediately to its south) as an isolated block with limited development potential, compromised opportunities for medium density development. They noted that the respondent’s Major Projects Review Group had recognised this issue, and that in the original decision refusing the DA the decision maker had noted that block amalgamation of the subject block and adjacent block 8 would assist in achieving better development opportunities by giving greater scope for the retention of regulated trees, enable one basement access/egress point over a combined frontage of 44.45m (approx), enable greater side setbacks to facilitate increased solar access, and help overcome the reliance on high silled/opaque windows to side boundaries.
In response, Dr Jarvis submitted that RZ3 zone objectives (b) and (c) are expressed in the Plan by rules in the code allowing increased dwelling numbers and size of development (eg 50% plot ratio compared with 35% in RZ1 zones), by the co-location of the RZ2 zone and the commercial centres, and by the location of RZ3 zones along transport corridors near employment centres. Thus, each individual DA did not have to demonstrate how it manages change in an RZ3 zone or how it facilitates more efficient use of infrastructure. It was the creation of the zones themselves with their differing code rules about the scale and intensity of development that achieved these results.
Mr Garrett stated his opinion that the proposed development was respectful of the neighbourhood and landscape character of the area. In his view, the development would sit comfortably within the streetscape because it would be similar to the existing unit development in Macleay Street. The façade would add visual interest to the streetscape through its articulation in the form of balconies and fenestration, while a range of shrub species would be planted within the front, rear and north setbacks of the site.
As to the adjacent block, he opined that as it had a comparable area to the subject land, there was no reason to assume that it could not be redeveloped for medium density development in accordance with the Plan.
The applicants also contended that the development would not meet RZ3 zone objectives (d) - that is, achieve a high standard of residential amenity, and (g) – that is, promote energy efficiency and conservation and sustainable water use but as these depend substantially on the extent to which the development conforms with the code Rules and Criteria, they will be dealt with below.
The Tribunal has carefully considered the applicants’ contentions regarding these RZ3 zone objectives, but finds that it cannot support their position. The fact is that the area within which the subject land lies has been zoned as RZ3, which is specifically aimed at increased medium density development close to commercial and employment centres and also within the Inner North Precinct to which additional rules and criteria apply. The Precinct Code specifically identifies blocks for which amalgamation is a requirement, but the subject land is not so identified. The Code also specifies that blocks greater than 3000m2 must have a mix of 1, 2 and 3 bedroom units, but makes no such provision for smaller blocks. It is therefore to be read as not requiring any particular mix of unit sizes on smaller blocks.
As the Code is required, by section 55(2), to be consistent with the zone objectives, it follows that because the Code does not require the subject land to be either amalgamated with its neighbouring block, or to have any particular mix of unit sizes, the absence of these provisions cannot be read as in some way inconsistent with the zone objectives.
We accept the submissions of the respondent, that diversity of housing choice is achieved by the different zones applying to Turner, which remains predominantly zoned as RZ1 for single detached and dual-occupancy dwellings, while the zones closer to Northbourne Avenue provide for those wanting apartment style living. Rule 2 of the Precinct Code will ensure that some blocks are redeveloped with a mix of 1, 2 and 3 bedroom units. We will now turn to consideration of the extent to which the proposed development meets the Rules or the Criteria of the Multi Unit, the RZ3 and the Inner North Precinct Codes.
In the paragraphs that follow, we have not dealt with every applicable Rule and Criterion, but only those which have been raised in the contentions of the applicants or have emerged in evidence. As a general comment, it is to be recalled that the Plan provides that:
A development application will be assessed against the rules or criteria within the applicable Code or Codes.
· Precinct Codes – apply to geographical areas which may include more than one Zone or parts of Zones,
· Development Codes – apply to specific Zones or development types,
· General Codes – may apply to defined development types and/or planning and design issues throughout the ACT and to Territory authorities.
Where inconsistencies exist between provisions of applicable Codes, the Act specifies that the Precinct Codes take precedence over Development Codes that in turn take precedence over General Codes.
In this case, the Precinct Code takes precedence over the Development Codes at
Parts B, A3, C1 and C 3 of the Multi Unit Code which in turn takes precedence over any of the General Codes set out in section 11 of the Plan, to the extent of any inconsistency.
Overshadowing of adjacent dwelling
The first matter for consideration is the application of the provisions of the codes relating to the building envelope. The applicants noted that the plans showed that proposed development encroached beyond the building envelope and contended that this would adversely affect solar access to the adjacent dwelling on Block 8 to the south. They drew attention to Rule R19 and Criterion C19 of Part A3 of the Multi Unit Code. The Rule provides that buildings are to be sited wholly within the building envelope and as that had not been met, they submitted that Criterion C19 comes into play. It reads
The built form does not adversely impact on the amenity of neighbouring properties by ensuring:
a) sufficient spatial separation between adjoining developments
b) the protection of a reasonable amount of privacy and solar access to adjacent dwellings and their associated private open space
The applicants noted that the respondent had concluded that “an analysis of the shadow diagrams indicates that the longer shadows do not unreasonably reduce the amount of solar access to adjacent dwellings and open space”, but contended that the original shadow diagrams provided by the developer did not show any dimensions or the location of the dwelling on Block 8, while new shadow diagrams provided with the Parties Joined Statement of Fact and Contentions did not indicate the full extent of the shadow cast by the encroachment of the building envelope, as there were further encroachments that had not been taken into account by the respondent in deciding that C19 was met.
In his evidence, Mr Garrett argued that these additional encroachments would not affect the amenity of the adjacent property (Block 8). He acknowledged that the shadow diagrams did not show the location of the adjoining dwelling, however when assessed against the survey plan (Exhibit 4) which did show the location of the adjoining dwelling, he contended that the area of encroachment did not have a significant impact on overshadowing.
The provisions of Part C3 also refer to these matters. Rule R108 specifies certain building elements that may extend beyond the building envelope but they do not include the encroachments that occur here. Criterion C108 is worded in much the same way as C19. There are no relevant additional provisions in the Precinct Code.
Dr Jarvis submitted that the new shadow diagrams showed that only a very small area of the shadow cast onto the building on Block 8 was caused by the encroachment, compared with that arising from the development itself and noted that overshadowing was already caused by trees and vegetation along the boundary.
In an email to Mr Robens (Exhibit 7), Mr Kenneth Kuhlmann, one of the lessees of Block 8, stated that he and his wife were aware of the extent of the shadow to be cast and that while it bothered them and they regretted the loss of the amenity of sunlight into their bedroom on mid-winter mornings, they recognised that the part of the building that would produce this shadowing was in the Primary Building Zone and conformed with the rules of the relevant development codes.
The Tribunal has carefully considered the plans, shadow diagrams and these contentions. As shown on drawing A200 (at T352) the development extends beyond the building envelope along the northern façade in both the Primary Building Zone and the Rear Zone and the southern façade in the Rear Zone. The height that the development extends outside the northern façade envelope is approximately 600mm for the full length of Unit 8 and 400mm for the length of Unit 7 except for 1.5 metres at the eastern end. The height that the development extends outside the southern façade envelope is approximately 1 metre for a length of 4 metres to Unit 6 bedroom and 400mm for the remaining length of Unit 6.
The majority of the building that extends outside the envelope is of only a minor nature. The extent of building beyond the envelope at the bedroom of Unit 6, which is 1 metre high at the building line, is considered by the Tribunal not to greatly affect the spatial separation between the development and the adjoining dwelling nor does it increase the affect of any overlooking. While the extent of overshadowing is marginally increased, taking into account the comments of Mr Kuhlmann, the Tribunal concludes that the development is not inconsistent with C19.
Front setbacks and articulation
The applicants drew attention to Rule R14 of the Precinct Code which is mandatory and requires that
Development is built to the minimum front setback. The front façade of the development is articulated to a depth of 2-3 m behind the front setback, for all storeys of the development (Figure 2)
Figure 2
illustrates ways in which this Rule may be applied.
The applicants contended that the “roofed” front balconies were flush with the rest of the front façade, resulting in a box-like frontage. While the respondent had concluded that “the front façade …is considered to be the wall of the building” and that “the use of terraces and balconies is considered to be a form of articulation of the building”, the applicants said that there was no indication by the respondent of the basis for these assertions. They supplied photographs of nearby multi unit developments in Macleay Street which had achieved the required articulation by recessing the entire structure, with balconies often comprising the forward elements of the façade for this purpose. As a consequence, they submitted that Criterion C16 had not been met, which requires the articulation to respond inter alia to “local character”.
In the assessment of the DA against this code, the assessing officer has simply ticked the box containing R14 (T317). Mr Garrett’s evidence was that in interpreting R14, the front setback is taken from the front wall face of the building, not the porch or balcony balustrade. He contended that at ground floor, the bedroom of unit 4 was built to the required minimum setback while the living areas of units 1 and 4 are set back 2 metres from the front walls of the bedrooms, and at the upper level, the bedroom of unit 8 is built to the minimum setback, with the living areas of units 5 and 6 setback 2 metres from the front wall of that bedroom. Hence, in his view, the proposal complies with R14.
In response to a question from the Tribunal regarding the application of Rule 105 in Part C(3) of the Multi Unit Code, which specified a setback of 7.5 metres for the upper floor level in a multi unit development in the RZ3 Zone, Dr Jarvis submitted that
Rule 14 was in the Precinct Code and took precedence over the Multi Unit RZ3 Code at Part C(3). R14 mandated that development was to be built to the minimum front setback, in this case 6 metres, and that the absence of reference to the upper floor setback implies that they are to be the same. Mr Robens supported Dr Jarvis’s view and the Tribunal accepts that this is the correct interpretation.
We have examined the plans for the proposed development and note that the porches and balconies are relatively open structures. The upper floor balconies are not roofed, while the ground floor porches are roofed only by the upper balcony floor. We accept that the required articulation of the building façade has been achieved and that R14 has been complied with.
Compliance with Crime Prevention Code
The applicants considered that a recessed area between units 3 and 4 on the north side of the building contained a communal doorway which opened from an internal ground floor hallway into an obscured area that was not in view from any unit. They contended that the respondent had not demonstrated how it had assessed that arrangement as being compliant with the Crime Prevention though Environmental Design General Code, as they considered it would not provide a “safe and accessible neighbourhood” as required by the Code.
Mr Garrett noted that there would be a need to pass through a gate to reach the recessed area, but acknowledged that the communal doorway and recessed entry area might act as an entrapment/hiding spot. In order to improve visibility, he suggested that the Tribunal could impose a condition that the upper half of the door be constructed of a transparent material to allow visibility into the doorway.
Mr Maiuto advised that the recessed passage and hallway would be lit on both sides and that he proposed that the door be full length toughened glass to meet the Code standards and which would allow anyone inside to see out. He did not see any advantage in moving the door to the northern end of the recessed passage. Once a person moved out of the passage, they would be in a gated open area, lit be sensor lights where there would be no place to hide.
Dr Jarvis submitted that Mr Maiuto’s evidence indicated that the Code requirements would be met, but suggested that the Tribunal might wish to make it a condition of approval that the full-length toughened glass doors and sensor lights be provided.
The Tribunal agrees with this proposition and is satisfied that, if implemented as proposed by Mr Maiuto, the Crime Prevention through Environmental Design General Code would be satisfied.
Traffic and parking
The applicants contended that there had been an increase in traffic and parking in the area as a result of both the growth of the Turner School and the recent multi-unit developments. They asserted that Macleay Street was 6.7metres wide, and had submitted a photograph showing parked vehicles in Macleay Street in front of developments, leaving space only for a single lane of traffic. They claimed that from their observations as local residents, the existing road network around the subject land is already overloaded, largely due to the cumulative impact of multi-unit developments such as is proposed here. They considered that the onus was on the proponent that it complied with the relevant criteria C37 and C38, but it had not done so. In particular, Criterion C37 requires that “The existing road network can be accommodate the amount of traffic that is likely to be generated by the development”.
They drew attention to the February 2011 Report of the Standing Committee on Planning, Public Works and Territory and Municipal Services “Inquiry Into RZ3 and RZ4 Residential Redevelopment Policies – Inner North Canberra” where, at p 64 it was recorded that the Director of Roads ACT had advised that with any redevelopment application there is a traffic impact assessment which considers the impact of the development on the local area and that Department of Territory and Municipal Services (“TAMS”) provides comments on those assessments to the respondent. They asked where was that assessment?
In relation to C73, the assessing officer had noted that the proposal had been referred to Asset Acceptance section of TAMS and the response received (T185 and 186) did not raise any issues concerning traffic and parking, other than during the construction period for which a Temporary Traffic Management Plan is required (and has been made a condition of approval).
Mr Garrett, while denying any expertise in traffic management, stated that in the absence of any comment from TAMS, the respondent considered that the existing road network could accommodate the amount of traffic that was likely to be generated by the development.
Mr Garrett gave evidence that the parking to be provided meets the requirements of Part 3.1.5 of the Parking and Vehicular Access General Code and the development was therefore compliant with C38.
The Tribunal considers that the absence of any form of traffic assessment from the DA (other than a tick in the “Not Relevant” box against traffic generation) is regrettable. At the time of its inspection of the subject land, the Tribunal noted that a number of cars were parked in contravention of “No Parking” signs on Macleay Street and that the pavement was quite narrow, but in the absence of any expert evidence from either the applicants or the respondent on the capacity of the street, the current traffic volumes and the traffic movements likely to be generated by the development, it is unable to conclude that C37 has not been complied with.
Issues related to amenity
In their objections to both the original DA and the Reconsideration DA, the applicants raised a number of concerns about various aspects of the proposed development which fall under the heading of Amenity in the Multi Unit Code. We will deal with them in order of their numbering in the Code.
(a) Solar Access to Private Open Space and North Facing Windows
The Intent (b) of the Amenity Section of the RZ3 part of the Multi Unit Code is that
Development is sited and designed to optimise solar access to private open space and living areas of dwellings
Rule R146 and Criterion C146 deal with these aspects. They read respectively:
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.The applicants noted that in their DA, the party joined had asserted that “The Unit configuration and orientation of glazing to the living areas, for the majority of units, has been designed to optimise the potential for solar access to living areas” but contended that half of the units were on the southern side of the development and would receive no sunlight in winter, while the northern side units had small windows. Nor was there adequate winter sunlight onto the Private Open Space (“POS”) of some of the units, especially Unit 1.
Mr Maiuto stated that in fact the windows were quite large on the northern side and in relation to them the respondent had imposed a condition requiring the removal of the proposed obscure glass and its replacement with clear glass. As to the POS, the design was constrained by the requirement in Criterion C9 of the Precinct Code to site the development across the front of the block so as to provide space at the rear of the block.
Revised shadow diagrams produced by the developer party joined showed the extent of shadowing created by the development on 21 June. They revealed that while the northern side of the building would receive direct sunlight during the greater part of the day, the southern side would not, and the units located to the south at ground floor level would receive very little sunlight between 9am and 3pm to their living areas and porches.
Mr Garrett conceded that the southern units would struggle to achieve the three hours of sunlight required by Rule R146 but observed that Criterion C9 of the Precinct Code required the building to be oriented east-west and made adequate sun-lighting difficult to achieve. It was in fact necessary to strike a balance to meet all the plan requirements. Further, he observed that Criterion C146 related to north facing windows and did not specify any requirement for south facing windows.
Dr Jarvis acknowledged that Units 1 and 2 would fail to achieve the amount of direct sunlight required by Ruled R146, but submitted that the remainder would get a reasonable amount. As the Rule had not been met, the question was whether the Criterion had been met, and he reminded that the Criterion C146 referred only to north facing windows of living areas and private open space. In his submission, the Tribunal should accept that Criterion C146 has been complied with.
The Tribunal has carefully considered the evidence and the submission of the parties. The development as designed provides the living rooms to half of the units, Units 1, 2, 5 and 6, with either west or east facing glazing and southern glazing. The shadow diagrams provided (Exhibit 11) show the three-dimensional drawings of the east facade of the development at 9 am, 10 am, 11am and noon and of the west façade at noon,
1 pm, 2 pm and 3 pm. The Respondent informed the Tribunal that the shadow diagrams for the western façade did not take into consideration the shading by the horizontal ‘pergola’ screening that extends over much of the POS of Units 2 and 3 which would reduce the amount of sunlight reaching the glazing in winter.
The shadow diagrams for the eastern façade show that 1/3 of the eastern glazing of Units 1 and 5 would receive direct sunlight at 9 am but that Unit 1 would not receive any direct sunlight onto the glazing after 10 am, while Unit 5 would receive a very small triangular area of direct sunlight onto the glazing after 10 am but by 12 noon the window would not receive any direct sunlight.
The shadow diagrams for the western façade show that Unit 2 would not receive any direct sunlight onto the glazing until just before 2 pm, while Unit 6 would receive a very small triangular area of direct sunlight onto the glazing after noon through until about 1.30 pm. By 2 pm, only about a 1/5th of the glazing would receive direct sunlight. Much of the glazing of Units 2 and 6 would be unable to receive direct sunlight prior to about 2.30 pm. The Tribunal notes that the upper level balconies are not roofed and considers that any fixed sun control devices above the glazing to alleviate summer heat gain inside the units would likely reduce the amount of direct sunlight into Unit 6 in winter.
The Tribunal concludes that Units 1, 2, 5 and 6 do not comply with R146 since they are not sited to allow a minimum of 3 hours of direct sunlight onto the floor or wall of the internal primary living space between the hours of 9.00 am and 3.00 pm on 21 June.
Under cross examination Mr Garrett contended that in a new development C146 was only applicable to those living areas that were provided with north facing windows and that the criterion did not apply if a dwelling was designed without north-facing windows to its living areas.
The Tribunal considers the logical extension of Mr Garrett’s evidence to be that a new development that provides no north-facing windows to living areas meets C146. If this is a correct interpretation of C146 then it is the Tribunal’s opinion that the criterion serves no real purpose for assessing solar access to dwellings within such a development (other than for POS) though it may be relevant to dwellings adjacent to the development since R146 specifically refers to both.
The Tribunal accepts that Mr Garrett has adopted a literal interpretation of C146 but considers that this interpretation would be at odds with R146 and with Intent (b) of the Amenity Element of the RZ3 section of the Multi Unit Code. The Tribunal notes the Criterion uses the word optimum, while the intent uses optimise. Optimise is defined as to make something function at its best or most effective, or use something to its best advantage. [1]Another definition is to make as efficient as possible, especially by analysis and planning processes .[2]
[1] Encarta Dictionary
[2] Chambers 20th Century Dictionary
While recognising that there will be times when a multi unit development may not be able to meet R146 for every dwelling, the Tribunal considers that this development has not optimised the solar access to the living areas of Units 1, 2, 5 and 6, which comprise 50% of the total development, even though it may have met the literal meaning of C146 in relation to its north facing windows.
The Tribunal notes that the respondent, in refusing the original DA, on page 4 of the Notice of Decision dated 3 September 2010, (T44) stated:
The development as proposed cannot satisfy Rule 146...
and added
Under the Building Act 2004, all new buildings constructed in the ACT must comply with the provisions of the Building Code of Australia, including the performance requirement for energy efficiency.
The Intent for Element 5 does not specifically refer to energy rating or efficiency, rather it refers, in part, to ensure dwellings provide their occupants with adequate levels of comfort and amenity, and development is sited and designed to optimise solar access. The Tribunal recognises that winter passive solar heat gain will assist the energy rating for a building and extensive areas of unprotected east and west glazing would have the opposite affect for summer. It is generally understood that the extent of building insulation is a primary element considered in the energy rating of a building. The Tribunal considers that the Code intends to require adequate levels of comfort and amenity through siting and design to optimise solar access to POS and living areas of dwellings as well as an enhancement to energy efficiency.
Overall, we conclude that neither Rule R146 nor Criterion C146 has been complied with in regard to sunlight to internal primary living spaces or living areas.
(b) Adequacy of Private Open Space
The applicants contended that the amount of POS to be provided for the ground floor units was inadequate. They referred to Rule R148 and Criterion C148 which read
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.
The developer party joined tendered a drawing showing the areas of POS available for each of the ground floor units (Exhibit 2). Each comprised the area of the porch and an adjacent area of ground which are to be fenced off from adjacent communal open space. The fences for the front units is to be part masonry blocks and part metal picket infill, while the fencing for the rear unit is mainly horizontal metal slat fences with steel posts. The area of POS for Unit 1 was shown as 27.99 m2 while that for Unit 4 was shown as 51.05 m2. However the latter appears to include an area, approximately 9 metres by 2 metres, along the north side of the building which is a walkway giving access to the recessed doorway and the communal open space.
The assessing officer simply ticked the box for this Criterion, without comment. The applicants contended that Unit 1, being on the south-east corner of the development, would get limited solar access and therefore failed to meet C148 which requires the POS to be oriented to enable solar access and to help to achieve comfortable year round use.
Mr Garret did not address this issue in his witness statement, but in oral evidence agreed that Unit 1 did not reach the required 30 m2. However, he contended that there was quite a lot of communal open space and the respondent’s view was that the POS satisfied Criterion C148.
Mr Maiuto, when questioned about the location of the masonry wall on the south side of the POS for Unit 1, advised that it had been set back from the driveway for aesthetic reasons but it could be moved closer to the driveway if required. Mr Robens submitted that the Tribunal might wish to impose a condition requiring its removal or relocation to increase the area of POS for that Unit, but questioned whether that would be desirable given the proximity of the driveway.
The Tribunal has considered the provisions of the Code and the evidence carefully. We note that t
he areas of POS to the ground floor east-facing Units 1 and 4 are predominantly in front of the minimum front setback of 6m and are in general set back 2 metres from the front boundary of the block, which is less than 50% of this mandatory front setback. The two areas of POS are enclosed by “Fence Type 2” consisting of 230 x 2000 mm masonry blades 1600 mm high, with 1500 mm high metal picket in fill. The detail of the fencing is shown in plan and elevation at the bottom of drawing A002 (T353) entitled “Front courtyard fencing”.
The Tribunal notes that there is a provision in Part C(3) - the Inner North Canberra and Gungahlin District RZ3 and RZ4 Zones of the Multi Unit Housing Development Code which states:
Element 3: Built Form
Rule 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.
Criteria: This is a mandatory requirement. There is no applicable criterion.
There is no pre-approved estate development plan and the relevant precinct code - the Inner North Precinct Code in Element 3 - is silent with respect to free standing walls or fencing forward of the building line. The Tribunal notes that Rule R63(d) permits courtyard walls forward of the building line in Part C1 of the Multi Unit Code, but Rule R122 being in Part C3 of the Multi Unit Code takes precedence. We also note the Inner North Precinct Code mandatory requirement in Rule R6 for minimum front setbacks of 6 metres.
The Tribunal notes that the two neighbouring RZ3 multi-unit developments, to the north and further to the south of the block, each do not appear to have walls or fences forward of the building line, in compliance with Rule 122. We believe that the 230 x 2000 mm masonry blades 1600 mm high must be considered to be free standing walls and the 1500 mm high metal picket infill must be considered to be fencing, both of which are forward of the building line. As such the development does not comply with this mandatory Rule. Removal of the fence would mean that the area of POS in front of the porch did not comply with Rule R90 of the Multi Unit Code (being in front of the building line) nor would it satisfy Criterion C90 (b), as the amenity of the POS would be unprotected.
Consequently, we consider the proposed fencing of the POS for these units is inconsistent with the Code and that the areas of POS therefore available to Units 1 and 4 is effectively confined to the porch which has a width no greater than 2 metres. They therefore do not meet the minimum size required by Rule R90, nor are Criteria C90 or C148 satisfied.
(c) Communal Open Space
The applicants contended, in their objections to the proposal, that the communal open space provided did not comply with Rule R152, which required it to be centrally located. They asserted that it would not be easily accessible from any other than the western ground floor units.
A drawing illustrating the area of communal open space to be provided was tendered in evidence by the developer party joined (Exhibit 2). It showed that the area of communal open space was 198.56 m2 at the rear of the development, representing more than the 20% of the total site area (859 m2) required by Rule R152, and that it could be accessed by paths along the northern and southern sides.
The provisions of the Precinct Code at Criterion C9(d) make it clear that in this precinct, the requirement to site buildings towards the front of the block is intended to
optimise possibilities for private and communal open spaces to the rear of the block that can accommodate landscaping and large tree planting
which takes precedence over any requirement in the development code for the communal open space to be centrally located.
We are satisfied that there is no substance to the objection and that the communal open space proposed to be provided is consistent with the Territory Plan.
(d) Separation of driveway from bedrooms and other habitable rooms
The applicants contended that the driveway giving access to the basement car park was too close to widows of some rooms in ground floor Unit 1 and were in breach of both Rule R159 and R160 and their related Criteria. In their objections to the original DA, they noted that the bedroom and kitchen/dining windows of Unit 1 were not set back
3 metres from the driveway as required by R159 and R160, that they were located directly above the entrance to the car park, and that there was no acoustic separation between those windows and the driveway and garage entrance.
The two Rules and their Criteria deal with much the same subject matter, though they are worded differently. They read as follows:
R159
(a) Bedroom windows are located a minimum of 3 m from internal roads and driveways and parking areas of other dwellings
(b) Appliances (eg. heat pumps) are not located adjacent to habitable rooms of any dwellings on the site or neighbouring blocks
(c) Garages are not located adjacent to bedrooms of any dwellings.C159
The building design and siting provides acoustic separation between active recreation areas, parking areas, driveways and service equipment areas and other noise sources (eg, busy roads) and bedrooms and minimises high levels of external noise entering dwellingsand
R160
Openings to a habitable room are as follows:
(a) living areas: set back a minimum of 1.5 m from internal roads, driveways, noise generating service facilities and car parking areas. The minimum setback of openings to living areas may be reduced to
1 m where:
(i) there is an intervening fence of 1.5 m or higheror
(ii) the window sill is a minimum of 1.5 m above the level of the internal road, driveway or car park.
(b) bedrooms: set back a minimum of 3 m from internal roads, driveways and car parking areas.
C160
Vehicle circulation routes, communal open spaces and noise generating service facilities and parking areas are acoustically separated from openings to habitable rooms through building design and siting.Rule R135 also deals with the location of driveways. It reads:
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 (sic) 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.
This would appear to be related to safety rather than privacy, however, the wording in the
Rules is almost repeated in Rule 160.
Mr Garrett said that he considered the 3 metre setback required by Rule R159 related only to dwellings on adjacent blocks, not to dwellings within the block and that he did not think that Rule R160 applied to a basement car parking situation. Dr Jarvis submitted that the Tribunal should accept this interpretation and that even if Rule R160 is not met, the acoustic treatment proposed should satisfy the Criterion C160.
Mr Maiuto gave evidence that the bedroom window of Unit 1 would be fitted with acoustic glass, which he considered would comply with the code; however, there was a range of other measures that could be taken to mitigate noise and if need be, they would engage acoustic experts to advise them.
The proposed 3.8 metre wide driveway in the development is located along its southern boundary, off-set from the boundary with Block 8 by 1.2 metres. It has a 1 metre high above-ground 200mm thick wall surround to the south and west and abuts the southern façade of the proposed residential development. The driveway extends approximately17 metres into the site and is approximately 2.45 metres below the natural ground level at the garage door. At the end of the drive is a 5 metre wide security roller door, located in the southern façade of the basement car park.
The Existing Site Survey Conditions drawing (T537) shows windows in the northern façade of the residence on block 8, while the Detail & Contour Survey drawing
(T 353A) shows that these windows are set back 1.68 and 3.66 metres from block 8’s north boundary. (It should be noted that the DA drawings locate the residence approximately 2.1 metres from its northern side boundary, refer Exhibit 6). The windows are to two of the bedrooms of the block 8 residence as shown on the floor plan in Exhibit 4.
The kitchen/dining room and bedroom windows of Units 1 and 5 of the proposed development are located directly above the driveway and garage security roller door. The bedroom windows of Units 2 and 6 are located 1.8m to the west of the driveway and garage door in a horizontal direction, but somewhat more in a vertical direction.
There was much discussion at hearing about the meaning of these Rules and Criteria.
R135 has similar wording in part to R160, however, the term ‘setback’ is twice written as one word rather than two words. The Respondent submitted that the rules should be interpreted as a distance in any direction but acknowledged that the wording of either ‘setback’ or ‘set back’ could be determined to be read as meaning a horizontal distance.
In the Territory Plan Part B Definitions of Terms, the term ‘setback’ is stated in part to be a horizontal distance to a boundary. The Tribunal considers that the wording in
Rule R135 might better be ‘set back’ since the word ‘setback’ is a defined term and in these Rules would appear not to mean a distance to a boundary as does the defined term. However, in the case of both Rule 135 and Rule 160, the Tribunal considers that the dimension is required to be a horizontal distance rather than as could be determined in Rule 159 a distance in any direction.
In the Territory Plan Part B Definitions of Terms, the term “adjacent” is defined in part as “being contiguous with the subject location. [3] Contiguous can also mean “adjoining, neighbouring and connected together, touching, adjoining, near. [4]
[3] Encarta Dictionary
[4] Chambers 20th Century Dictionary
The defined term would appear to be relevant to adjoining properties such as when determining notification, rather than to elements associated with a development, however, the Tribunal considers that the meanings of adjacent as adjoining, neighbouring and connected together are applicable with respect to this Rule.
With respect to Rule 159 and Criterion C159 the garage entry and driveway are located directly below the bedrooms of Units 1 and 5; the garage entry is approximately
1 metre from the bedrooms of Units 2 and 6 in a horizontal direction. The Tribunal considers that the design and siting of the proposed building does not provide the acoustic separation between the driveway and the bedrooms required by either
Rule R159 or Criterion C159.
With respect to Rule R160 and Criterion C160 the openings to the living rooms of Units 1 and 5 and their bedrooms are directly over the driveway; there is no horizontal set back. The living room windows have a sill above the driveway and as such should be set back 1 metre from the driveway, but the bedrooms should be set back 3 metres to comply with the Rule. The Tribunal considers that the building design and siting does not provide the acoustic separation between the driveway and bedrooms required by Rule R 160 and Criterion C160.
The driveway is set back 2.88 metres from the bedroom in the neighbouring property, block 8. The owners of this property, Mr and Mrs Kuhlmann, did not raise an objection to the driveway location with respect to their bedrooms in their representation dated
29 April 2010 (T399-403). Nevertheless, the proposed development fails to meet the requirements of Rule R159 or Criterion C159.
The Tribunal also notes the requirement in C161 that “dwellings are designed to provide acceptable thermal conditions with regard to air movement” and considers that the provision of the southern windows with openings to the living rooms in Units 1 and 5 are necessary in the design of the units to comply with this criterion and could not be fixed or removed from the design without acceptable alternatives for natural ventilation. Hence they must remain as “openings” and are subject to Rule R160 and Criterion C160.
We conclude that the proposed development does not comply with Rule R159 or Criterion C159, nor with Rule R160 or Criterion C160.
(e) Storage
In their representations about the original DA, the applicants drew attention to
Rule R163 and Criterion C163, which provide for storage areas in Inner North Canberra RZ3 Zone developments. They read:
R163
An enclosed space for storage is provided as follows:
(a) studio and one bedroom dwellings: 4 m2 with a minimum 2 m height
(b) two and three+ bedroom dwellings: 5 m2 with 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.
The applicants contended that compliance with neither the Rule R163 nor the Criterion C163 had been demonstrated and that the onus was on the development applicant to do so. They asserted that the average size of the storage space to be provided was 3.125m2 per unit, which they calculated by dividing the allocated space in the basement of 25 m2 by eight.
It was agreed by all parties that the reference to 8 square metres in Criterion C163 was an error for 8 cubic metres, because it must be a volume reflecting the dimensions prescribed in Rule R163(a). If we are wrong, the Criterion is meaningless, absent a height dimension.
The assessing officer did not indicate any view as to compliance with these provisions. Mr Maiuto agreed that the original plans did not comply with the Rule or the Criterion, but said that additional material had been provided for the Reconsideration decision which showed that there was extra storage provided within each of the units and he tendered drawings A101 and A102 (Exhibit 10) to demonstrate this. He contended that they relied on complying with C163 and that the respondent had always allowed the required storage to be split.
Mr Tucker drew attention to the views expressed by the respondent when seeking additional information about the original DA, at T355, where it was stated that “Storage/cupboards within the units is not considered to contribute to fulfilling the requirements mandated by this Rule and Criterion. This requirement is in addition to normal household storage.”
Mr Parisi said he had discussed this matter with the assessing officer and believed that the assessing office was incorrect. Mr Maiuto said he was aware of many instances where the required storage had been split in this way.
Dr Jarvis submitted that it would generally be beneficial to have the required storage split between the basement and the units. Mr Robens submitted that the combined areas of the storage to be provided in the basement car park and in the units were sufficient. He suggested that the word “an” in both R163 and c163 was superfluous and that both the Rule and the Criterion could be clearer. However, he agreed with Dr Jarvis that there are benefits in having some storage in the Units.
The drawing of the basement (T349) shows that it is intended to provide five areas of storage with a floor dimension of more than 4 m2, two with floor dimensions of 3.42m2 and one area under the stairs of floor area 3.7m2. No dimensions for the height of the basement storage are given, but presumably it is the full height of the basement which is a little less than 2.8m (other than for that under the stairs). The Tribunal notes that the areas specified on the drawing appear to be calculated including the thickness of the external walls as shown by the dimensions on Plan A100 at T349. Assuming a nominal thickness of 200mm for the external basement walls, the two end spaces along the western wall have an area less than 4m², while the two spaces along the northern wall each have an area less than 3m².
The floor area of storage inside the Units to be provided to make up for the reduced storage space in the basement garage varies; 0.9 m2 in Units 1 and 5, 0.42 m2 in Unit 2, 0.47m² in Units 3 and 7, and 0.45m² in Unit 8, with none in Unit 6. There appears to be no other storage areas in the Units apart from wardrobes. It would appear that at least three Units do not have a total storage area that complies with either the Rule or the Criterion.
Curiously, the general provisions for storage in the Multi Unit Code, set out in Rule R96 and Criterion C96, are different. Rule R96 specifically refers to an “externally accessible enclosed space” for dwellings without a garage, and of significantly smaller size than that prescribed by R163. However, the Criterion C96 simply requires “adequate secure storage areas”. The meaning of “externally accessible” is not clear, but presumably implies accessible from outside the dwelling.
Be that as it may, the Rule R163 does not specify that the storage has to be “external” though the Criterion C162 does. On the basis of the detailed dimensions provided, it is clear that Rule R163 is not met, nor in our estimation can Criterion C163 be met, if indeed it refers to 8 m3. We concur with Mr Robens that this Rule and Criterion need clarification. We also agree with the assessing officer, that the intent of this Criterion is to ensure that a storage area of 8 m3 is provided external to the Units, in addition to any internal storage cupboards.
We conclude that neither the Rule R163 nor the Criterion C163 is met and the proposed development is therefore inconsistent with the Territory Plan in this respect.
Issues relating to the basement
During the course of the Tribunal’s consideration of the plans provided, it became apparent that the dimensions and location of the basement led to some non-compliance issues. The proposed structure is located approximately 500mm from the northern side boundary of the subject land and extends above the ground approximately 600mm at its north-eastern corner.
Rule 106 of the Multi Unit Code deals with side setbacks. It reads
R106
The minimum side boundary setback of 1m where the wall is not built to the boundary
Criteria: This is a mandatory requirement. There is no applicable criterion
We consider that the location of the northern car park wall does not comply with Rule R106 as it is not built to the boundary and its setback is less than 1 metre. While Rule 108 provides for some exceptions that may intrude into the side setback, it does not include the wall of a basement car park. .
It does not seem possible for the northern car park wall to be relocated to comply with the required setback, either by extending the basement to the west, as the proposed development already is slightly in breach of the requirement of Rule R13 of the Precinct Code for site coverage of the rear zone not to exceed 30%, or to the south or east because of setback requirements. Indeed, it seems likely that the reason why the basement extends beyond the mandatory side setback is to provide for the basement storage proposed.
We conclude that the basement is too large to meet the setback requirements of
Rule R106 and cannot be reconfigured satisfactorily. Hence the proposal is inconsistent with the Territory Plan.
The issue of tree No 6
The applicants were concerned about the possibility that a large tree, identified as Tree no 6, in the back yard of the subject land might be lost or irreparably harmed as a consequence of the development. They contended that the Conservator had initially raised concern about it but that it was neglected in later advice from the Conservator. In fact, the Conservator had noted in her first advice that of the three regulated trees on the site, only one (a Chinese Elm, Ulmus parvifolia) could be considered of high value.
The tree in question is a Honey Locust (Gleditsia tricanthos) and a subsequent report by Mr Alan Mann of Canopy - The Tree Experts, noted that the species was on the problematic Tree Species list and was not likely to be required to be retained. The applicants were concerned that its loss would compromise the privacy of adjoining properties to the west, including their own, and would result on the west facing balconies and sliding doors of the proposed development being further exposed to the western sun, making them unpleasant in the summer and leading to poor energy efficiency.
The developer party joined subsequently modified their plans so as to retain the tree (see, T 175 and T347) and the Reconsideration decision included a condition of approval requiring the provision of a final Tree Management Plan in accordance with the Tree Assessment Report provided by Canopy - The Tree Experts, Revision A of 28 October 2010, but that Report did not specifically identify the Gleditsia tricanthos as needing to be retained.
It was made clear at hearing that the developer party joined was prepared to retain the tree in question and would accept a condition clarifying that the Tree Management Plan should include provisions relating to Tree 6.
The Tribunal inspected the backyard of the applicant’s residence and noted the relationship of their main POS to the proposed development and the location of Tree 6. It is evident that Tree 6 would provide both a measure of privacy to the applicants as well as shade to the western face of the proposed development and should be retained. Consequently, should we decide that the development could proceed, we would impose a condition requiring measures to be taken to maintain of Tree 6.
Conclusion
The Tribunal has identified a number of aspects of the proposed development which it finds to be inconsistent with various provisions of the Territory Plan. As a consequence, pursuant to section 50 of the Planning Act, we cannot confirm the decision under review. The simple fact is that the development as proposed is too big for the block in question, while the requirement of Criterion C9 of the Precinct Code for the development to be across the front of the block militates against a more efficient design. We agree with the respondent’s view, stated in the original decision, that amalgamation of the subject land with Block 8 would assist in achieving better development opportunities.
Order
The decision under review is set aside and substituted with a decision that Development Application No 201017334 is refused.
………………………………..
Dr D. McMichael
Presiding Member
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