1. The development application sits in the merit track for the purpose of assessment. The provisions of Division 7.2.3 of Chapter 7 of the Planning Act apply to such applications.
2. Relevant provisions of Division 7.2.3 are sections 119 and 120:
   1. Merit 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 - _

(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 1 An 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).

_(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 section 148 (Some development applications to be referred) unless the person deciding the application is satisfied that - _

(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.

1. Merit 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) if an environmental significance opinion is in force for the development proposal - the environmental significance opinion;

Note Environmental significance opinion - see s 138AA. Environmental significance opinions expire 18 months after they are notified (see s 138AD).

(d) each representation received by the authority in relation to the application that has not been withdrawn;

_(e) if the design review panel provided the proponent with design advice about the development proposal - _

(ii) the proponent's response to the design advice;

(f) 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;

Note Advice 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).

(g) if the proposed development relates to land that is public land - the public land management plan for the land;

(h) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.

1. Relevantly from these, section 119(1) provides development approval must not be given for a development application in the merit track unless it is consistent with the relevant code. 'Relevant code' is defined in the dictionary to the Act as "a code that the relevant development table applies to the proposal". Where more than one type of code applies to a development and there is inconsistency between provisions, the order of precedence is precinct code, development code, and general code.[8]
2. With respect to reconsideration section 193 provides:

_(1) If the planning and land authority receives a reconsideration application, the authority must - _

_(b) not later than 20 working days after the day the authority receives the application - _

(i) make any decision in substitution for the original decision that the authority could have made on the original application; or

(2) However, the planning and land authority must not take action under subsection (1) (b) if the ACAT has decided an application for review of the original decision.

_(3) Also, the planning and land authority may only reconsider the original decision to the extent that the development proposal approved or refused in the original decision or part of the original decision - _

(a) is subject to a rule and does not comply with the rule; or

(4) The 20 working days mentioned in subsection (1) may be extended for a stated period by agreement between the planning and land authority and the applicant.

_(5) In reconsidering the original decision, the planning and land authority - _

(a) need not publicly notify the reconsideration application under division 7.3.4; but

(b) must give written notice of the reconsideration application to anyone who made a representation under section 156 about the original application, allow the person reasonable time (that is not shorter than 2 weeks) to make a representation on the reconsideration application, and consider any representation made within the time allowed.

_(6) Also, in reconsidering the original decision, the planning and land authority - _

(a) must consider any information available to the authority when it made the original decision and information given in the reconsideration application; and

(7) The planning and land authority must ensure that, if the original decision is made on the authority's behalf by a person (the original decision‑maker), the authority or someone other than the original decision-maker reconsiders the decision.

1. The primary relevant code for this application is the Multi Unit Housing Development Code (the MUHDC). The MUHDC makes the following provision in its introduction:

Proposals in the merit track and impact track must comply with each rule or satisfy its associated criterion, unless the rule is mandatory (i.e. it has no related criterion). Where a rule is fully met, no reference to the related criterion needs to be made. Where there is a departure from a rule, or where a criterion only applies, the onus is on the applicant to demonstrate that the relevant criterion is satisfied, through supporting drawings and/or written documentation.

1. The Residential Zones Development Code (the RZDC) is also a relevant code.
2. Also relevantly, section 120 provides that in deciding a development application in the merit track the decision-maker must consider (a) the objectives for the zone in which the development is proposed to take place, (b) the suitability of the land, and (h) the probable impact of the proposed development.
3. RZ2 is the relevant zone, the objectives of which are:

1. Provide for the establishment and maintenance of residential areas where the housing is low rise and contains a mix of single dwelling and multi-unit development that is low to medium density in character particularly in areas close to facilities and services in commercial centres
2. Provide opportunities for redevelopment by enabling a limited extent of change with regard to the original pattern of subdivision and the density of dwellings

1. Provide for a wide range of affordable and sustainable housing choices that meet changing household and community needs

1. Contribute to the support and efficient use of existing social and physical infrastructure and services in residential areas close to commercial centres
2. Ensure redevelopment is carefully managed so that it achieves a high standard of residential amenity, makes a positive contribution to the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties
3. Provide opportunities for home based employment consistent with residential amenity
4. Provide for a limited range of small-scale facilities to meet local needs consistent with residential amenity
5. Promote good solar access
6. Promote energy efficiency and conservation
7. Promote sustainable water use
8. Promote active living and active travel

1. Encourage an attractive, safe, well-lit and connected pedestrian environment with convenient access to public transport

1. Also relevantly, section 139 of the Planning Act provides that the applicant bears the evidentiary burden to show compliance with the applicable code criteria:

(1) This section applies to an application for development approval.

(e) if the application is for approval of a development in the merit track - be accompanied by information or documents addressing the relevant rules and relevant criteria.

1. The applicant's statement of 4 January 2021 and his further statement of 18 February 2021 (parts 3 and 4 only) were tendered and admitted as his evidence.[9] He gave further oral evidence and was subject to cross examination.

1. Richard Davies, a Senior Assessment Officer with the respondent gave evidence. His evidence consisted initially of his written statement with respect to his independent assessment of the development application in terms of the revised plans submitted with the Reconsideration Application of the 27 August 2020.[10] This statement was amended and supplemented in his oral evidence to have regard to the Exhibit A3 amended plans. Mr Davies gave further oral evidence and was subject to cross examination.

1. The parties joined tendered written statements from a large number of persons who had made representations with respect to the DA.[11] Michael Azzopardi, the second party joined, gave oral evidence and was available for cross examination.

1. As a consequence of the revisions in the Exhibit A3 amended plans the matters at issue for the decision of the Tribunal were narrowed and are now confined to:

(b) compliance with the objectives of the RZ2 Zone under section 120(a), and the matters to be considered under sections 120(b) and 120(h).

1. In terms of its consideration of the MUHDC issue the Tribunal is guided by the following principles. The requirement under section 139 of the Planning Act and the introduction to the MUHDC[12] make clear that the development proponent is to provide supporting evidence and documents to demonstrate that the proposed development satisfies the applicable rule or criterion. That is to say the primary onus rests with the applicant.
2. Where terms such as 'proportionate' and 'reasonable' are used in criteria, the Tribunal considers it useful to consider the 'minimum ideal' as set out in the related rule as a useful guide. Whilst clearly 'something less' than the rule requirements may be approved, the degree of divergence from the rule requirement is a matter that will help guide the Tribunal in its consideration of the evidence provided in support of satisfying criterion.
3. The decision in Deakin Residents Association[13] provides some assistance in this regard in interpreting the interplay of a rule/criterion combination:

There was some consideration in the hearing as to the relationship between R 36 and C 36. Mr Thwaites in his statement for Deakin Residents suggested that the rules and criteria are intended to be associated in their application, and that for elements where both a rule and criterion apply, the rule is the point of departure for assessment, with a requirement for any departure from that rule to be justified by reference to the criterion. The Tribunal thinks there is some merit in this approach. Context is an important tool in statutory interpretation and the requirements in C 36 should be informed by the terms of R 36. In effect C 36 allows a lesser separation than 4 metres but requires this to be justified. Both R 36 and C 36 implement a particular purpose and policy, and this purpose and policy should inform the interpretation of C 36.[14]

1. We will review the evidence and submissions for each of these matters in turn before providing our decision.

1. One further threshold issue is the effect of the Exhibit A3 amended plans tendered by the applicant on the final day of the hearing. The respondent has made a number of helpful submissions about the effect of this tender.[15] Pursuant to section 144 the respondent, and in its shoes the Tribunal, may accept an amended application. Section 144(2) provides the Tribunal must not amend an application unless the development will be substantially the same as applied for originally and the assessment track will not change. We accept the evidence of Mr Davies that these two requirements are met.[16] We accept the applicant has asked the Tribunal to approve the development proposal as detailed in the Exhibit A3 amended plans.
2. Accepting an amended application in this form also raises the issue as to whether it gives rise to fresh publication requirements under section 146. Again, Mr Davies' evidence is helpful to the effect that it would be appropriate to waive any new notification requirements given that no one other than the applicant will be adversely affected by the amendment and that the environmental impact will be no more than minimally increased.[17] We find that no one but the applicant is adversely affected by the amendment and that the additional environmental impact is nil.

**Compliance with the rules and criteria of the MUHDC

1. R29/C29 is concerned with front boundary setback siting. The subject site is a corner block and under the Territory Plan it is assessed to have two front boundaries. The applicant nominated Galloway Street as the primary street frontage and Mollee Crescent as the secondary street frontage. The respondent has raised issues in relation to the setbacks of the proposal from both front boundaries. The parties joined raised issues with the setbacks from Galloway Street.
2. R29 provides:

Minimum boundary setbacks for corner blocks apply only to the street frontage nominated as a secondary street frontage. If street frontages on corner blocks are of equal length, the minimum setbacks apply only to one secondary street frontage. Chamfers may be included in the secondary street frontage.

Setback means the minimum horizontal distance between a building wall ... and the relevant block boundary.

1. Table A5 stipulates a minimum setback for large blocks in subdivisions approved before 18 October 1993 of 6m from one frontage (in this case Galloway Street) for both lower and upper floor levels, and 4m from the secondary street frontage (Mollee Crescent) for the lower level and 6m for the upper level.
2. There was no dispute between the parties that both the original and the reconsideration revised plans do not comply with the requirements of R29. The applicant stated, and the respondent determined, that in the original and the reconsideration revised plans Unit 1 encroaches into the 6m setback to Galloway Street by 500mm. The applicant stated that this was for 18% of the total development frontage while the respondent found that it was for 50% of the frontage of that face. In the Exhibit A3 amended plans the encroachment remains. Compliance with Rule 29 is still not achieved. Further encroachments to the entries of Units 1 and 2 were identified during the hearing which the applicant attempted to address in the Exhibit A3 amended plans. At issue is whether the development provided for in the Exhibit 3 amended plans complied instead with C29, most specifically C29 a).
3. C29 provides:

Front boundary setbacks achieve all of the following:

1. consistency with the desired character
2. reasonable amenity for residents

1. sufficient space for street trees to grow to maturity.

Desired character means the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code.

The applicant's contentions with respect to compliance with R29/C29

1. It was agreed by the applicant that the front boundary setback to Galloway Street required by R29 was not complied with. He said that it complied with C29 as the encroachment into the front setback was only a small single storey portion of Unit 1. The applicant contended that in the reconsideration revised plans[18] the frontage width of the encroachment into the 6m setback to Galloway Street by 500mm had been reduced. His oral evidence was that the encroachment width was now in the order of 18% of the frontage, not the 50% as assessed by the respondent. The applicant further says that in the Exhibit A3 amended plans the degree of encroachment into the setback for Unit 1 has been further reduced by removing the vertical blade wall at the entry and reducing its entry roof canopy depth by 400mm.[19] The applicant says this now meets each of the criteria in C29.

The respondent's contentions with respect to compliance with R29/C29

1. The respondent's position with respect to the proposed development, as contained in the reconsideration revised plans, was that the C29 criteria remained unmet. Significantly at issue was criterion b) "reasonable amenity for residents". The respondent now says in its written closing submissions:[20]

(a) The front setbacks (in the Exhibit A3 amended plans) only fail to comply with R29 in one instance;

(b) Unit 1 is the unit that fails to comply. All other units are compliant;

(c) Mr Davies adheres to his interpretation of R29 to the effect that non-compliance with R29 by any setback necessitates an assessment of all setbacks against C29;

(d) The encroachment for Unit 1 is now minimal and having regard to its small rule departure and regard to the other landscape and architectural features now included (in the Exhibit A3 amended plans), all setbacks comply with C29.

The parties joined's contentions with respect to compliance with R29/C29

1. The parties joined contend the development contained in the Exhibit A3 amended plans do not meet each of the qualitative criteria in C29.

1. The reconsideration decision noted that the proposed street frontage setback did not comply with R29[21] and it was not consistent with the criteria. This was because Unit 1 is 500mm from the front boundary for 50% of the front façade. The requirement is a setback of 6m under Table A5. There was no assessment against the criteria for the setback from Galloway Street in the reconsideration decision.
2. Mr Davies said in his evidence that Unit 1 was not set back the 6m on the ground floor but that Unit 2 complies except that small elements protrude into the setback. Mr Davis did not describe the small elements.
3. During the hearing it was acknowledged that the encroachments into the Galloway Street setback were greater than those identified in the reconsideration decision. The front entries to each unit facing Galloway Street included covered porches with side walls that are attached to the buildings which form the encroachments. Unit 1 was set back 4.5m from the front boundary and Unit 2 is set back 5.5m from the front boundary. It was identified that the R32 ("Encroachments into front setbacks are permitted for one or more of the following building elements") concession was not met as the roof overhang widths were greater than 600mm. We accept that position.
4. The Exhibit A3 amended plans eliminated the walls at the entries and reduced the roof overhangs. No adjustment was made to the wall parallel to the street of Unit 1 which remained located 500mm forward of the 6m setback. The roof overhang to Unit 1 was reduced to 1m which we assess to be a remaining encroachment of 1.5m into the front setback. The Unit 2 roof overhang encroachment was reduced to 400mm. The applicant contends the result is that the proposal was now consistent with C29 for Unit 1 and it met R29 for Unit 2. The parties joined contend that as the front setback was not rule compliant then the building was too large for the block and four units were too many. Mr Azzopardi said with reference to C29 that the proposed development matched surrounding buildings.
5. The respondent and parties joined maintained that the encroachment of the front wall to Unit 1 meant that the rule was not met. Neither party adequately addressed the criteria for setbacks with reference only to Galloway Street.

Front setback from Mollee Crescent (secondary street frontage)

1. The Mollee Crescent front boundary for both Unit 2 and Unit 3 is a secondary street frontage. The decision, on reconsideration, found the stairwell and façade of Unit 3 presented as a two storey building to the street; it encroached into the setback requirements for the upper level. The building was set back 4.16m and therefore encroached into the 6m setback required by R29 and the proposed development did not satisfy the C29 criteria.
2. Mr Davies said in his evidence that the internal elements met R29 however the external elements present as a two storey bulk and mass. He said that as the rule was not met for Galloway Street and as the external elements of Unit 3 presented as a two storey bulk and mass, the setback for Mollee Crescent also did not satisfy the rule and therefore needed to be assessed against the criteria He said that the stair structure would be a dominant feature of the development and set out his assessment with respect to the desired character.
3. The applicant said that the proposal complied with the relevant rule R29 and Table A5 as regards the Mollee Crescent setback where the setback for the single storey (lower floor level) is a minimum 4m. He said that the stairwell falls within the definition of a storey (a single storey) as defined in the Territory Plan and as a consequence the Mollee Crescent setback complies with R29 and therefore does not need to be assessed against the criteria.

1. The Tribunal finds that the encroachment of the front of Unit 1 at the lower floor level of 500mm for a length of 5.45m of the 11.2m façade (48.6% of the length) is not insignificant. The Exhibit 3 amended plans slightly reduced the roof overhangs and deleted the entry side walls. However the entry roof overhang now extends 1.5m into the front setback which is 900mm greater than the 600mm allowed in R32. The roof overhang for the full width of Bedroom 1 extends 1.1m into the front setback which is 500mm greater than the allowed 600mm in R32.
2. As to the alternative assessment under the criteria C29 a) and b) are relevant. The first requires consistency with the desired character. The concept of desired character is defined in the Territory Plan to mean "the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code". 'Streetscape' is also defined to include "... private land between facing buildings, including the form of buildings, treatment of setbacks ... driveway and street layout ...". Relevantly, the encroachment by the front wall and entry of unit 1 of 500mm for 48.6% of the street facade of the building into the front setback is a significant departure from the rule requirement and is not minor. Applied to the criteria the encroachment impinges on the streetscape, specifically with respect to siting. The Tribunal has determined that a condition requiring removal of a significant proportion of this encroachment would be necessary to meet compliance with C29. This would at minimum require the addition of an approval condition that the front wall to Bedroom 1 be moved back to meet the 6m setback dimension. The Exhibit A3 amended plans do not meet such a requirement.

1. The Tribunal does not accept the respondent's submission that if the rule is not met for Galloway Street with respect to front setbacks, then this opens up the Mollee Crescent setback to be assessed against the criteria even if it is R29 compliant. In our view the front set back at Unit 3 in Mollee Crescent of 4.16m meets R29 for the following reasons. The wall to the staircase of Unit 3 is set back 4.16m from the front boundary. This is 160mm greater than the lower floor level dimension of 4m allowed.[22] The GFA plans[23] show the GFA calculation for Unit 3 at the upper floor level. It does not include the staircase area. The respondent did not assess the exclusion of the staircase area in the calculation of GFA to be incorrect. The Tribunal finds that as the staircase is not included in the GFA calculation at this floor level then the stairs are not considered to be an upper floor level.
2. The setback at the upper floor level is not dimensioned on the documents. The top tread of the staircase aligns with the external face of the parapet wall above Bedroom 1 to Unit 3. The location of this wall is dimensioned as 6m from the front boundary. The Tribunal finds that the upper floor level front setback of 6m is met. In our view when the rule is met, no reference is then necessary to the related criterion.
3. We find the Mollee Crescent setback in the Exhibit A3 amended plans meet R29.

1. R30/C30 is concerned with side and rear setbacks. At issue is the side setbacks on the northern boundary of the proposed development.
2. R30 provides:

Side and rear boundary setbacks comply with the following:

1. in RZ1 and RZ2-Table A6
2. in RZ3, RZ4, RZ5and commercial zones -Table A7

1. Table A6 stipulates a minimum setback of 3m for the lower floor level, 3 metres in the primary building zone for an upper level external wall, 6m for an upper floor level external wall in the rear zone, 6m for an unscreened element in both the primary building zone and the rear zone from the side boundary.
2. The parties accepted that a number of the north side boundary setbacks required by R30 and Table A6 were not complied with.
3. C30 provides:

Buildings and other structures are sited to achieve all of the following:

1. consistency with the desired character
2. reasonable separation between adjoining developments

1. reasonable privacy for dwellings on adjoining residential blocks

1. reasonable privacy for principal private open space on adjoining residential blocks
2. reasonable solar access to dwellings on adjoining residential blocks and their associated principal private open space.

1. The reconsideration decision did not assess the setbacks from the northern side boundary to Units 3 and 4.
2. Mr Davies in his evidence said that the lower floors to Units 3 and 4 had setbacks less than 3m, but these were minor rule departures. He said that Unit 4 had upper floor walls within the 3m rule requirement. He said that given the proposal did not meet R30 an assessment against C30 was required. He determined the sloping roof and what he referred to as large blank walls in box configuration were not considered to be a positive contribution to the desired character as required by C30 a). He determined that the setbacks were consistent with C30 b), c), d) and e). He considered that the development does not meet C30 as it was not consistent with C30 a).
3. The applicant said that all of the C29 criteria were met.
4. Mr Azzopardi said he remained concerned with overlooking of his block as well as the look and form of the proposed development.

1. The Tribunal accepts that the encroachments at the lower floor level of Units 3 and 4 and at the upper floor level of Unit 3 on the north side are not significant and satisfy C30. In our view they are not inconsistent with the desired character.

1. R42/C42 is concerned with courtyard walls. The respondent raised issues in relation to the courtyard walls to Units 1, 2 and 3 facing Galloway Street and Mollee Crescent as they were each located forward of the minimum setback from the front boundaries of 2m.
2. Rule 42 provides:

Courtyard walls are permitted forward of the building line where they comply with all of the following:

1. a total length not exceeding 60% of the width of the block at the line of the wall
2. a minimum setback from the front boundary of not less than 2m

1. trees and/or shrubs between the wall and the front boundary, in accordance with an approved landscape plan

1. a maximum height not exceeding 1.8m above datum ground level
2. constructed of brick, block or stonework, any of which may be combined with timber or metal panels that include openings not less than 25% of the surface area of the panel
3. do not obstruct sight lines for vehicles and pedestrians on public paths or driveways in accordance with Australian Standard AS2890.1- Off-Street Parking.

1. consistent with the desired character
2. the dominance of the building's facade in the streetscape taking all of the following aspects of the proposed courtyard wall into account:
   1. height
   2. relationship to verge footpath
   3. total proportion relative to the building
   4. width
   5. colour and design features
   6. transparency
   7. articulation
   8. protection of existing desirable landscape features
   9. tree and shrub planting forward of the wall

1. do not obstruct sight lines for vehicles and pedestrians on public paths or driveways in accordance with Australian Standard AS2890.1- Off-Street Parking.

The applicant's contentions with respect to compliance with R42/C42

1. The applicant in his evidence referred to his Statement Against Relevant Criteria, dated December 2019.[24] He accepts that R42 was not met. He contends that the combined length of courtyard walls along Mollee Crescent is 46.1% of the width of the block at the line of the walls. He contends the height of the courtyard walls for Units 1, 2 and 3 are no more than 1.8m above datum ground level and further that the space forward of the walls allows for screening with for shrub planting. The applicant said that the walls are to be constructed with a low-level brick base wall and horizontal timber slats with continuous horizontal gaps of equal size above. He said that the courtyard wall materials and the gaps between the slats met the rule requirement. The applicant contends that the scale, proportion and detailing would not be discordant with the desired character of the neighbourhood and the building facades will definitely maintain their dominance along the two street frontages. He further said that he had considered the size requirements for the principle private open space (PPOS), a defined term, for each unit when determining the location of the courtyard walls and he had chosen instead of strictly meeting R42, to focus more on meeting the requirements relating to PPOS.
2. During the hearing it was acknowledged, due to the proposed new excavated ground levels, that the top of the courtyard wall to Unit 3 would be approximately 970mm above datum ground level at the north east corner of the subject site.[25] The effect of this is to lessen the obligatory screening of the PPOS of Unit 3 from the public street. Unit 2 was similarly affected but to a lesser degree. The Exhibit A3 amended plans increased the height of the courtyard wall to Unit 2 by 300mm and to Unit 3 by 600mm. As such the applicant contends that the proposed development satisfies C42.

The respondent's contentions with respect to compliance with R42/C42

1. The respondent in its reconsideration decision noted that the proposed reduced setback of the courtyard walls will add to the dominance of the building façade in the streetscape and therefore does not comply with C42. It stated that the streetscape is predominantly characterised by single storey dwellings set well back from the street with low hedging/fencing forward of the building line. The respondent raised issues in relation to the courtyard walls to Units 1, 2 and 3 as they were each located forward of the minimum setback from the front boundaries of 2m. It said that the courtyard wall to Unit 1 was shown set back 1m from the front boundary and the courtyard walls to Units 2 and 3 were shown set back 1.21m from the front boundary. Mr Davies in his evidence said that these locations being close to the front boundaries will impact on the streetscape (a defined term) and therefore the desired character C42 a). He said that a greater distance from the front boundary with improved and larger plantings may soften the impact of the walls. He said that the combined length of the courtyards walls to Mollee Crescent was approximately 55.5% of the frontage. Mr Davies considered the wording of criteria C42 b) was potentially unclear however he assessed the development with respect to that criteria requiring the building façade to not dominate the streetscape taking into account the courtyard walls. He said that the combination of the buildings and courtyard walls would have such a dominant impact on the streetscape and therefore not meet the intent of C42.
2. The respondent reiterated in its written closing submissions that the proposed courtyard walls in the Exhibit A3 amended plans still fails to satisfy both R42 and C42.[26] The respondent contends the amended plans provide courtyard walls are now higher than before and appear to be located in the same position as per the reconsideration development application. They remain non-compliant with minimum setback requirement from the front boundary of 2m and so do not comply with R42 b). The respondent says the plans also lack sufficient detail to determine whether the courtyard walls satisfy the requirements of R42 e). The respondent submits that the courtyard walls remain non-compliant with C42 a) which requires the walls to be "consistent with the desired character" which is a defined term. The respondent says its position remains that the extent of the departure from R42 b) would result in the walls becoming a dominant and potentially overbearing feature of the development, and so detrimental to the surrounding streetscape.

The parties joined's contentions with respect to compliance with R42/C42

1. The parties joined raised issues with the courtyard walls. They said they were too close to the boundaries and there was not enough screening from people looking into the PPOS. Mr Azzopardi said they looked like fences. The parties joined reiterated in their written closing submissions that the proposed courtyard walls of Units 1, 2 and 3 in the Exhibit A3 amended plans still encroach on the front boundary lines breaching R42.[27] The courtyard wall of Unit 1 encroaches on the front boundary by 1000mm, Units 2 and 3 encroach by 790mm. Further, the proposed material construction does not comply with R42 e) as the stone brick or block work construction allows much more than the permitted 25% visibility allowance. The proposed courtyard walls detailed in the Exhibit A3 amended plans do not meet the C42 criteria.

1. We find that the courtyard walls to Units 1, 2 and 3 do not meet R42 b) and e) for the following reasons.
2. R42 b) requires a setback of 2m. The applicant gave evidence that that the PPOS rule compliant dimension requirement of a minimum 6m was what determined the location of each of the three courtyard walls. He said that the base of the walls were to be constructed in brickwork. This brickwork is shown on the documents as being a retaining wall to both the courtyard walls of Unit 2 and Unit 3. However the height of the retaining walls are not shown correctly on the Exhibit A3 amended plans[28] as the horizontal timber rails that are shown below the datum height level in our assessment cannot act as a retaining wall. The brickwork would be required to extend up to or just above the datum ground level, which is the verge ground level, for the PPOS minimum dimension to be maintained. The applicant said that the brick walls are designed not to extend into the excavated PPOS area. However, the minimum thickness would be one brick a dimension of 230mm as shown on drawings in the Exhibit A3 amended plans.[29] Allowing for this the courtyard walls to Units 2 and 3 therefore are set back from Mollee Crescent front boundary 980mm and not 1.21m as shown. The brick base to the courtyard walls of Unit 1 is shown extending above the ground level in the Exhibit A3 amended plans.[30] It appears for the PPOS minimum dimension to be maintained as the applicant wishes the brick wall cannot extend into the excavated PPOS area, therefore the wall must extend into the setback. The effect for Unit 1 is that the courtyard wall is set back from the Galloway Street front boundary 770mm and not 1m as shown. The R42 b) setback of 2m is not met.
3. Rule 42 e) requires the courtyard walls to be constructed in brick, block or stonework, any of which may [our emphasis] be combined with timber or metal panels that include openings not less than 25% of the surface area of the panel. The courtyard walls as proposed have a brick base. Above the base the material is full length timber rails with full length openings which are shown as equal to the timber rail. We do not agree with the applicant that the section of wall above the brickwork can be described as brickwork combined with timber panels as the rule requires. Our assessment is that, similar to the construction of a panel door, the timber panels in the courtyard walls would need to be located within a wall, partly or whole surround by a 'frame' of brickwork. The R42 e) material construction requirement is not met.
4. With respect to the alternative assessment under the criteria we find that the courtyard walls to Units 1, 2 and 3 do not meet C42 a) consistency with the 'desired character', for the following reasons.
5. Once again the concept of 'desired character' is defined in the Territory Plan to mean "the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code". 'Streetscape' is also defined in the Territory Plan and "includes the visible components in a street...private land between facing buildings, ...the form of buildings, treatment of setbacks...".
6. The encroachment of the courtyard wall to unit 1 as dimensioned is 1m which is only 50% of the minimum setback in R42 b). In our view this courtyard wall would impinge on the streetscape, specifically with respect to siting. The total encroachment as designed would be 1.23m (1m + 230mm) which is 61.5%.
7. In the same way the encroachment of the courtyard wall to Unit 2 and Unit 3 would be 1.02m (2m - 1.21m + 230mm) which is a 55% encroachment of the 2m setback. These courtyard walls impinge on the streetscape, specifically with respect to siting. We find that the resulting setbacks are not consistent with the 'desired character'.
8. We further find that the courtyard walls to Units 1, 2 and 3 do not meet the C42 requirements as to design. In our view C42 does not permit the design of the courtyard walls to vary from what is stated at R42 e).
9. We further find that the courtyard walls to Units 1, 2 and 3 do meet C42 b) for the following reason.
10. We agree with Mr Davies that the wording of criteria b) is potentially unclear. However we consider the wording requires the building façade itself to be dominant in the streetscape and that a courtyard wall is not to greatly diminish that dominance. We take each of the sub-criterion in turn.
11. The height of the western building, containing Units 1 and 4, above datum ground level facing Galloway Street is approximately 7m. The courtyard wall height is stated to be 1.8m. The height of the eastern building, containing Units 2 and 3, above datum ground level facing Galloway Street varies from approximately 5.5m to 6m. The courtyard wall height varies from 1.3m to 1.6m above datum ground level. In our view it is the building façades in this configuration that will dominate the street taking account of the height of the courtyard walls (C42 b) i)). The verge footpath to Galloway Street is located next to the street and not adjacent to the boundary of the subject block. There is no footpath in front of the eastern building on its corner with Mollee Crescent. Given this there is no issue with the relationship of the courtyard walls with the verge footpath (C42 b) ii)). The consideration "total proportion relative to the building" (C42 b) iii)) is related to the length and height of the courtyard walls. The height and the width of the courtyard walls, as a proportion relative to the two buildings in our assessment does not dominate either building façade. The width of the courtyard walls to both streets is rule compliant as the totals do not exceed 60% therefore they would appear by definition not to dominate the building façades (C42 b) iv)). The colour and design features do not dominate either building facade (C42 b) v)). The context of 'transparency' (C42 b) vi)) is not clear. The rule permits a solid wall up to a height of 1.8m while transparent panels are an option. It is not clear why transparency is relevant if a solid wall meets the rule. Each courtyard wall is very transparent as the gaps are the same size as the boards. There is no articulation (C42 b) vii)) to the courtyard walls, nor is there a requirement for articulation in R42. The length of the walls varies from 6.5m to 7.5m and as set out above they are less than 60% of the width of the block. There is a tree management plan which does not identify any obvious other desirable landscape features (C42 b) viii)). Lastly, C42 b) ix) is imprecise as to what forward of the wall entails and as to whether the planting is to partly obscure the courtyard wall or not dominate the building facade. We have concluded "forward of the wall" in C42 b) ix) refers to both site planting and existing verge planting. The development proposes shrub planting in the confined space between the courtyard walls and the front boundary and in our view this will not diminish the dominance of the building facades.
12. As regards C42 c) the courtyard walls do not obscure sightlines.
13. We have found C42 a) is not met. The criteria requires all parts to be met, therefore we find C42 is not met.
14. The development as proposed in the Exhibit A3 amended plans fails to meet either the rule or the criteria for courtyard walls. In our view nothing is to be gained in adding a proposed condition of consent that required the courtyard walls to be located a greater distance from the street boundaries so that they do not impinge on the streetscape. This would simply have flow on effects in respect of likely non-compliance with the PPOS requirements under R61 and C61 for (possibly) Unit 1 and (most probably) Units 2 and 3.

1. R60/C60 is concerned with privacy of PPOS of dwellings on the subject site and dwellings on adjoining blocks. Issues were raised with the effect on privacy in the PPOS of Unit 4 and on the existing dwelling on the adjoining northern block.
2. Rule 60 provides:

This rule applies to principal private open space on the same block and on adjacent blocks.

A person with an eye height of 1.5m standing at any point on the extremity of an unscreened element of one dwelling shall not have a direct line of sight to more than 50% of the minimum principal private open space of any other dwelling.

The direct line of sight is a minimum distance of 12m.

1. There was no dispute between the parties that both the original and the amended plans did not comply with the requirements of R60. At issue is whether the development provided for in the amended plan options complied with C60.
2. C60 provides:

Evidence is provided demonstrating that reasonable privacy of principal private open space of each dwelling is achieved through design solution. Note: this does not include installing high sill windows, obscured glass, and/or angled louvres.

The applicant's contentions with respect to compliance with R60/C60

1. The applicant says that the development as proposed in the Exhibit A3 amended plans complies with R60.

The respondent's contentions with respect to compliance with R60/C60

1. The respondent's position with respect to the Exhibit A3 amended plans is that the development now complies with R60. It submitted it is satisfied that the new angle of the window in Bedroom 3, Unit 3 window appears to address the privacy concerns of overlooking into the Unit 4's PPOS.[31]

The parties joined's contentions with respect to compliance with R60/C60

1. The parties joined say with respect to the development as proposed in the Exhibit A3 amended plans that the plans for Units 2 and 3 breach R60 as the courtyard walls are lacking privacy to the residences' PPOS. A person with an eye height of 1.5m standing on natural ground level would have a line of sight into the PPOS of more than 50%.[32]

1. Rule 60 applies to the PPOS on both adjoining blocks as well on the subject site. Mr Davies said in his statement that further information was required to assess the privacy impacts between the upper floor windows of Unit 3 on Unit 4's PPOS. In his assessment and comments[33] he said that R60 was considered to be achieved. In his comments on C61 e) he said that Unit 3 has some upper floor impacts on Unit 4's PPOS and that further information or a condition was required to address this. Mr Azzopardi said he was concerned that the PPOS on his neighbouring block would be overlooked from Unit 3. The Exhibit A3 amended plans show that the upper level window to Bedroom 3 of Unit 3 has been amended. The wall that included the window was now angled away from the PPOS of Unit 4 and the neighbouring property so that it now faced towards the north east. The direct line of site from the window now looked over less than 50% of the PPOS of Unit 4. The direct line of sight towards the northern neighbour was now towards their garage located adjacent to the boundary and forward of the rear garden of Mr Azzopardi's neighbouring block. The requirement for a direct line of sight minimum distance of 12m is met.
2. We find that R60 is met in the Exhibit A3 amended plans.

1. The MUHDC sets out certain requirements with respect to PPOS. Each of the units in the proposed development has areas of enclosed private open space (POS). Rule 61 requires each dwelling to have at least one area of PPOS which complies with specified requirements. In the Territory Plan principal private open space means private open space that is directly accessible from a habitable room other than a bedroom. R38 b) sets out that private open space, which is a defined term, is to have a minimum dimension of 2.5m.
2. 'Private open space' is a defined term:

Private open space means an outdoor area within a block useable for outdoor activities, and may include balconies, terraces and 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.

1. 'Principal private open space' is a subset of such space with an additional feature:

Principal private open space means private open space that is directly accessible from a habitable room other than a bedroom

Each dwelling has at least one area of principal private open space that complies with all of the following:

1. located on the site
2. has minimum area and dimensions specified in table A9

1. is screened from adjoining public streets and public open space

1. is directly accessible from, and adjacent to, a habitable room other than a bedroom
2. is not located to the south, south-east or south-west of the dwelling, unless it achieves one or more of the following -
   1. not less than 3 hours of direct sunlight onto 50% of the minimum required area between the hours of 9am and 3pm on the winter solstice (21 June)
   2. located at an upper floor level and overlooks a public street or public open space.

1. The applicant said in the statement accompanying its reconsideration revised plans that its preferred option was to meet the PPOS minimum area and dimensions specified in table A9 (though with the knock on effect of preventing R42 compliance) and so comply with R61.[34] Its alternative was to provide reduced PPOS areas for Units 1, 2 and 3 and so need instead to meet C61, but this was not its preferred option. The Exhibit A3 amended plans do not provide any alternatives to comply with the requirements of R61 for all of the units.
2. If rule compliance is not met at issue is whether the development provided for in the Exhibit A3 amended plans complies instead with the requirements of C61 for all units.
3. C61 provides:

Principal private open space for each dwelling achieves all of the following:

1. an area proportionate to the size of the dwelling
2. an extension of the function of the dwelling for relaxation, dining, entertainment, recreation

1. service functions such as clothes drying and mechanical services
2. reasonable privacy
3. reasonable solar access.

The applicant's contentions with respect to compliance with R61/C61

1. The applicant contended that as per the reconsideration revised plans the R61 PPOS were met for each unit. He said that the PPOS to Unit 2 is located to the east north east of the dwelling. In his evidence he contended the PPOS minimum dimension was complied with for Unit 3. He explained that the drawings in the reconsideration revised plans indicated the dimension to a hatched line on the site plan[35] which represented the ground floor building footprint rather than the unbroken line which represented the upper level.

The respondent's contentions with respect to compliance with R61/C61

1. Mr Davies, on behalf of the respondent, noted in his review of the reconsideration decision[36] that the proposed development did not comply with the R61 b) dimension requirements as Units 3 and 4 had one dimension less than 6m. In his oral evidence Mr Davies corrected this view saying he was now satisfied that the PPOS for Units 3 and 4 meet both the minimum areas of 36m² and minimum dimensions of 6m. His evidence was the R61 b) dimension requirements do not require every PPOS dimension to be a minimum of 6m provided that the minimum areas of 36m² requirement is met.[37] Mr Davies[38] stated that the development did comply with R61 c) because all PPOS would be "screened". Mr Davies in his oral evidence reviewed his finding in response to questions from the Tribunal as to whether the proposed development complied with R61 c). The word 'screened' is not italicised in R61 c) and so is presumably not meant to be read as a defined term. Nonetheless, it was the respondent's concluded view that in determining whether or not a PPOS is 'screened' for the purposes of R61 c) it is appropriate to look to the Territory Plans definitions of 'screening devices' and 'screen walls' as a measure of what is required. The respondent submitted as a consequence that Units 1, 2 and 3 fail to satisfy R61 c) as they do not have at least one PPOS that is 'screened' from adjoining public streets and public open space.[39]
2. As regards an assessment against C61, the respondent submitted that neither the reconsideration revised plans nor the Exhibit A3 amended plans satisfy C61 because the applicant has failed to demonstrate that Units 2, 3 and 4 will have reasonable solar access, as required in C61 f), as is clear from the shadow diagrams provided with those plans.[40]

The parties joined's contentions with respect to compliance with R61/C61

1. The parties joined's position was that R61 b) requirement for a minimum dimension of 6m for PPOS is not met with Unit 4 which has one side less than 6m, being the Western side of the courtyard. The parties joined submitted that from the shadow diagram provided in the Exhibit A3 amended plans, Units 1, 2 and 3 do not receive the minimum amount of direct sunlight on the winter solstice. They submit that the PPOS for these units will have no more than 50% of shadow from 0900 through to 1500 breaching R61 e) (i). Additionally, Units 1, 2 and 3 fail to satisfy R61 c) as they do not have at least one PPOS that is screened from the adjoining public streets and adjoining PPOS given that the timber slats proposed for the courtyard walls have more than the 20% visual opaque block out allowed.[41]

1. Table A9, as referred to in R61 b), specifies that for RZ2 a two or three bedroom dwelling requires a minimum PPOS area of 36sqm and a minimum dimension of 6m. Units 2 and 3 are three bedroom dwellings and Unit 4 was amended from a three bedroom dwelling to a two bedroom dwelling in the Exhibit A3 amended plans. Additionally, R61 c) specifies that such areas of PPOS must be screened from public view. We examine below whether the PPOS minimum dimension requirements are met for Unit 4. We then examine whether the PPOS screening from public view requirements are met for Units 2 and 3.
2. As to the minimum dimension requirements, Unit 4 is located between the vehicle circulation area and the northern boundary. The space has a width of 7.4m. At the southern side, an angled wall or fence extends into the PPOS as identified by the applicant. The wall or fence is necessary so that there is a physical barrier that separates the PPOS from the vehicle manoeuvring area, specifically the reversing of a vehicle from the northern parking space for Unit 3. An appropriate graphic to depict a minimum dimension for the PPOS is a circle with a diameter of 6m. The applicant has adopted such a graphic for the shadow diagram drawings[42] but has not adopted this for any of the PPOS spaces, rather he has depicted a notional 6x6m2. Using the appropriate circle graphic it is not possible to locate a circle with a diameter of 6m in this space, even extending fully up to the northern boundary, without the circle extending past the angled wall or fence adjacent to the vehicle circulation area. In our view, the wall or fence extends into the 6m diameter circle graphic in the form of a part of a chord, for an approximate length of 3m and for a depth up to an approximate maximum of 600mm. As there is a brick retaining wall inside the north boundary that reduces the PPOS width, the extent of encroachment into the PPOS would be approximately 800mm or greater. In our assessment the minimum 6m dimension is not met for the PPOS of Unit 4.
3. As to the screening requirements for Units 2 and 3, the elevations on the Exhibit A3 amended plans[43] show a timber slatted structure of horizontal boards with horizontal gaps between the boards, each equally spaced. The boards and gaps have a similar vertical dimension which appears to be approximately 150mm high. A separate drawing schedule specifies that the courtyard walls are to be "1050 high timber horizontal slat fence/screen over 750 high painted brick wall. Timber slats to be 90x19mm Merbau fixed horizontally ...with 19mm gaps in between...".[44] For our assessment of the development against R61 b) we have adopted the specification rather than the representation of the courtyard walls on all of the elevations of Exhibit A3.
4. The PPOS for Unit 2 faces Mollee Crescent and is excavated below the datum ground level. It has a courtyard wall constructed of solid brickwork up to a height of approximately 250mm above datum ground level to the south and just below datum ground level to the north. Above the brickwork at the southern end is what appears to be a solid timber slatted structure for a length of 1.6m and up to a height of approximately 1.4m above the brickwork. Above the remainder of the brickwork extending north is a timber slatted structure up to the top of the 1.4m high courtyard wall, measured from the datum ground level at the northern end.
5. The PPOS for Unit 3 faces Mollee Crescent and is excavated below the datum ground level. It has a courtyard wall constructed of solid brickwork up to a height just below datum ground level to the south and approximately 400mm below datum ground level to the north. Above the brickwork is a timber slatted structure, 1.7m high courtyard wall measured from the top of the brickwork at the northern end.
6. R61 c) requires these areas to be screened from the public. By definition, a courtyard wall is a wall. The definitions in the Territory Plan include the term 'screen wall' meaning "a wall at least 1.8m high and visually opaque". The courtyard wall to Unit 2 has a height of 1.65m and 1.3m above the ground level of the verge to Mollee Crescent at either end. Unit 3's courtyard wall has a height of 1.6m and 1.3m above the ground level of the verge to Mollee Crescent at either end. The heights of both courtyard walls in our view do not screen the PPOS from the public street. In our assessment the screening requirements are not met for Units 2 and 3.

1. C61 requires that all parts of the criteria are met. We find that C61 is not fully met for Units 2, 3 and 4 for the following reasons.
2. Each PPOS for Units 2 and 3 do not provide reasonable privacy (C61 e)). The courtyard walls do not have adequate height to prevent the spaces being overlooked by the public from the verge of Mollee Crescent.
3. Further at issue is whether the PPOS for Units 2, 3 and 4 provide reasonable solar access (C61 f)). As stated above, the terms of the rules are relevant to interpreting the criteria.[45] It is therefore appropriate to reference the rule requirement at R61 e). Based on this, something less than three hours of direct sunlight onto 50% of the minimum area between 9am and 3pm on 21 June may achieve reasonable solar access.
4. For Unit 2, the shadow diagrams[46] show that at 9am on 21 June the designated PPOS has full sunlight. However, this drawing does not take account of the shadow created by the courtyard walls surrounding the PPOS. The applicant provided amended shadow diagrams with the Exhibit A3 amended plans which show the extent of the shadow created by the courtyard walls. As we have found above, there is conflicting information in the documents as to how the courtyard walls are constructed which creates uncertainty as to the amount of sunlight that will fall on the area. In our view, the horizontal 19mm gaps to the courtyard walls will permit very little direct sunlight. The area not shadowed by the building and the courtyard walls, if constructed as stated on the drawings,[47] is approximately 15sqm. This is 3sqm less than 50% of 36sqm required in Table A9. We accept that at 9am there will be reasonable solar access. The applicant did not provide shadow diagrams for 10am, 11am, 1pm or 2pm. At 12 noon the PPOS as represented on the drawings[48] is overshadowed by what we estimate to be about 70%. The amended drawing in the Exhibit A3 amended plans[49] do show a slight increase in sunlight on the area as a result of the change lowering the stair roof structure of Unit 3. The area is now not in shadow from the building, and the courtyard walls, if constructed as stated on the drawings,[50] is approximately 14sqm. This is 4sqm less than 50% of 36sqm required in Table A9. We accept that Unit 2 has reasonable solar access.
5. For Unit 3, the shadow diagrams show that at 9am on 21 June the designated PPOS has full sunlight. However, this drawing does not take account of the shadow created by both the northern boundary retaining wall and 2.1m high boundary fence and the courtyard walls surrounding the PPOS. The applicant provided amended shadow diagrams with the Exhibit A3 amended plans which show the extent of the shadow created by the boundary fence and the courtyard walls. The area appears to be nearly completely shaded from the boundary fence and the courtyard walls if constructed with the materials as stated on the drawings[51] and in our view at 9am there will not be reasonable solar access. The applicant did not provide shadow diagrams for 10am, 11am, 1pm or 2pm. At 12 noon the PPOS as represented on the amended drawings[52] show the area not in shadow from the building, boundary fence and the courtyard walls if constructed as stated is approximately 8sqm. This is 10sqm less than 50% of 36sqm required in Table A9. At 3pm, there are 4.5sqm not in shadow. In our view, Unit 3 PPOS remains without reasonable solar access.
6. For Unit 4 the shadow diagrams show that at 9am on 21 June the designated PPOS has full sunlight. This drawing does not take account of the shadow created by the northern boundary retaining wall and 2.1m high boundary fence, combined, to the north of the PPOS. The applicant provided amended shadow diagrams with the Exhibit A3 amended plans which show the extent of the shadow created by boundary fence. The area is completely shaded from the boundary fence at 9am. The applicant did not provide shadow diagrams for 10am or 11am. At 12 noon the PPOS as represented on the amended drawings[53] show the area not in shadow from the boundary fence is approximately 13sqm. This is 5sqm less than 50% of 36sqm required in Table A9. At 3pm the PPOS as represented on the amended drawing shows the area not in shadow from the boundary fence is approximately 7sqm. This is 11sqm less than 50% of 36sqm required in Table A9. In our view, Unit 3 does not have reasonable solar access.
7. We find for these reasons that the C61 requirements are not fully met for Units 2, 3 and 4.

1. The MUHDC sets out certain requirements with respect to internal driveways. There is no applicable rule.
2. At issue is whether the development provided for in the various plans complies with the requirements of C76.
3. C76 provides:

Internal driveways are designed to be safely used by both pedestrians and vehicles, including emergency vehicles.

Measures to reduce vehicle speed on internal driveways will be considered when determining compliance with this criterion, including one or more of the following:

1. changes in pavement materials
2. the lack of kerb and gutters

1. avoiding long lengths of driveway
2. suitable planting
3. signage.

The applicant's contentions with respect to compliance with C76

1. The applicant says the adjustments made in the Exhibit A3 amended plans now satisfies the C76 safety issues.

The respondent's contentions with respect to compliance with C76

1. Mr Davies added to his written comments with respect to C76[54] in his oral evidence by clarifying that he has no in-principle concern with internal driveways being shared zones and that there was no requirement for a dedicated pedestrian access pathway. His concerns were with safety issues given the sharpness of the turning circles in the reconsideration revised plans.
2. The respondent's position that C76 is not satisfied as regards pedestrian safety was not altered by the adjustments made in the Exhibit A3 amended plans.[55] The turning circles using the correct B99 vehicle still show sharp arc intersections which should be smooth. The respondent noted the applicant did not call expert evidence on the issue, nor was he able to clarify this discrepancy in his evidence.
3. The respondent submitted that the plans would have to be redrawn with a vehicle in the adjacent space to the larger adaptable parking space, so as to provide the decision-maker with a better understanding of the actual site limitations for a B99 vehicle, including some clarification as to why the arc intersections presently depicted are not smooth. This was not done.[56]
4. The respondent further submitted that the visitor parking space Turning Demonstration Plan[57] is not consistent with the corresponding amended architectural plans. The plan shows a three-point turn for vehicles exiting the space, which is not consistent with the Parking and Vehicular Access Code or Australian Standard 2890.[58] The respondent's position that C76 is not satisfied, as regards pedestrian safety, remains.[59]

The parties joined's contentions with respect to compliance with C76

1. The parties joined identified pedestrian safety issues it said were non-compliant with C76. These were that the turning circles of the visitor parking intrudes into the entry point of Unit 2.[60]
2. The parties joined further submit the car parks also do not meet the C82 criteria. They contend the adjustments in the Exhibit A3 amended plans to include 90mm round safety bollards around the structural column, place those bollards hard up against the structural column.[61] The parties joined submit this does not account for the dispersion of force, so all forces will be applied to the structural column, making the column pointless. If the bollards were to be moved to an appropriate distance from the structural columns to allow for their intended purpose the turning circle diagrams in the Exhibit A3 amended plans are no longer accurate.
3. The parties joined submitted these defects were not remedied in the Exhibit A3 amended plans.[62]

1. A number of safety issues for pedestrians using the internal driveways were identified. Accepting Mr Davies' evidence that there is no requirement in the Code for a dedicated pedestrian access pathway, safety issues exist when vehicles are entering and exiting. The vehicle turning circles provided in the Exhibit A3 amended plans show compromises are necessary on vehicle manoeuvrability due to size limitations. These potentially impact on pedestrain safety. We are not satisfied that the identifed issues have been adequately addressed. We find that the adjustments made to the internal driveways in the Exhibit A3 amended plans do not satisfy the C76 pedestrian safety issues identified.

1. The MUHDC sets out certain requirements with respect to visitor parking.
2. R82 provides with respect to such space:

Visitor car-parking spaces on the site comply with all of the following:

1. located behind the front zone (except for apartment car parking)
2. do not encroach any property boundaries

1. are separated by not less than 1.5m from windows and doors to habitable rooms of dwellings

1. are not more than 50m walking distance from any common building entry
2. clearly identified and visible from driveways.

1. At issue is whether the development provided for in the amended plans complies with the requirements of C82 for those units.
2. C82 provides:

1. accessible for all visitors
2. safe and direct visitor entry to common building entries.

The applicant's contentions with respect to compliance with C82

1. The applicant says the development satisfies C82 a) and that C82 b) is not relevant.

The respondent's contentions with respect to compliance with C82

1. The respondent's position is that R82 is not satisfied and an assessment against C82 is required.
2. The respondent concedes that the assessment in Mr Davies' witness statement[63] that the proposed development has common building entries was incorrect. As such C82 b) is not applicable.[64]
3. Mr Davies gave evidence that the proposed development (as set out in both the reconsideration revised plans and Exhibit A3 amended plans) satisfies C82 a). As a consequence, C82 is satisfied.

The parties joined's contentions with respect to compliance with C82

1. The parties joined's position was that one visitor parking space was insufficient and the effect would be that visitors would park on the property verge and street corner causing safety issues for residents. Secondly, they contended that the internal driveway plan did not allow safe egress to Unit 3's front door other than by using the verge which had no footpath. [65]
2. The parties joined, in their written submissions, contend that the visitor car park is on the outside of the boundary lines breaching Rule 82 b) and so R82 is not met. The turning diagrams that were supplied for the visitor carpark still show that a car trying to park is impacting on the internal path to Unit 2.

1. The only applicable requirement for visitor parking under C82 is C82 a), that it be "accessible for all visitors". We note the safety issues identified by the parties joined and have taken these into account in our considertion of the C76 assessment. We find that the adjustments made to visitor parking in the Exhibit A3 amended plans satisfy C82.

Summary of the Tribunal's conclusions on compliance with the rules and criteria of the MUHDC

143. The Tribunal finds with respect to the MUHDC matters at issue:

(a) R29/C29 (Front boundary setbacks): C29 not met with respect to Galloway Street, C29 met with respect to Mollee Crescent.

(b) R30/C30 (Side & rear boundary setbacks): C30 met.

(e) R61/C61 (PPOS): C61 not met for Units 2, 3, and 4.

1. The second consideration is the compliance of the proposed development as now detailed in the Exhibit A3 revised plans with the RZ2 Zone Objectives.
2. The zone objectives are 'pulled up' as part of the criteria assessment for a number of the MUHDC compliance issues where a criterion requires an aspect of the development to be "consistent with the desired character". The Territory Plan defines that consistency (as set out in paragraph 36 above) as "consistent with the relevant zone objectives". There is a specific reference to desired character in the criteria for C29 (front setbacks) and C42 (courtyard walls). As the respondent correctly points out, when consideration was made about consistency with desired character for these assessments it was only in light of those two aspects of the development - the nature and extent of the intrusion into the front setback spaces and the location and material construction of the courtyard walls - that the zone objectives were considered.[66]
3. But the requirement for compliance with the relevant code under section 119 does not of itself guarantee development approval. Both the respondent and the parties joined contend that section 120(a) requires the decision-maker to also consider other matters, including making a more global consideration of the zone objectives.[67] The applicant contended in his opening statement and throughout that the Tribunal should have regard to the zone objectives only in so far as 'desired character' is a stated consideration in a criteria assessment in the MUHDC.
4. Consistent with the authority outlined below we reject that limitation. Having found code compliance is not met the wider section 120 consideration is not necessary. However in a manner similar to Village No. 22 Pty Ltd ACN 620 656 260 v ACT Planning and Land Authority & Anor (Village)[68], but for different reasons, we feel obliged to comment briefly on the effect of those factors.[69] The applicant has attempted through a number of stages - the original plans, the reconsideration revised plans and the Exhibit A3 amended plans - to produce a proposal that is code compliant. It is important to record that section 120 would require a more global consideration of the RZ2 zone objectives and other relevant factors, should any subsequent development applications be made for the site.

1. It is necessary to give some initial attention as to the effect of what are usually described as the 'limiting words' on a section 120 consideration. The same set of words appear in various places in the PDA that deal with reviewable decisions. They appear in section 121(2) and in item 4 of Schedule 1 of the Act as regards third party appeals, and in item 3 of Schedule 1 as regards applicant reviews of a conditional approval or, as here, a refusal. The words allow review "to the extent that the development proposal is subject to a rule and does not comply with the rule, or no rule applies to the development proposal". On one view these words open a gateway for the Tribunal to conduct a broad merit review which includes consideration of the section 120 factors. This was the view taken (specifically as regards the words as in section 121(2)) in Noah's Ark Resources Centre Inc v ACT Planning and Land Authority (Noah's Ark).[70] This view was recently affirmed in Village as regards an applicant appeal against refusal.[71] This approach is consistent with the ACT Supreme Court decision in Baptist Community Services v ACTPLA (Baptist Community Services).[72] The narrower view is that the only matters capable of being raised in a merit track appeal are those covered by the limiting words themselves, that is to say, code compliance. This is the view taken in Sladic & Anor v ACT Planning and Land Authority (Sladic).[73] Village was an applicant appeal whereas Noah's Ark and Sladic were third-party appeals. Village however found any distinction between the natures of the appeal was of no consequence.[74] As such, the approach recently affirmed in Village is followed here. In this light, the wider section 120 factors are relevant and are considered below.
2. Relevantly, section 120(a) and (b) provide:

Merit 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;

1. It was accepted that the relevant RZ2 zone objectives required to be considered pursuant to section 120(1)(a) are:

(b) Provide opportunities for redevelopment by enabling a limited extent of change with regard to the original pattern of subdivision and the density of dwellings

(e) Ensure redevelopment is carefully managed so that it achieves a high standard of residential amenity, makes a positive contribution to the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties

1. Baptist Community Services[75] confirmed that the role identified for the zone objectives in the words of section 120 is that they are a "consideration" the decision-maker "must consider in deciding development approvals."

1. The applicant says that refusal under section 120 due to inconsistency with the zone objectives is not warranted. The applicant reiterated the submissions it made in its reconsideration application, with respect to zone objective e), that it had "addressed the bulk and scale issue and the choice of material issue" in order to better meet the "makes a positive contribution to the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties" requirement.[76]

1. The respondent contends that the proposal is not consistent with zone objectives b) and e). In particular, given its 'desired character' impairment due to the extent of the courtyard walls' departure from the required setbacks and their material construction, objective e)'s requirement "not [to] have unreasonable negative impacts on neighbouring properties" was not met.[77]
2. The respondent, both in its reconsideration decision and in the evidence of Mr Davies, considered the proposal is unsuitable for the site given the likely impact of its bulk and scale on the amenity of surrounding neighbours.[78] It did not revise this view with respect to the development proposed in the Exhibit A3 amended plans.

1. The parties joined submitted the development proposal should be rejected pursuant to section 120 as it fails to meet the zone objectives.[79] It considered that the proposal represented a large change to the look and feel of the neighbourhood.

1. The zone objectives have already played a significant role in assessing the development proposal as code non-compliant under section 119. It bears repeating the finding in Argos Pty Ltd v Corbell,[80] that one purpose of the zone objectives is to "provide guidance in interpreting the rules and criteria found in the codes." As the Tribunal said in Javelin Projects v ACTPLA,[81] the objectives provide an important yardstick on the degree of 'stretching' the interpretation of the rules and criteria in the code can bear when discretionary decisions are to be made. It seems to us that if the development had been assessed as code compliant, there will be a strong presumption that the zone objectives have themselves been met. This is a view with which the respondent appears to concur.[82]
2. If a development proposal is not code-compliant, then it is mandatory under section 119 that it be rejected. We have reached that view. Section 120 confers an additional discretion to "consider" a number of considerations, relevantly here the zone objectives and the suitability of the site. If the development is found to be inconsistent with any of these considerations, that in itself provides a discretion but not an obligation, explicit or implicit, to refuse approval. The proposal can be found inconsistent with a zone objective or be found to be an unsuitable site and still be approved, provided proper consideration is given. This is made clear in Baptist Community Services.[83]
3. The applicable zone objectives were not satisfied in the code compliance assessment. The development proposal, even as refined after the Tribunal alerted the applicant to deficiencies, could not be said to meet the objectives. It represents significantly more than "a limited extent of change with regard to the original pattern of subdivision and the density of dwellings". It fails to meet the requirements to make "a positive contribution to the neighbourhood and landscape character of the area" nor "have unreasonable negative impacts on neighbouring properties_"._ Protecting the neighbourhood character, limiting changes to that character and ensuring that development respects the features of that character were not achieved. Matters of suitability of the site for the development were found wanting in the code assessment. These deficiencies were all part of our assessment that the proposal is not code compliant.
4. The proposal remains code non-compliant after three plan variations. The proposal remains too large for the site, hence the POS courtyard walls intrude beyond the discretionary allowance under the criteria and the solar access is not reasonable to some of the PPOSs to a degree that it does not meet the requisite criteria. The proposal is of such a dimension that on the current plans the front setback intrudes beyond the discretionary allowances under the criteria. This indicates it is a development which does not achieve the development intentions as aspired to in the objectives and as quantified in the code. These are matters adequately covered by the section 119 assessment and we have rejected it on that basis. As we said, we make reference to the section 120 considerations to alert the applicant to the distance its proposals will have to move, in terms of its bulk and scale, to be assessed as compliant.
5. The Tribunal's decision is that development proposal, as submitted in the Exhibit A3 amended plans, should be refused.

1. The Tribunal confirms the decision under review to refuse the proposal lodged for DA201936632 as amended.

[1] T-documents at pages 925-1026, Exhibit R3

[7] Amended plans dated 4 March 2021, Exhibit A3

[8] Planning and Development Act 2007 section 115

[10] Witness statement of Richard Davies dated 11 February 2021, Exhibit R2

[11] Witness statement of Alan Marks dated 7 February 2021, Exhibit PJ1; witness statement of Robert Ardill dated 5 February 2021, Exhibit PJ2; witness statement of Lyn Freedman dated 7 February 2021, Exhibit PJ3; witness statement of Michael Azzopardi dated 7 February 2021, Exhibit PJ4; witness statement of Stuart John McIntosh dated 31 January 2021, Exhibit PJ5; witness statement of Colin Wilkinson dated 1 February 2021, Exhibit PJ6; witness statement of Robert Francis dated 8 February 2021(paragraphs 1-9, 11-12, 18-19, 23-26), Exhibit PJ7; Exhibit PJ8; witness statement of Brendon Maxwell dated 8 February 2021, Exhibit PJ9; witness statement of Andrew Maxwell dated 8 February 2021, Exhibit PJ10

[12] See paragraphs 17 and 21 respectively above

[13] [2015] ACAT 37

[14] [2015] ACAT 37 at [35]

[15] Respondent's written closing submissions dated 29 March 2021 at paragraphs 9-21

[16] Respondent's written closing submissions dated 29 March 2021 at paragraph 13

[17] Respondent's written closing submissions dated 29 March 2021 at paragraph 14

[18] Specifically drawings at T-documents pages 618 and 600

[19] Drawing 01.1 version D and 02.1 version D in amended plans dated 4 March 2021

[20] Respondent's written closing submissions dated 29 March 2021 at paragraphs 42-45

[22] As set out in Table A5; Drawing 8.2 C in T-documents at page 582

[25] RL (Reduced Level) 597.12 - FGL (Finished Ground Level) 596.15 as noted on Site Plan drawing 1.1 C in T-documents at page 618

[26] Respondent's written closing submissions dated 29 March 2021 at paragraphs 46-52

[27] Parties joined's written closing submissions filed 15 April 2021

[28] Drawing 4.1 version D East Elevation in amended plans dated 4 March 2021

[29] Drawings 7.1 C (T-documents at page 595), 1.1 C (T-documents at page 618), 1.2 C (T-documents at page 619) and section AA on 5.1 C (T-documents at page 614)

[30] Drawing 4.2 version D in amended plans dated 4 March 2021

[31] Respondent's written closing submissions dated 29 March 2021 at paragraphs 58-59

[32] Parties joined's written closing submissions filed 15 April 2021

[33] Witness statement of Richard Davies dated 11 February 2021 in Attachment B

[36] Witness statement of Richard Davies dated 11 February 2021 at paragraph 6.4 of Attachment B

[37] T-documents at page 618 (drawings)

[38] Witness statement of Richard Davies dated 11 February 2021 at paragraph 6.4 of Attachment B

[39] Respondent's written closing submissions dated 29 March 2021 paragraph 35b

[40] Respondent's written closing submissions dated 29 March 2021 paragraph 35b

[41] Parties joined's written closing submissions filed 15 April 2021

[42] T-documents at pages 615-617 (drawings)

[43] Drawing 4.1 version D in amended plans dated 4 March 2021

[44] Drawing 8.5 C 'External Materials & Colour Schedule' in T-documents at page 584

[45] See Hamilton v ACT Planning and Land Authority [2018] ACAT 121 at [24]; Javelin Projects v ACT Planning and Land Authority [2017] 87 at [73]; Deakin Residents Association Inc v ACT Planning and Land Authority [2015] ACAT 37 at [35]

[47] Drawing 8.5 C "External Materials & Colour Schedule" in T-documents at page 584

[48] Drawing 9.2 C in T-documents at page 617

[49] Drawing 10.2 D in amended plans dated 4 March 2021

[50] Drawing 8.5 C at T-documents page 584

[51] Drawing 8.5 C at T-documents page 584

[52] Drawing 10.2 D in amended plans dated 4 March 2021

[53] Drawing 10.2 D in amended plans dated 4 March 2021

[54] Statement of Richard Davies dated 11 February 2021 at paragraph 7.3 of Attachment B

[55] Respondent's written closing submissions dated 29 March 2021 at paragraphs 61-64

[56] Respondent's written closing submissions dated 29 March 2021 at paragraphs 65-66

[57] Drawing DA03B in amended plans dated 4 March 2021

[58] Respondent's written closing submissions dated 29 March 2021 at paragraph 67

[59] Respondent's written closing submissions dated 29 March 2021 at paragraphs 61-64

[60] T-documents at page 606 (Drawing DA03)

[61] Drawings 02.1 version D & 02.2 version D in amended plans dated 4 March 2021

[62] Parties joined's written closing submissions filed 15 April 2021

[63] Witness statement of Richard Davies dated 11 February 2021 at paragraph 7.5 of Attachment B

[64] Respondent's written closing submissions dated 29 March 2021 at paragraph 35d

[65] Drawing 01.2 version C in T-documents at page 619

[66] Respondent's written closing submissions dated 29 March 2021 at paragraph 80

[67] Respondent's written closing submissions dated 29 March 2021 at paragraphs 83-104; Parties joined's written closing submissions filed 15 April 2021

[68] [2021] ACAT 43

[69] [2021] ACAT 43 at [67]

[70] [2017] ACAT 44 at [230]

[71] [2021] ACAT 43 at [78]

[72] [2015] ACTCA 3

[73] [2018] ACAT 38

[74] [2021] ACAT 43 at [30]

[75] [2015] ACTCA 3 at [34]

[77] Respondent's written closing submissions dated 29 March 2021 at paragraph 53

[78] T-documents at page 46; statement of Richard Davies dated 11 February 2021 at paragraphs 73-75

[79] Parties joined's written closing submissions filed 15 April 2021

[80] [2012] ACTSC 102; (2012) 7 ACTLR 15 at [67]

[81] [2017] ACAT 87 at [142]

[82] Respondent's written closing submissions dated 29 March 2021 at paragraph 81

[83] [2015] ACTCA 3 at [59]