1. The DA is made in respect of the parcel of land known as Blocks 7 and 24 Section 7 Division of Chifley ("the subject land"). Block 24 is the result of an earlier 2007 consolidation of what were previously Blocks 5 and 6 of Section 7.
2. The development application seeks approval:

(a) to consolidate the subject land into a single parcel of land, and

(b) for the subsequent Crown Lease to permit 17 residential units;

(c) to demolish the existing dwelling on Block 7 Section 7 Chifley;

(d) to erect 16 two-storey residential units and one single-storey residential unit with basement car-parking; and for

(e) associated landscaping, ground-level car-parking, site facilities and other site works.

1. The subject land is "L" shaped and its only street frontage of 22.3 m is to Eggleston Crescent. To the rear of Block 24 is public open space known as Chifley Oval. The land falls approximately 1m from the north- west to south east. The north-east boundary adjoins a public walkway from Eggleston Crescent to Chifley Oval.

2. The proposed development would comprise 17 residential units. A smaller block of four 2-storey units is proposed for the Eggleston Crescent frontage. A larger block of 13 units is designed to overlook Chifley Oval. All except one of these units would be 2-storey units. Unit 17 is designed as a single-storey unit with one bedroom, and unit 5 would have 3 bedrooms. All others units would have two bedrooms.

1. At the hearing held from 25th to 27th May 2010, the Applicant was represented by Mr Shillington of Counsel. The first party joined, Mr and Ms Rutledge, was represented by Ms Johnson of Vandenberg Reid and Ms Venn, the second party joined, represented herself. The Respondent was represented by Dr Jarvis of Counsel.
2. Evidence was given on behalf of the Applicant by Mr Adams and Mr den Hertog; on behalf of the Respondent by Ms Jamaly; and on behalf of Mr and Ms Rutledge by Mr Streatfeild. Ms Venn gave evidence on her own behalf. Messrs Adams and Streatfeild and Ms Jamaly are experienced town planners and are accepted by the Tribunal as expert witnesses. A number of documents were tendered in evidence on behalf of the parties and the Tribunal had before it the Respondent's statements of reasons for the decision under review and other material relevant to the decision ("The T-documents"). The Tribunal also undertook an inspection of the subject land and the surrounding area in the presence of the parties and/or their representatives.

1. Ms Johnson argued that the Tribunal (and indeed the Respondent) lacked jurisdiction to make a decision in relation to this matter and that the application was invalid. The basis of her argument was that "BDH Projects" is not a person, that is, a separate legal entity and that a person must be the applicant for a development application (s113 Planning Act). An application to the Tribunal for review must be made by a person (s9 ACAT Act). She relied on the following cases to support her argument: Australian Building Construction Employees' and Builders Labourers Federation v Master Builders Association of NSW 69 ALR 515 at page 517) ("the BLF case") and Nauru Local Government Council (trading as Nauru Pacific Line) v Aust. Shipping Officers Association & Others (35 ALR 635) ("the Nauru case").

2. "BDH Projects" is registered as a business name in NSW but not in the ACT. Bernard den Hertog trades under that business name in NSW and apparently also in the ACT. Mr den Hertog is the person or entity who operates as "BDH Projects". There is no doubt about that and no one has suffered any detriment as a result of the application having been made in his NSW business name rather than personally. The issue, it seems to the Tribunal, is not that "BDH Projects" is to be treated as an entity but rather that the use of that name exhibits carelessness or ignorance of the requirements of the law in relation to business names. The entity/person that made the application to the Respondent and to the Tribunal is one and the same, that is Mr den Hertog, and he is a natural person.

3. In contrast, in the BLF case the situation was that the applicant in the proceedings previously existed but by operation of law ceased to exist, at least in the context of the Commonwealth. In the Nauru case an artificial foreign legal entity, the Nauru Local Government Council, was illegally operating in Victoria without registration as a foreign corporation under the Companies Act 1961 (Victoria) or under the relevant business names legislation. While these facts are similar to those in the matter before the Tribunal, one matter is not. That is, that the Nauru Local Government Council could only operate in Australia by force of legislation and the Council did not avail itself of that legislation. In the matter before the Tribunal the entity was at all times a natural person, Mr den Hertog, whose legal existence was demonstrated by his physical presence and who was entitled in his own right to trade in the ACT, albeit only in his own name. He did not require compliance with legislation to exist and function.

4. Dr Jarvis for the Respondent argued that regardless of the validity of the decision of the Respondent in rejecting the Applicant's development application, none-the-less the Tribunal's jurisdiction was unaffected. He relied upon the long-established authority of Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167. The legal position was well set out by Von Doussa J in Secretary, Department of Social Security v Alvaro (1994) 50 FCR 219:

In the hierarchy of reviews from original decision-maker to the AAT it was not necessary that there be at the outset an original decision that was in all respects validly made, and at each level of review thereafter another decision that was in all respects validly made. The person or tribunal to whom application for each of the reviews was made had jurisdiction to undertake that review so long as the preceding decision-maker had made what purported to be a decision in exercise of powers conferred by the Act affecting the interests of the person seeking review. It mattered not whether the ground of complaint made about the preceding decision was merely that it was wrong on the merits, or that in law it was not an effective decision because it was made by someone without authority, or in excess of authority, or for improper purposes, or was vitiated through procedural irregularity such as a failure to accord natural justice. The purpose of the review provided for by the Act is to allow the reviewing authority to correct error and substitute a new decision where error is detected.

1. It is for these reasons that the Tribunal found on 27 May 2010 that it had jurisdiction to hear this matter and ordered under s56(b) of the ACAT Act that the name of the Applicant be amended to read "Bernard den Hertog trading as BDH Projects".

2. The Tribunal has two additional comments to make. Firstly, Mr den Hertog should either cease to trade in the ACT other than under his own name or register his business name. Secondly, the issue of jurisdiction should have been raised prior to the full hearing.

1. The development is subject to the provisions of the Planning Act and in particular, to s 50 which provides that

the Territory, the Executive, a Minister or a territory authority must not do any act, or approve the doing of any act, that is inconsistent with the territory plan.

1. The 2008 Territory Plan ("the Territory Plan") has been prepared pursuant to Part 5.1 of the Planning Act and applies to development applications lodged after 31 March 2008. This is such a development application. Neither the Respondent, nor the Tribunal standing in its shoes in this review, may approve the development if it is inconsistent with the 2008 Plan.

2. Sections 119 and 120 of the Planning Act are relevant for the purposes of this decision and read as follows:

119 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.

(2) Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under division 7.3.3 unless the person deciding the application is satisfied that -

(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.

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

(d) if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications) - the entity's advice;

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

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

1. Section 121(2) of the Planning Act does not apply because the relevant

decision in this case was to refuse a development application.

Assessment of the proposed development in relation to the RZ2 Zone objectives

1. As noted above, under section 120 of the Planning Act the Tribunal in assessing the proposed development must consider among other things:
   • (a) the objectives for the zone in which the development is to take place; and
   • (b) the suitability of the land where the development is to take place for a development of the kind proposed.

2. In this case these matters are closely interrelated and we have considered them together.

3. The subject site is in the RZ2-Suburban Core Zone. The zone objectives are as follows:
   • (a) Create a wide range of affordable and sustainable housing choices to accommodate population growth and meet changing household needs.
   • (b) Ensure that development addresses the street and the existing neighbourhood characteristics in scale, form and site development.
   • (c) Facilitate efficient use of existing social and physical infrastructure and services in residential areas close to commercial centres.
   • (d) Provide opportunities for home based employment consistent with residential amenity.
   • (e) Provide for a limited range of small-scale facilities to meet local needs consistent with residential amenity
   • (f) Promote energy efficiency and conservation and sustainable water use.

4. In this case most of the evidence and argument has focused on objective (b), although the witness for the Applicant, Mr Adams, also provided evidence relevant to objectives (a) and (c). Objectives (d), (e) and (f) did not arise as issues in this case.

Much of the evidence and argument in this case have centred on the issue of the appropriate level of density for the subject site given the zoning and density in the adjoining neighbourhood. There is no definition of 'density' in the Territory Plan, but it appears to be agreed by the parties that in relation to residential development it refers to the ratio of the number of dwellings on a site and the area of the site, usually expressed as dwellings per hectare.

The land to the north and west of the subject site is zoned RZ1. It includes the land immediately adjacent to the north east of the subject site on the eastern side of Eggleston Crescent. Mr Streatfeild provided evidence, that the land in the RZ1 zone has a site density of around 13 dwellings per hectare with a plot ratio of approximately 35% and a permissible maximum plot ratio of 50%.

Mr Streatfeild noted that there are two existing dual occupancies in the RZ1 zone (Blocks 11 and 13, Section 16) to the west of the subject site with a density of approximately 26 dwellings per hectare, i.e. double the average density of the zone. He said that these 50% dual occupancies cannot be repeated because of changes to the RZ1 Rules that limit the plot ratio of dual occupancies to a sliding scale of approximately 30% plot ratio, which is well below what is permissible for a single dwelling. It was his view that the density in the RZ1 zone will not increase much with redevelopment, although the houses could get considerably larger (up to 50% plot ratio).

The land to the south west of the subject site, on the western side of Eggleston Crescent, is zoned RZ2, and contains several dual occupancies, This land is calculated by Mr Streatfeild to have a current average site density of 16 dwellings per hectare, which, he thinks, will increase in density over time as redevelopment occurs. Ms Jamaly calculated that the prevailing density of development in the RZ2 zone in Chifley varies between approximately 15 dwellings per hectare and 25 dwellings per hectare.

To the south of the subject site, on the eastern side of Eggleston Crescent there are three blocks zoned RZ2 (blocks 4, 3 and 23), and two blocks zoned RZ4 (Blocks 11 and 13). Block 23 adjoins the south western boundary of the Block 24 component of the subject site and has been redeveloped with 4 units. Blocks 3 and 4, which are immediately adjacent to the subject site, currently have single houses on them. These sites are all in Section 7. The current site density for Section 7 is unclear, and obviously varies greatly between blocks given the disparate nature of development on the blocks, ranging from single dwellings to apartments on the RZ4 sites.

It is agreed by the parties that the site density of the proposed development is 51 dwellings per hectare.

The Territory Plan does not appear to identify a specific quantum of site density for the five residential zones, although the titles of the zones and the zone objectives provide guidance, viz:

• The objectives for the RZ1-Suburban Zone identify it as a 'low density' zone.
  • The objectives for the RZ2-Suburban Core Zone do not explicitly state the level of density.
  • The objectives for the RZ3-Urban residential Zone indicate that this zone applies to 'locations that create a transition between low and high density areas'.
  • The RZ4-Medium Density Residential Zone is identified by its title and objectives as a medium density zone.
  • The RZ5-High Density Residential Zone is identified by its title and objectives as a high density zone.

Dr Jarvis submitted that the 'hierarchy of objectives' for the five residential zones demonstrates that the RZ2 zone lies at the low density end of the spectrum where only 'moderate' increases in density are permitted.

The Applicant contends that (a) the proposed development is consistent with the zone objectives for the RZ2 zone and meets the requirements of the Code; (b) the proposal meets either the Rule or Criterion for relevant controls in the Code; and (c) the proposal will respect the existing streetscape and adjacent development.

Mr Adams commented that the RZ2 zoning was implemented to encourage residential intensification in areas conveniently located to existing social and physical infrastructure, including existing commercial centres. He said that the application of this zone within Chifley indicates suitability for higher density residential living commensurate with its location relative to infrastructure, specifically the Woden town centre and the Chifley Local centre, and main road networks, including Hindmarsh Drive and Melrose Drive. It also recognizes the relatively high level of accessibility of the ACTION bus network, which has two weekday bus routes along Eggleston Crescent, providing access to Tuggeranong and Woden interchanges.

Mr Adams commented that the application of the RZ2 zone to the subject site and adjoining land appears to have been a deliberate decision by the authority to promote higher density residential development on this site, in recognition of its residential capacity and in accordance with the objectives of the RZ2 zone. In his view, had this site and the immediately surrounding land not been suitable for higher density residential development, the Authority would have zoned it RZ1 consistent with the surrounding land.

Mr Adams said that, whilst the wider suburb of Chifley is characterised by a high proportion of detached houses on generous plots, there are an increasing number of multi unit developments dispersed through RZ2 zoned areas, reflecting the provisions of the Territory Plan as they relate to this zone. These include in particular the multi unit developments at 45 Eggleston Crescent and 1 Chifley Place. He noted that both these zones are located in the RZ4 zone; however, the density evidenced in these locations contributed to his overall assessment of the character of the area. He also noted that 41 Eggleston Crescent (Block 23, Section 7) has recently been redeveloped to accommodate 4 large dwellings. Mr Adams considered that the density of residential development in the local area is best described as 'transitional' as it moves from a predominantly low density suburb to a medium density suburb.

The RZ2 zone objectives clearly envisage a 'wide range' of housing choices, Mr Adams said. He considered that this includes higher density options such as units, as demonstrated by the development table, which identifies multi unit housing as a permissible activity in this zone. This view was reinforced, he said, by his opinion that higher density residential development is a necessary prerequisite to achieve RZ2 zone objective (c). He considered that a more densely populated residential environment to be the primary mechanism by which the more efficient use of existing social and physical infrastructure can be achieved.

Within the aforementioned context, Mr Adams said, he failed to see how the subject site can be considered 'unsuitable' for the proposed multi unit development of 51 units per hectare where the zone specifically considers and provides for higher density living options, where that zone has been shown to be relevant and applicable to the site in question , where the surrounding area is characterised by developments with developments over 100 units per hectare, and where the Territory Plan sets no quantitative limits on housing density.

Mr Adams proposed that the quantum of development for a site is managed through the development rules and criteria in the Territory Plan. That is, a certain quantum of development has been deemed appropriate on sites located within the RZ2 zone and a proposal either complies or can comply with these quantum thresholds, i.e. those set down in the Code. Mr Adams said that the current proposal complies with the height requirement of the Code, and can comply with the plot ratio requirements, subject to a condition which requires the submission of amended plans which do not show the carport. He acknowledged that the proposal exhibits small setback encroachments and open space deficiencies, but was of the view that the proposal would be shown to meet the Territory Plan in these regards. He considered therefore that the quantum of development on the site to be consistent with the Territory Plan and the RZ2 zoning.

Mr Adams noted that the Authority's Notice of Decision makes reference to and compares the current proposal with the previously approved DA. The Notice commented that the current proposal is marked by a predominance of smaller 2-bedroom units - in contrast to the 3-bedroom units in the previous DA. Mr Adams' assessment was that, although the number of units has increased between the current proposal and the previous DA, the bedspace density of the proposal has remained very similar. Whereas the previous DA, approved by the Authority, proposed 30 bedrooms, the current application proposes 34 bedrooms. He considered that the increase of 4 units over a scheme of 17 units to be negligible in both scale and impact. He considered that the moderate increase in the number of bedrooms and the moderate increase in the number of units would assist the achievement of the RZ2 zone objectives and would assist to alleviate Canberra's housing shortage by providing market responsive housing in a highly accessible location. His conclusion was that, on this point, the proposed development was not inconsistent with the Territory Plan.

Mr Adams commented that the application of the RZ2 zone to the local area of the proposed development is such that the urban fabric of Chifley will ultimately be characterised by medium to high density residential development which, by convention, maintains a different appearance from traditional housing.

Mr Adams noted that the site configuration of the proposed development is such that the proposed residential units will be accommodated in two terraces. A short terrace of 4 units will sit parallel to the Eggleston Crescent road boundary and a longer terrace of 13 units will sit parallel to the rear boundary with Chifley Oval. Mr Adams' assessment was that the site layout is such that the long terrace will be largely obscured from the street frontage by the short terrace and other development on adjoining sites. In his view, any impact on the streetscene is therefore limited to that arising from the design, form and appearance of the short terrace.

Mr Adams commented that the short terrace will have a width of some 17 ms, which is consistent with other multi unit developments in the surrounding area. He considered that, whilst of rather utilitarian design, the front terrace appropriately addresses the street and existing neighbourhood characteristics in terms of scale and form, as defined by the rules and criteria of the Territory Plan, and therefore complies with RZ2 zone objective (b).

Mr Adams noted that the objections to the proposal detailed in the Notice of Decision focus on the long terrace to the rear. His assessment was that the rear terrace complies with all relevant rules and a criterion, indicating it is consistent with the scale and form envisaged by the Territory Plan on this site.

1. The Respondent contends that the proposed development is excessive in scale and density and therefore (a) does not address the street and existing neighbourhood characteristics as required by the RZ2 objectives, and (b) is not compatible with, and does not complement, the form, siting and scale of surrounding development. The Respondent also contends that the proposal is not in keeping with the range of housing types in the neighbourhood because it consists largely of 2-bedroom units.

2. Ms Jamaly traversed the background to the development of the RZ2 Zone objectives in the current Territory Plan. She referred the Tribunal to the statement by the Planning Minister on 18 October 2007 (Exhibit 1) announcing the results of an evaluation of the garden city provisions of the Territory Plan, introduced into the Territory Plan in 2003 by Variation 200 (the 'garden city' variations). The Minister noted that the garden city provisions focus residential redevelopment and a moderate level of residential intensification into residential core areas. The overall intent of these provisions was to preserve the garden city character of Canberra. The Minister commented that, although the provisions were achieving their intent, the evaluation process had confirmed the need for some refinements to the provisions to improve outcomes particularly in residential core areas. Among other things there were concerns about the scale and form of development intended for these areas.

3. As foreshadowed in the Minister's statement, the Authority subsequently released for public comment in late 2007 the document, Refinements to the Garden City Provisions of the Territory Plan (Exhibit II: Attachment F). The document noted that the residential core areas had been included in the RZ2 Suburban Core Zone of the new 2008 Territory Plan, and set out proposed amendments to the new plan, which was then in the final drafting stages. One amendment proposed an amendment of RZ2 Suburban Core Zone objective (b):

from: Ensure development respects and contributes to the neighbourhood and landscape character of residential areas

to: Ensure development addresses the street and the existing neighbourhood characteristics in scale, form and site development.

The intent of the proposed amendment is to ensure the scale and form of development in the RZ 2 Suburban Core Zone reflects existing low-density single residential dwellings. [Emphasis added]

The proposed amendment was incorporated into the new Territory Plan 2008.

Ms Jamaly commented that the RZ2 Zone is a transition zone between the low density RZ1 Zone and medium density RZ3 and RZ4 Zones, and that only moderate intensification of development was envisaged for the RZ2 Zone. The developments in the neighbouring blocks to the subject site, she said, comprise low to medium density residential developments. Most of the multi unit developments are restricted to dual occupancy housing, with only one multi unit development consisting of 4 units. Ms Jamaly said, as noted above, that the prevailing density of development in the RZ2 zone in Chifley varies between approximately 15 dwellings per hectare to 25 dwellings per hectare. By comparison, the density of the proposed development is more than 51 dwellings per hectare, she said, which therefore does not respect the existing neighbourhood characteristics.

Ms Jamaly noted that the two RZ4 sites on Eggleston Crescent are located in close proximity to the subject site, but argued that the characteristics of these developments cannot be considered as benchmarks for development in RZ2 Zones, as the provisions for RZ4 zones are significantly different to the provisions for RZ2 zones. She considered that these two RZ4 blocks (Blocks 11 and 13, Section 7) had been zoned RZ4 to reflect the existing medium density apartment developments on those blocks. In her view, the fact that these two blocks had been zoned RZ4 and not RZ2 clearly indicates that the scale of density of these developments is not intended for the RZ2 Zone.

Ms Jamaly argued that, as well as not reflecting the neighbourhood characteristics in terms of scale, form and site development, the proposed development also departs from a number of Rules of the Code applicable to the development. The cumulative effect of these departures, she said, is an overdevelopment of the site, with a density that is inappropriate for the RZ2 zone in Chifley.

Ms Jamaly said that, in considering the appropriate density for the site, it is important to consider the neighbourhood characteristics including the scale, form and site development of existing developments within the RZ2 zone in Chifley. Density, she said is one of the prime criteria for determining the neighbourhood characteristics, as is the prevailing residential form. Residential form of a particular development, Ms Jamaly said, is again closely related to the density of that particular development. The density of a development can also have an effect on the quality of the development, she said.

Ms Jamaly noted that the previous DA for the site had an approval for 11 units, obtained through a consent decision by the AAT. The proposed development, she said, intensifies the number of units and intensifies the use of the subject block. The design outcome of the proposed development, she said, is a result of overdevelopment of the site. Ms Jamaly commented that the average site area per unit is less than 195 m2, which is approximately 30% less than approved in the consent decision.

Ms Jamaly commented that, given that the proposed development is predominantly 2-bedroom units, it is considered not to be suitable for land zoned RZ2 in the particular locality. She noted that there are no other developments of this nature, with predominantly 2-bedroom units, on land zoned RZ2 in Chifley. Most of the residential redevelopments in Chifley consist of dwellings suitable for families with children to live in, whereas the proposed development is considered to be not providing any diversity within the development and is not suitable for families with children. In this respect, the nature of the proposed development is completely different to the prevailing neighbourhood character, she said.

Ms Jamaly acknowledged that the future characteristics of the RZ2 zone in Chifley may maintain a different appearance from traditional detached housing, but the developments are expected to respect the existing low density and form of the neighbourhood. She considered that this could be achieved through design as well as maintaining a density appropriate to the site.

Ms Jamaly said that the existing development in the RZ2 zone of Chifley is characterised by less site coverage with more landscaped areas within a block in comparison to the proposed development. One of the main characteristics of the garden city provisions, dwellings separated by substantial landscaped areas is not reflected in the proposed development.

Ms Jamaly observed that Block 24 has a street frontage of less than 20 m to Eggleston Crescent, and if it was not proposed to consolidate block 24 with Block 7, redeveloping Block 24 with more than 3 dwellings would not be permitted. By comparison the proposed development proposes 13 dwellings on Block 24 addressing the oval, which far exceeds the 3-dwelling limit. This, she said, illustrates the extent of intensification proposed for Block 24, which does not respect the existing density and scale in the neighbourhood. She added that, on its own, Block 7 could not be redeveloped with more than 3 dwellings as it is less than 1400 m2 in size.

Dr Jarvis submitted that the development should be refused first because it does not meet objective (b) of the RZ2 Zone. He said it is a medium density development that does not address the characteristic scale of the neighbourhood. The zone is intended to be low density with moderate intensification; it is intended to protect the garden city values of Canberra, the key element of which is that built form is set in a landscaped treed setting and does not dominate the view. In this case the most important view of the development is from Chifley Oval, an important thoroughfare to the local centre, churches and the local school. From this view, he said the development covers the entire bock, encroaching setbacks at both sides. It does not address the site coverage of the neighbourhood.

Evidence and contentions of the First Party Joined

The First Parties Joined contends that the individual and cumulative effect of the failure to meet Rules and Criteria of the Code means that the development: (a) is not compatible with nor does it complement the surrounding development; (b) is not of an appropriate residential character; (c) does not enhance the streetscape of the area; (d) fails to ensure the amenity of surrounding areas is maintained; (e) fails to ensure adequate levels of privacy; (f) fails to provide usable private open space ( POS); and (g) does not meet the Intents specified in the Code or the RZ2 objective (b) of addressing the street and existing neighbourhood characteristics in scale, form and site development.

Mr Streatfeild provided a convenient summary of some of the characteristics of the neighbourhood as follows:

• (a) Generous front setbacks to the streets and open spaces.
  • (b) Spatial separation between buildings.
  • (c) Treed verges with no front fences or with compliant front walls.
  • (d) Verges integrating with front yard landscaping.
  • (e) Buildings which are generally single-storey with a permissible maximum two -storey allowance.
  • (f) Ample width to the main private open space and wide residences with ample separation between them.
  • (g) Residences generally with pitched tile roofs and external brick walls with a variety of metal sheds and garages in rear yards.
  • (h) Some well treed blocks occurring in a sporadic pattern with a general scattering of trees throughout.
  • (i) A large public open space with an oval to the south east of the site with perimeter trees.

In Mr Streatfeild's opinion it is clear that the intent of objective RZ2 zone objective (b) is to ensure that site density reflects existing low density residential dwellings in scale, form and site development. This is shown by the origins of the current wording of the objective arising from the amendments to the garden city provisions of the Territory Plan, also discussed by Ms Jamaly (see above).

Mr Streatfeild said that in his opinion the current proposal is inconsistent with the neighbourhood character due to the excessive width of the courtyard wall with its reduced setback. The narrow width of the units and the narrow width of POS facing public frontage on the Eggleston Crescent terrace is also disrespectful of the adjoining neighbourhood characteristics.

Mr Streatfeild's opinion was that a compliant development would have the following characteristics: large or compliant setbacks; generous width to residences; retaining existing trees where possible; large useful main open spaces and a dwelling density consistent with being between single residences (RZ1) and high density (RZ4). He said that it is hard to put a suitable figure on site density. But generally if the if the units are compliant for width of the main POS, and matching the width of the residence, an appearance and function results that could be considered, in his opinion, respectful to the adjoining development within the allowances of the Territory Plan. Currently, he said, there are more units proposed across the frontages than would fit if the main POS were consistent with the neighbourhood characteristics or the Code Rules for width of POS. Attachment I to his witness statement shows a modified design for the development that reflects his view of what would be an acceptable development. It has only 11 units.

In Mr Streatfeild's opinion there does not appear to be sufficient justification within the current proposal that the site density and width of POS and units is respectful of the adjoining site density or the neighbourhood character. He added that, for that reason, he believed that the probable impact of the development if approved in its current form would be to encourage inappropriate site density with limited open space amenity that would be inconsistent with the surrounding development.

1. Ms Venn advised that she endorsed and supported the Statement of Facts and Contentions (including Attachments) submitted on behalf of the First Party Joined, and would not be submitting a separate statement.

It is clear from the structure of the Territory Plan that the Plan sets down a hierarchy of residential density in the different residential zones, ranging from low density in the RZ1 zone to medium density in the RZ4 zone and high density in the RZ5 zone. The RZ3 zone is identified in the Plan as providing a transition between low and high density areas, suggesting that RZ2 is a low density zone, albeit one that permits a higher level of density than the RZ1 zone.

The weight of evidence is that development in the RZ2 zone is clearly intended to be a lower density zone. In this regard we have noted the evidence by Ms Jamaly and Mr Streatfeild concerning the origins of the present wording of RZ2 zone objective (b), arising from the Government's review of the garden city provisions in the Plan. The stated intention of the amendment to RZ2 objective (b) was to 'ensure that the scale and form of development in the RZ2 Suburban Core Zone reflects existing low-density single residential dwellings' [emphasis added]. The Tribunal accepts that new development in the RZ2 zone is not required to mimic or replicate the existing single dwelling development in the RZ1 and RZ2 zones, but it is required to be sympathetic in scale, form and site development.

With the exception of the two RZ4 blocks to the south of the subject site on Eggleston Crescent, the residential density in the adjoining neighbourhood varies between some 13 dwellings per hectare in the RZ1 zone to an average of 16 dwellings per hectare in the RZ2 zone, ranging between 15 and 25 dwellings per hectare. The Tribunal accepts that, because of their proximity to the subject site, the two RZ4 blocks cannot be ignored when assessing the character of the neighbourhood. Nor should they be given undue weight, given that they constitute only two blocks and a small part of the neighbourhood. The existing neighbourhood character is predominantly low density, and the most relevant comparisons are with the nearby RZ1 and RZ2 zones.

Whether one regards 51 dwellings per hectare as at the high end of low density or the low end of medium density, the Tribunal's assessment is that the proposed development is out of character with the existing residential density in the neighbourhood.

The weight of evidence also indicates that the proposed development is unsympathetic to the neighbourhood character when assessed in terms of form and site development. The view from the oval is of particular significance. The 13-unit terrace block on Block 24 will stretch across the whole block, without any separation or landscaping between the units, and with setback encroachments at each end. The Tribunal is persuaded by the evidence that the density of development in this terrace block and the visual impact are inappropriate in the RZ2 zone and do not respect the character of the neighbourhood.

There is also persuasive evidence that the 4-unit terrace block that faces Eggleston Crescent is also out of character with the neighbourhood. The narrow width of the units, the narrow width of the POS facing public frontage and the width of the courtyard wall, as well as the density of development, have all been persuasively identified by witnesses as indicators of serious problems with the proposed development.

The problems of form and site development arise, in large part, from the excessive density of the proposal, and reinforce the Tribunal's assessment that the proposed development is out of character with the neighbourhood.

1. A consideration in the Authority's decision to refuse the DA was the view that the proposal is marked by a predominance of smaller 2-bedroom units - in contrast to the 3-bedroom units in the previous DA. Ms Jamaly thought that it was desirable for reasons of social diversity to have a mix of 2 and 3-bedroom units. However, she conceded that there was no provision in the Code that prevents a development having only 2-bedroom dwellings.

2. The Tribunal sees merit in promoting social diversity, but it is not persuaded that this should necessarily be required within every multi unit development or that a lack of diversity is in itself a sufficient reason for refusing a DA. In the circumstances of this case the Tribunal has not found that the fact that virtually all of the units are proposed to be 2-bedroom units as a matter that in itself was fatal to the proposal. Rather the issue is whether the scale, form and site development respects the character of the neighbourhood not whether the units are predominantly 1, 2 or 3-bedroom units.

Assessment against the Multi Unit Housing Development Code

Using the figures provided by the Deputy Surveyor-General on 26 March 2010 the area of Block 7 is 853 m2 and of Block 24 is 2,466 m2, making a total of 3,319 m2. As the permissible plot ratio as defined in the Territory Plan is 50% of the area of the subject land, the maximum gross floor area ("GFA") is 1,660 m2.

The plans in the Applicant's DA contained his calculations of GFA using AutoCAD soft ware. These were (a) units 1,613.22 m2 (excluding balconies), (b) basement 27.15 m2 (comprising storage 25.5 m2 and janitor 1.65 m2), and waste15 m2. He made no allowance for covered car parking. This resulted in a GFA of 1,655.37 m2 which is within the permissible GFA.

Ms Jamaly made her calculations on the drawings submitted as part of the DA using Adobe Acrobat software. Her calculations were (a) units 1,641.6 m2 (excluding balconies), (b) basement 30.80 m2 (comprising storage 27.80 m2 and janitor 3.0 m2), and waste 7.40 m2. She allowed a further 18 m2 for a covered car park, which Mr Streatfeild would also have included in his calculations of GFA. Her GFA total was 1,697.80 m2, i.e. above the permissible GFA.

In her evidence Ms Jamaly conceded that the calculations using AutoCAD were probably slightly more accurate. Mr Streatfeild's evidence was that both sets of calculations must contain errors for two reasons: firstly, where the scale is 1:200 the thickness of a line can cause errors and, secondly, in some cases there were no dimensions given e.g. for staircases within units. He was therefore wary of using GFA calculations based on the DA drawings. To be confident he would require dimensions to be comprehensively stated.

The Applicant suggested possible methods of ensuring that the plot ratio was within the required 50%. He suggested removing the roof from the covered car parking, thus reducing GFA by 18 m2. His more radical proposal was to remove the external brick veneer walls and substitute a thinner cladding of unspecified material. With the brick veneer cladding the external walls are 250 mm but other cladding could reduce the wall thickness to 120 mm or 130 mm, depending on the type of cladding selected. The Applicant did not nominate the type of cladding he would choose but he said that the GFA could reduce by 30 m2 at a wall thickness of 120 m2.

The Tribunal is mindful that any conditional approval should be clear and certain. Even if it were acceptable to approve the development with conditions as to cladding thickness, about which the Tribunal has considerable reservations, there would remain uncertainties identified by Mr Streatfeild caused by the absence of complete dimensions and the difficulties of scale. In the circumstances the Tribunal is not satisfied that the plot ratio of 50% required by the Territory Plan can be complied with.

1. Private open space is defined in the Territory Plan as follows:

Private open space means an outdoor area within a block useable for outdoor living activities, and may include balconies, terraces or decks but does not include any area required to be provided for the parking of motor vehicles and any common driveways and common vehicle manoeuvring areas. Up to 25 per cent of any part of private open space may be roofed over, except that a balcony may be entirely roofed over. (Volume 2, Definitions, Part B)

1. The Code contains several Rules and Criteria concerning the use of POS. Of these, only two are in contention: R89/C99 and R90/C90.

Except as provided for in Rule 92, at least one area of private open space is provided per dwelling to meet the following minimum area and dimension requirements:

Private open space is of dimensions to suit the projected requirements of the dwelling's occupants and to accommodate both outdoor recreation needs as well as providing space for service functions such as clothes drying and domestic storage.

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

1. screened from public view
2. not forward of the building line except where permitted by, and illustrated in, an approved estate development plan

1. located
   • (i) not to the south, south-east or south-west of the dwelling, or
   • (ii) to maintain a minimum three hours sunlight onto 50% of the ground between the hours of 9.00 am and 3.00 pm on 21 June (winter solstice)

1. at ground level with direct ground level access from a main daytime living area of the dwelling.

1. Private open space is capable of enabling an extension of the function of the dwelling for relaxation, dining, entertainment and recreation.
2. Private open space forward of the front building line ensures the amenity of the private open space and the dwelling and the dwelling is protected whilst maintaining opportunities for passive surveillance.

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

It is not in contention that the proposal complies with R89 (a) but it is agreed that it does not comply with R89 (b). The Applicant contends, however, that the proposal complies with C89. Mr Adams considered that the proposal meets the requirements of C89.

Mr Streatfeild has calculated that the POS for units 1-3 and 6-16 is approximately 4.1 m in width, i.e. some 32% or nearly a third less than the 6 m dimensions in R89 and R90. In his view this reduces the options for potential purchasers who would prefer a wider width of main POS for their requirements and recreation needs. In his opinion, Criterion 89 is compromised and not fully satisfied. As he sees it, the POS provision in this regard limits the options of potential residents rather than suiting their projected requirements. Mr Adams commented that a potential purchaser is not obliged to purchase a property that does not meet their requirements.

Mr Adams thought that the 2-bedroom units are unlikely to be occupied by families, and that the future occupants are more likely to be two single persons or childless couples attracted by the low maintenance character of the units and their proximity to Woden Town Centre. In his view, such occupants are unlikely to demand the significant areas of open space associated with family dwellings. He thought that such occupants are likely to value a variety of spaces which can be tailored to their varying social, recreational and functional requirements.

Mr Adams noted that all dwellings are provided with two areas of ground level POS, comprising front and rear gardens. The total quantum of POS in these areas ranges between approximately 43 m2 and 165.15 m2. The Tribunal notes that this latter figure refers to unit 5 which is not typical.

Mr Adams noted that, in addition to these ground floor spaces, there are, for the 2-storey units, upper level balconies of 12.79 m2 in each unit. Accordingly, he said, all units will be provided with three areas of POS (presumably, the Tribunal notes, excluding unit 17 which is a single-storey unit without any balconies). He calculated that the average POS provision per unit (including balconies) is 76.16 m2, which compares with the area required by R88, which is 67m2. The Tribunal notes, however, that this figure includes the POS for units 4, 5 and 17, which have much larger areas of open space. If these three units are removed from the calculation the figure is more in the order of 58 m2.

Mr Adams commented that POS will maintain a dual outlook, allowing occupants to tailor their activities and usage of POS relative to the degree of privacy, sunlight or outlook they wish to enjoy. POS, he said, will be provided in accordance with requirements (a), (b) and (c) of R90. He noted that all dwellings will have access to a north west facing area of POS, with direct access from a living area.

Mr Adams also noted that Chifley Oval provides a significant recreational resource, which is available for both passive and active recreation close to the proposed development. His view was that the available facilities are sufficient to meet the recreational needs of future residents, particularly having regard to future composition.

Mr Adams was of the view that the provision of multiple private open spaces will provide fully for future occupants with sufficient space for service functions such as those set out in C89.

Mr Adams acknowledged that the proposal does not comply with R90 (b), which requires the POS to be provided behind the building line - the POS for the short terrace, comprising units 1-4, will be provided in front of the building. Mr Adams' opinion was that this aspect of the proposal satisfies the relevant criterion, C90, which requires that such POS provide for the amenity of residents whilst maintaining passive surveillance of the streetscene.

Mr Streatfeild commented that the POS for units 1-3 and 6-16 are all under the minimum dimension of 6 m set down in R90. He observed that the main POS of Units 1-4 are also forward of the building line of Eggleston Crescent, with their enclosing courtyard wall also within front setbacks. His view was that the satisfaction of C90 is at the expense of the streetscape as the POS is not only forward of the building line but also enclosed by courtyard walling that is at a reduced setback from the street. He was of the opinion that the POS is not consistent with C90 (c) as it is too far forward compared to neighbouring buildings and POS and the courtyard walling will adversely affect the streetscape and be inappropriate at the reduced setback.

Mr Streatfeild commented that the reduced width of POS in most of the units also has the effect of providing less solar access to residents in their main area of POS. Mr Adams noted that the proposal provides for solar access to private open space with a northerly access.

Ms Jamaly observed that the majority of the proposed dwellings have less than 6m x 6m dimensions for POS, and that 14 of the units have POS that is approximately 4 m wide. Her view, however, was that the accumulation of POS per dwelling, with the inclusion of the rear yards and upper level balconies was adequate and provides a total amount of POS to meet the anticipated needs of the residents. However, in her view the narrow width of the POS for most of the dwellings indicates that the proponent is trying to fit too many dwellings on the subject site.

1. The Tribunal notes that 14 of the 17 units in the proposed development fail to meet the dimension provisions of R 89 (6m x 6m) and R90 (6m). They fall short by a significant amount, i.e. by over 30% and as a consequence these 14 units fail to provide 36 m2 of POS in their principal, north facing POS areas as required by R89. The areas of POS provided range from 24.38 m2 in unit 16 to 32.77 m2 for unit 7. In the Tribunal's view, these shortfalls are significant. The Rules are not mandatory, but they provide a relevant reference when considering whether the proposed development meets C89 and C90.

2. We do not know who the proposed future occupants of the development are and what are likely to be their projected POS requirements. However, we have noted Mr Adams opinion that the future occupants are likely to be single persons sharing or childless couples, who are likely to have reduced POS requirements compared with families with children. We have also noted Mr Streatfeild's concerns that the POS provisions in the proposed development would limit the options of potential purchasers. In the Tribunal's view there is a risk that the proposed development, if approved with inadequate POS, would be less attractive to a range of potential occupants who might otherwise see the units as meeting their requirements. This might be less of an issue if the shortfall applied to only a small proportion of the units. However, in this case most of the units (more than 80%) fall significantly short of the dimension requirements in R 89 and R90.

3. We have noted that, for the units of concern, units1-3 and 6-16, the main areas of POS will be supplemented by secondary areas of POS and balconies which will go some way towards offsetting the deficiencies in the main areas. Nonetheless, our conclusion is that the main areas of POS for most of the units in the proposed development are, in their dimensions, significantly below what is required to meet the projected requirements of the occupants. As a consequence, we find that the proposed development fails to meet the requirements of C89.

4. In light of our conclusions regarding C89, it is not necessary to make a finding here in regard to the project's ability to meet C90. Our view is that the concerns raised by Mr Streatfeild are most conveniently considered in the context of whether the proposed development meets setback requirements and addresses the street and the existing neighbourhood characteristics.

1. It is agreed by the parties that the proposed development has several encroachments on front and side boundaries, viz;

(a) The southern balconies facing Chifley Oval do not comply with the 4 m setback.

(b) The north eastern boundary (treated under R54 as front boundary) has a 3 m setback and does not comply with the 4 m setback.

(c) The upper floor balconies of units1-4 facing Eggleston Crescent have less than the required setback of 7.5 m from the front boundary. Blade walls also encroach on the setback.

(d) A single-storey external entry blade wall of Unit 17 encroaches on the 3 m setback. The corner of Unit 17 also encroaches slightly into the setback.

(e) More than two thirds of the balcony of unit 16 at the upper floor is within the 9 m setback, leading to an issue of overlooking towards the POS of Block 23.

(f) A portion of the rear balcony of unit1 is also within the 9 m setback from the side boundary, raising an issue of overlooking.

Only setbacks encroachments (a) and (b) were identified in the Notice of Decision as being in breach of the Code.

Ms Jamaly's was of the view that encroachments (a) and (b) could be justified against Criterion 54. In the case of (c) Ms Jamaly thought that the departure from the setback is not justified against the existing or proposed streetscape character. In her view, the streetscape is characterised by large front setbacks (exceeding the minimum requirements of the Code) with substantial landscaped areas. She added that where courtyard walls are present they do not dominate the streetscape.

Mr Streatfeild shared Ms Jamaly's concerns regarding the encroachment onto the Eggleston Crescent frontage. He noted that blade walls bring the bulk of the buildings out to the reduced setback and thought that this is out of character with what would normally be expected. In his opinion these departure do not appear justified against the existing or future desired streetscape character as required by C54 (a).

Mr Streatfeild was also of the opinion that the pedestrian scale is compromised by having the development closer to the street and park frontages than other developments in the neighbouring RZ1 and RZ12 areas.

Mr Streatfeild thought that the encroachment in (d) was minor and is obscured by existing bushes and distance.

In relation to the overlooking issue with unit 16, Mr Streatfeild noted that there is some existing screening and noted that there were proposed plantings in the landscape plan, but thought that these would not be sufficient to screen the neighbour's open space from overlooking from unit 16. In his opinion the requirements of C55 are not satisfied as the neighbouring privacy is not protected and there is insufficient spatial separation to the adjacent development from the full single-storey blade wall at unit 17.

Mr Adams considered the streetscape along Eggleston Crescent to be characterised by wide verges with well treed residential properties set back from their frontage with dwellings often positioned at angles very close to side boundaries. He did not consider there to be anything outstanding or special in the streetscape character, which he thought was best described as suburban.

Mr Adams was of the view that the blade walls will present as slim vertical elements which are fully integrated into the built form of the development. He thought that they provide for the most efficient use of the site by maximising privacy to the dwellings within the short terrace. In this respect, he said, they will not compromise the amenity of residents of the proposed building. Furthermore, he did not consider that these would adversely impact the amenity of adjoining residents or the qualities of the streetscene by reason of their position within the site, proximity to side boundaries and their form and appearance.

Mr Adams thought that the balconies which sit between the blade walls are similarly not considered to adversely impact on the amenity of prospective or adjoining residents. They would be screened from adjoining sites by the proposed blade walls any impact would be negated by the positioning and distance of the balconies in relation to the surrounding dwellings. He was of the view that the relationship between the short terrace and the streetscene would remain one of a residential character, and the setback is considered acceptable having regard to the height of the building. He thought that this combined with the retention of a wide verge would ensure that a pedestrian scale is maintained along Eggleston Crescent.

In relation to the issue of overlooking from the balcony of unit 16, Mr Adams stated that the balcony is orientated north-west, and due to the blade walls enclosing it will look towards the rear garden of 39 Eggleston Crescent. The distance between the balcony and the rear elevation of 39 Eggleston Crescent would be in the region of 26m, far in excess of the minimum 12 m setback sought by R68 for the purpose of preventing undue loss of privacy and amenity.

1. The principal issue on which there are significant differences of opinion concerns the encroachment by units 1-4 on the front setback facing Eggleston Crescent. To a large extent this issue inter-relates with those concerning whether the proposed development is consistent with RZ2 objective (b), discussed above. The Tribunal has received conflicting evidence from the witnesses, but on balance we find that the proposed development does not reflect the existing or proposed streetscape character and therefore does not meet Criterion 54.

2. Problems of overlooking could possibly be overcome with screening, although at the expense of the amenity of the residents, and perhaps with some detriment to the appearance of the building.

1. The Code includes the following provisions regulating the design and siting of courtyard walls, including the following:

1. a total length not exceeding 50% of the width of the block or 70% in the case of blocks less than 12m wide, at the line of the wall
2. a minimum setback from the front boundary of not less than 50 % of the minimum front setback

1. brick, block or stonework construction, any of which may be combined with feature panels
2. the area between the walls and the front boundary planted with shrubs
3. courtyard walls do not obstruct sight lines for vehicles and pedestrians on public paths or driveways in accordance with A2890.1-The Australian Standard for Off-Street Parking.

1. Courtyard walls forward of the building line may be considered where the existing front building façade is maintained as the dominant built element in the streetscape.
2. The courtyard wall reads as a secondary built element of appropriate proportion and character with respect to:
   1. height
   2. relationship to verge footpath
   3. total proportion relative to the building width
   4. colour and design features
   5. transparency and articulation
   6. protection of existing desirable landscape features
   7. tree and shrub planting forward of the wall

1. courtyard walls do not obstruct sight lines for vehicles and pedestrians on public paths or driveways in accordance with A2890.1-The Australian Standard for Off-Street Parking.

Courtyard walls do not detract from the established character of the street.

1. The design and siting of courtyard walls include breaks or indents every 15m, the indents are not less than 1m in depth and 4m in length, the indented area is directly accessible from within the block and, together with any area between the wall and the front boundary, is planted in accordance with an approved landscape plan.
2. Courtyard walls are constructed of brick, block or stonework.

Courtyard walls are designed and detailed to provide visual interest to the streetscape and provide for landscaping to reduce their scale and soften the visual impact of the wall surfaces.

1. The proposed development includes a courtyard wall, 19.4 m in length, in front of units 1-4, and forward of the building line. The wall would comprise masonry columns with hardwood slats in between. The length of the block on the Eggleston Crescent frontage is 28.47 m.

2. It is agreed by the parties that the proposed development does not comply with R64 and R66:
   • (a) The wall exceeds the requirement in R64 (a) that its total length should not exceed 50% of the width of the block. The length of the wall is 68% of the width of the block.
   • (b) The proposed setback for the wall is 1.5 m, which is only 25% of the required setback required by R64 (b).
   • (c) The proposed wall does not comply with the requirement in R66 requiring breaks or indents every 15 m.

114. The Applicant seeks approval on the basis that it meets Criteria 64-66.

Mr Adams commented that the proposed courtyard will be set against a profile of a 2-storey terrace, and will by reason of its height, form and position relative to the road frontage , read as a secondary built element to the terrace. He proposed that the use of timber infill slats is specifically considered by R64 (d), and the provision of landscaping, which is proposed in front of the wall, is considered by R64 (e). He thought that these features will ensure that the wall will present attractively to the street. The height of the wall is 1.8 m, which accords with R 64 (c). In his view the setback from the road verge will ensure that it does not appear over dominant. He suggested that the insertion of gates for the individual units provides a degree of transparency and articulation, and emphasises the residential use of the site. He was satisfied that the proposal satisfies Criterion 64.

For the reasons set out in relation to C64, Mr Adams was of the view that the proposed development would provide visual interest to the streetscape and provide for landscaping to reduce the scale of the wall and soften the visual impact of the wall surface, thereby complying with C66.He commented that it would be technically possible to comply with R66 by indenting the courtyard wall of one or more of the units, but he thought that this would be unsatisfactory in terms of providing residential amenity for the residents. Indentation of the wall would, he said, necessarily reduce the provision of POS, while not providing any significant urban design benefits.

Mr Adams provided three examples of courtyard walls within the immediate neighbourhood that he thought exhibited qualities of 'extensive length, height and proximity to the road boundary'.

Mr Streatfeild noted that the proposed development is in a prominent location opposite a T-intersection He was of the opinion that the width and setback of the courtyard wall are inconsistent with surrounding development. He considered that its relationship to the verge, footpath and other neighbouring residential development is out of character. He believed that at the reduced setback the wall would not be read as a secondary element in the streetscape, being further forward than all other permitted structure apart from letterboxes. Nor does it protect existing desirable landscape feature such as the garden city concept of large treed and grassed verges and front setbacks that integrate into the street.

Mr Streatfeild commented that the character of the street consists of its ample landscaped verges with large landscaped setbacks to residences with typical residential bulk and scale. The courtyard wall, he said, would be the furthest forward structure in the streetscape and he considered that it would detract from the ample front setbacks of other dwellings in the street. He saw the courtyard walls at a maximised width and reduced setback as an unnecessary intrusion into the streetscape, thus failing to comply with C65. In his view the wall should be more like the one at the front of the 4-unit development at Block 23, which in his assessment complied with R64 and R66, and was more sympathetic to the streetscape.

Mr Streatfeild was of the view that the proposed courtyard wall was more like a fence with pillars rather than a masonry wall. His view was that it should have a more substantial masonry component. He was concerned that if approved would only encourage further departures from the 'no front fence policy'.

1. The proposed courtyard wall involves several substantial departures from the relevant Rules. As with other aspects of the proposed development, the question of whether the courtyard wall complies with the Code inter-relates with the issue of whether the development is consistent with RZ2 objective (b). The Tribunal received conflicting evidence from the witnesses, principally from Mr Adam and Mr Streatfeild. On this issue we find the evidence from Mr Streatfeild more persuasive, and find that the proposed development does not comply with the Code.

1. A number of representations were received by the Respondent expressing concerns about the potential for increased traffic flow on Eggleston Crescent and the position of the driveway entrance of the proposed development opposite the junction with McDonald Street. Ms Venn gave evidence that she believed that additional traffic was undesirable. None of the three expert witnesses expressed reservations about this aspect of the development proposal. The proposal was referred to the Department of Territory and Municipal Services ("TAMS") which raised no specific concerns about traffic in its reply, except to require an approved Temporary Traffic Management Plan during construction. The Tribunal is satisfied on the basis of the evidence that Criterion 37 of the Code is satisfied.

1. Some representations raised concerns regarding parking and access and the possibility of "overflow" parking intruding onto verges and nearby streets. The DA provides for sufficient on-site parking to comply with paragraph 3.1.5 of the Parking and Vehicular Access General Code. TAMS did not express any concerns about parking. In her evidence, Ms Venn mentioned the possibility of overflow parking but none of the expert witnesses expressed reservations about parking. The Tribunal concludes that the requirements of the Territory Plan in relation to parking are met.

1. It is not clear that the DA meets the requirements of the Access and Mobility General Code in all respects. Unit 17 is an accessible unit and is shown as having a lawn, which would inhibit access. If the DA were to be approved, a condition might be required to meet the Code.

2. Ms Jamaly conceded that the staircase to the basement car park was sufficiently wide to allow an elevator for a disabled person to be attached and operated. That is the relevant requirement under the Code. However, it is not a requirement that an elevator be installed by a developer.

1. The plans submitted as part of the DA proposed the removal of a tree (T3) which has been identified as an Arbutus undo ('Irish Strawberry'). The Conservator initially agreed to removal of the tree, apparently on the basis of incorrect information that the tree was not a regulated tree under the Tree Protection Act 2005 But later advice from the Conservator identified the tree as a high quality, regulated tree and advised that every effort should be taken to protect the tree by not building within the tree's protection zone.

2. The Applicant does not now seek to remove the tree (Exhibit D: plan DA18). No expert arboricultural advice was provided to the Tribunal at the hearing, but Mr Adams and Mr Streatfeild thought that it would be possible to modify the proposed development to accommodate the tree and allow passage of vehicles, including waste management vehicles. Any tree-damaging work within the vicinity of the tree would, however, require the approval of the Conservator.

1. The Tribunal has assessed the proposed development on the basis of the original plans submitted as part of the DA. During the course of the hearing the Applicant submitted revised plans (Exhibit D), intended to respond to various matters discussed in the hearing, including the GFA of the development and whether the development complied with the 50% plot ratio. The plans were put forward, not as an amended proposal, but as a possible basis for conditions of approval to which the proposed development could be made subject.

(a) changing the external walls to lightweight construction, thus shaving an estimated 30 m2 from the buildings;

(b) reducing the roofs to 450 m overhang so as not to constitute any overhanging roofs to balconies, thereby changing the status of the balconies for the purpose of calculating GFA;

(c) reducing the depth of the balconies;

(d) making the dividing blade walls 1880 mm above the balconies, so that the balconies are not enclosed on the sides;

(e) moving the units on the Eggleston Crescent frontage 1 m to the west to comply with the 4m setback on the north eastern side;

(f) staggering units 1-4 so as to provide a more varied façade to Eggleston Crescent;

(g) staggering the courtyard walls I front of units 1-4;

(h) moving the rear block of units 1 m away from Chifley Oval to comply with the upper floor setbacks;

(i) retaining tree T3;

(j) revising the basement layout to reduce dead space and co-locate the storage cages;

(k) deleting the carports to reduce GFA; and making other design and incidental changes to the plans.

1. Dr Jarvis accepted that the amended plans made some improvements to the proposal; e.g. retention of T3, increases in setbacks and articulation of the Eggleston Crescent front walls. However, he submitted that:
   • the revised proposal reduces the ground level POS for units 5-17 as a consequence of moving the units to the north east;
   • there remain doubts whether the Applicant has demonstrated that the proposed development complies with the 50% plot ratio;
   • the attempt to achieve plot ratio compliance is sought largely by the expedient of thinner walls and removing the balcony roofs;
   • the storage space in the basement is reduced to a minimum;
   • the revised proposal remains inconsistent with the RZ2 zone objectives.

2. The Tribunal considers that the amended plans would lead to some improvements in the design and siting of the proposed development. But the amendments do not overcome the fundamental objection to the development - its failure to demonstrate compliance with the RZ2 zone objective (b).

1. The Tribunal notes that the Applicant presented no evidence or argument in respect of those parts of the decision of the Respondent to refuse consolidation of Blocks 7 and 24 and to refuse demolition of the house on Block 7. The Tribunal infers from the fact that the Applicant did not pursue the matters at the hearing that it does not wish to proceed with those aspects of the DA in the absence of approval for construction of the multi dwelling development on the land.

1. The proposed development is inconsistent with the Territory Plan and therefore cannot be approved.

Additional Comments by Presidential Member Stefaniak

1. The Presidential Member notes that approval had previously been given to an 11-unit development comprising three 2-bedroom units facing the street and eight 3-bedroom units fronting the oval. The Tribunal learnt during the hearing that the nearby 4-unit development comprised all 3-bedroom units. This discovery negates to an extent concerns about there being no 3-bedroom units in the area and opens up the possibility in the Presidential Member's mind for a different mix of units within the envelope of the plans for the 11 units already approved. For example, if 10 x 2-bedroom units could fit within the approved footprint for 8 x 3-bedroom units facing the oval and the 3 approved 2-bedroom units facing the street remained, then this may be acceptable as it would not compromise the plans already approved, but would perhaps more accurately reflect commercial reality. Another possibility may be to also leave the front 3 units the same and have two blocks of 5- x 2-bedroom units facing the oval with a gap between the two blocks.

2. The Presidential Member does not see the Tribunal's role as one whereby it re-drafts the plans itself, but offers this suggestion as a way forward. As long as whatever combination of unit sizes fitted within the already approved envelope, then the integrity of the area would not be compromised and a sustainable redevelopment could occur.

SOLICITORS: APPLICANT: J S O'Connor Harris & Co

TRIBUNAL MEMBER/S: Bill Stefaniak, Presidential Member

DATE/S OF HEARING: 25, 26 and 27 PLACE: CANBERRA

DATE OF DECISION: 09 June 2010 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )