LAND AND PLANNING - Review of decision on reconsideration of deemed refusal of multi-dwelling development application in a B12 area - whether revised plans should have been treated as a new application requiring fresh public notification - whether development meets requirements of 2002 Territory Plan and its Appendix III.3, the Urban Housing Code - whether development fails to comply with provisions of the Braddon Neighbourhood Plan and the Braddon Section Master Plan regarding diversity of dwelling types and sizes - status of Braddon Section Master Plan - whether consultation with neighbours was adequate - whether proposed development is out of character with street and neighbourhood - whether planting of a street tree should be required.

Administrative Appeals Tribunal Act 1989 Pt 4, s 37

ACT Civil and Administrative Tribunal Act 2008 ss 9, 68

Land (Environment and Planning) Act 1991 Subdivision 6.2.4; ss 226, 229, 230, 246, 246A

Planning and Development Act 2007 s 442

ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 s 6

Planning & Development Regulations 2008 Sc 20

2002 Territory Plan Pts A3, B App III.3 (Urban Housing Code)

Downer Community Association and ACT Planning and Land Authority [2007] ACTAAT 20 (5 September 2007)

Finlayson & Ors and ACT Planning and Land Authority & Ors (Administrative Review) [2009] ACAT 35 (25 September 2009)

McKenzie v ACT Planning and Land Authority [2004] ACT SC 80

Pashilidis and ACT Planning and Land Authority [2004] ACTAAT 21 (24 May 2004)

Sullivan and ACT Planning and Land Authority [2007] ACTAAT 8 (3 May 2007)

CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 49 of 2009

The Tribunal orders that the decision under review, made on 23 April 2009, to approve the revised plans submitted in support of the Application for Reconsideration under s 246 of the Land (Environment and Planning) Act 1992 is varied in accordance with the ACT Civil and Administrative Tribunal Act 2008, s 69(3)(b), as follows:

1. In Notice of Decision, para 2(a)(iv), replace the numerals 9, 10 and 11 with 15, 16 and 17 respectively.

2. Add new condition 2(a)(v) to the approval as follows:

Planting of a street tree on the verge adjoining Block 3 Section 2 Braddon, of a species and at a place approved or specified by the Department of Territory and Municipal Services.

3. In the Findings on Material Questions of Fact**,** line 2 of the paragraph headed Control 3.5(a) Area Specific Policy**,** delete the word "not" so that the sentence will read:

The development does comply with Area Specific Land Use Policies - B12 Increased Density Development (maximum two storeys).

1. Mr Geoff and Mrs Susan Davidson ("the applicants") have sought review of a decision of the ACT Planning and Land Authority ("the Authority") to approve, following reconsideration, Development Application 200704649 ("the DA").

2. The DA was first lodged on 28 March 2008 by Dowse Norwood Architects Pty Ltd on behalf of the lessee, Mr Danny Di Iulio of Di Iulio Constructions Pty Ltd. On 10 September 2008, the DA was deemed refused pursuant to sub-section 230 (2) of the Land (Planning and Environment) Act 1991 ("the repealed Act"). In declining to approve the application the Authority considered that the DA was inconsistent with the 2002 Territory Plan ("the 2002 Plan") in a number of respects.

3. An application for reconsideration of the decision to refuse the DA was lodged on 26 November 2008 by Dowse Norwood Architects Pty Ltd under section 246 of the repealed Act. Revised plans were submitted together with information outlining the changes that had been made and in accordance with s 246A (1) (b) (i) of the repealed Act, the DA was approved with conditions by Mr Jim Corrigan as delegate of the Authority on 23 April 2009. It is this last decision that is the subject of the appeal.

4. The review was originally applied for under Part 4 of the Administrative Appeals Tribunal Act 1989 ("the AAT Act" now repealed) but by virtue of s 6 of the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 and because a hearing of the matter had not commenced prior to 14 February 2009, it is deemed to be an application for review by the ACT Civil and Administrative Tribunal ("ACAT"). In effect it is an application for review under s 9 of the ACT Civil and Administrative Tribunal Act 2008 ("the ACAT Act").

5. On 31 March 2008 the Land (Planning and Environment) Act 1991 was repealed and the Planning and Development Act 2007 ("the Planning Act") took effect. However, s 442 of the Planning Act provides that where a development application was lodged before the commencement day (31 March 2008) and the Authority had not made a decision about it before that date, the repealed Act and the Territory Plan made under that Act should continue to apply to it. Subsequently, s 442(4) was inserted by means of Schedule 20 to the Planning and Development Regulation 2008 which extended this savings provision to a DA for which reconsideration under s 246 of the repealed Act had been sought, but which had not been finally decided at the commencement day. Consequently, the DA continues to be dealt with under the repealed Act and under the 2002 Plan and in particular, Appendix III.3 to that Plan, the Urban Housing Code ("the Code").

6. The proposed development involves the demolition of the existing building and the erection of a 2-storey building containing 8 one-bedroom apartments, with basement car parking and associated landscaping paving and other site works, on Block 3 Section 2 Braddon ("the subject land"). The block has an area of 1157.79m2 and is located at the south-western end of Burra Place, a cul-de-sac opening into Lowanna Street. The subject land is located within a Residential Land Use Policy Area and development is subject to the B12 Area Specific policies of the 2002 Plan as well as the Code.

7. Block 3 is rhomboidal in shape. It has a narrow north-eastern frontage to Burra Place while its southern boundary adjoins both blocks 15 and 16, fronting Ijong Street. Its western boundary adjoins a public walkway and adjacent park. Its north-western boundary adjoins Block 2 Section 2, while its south-eastern boundary adjoins Block 4 Section 2 (19 Burra Place) in which the applicants reside.

8. The plans first submitted with the DA ("the original plans") proposed the erection of a building containing 2 three-bedroom units, 5 two-bedroom units and 1 one-bedroom unit on the site, with the car parking basement exiting via a ramp to Burra Place. A second verge crossing and driveway was proposed for waste collection vehicle access.

9. In revised plans submitted as part of the application for reconsideration ("the reconsideration plans") all the units had been changed to one-bedroom, the orientation and shape of the proposed building has been altered, and the second waste-collection driveway had been deleted, with the waste to be collected from a storage area at the bottom of the basement access ramp.

10. Further revised plans had been prepared by the developer's architects intended to meet the conditions imposed as part of the approval on reconsideration. However, these were not considered by the Tribunal as they had not yet been assessed by the Authority and had little bearing on the issues raised by the applicants in this case.

11. The Tribunal's decision, set out below, relates to the revised plans submitted with the reconsideration application.

12. The hearing took place on 17 September 2009. The Tribunal visited the subject land on the morning of the hearing in the presence of the parties and viewed the surrounding streetscape and other multi-dwelling developments in the area. The Tribunal also had before it the documents lodged by the respondent pursuant to s 37 of the AAT Act ("the T Documents).

13. The applicants were not represented at the hearing. The Authority was represented by Mr G McCarthy of Counsel. The party joined, Mr Di Iulio, was also not represented.

14. Mr and Mrs Davidson had submitted a statement of Facts and Contentions on which they expanded and tendered a number of documents from the Australian Bureau of Statistics as evidence of population changes and demographic trends in Braddon, as well as photographs of developments in the area. They called no witnesses. Mr Owen Pankhurst, a qualified town planner who is the Assessing Officer - Merit Assessment (North) in the Authority's Development Assessment Unit, gave evidence on behalf of the Authority. Mr Pankhurst had been responsible for assessing both the original plans and the reconsideration plans on behalf of the Authority.

15. At the conclusion of the evidence and submissions the Tribunal reserved its decision.

The applicable legislative provisions and whether the revised plans were so different as to warrant further public notification.

16. The applicants contended that the reconsideration plans were significantly different from the original plans, to such an extent that the revised proposal should have been subject to fresh public notification in accordance with s 229 of the repealed Act. In their view, there were the following significant changes made that warranted such action:

• The change in the configuration of dwellings from a mix of one, two and three-bedroom units to all one-bedroom units;

• The change in appearance of the proposed building, especially from Burra Place;

• The more extensive use of colorbond as a facing material on the walls.

They agreed that other residents in the neighbourhood had not lodged objections to the original proposal, but contended that their neighbours were unhappy about the appearance of the development as now proposed, and as a result of the operation of s 246A(3)(b) of the repealed Act, they had been denied the opportunity to object to it. However, they did not present any evidence in support of this contention from any neighbours.

17. Mr Pankhurst, the assessing officer for the proposed development, in cross-examination said that he considered the differences between the original plans and the reconsideration plans as minor. In his opinion there was no substantial rearrangement of either the form or shape of the building, and the view from the street would change only slightly. He said he would not regard the differences as substantial. While he had not considered the internal layout of the buildings separately, he considered that even if it is different, it did not substantially change the development as a whole

18. The Tribunal considered at length the issue of reconsideration applications and in what circumstances a revised proposal should be subject to further public consultation, in Finlayson & Ors and ACT Planning and Land Authority & Ors (Administrative Review) [2009] ACAT 35 (25 September 2009). The legal position is that this Tribunal may, by virtue of s 68(2) of the ACAT Act, exercise any function given by an Act to an entity for decision making. Thus, it is empowered to review the decision made by delegate of the Authority of 23 April 2009 to approve, with conditions, the DA on reconsideration under s 246A, as if it were the Authority examining the matter de novo.

19. Section 246A of the repealed Act sets out the way in which the Authority must deal with an application for reconsideration. It is required by s 246A(4) to consider "any information available to it when it made the original decision and information in the [reconsideration] application" while the application must set out the grounds on which reconsideration is sought. However, the repealed Act provides no guidance on what kind of information may accompany a reconsideration application, though it is generally agreed that it may include revised plans to take into account matters raised by objectors to the original plans.

20. There is however, case law which provides guidance on the extent of the changes to a DA that may be made before it becomes, in effect, a new application. In McKenzie v ACT Planning and Land Authority [2004] ACT SC 80 at [18] and [19] Crispin J had stated that it needed to be considered whether "the amended plans involved such a substantial departure from those originally submitted as to properly be regarded as a different application rather than a revision of some aspects of the original application which could properly be considered by the Tribunal", while in Pashilidis and ACT Planning and Land Authority [2004] ACTAAT 21 (24 May2004) at [32] and [35] the AAT found that "while the new plans involve design changes the essential ingredients of the two plans are sufficiently similar as to not justify a conclusion that the new plans involve the making of a fresh application" and considered that "whether the changes made to the plans of a development application involve the making of a fresh application or an alteration of the original plans involve matters of degree".

21. In this case, the fundamental issues are whether the changes to the proposed development made in the reconsideration plans represent a "substantial departure" from the original plans, so as to constitute a fresh application requiring re-notification, and whether the "essential ingredients of the new and the old plans are sufficiently similar" to lead to a conclusion that re-notification is not required.

22. There are two elements to dealing with this issue. First, to identify the degree of difference between the new and the old plans. Second, to consider whether the degree of difference found is likely to have materially disadvantaged those who were not given an opportunity to comment on the changed proposal.

23 Comparison of the two sets of plans reveals that they are essentially similar. Each provides for a single 2-storey building containing eight units, over a basement car park accessed by a ramp from Burra Place. It is true that the original plans provided for a mix of one, two and three-bedroom units whereas the reconsideration plans provide only for one-bedroom units, but we do not consider that to represent a "substantial departure" from the original proposal.

24. The building has been redesigned and somewhat reoriented on the subject land so that it is set back a greater distance from the neighbouring properties in Burra Place, but it is still located more-or-less in the same position on the subject land. The second verge crossing and driveway for waste collection has been eliminated, with waste collection now to take place at the bottom of the basement access ramp. In elevation, it will appear somewhat different as a result of its redesign and reorientation, and the redesign of the roof structure. However, we do not consider that these changes represent a "substantial departure" from the original proposal.

25. Nevertheless, because there have been a number of changes to the proposal since it was originally publicly notified, it is appropriate to consider whether any persons have been materially disadvantaged by not being given an opportunity to comment on the revised plans.

26. For a reconsideration application, the Authority is required, by s 246A(3)(b), to give fresh notice only to those who had objected to the grant of approval of the original application. This is in contrast to an alteration to a DA made at the request of the proponent, which pursuant to s 226(8)(b), must be re-notified in accordance with s 229 if the DA had been previously so notified - that is, to the wider community by newspaper notice, the erection of a sign on the subject land, and by written notice to adjoining leaseholders.

27. In the present case, it is to be noted that the original proposal was notified in accordance with s 229 and attracted only 2 objections, one from the applicants and another from Ms G Sullivan who lives at 38 Ijong Street, some houses removed from the subject land. There were no other objections from persons living in the immediate vicinity of the proposed development.

28. We see no reason to suppose that anyone who did not object to the original proposal would now have reason to object to the current proposal. The building will be of much the same size and appearance, the same number of units are proposed (albeit of different size), there will still be much the same number of vehicle movements in Burra Place generated by the development, and the impact on the general streetscape will, in our opinion, be little different.

29. Consequently, the Tribunal is not persuaded that the development, as now proposed, would materially prejudice the interests of any person who had not objected to the proposal as originally advertised. It therefore sees no need to require re-notification of the present proposal on that ground.

30. The applicants also submitted that the application for reconsideration had been lodged out of time. They referred to the requirement in the repealed Act that such applications should be lodged with 4 weeks of the date on which the decision was notified (10 September 2008) but noted that it was not lodged until 26 November 2008.

31. Section 246(3)(b) of the repealed Act does indeed specify that the application must be made within 4 weeks of the date the applicant is told about the decision by the Authority, but s. 246(3)(c) qualifies this by adding

or (b) any longer period allowed by the planning and land authority,

The T-Documents, at T-175, make it clear that the Authority, in accordance with that section, on 27 October 2008 extended the date for lodgement to 1 December 2008 so the applicants' submission is without foundation.

32. The applicants objected to the revised proposal on several grounds. They included

• Failure to comply with the Braddon Section Master Plan ("Braddon SMP") and the Braddon Neighbourhood Plan ("The Braddon NP") regarding the mix of housing types proposed;

• Failure to consult with neighbours about either the original development or the revised proposal, as required by the Braddon SMP;

• The design and appearance of the building being out of character with the street and the neighbourhood.

• The absence of provision for a "street tree" in the landscape planning as required in the Braddon SMP

We consider each of these matters in the following paragraphs.

(a) Failure to comply with the Braddon SMP and the Braddon NP re the mix of housing types proposed

33. The subject land is covered by the Braddon SMP and the Braddon NP and is located within the area identified as Precinct 1: Northern Braddon. The applicants contended that the mix of dwelling types now proposed (8 one-bedroom units) was inconsistent with the Braddon SMP which describes Braddon as enjoying "the vibrancy of a diverse community" which requires "a variety of dwelling types within developments" and states that "providing a wider range of housing types... will encourage greater diversity in the community". They also referred to the Braddon NP, in which one of the objectives for Precinct 1: Northern Braddon is the "provision of family friendly...housing..." and another is to "encourage a mix in the profile of households that choose to live in Braddon".

34. They contended that the majority of apartments available in Braddon are one and two-bedroom apartments, with very few new developments catering to families (3+ bedrooms). They asserted that one and two-bedroom apartments generally do not suit families, whereas the Braddon NP had describe the Northern Braddon Precinct as characterised by "single storey dwellings and duplex style housing" occupied by families, couples and singles. Coupled with other recent developments in the area, they considered that the proposed development would lead to a significant increase in the ratio of one-bedroom dwellings to two+ bedroom dwellings, with a concurrent decrease in the amount of family housing available.

35. In support of their contentions, the applicants tendered several Australian Bureau of Statistics documents relating to the Braddon Statistical Local Area, which showed that the proportion of residents aged from 0 to 19 had declined from 14.8% in 1996 to 12.3% in 2006, while those aged from 25 to 34 had increased from 19.6% in 1996 to 31.9% in 2006. Over the same period, the proportion of residents aged over 55 had declined from17% to 14.6%. They submitted that these figures indicated that the demographics of the area were changing with a greater proportion of singles and couples without children, rather than families. In their opinion, this was contrary to the first objective of the Braddon NP for Precinct 1, which was the provision of family friendly housing. In short, the mix of households and age groups in Braddon was not being retained; it was becoming a suburb of young adults, with very few children and falling numbers of older people.

36. They also drew attention to the provisions of the Code, specifically Element 13, entitled "Dwelling Entry and Interior" where, at Performance Criterion P13.4 it reads

Internal layout of dwellings designed for more than one person is adaptable to a range of household types, by maximising potential for personal space and privacy.

This, they contended, indicated that the Code also supported a mix of housing types.

37. They submitted that the construction of 8 one-bedroom units at the end of a quiet cul-de-sac with the concomitant increase in traffic (up to 8 to16 extra cars) generated by the units, would change the cul-de-sac from a quiet area into a busy street, less suitable for families with children. As the development was in a quiet cul-de-sac where families would generally prefer to live, it should cater for a mix of households.

38. Mr Pankhurst gave evidence for the Authority about the Braddon NP. He said that it provided guidance regarding the formulation of the Braddon SMP as well as being on the then Register of Planning Guidelines. Therefore it was required to be "carefully considered" in accordance with Part A3 Para 9(2)(b) of the 2002 Plan.

39. He drew attention to various provisions of both Plans, in particular the Section Master Plan which included, as a response to concerns about the loss in the range of housing opportunities, the following aims

create a variety of housing opportunities that benefit from being in the immediate proximity to a key transport corridor and to the commercial areas.

The Section Master Plan further stated as a principle at p.20

Encourage a variety of residential dwellings in the sections and individual developments and improve choice for smaller households, aged and families.

He contended that the control relevant to these aims and principles was to be found on p 20 of the Section Master Plan under the heading "Variety of Dwelling Sizes". It read

Redevelopment Sites greater than 3000m2 shall provide a variety of dwelling sizes within the development, 1, 2 and 3 bedroom dwellings are required.

40. Mr Pankhurst submitted that, as the area of the subject land was only 1157m2, it was not required to have a particular mix of dwellings with different numbers of bedrooms. The intentions of the provisions regarding a variety of dwelling sizes in the Section Master Plan were to ensure that the development of Braddon did not result in a homogenous community of one demographic and one building type. In this proposed development, the provision of two-bedroom or three-bedroom dwellings to increase the density of housing was not required because the mix of housing within Braddon, and particularly Precinct 1, is currently inconsistent with the housing mix envisaged by the Section Master Plan. The wording of the aim in the Section Master Plan that required "a variety of dwelling types within developments" was not meant to apply to each individual development, but to developments overall.

41. He said that the over-arching objective of the B12 areas was to provide increased density of dwellings in buildings up to 2 storeys. In his opinion, the development would provide a housing type and character that is not currently evident within the area and therefore would result in greater diversity in dwelling and household type than presently exists. There dwelling would be of sufficient size to promote a variance in potential householders and would provide for affordable high-density housing that, while limited to smaller households, would not exclude other development in the area to accommodate dwellings of a different household size and type.

42. Mr Pankhurst said that the size of the subject land was towards the larger end of inner north block sizes, but was relatively small for a multi-dwelling development. He suggested that this area of Braddon was relatively undeveloped and that further development could correct any imbalances. While agreeing that the block sizes available for redevelopment in Braddon were getting smaller, which may result in fewer three-bedroom units being built, he considered that there was still room for diversity of development.

43. Mr McCarthy submitted that a variety of dwelling sizes is achieved by the control requiring these to be included in developments on larger blocks. The requirement must be seen in the light of the wider Braddon neighbourhood, not just this development. In any case, the proposed development would provide variety compared with what is in Burra Place now.

44. The Tribunal, like the Authority, when considering a development proposal is required by Part A3 Para 9(2)(b) of the 2002 Plan, to carefully consider "any relevant planning guideline or interim guideline contained in the Register of Planning Guidelines". It is also required to apply the B12 Area Specific Policies set out in Part B of the 2002 Plan, which comprise an Objective and several Controls.

To provide opportunities for increased dwelling densities in residential areas close to transport corridors, commercial areas and employment centres.

Development of multi-dwelling housing shall be in accordance with the Urban Housing Code at Appendix III.3

The Authority may from time to time prepare Section Master Plans to assist in guiding residential redevelopment on land subject to this Area Specific Policy. Where a Section Master Plan approved by the Authority identifies additional and not inconsistent requirements to those specified in the Urban Housing Code at Appendix III.3, residential development for multi-unit housing shall be in accordance with those provisions of the Section Master Plan.

46. The AAT considered at length the status of the Braddon SMP in Sullivan and ACT Panning and Land Authority [2007] ACTAAT 8 (3 May 2007) ("Sullivan"). It concluded that, as the Braddon SMP was not approved by the Authority but by the Minister in 2003, it did not come within the ambit of Control (c) above. Nevertheless, both it and the Braddon NP were on the Register of Planning Guidelines under the 2002 Plan and therefore must be carefully considered.

47. In Sullivan the AAT also commented on what it described as a "serious problem in the administration of planning approval process where they involve the Braddon SMP or other Section Master Plans which use prescriptive language". It wrote:

[50]. The Braddon SMP contains no qualification of the kind set out in introductions to the Design and Siting Codes (Appendices I, II and III) [sic = III.1, III.2 and III.3] of the Territory Plan, which explain that any failure to meet a performance measure will not necessarily result in refusal of approval of a development application but will require it to be assessed against relevant performance criteria and objectives. It introduces concepts not elsewhere used in design and siting codes which are variously described as "aims", "policy framework" and "urban design principles and controls". The intended effect of those concepts is not clearly defined. Any statement in a document approved by the Minister following a process of public consultation is likely to be accepted at face value and important decisions affecting the lifestyles of residents and the financial impact on both them and those wishing to undertake development, made in reliance on them. Unless the drafting of such documents is undertaken in a way that clearly and accurately explains the scope of their intended effect, persons who place reliance upon them will be potentially misled.

48. The Braddon NP (prepared by the Braddon Neighbourhood Planning and Community Partnerships Team under the auspices of the Authority in 2003) is quite general in its approach. It

describes the character of Braddon, identifies the different precincts and establishes a 'vision'...based on the fulfilment of three inter-related goals...Diversity; Sustainability; Character... The adopted Braddon Neighbourhood Plan will be the Community's Values Statement as identified in the Territory Plan. The plan also contains objectives, principles and recommendations that set out how to achieve the vision at both the 'neighbourhood wide' and 'local precinct' level.

For each identified Precinct, a series of Goals, Objectives and Strategies is set out, but without specific controls.

49. The Braddon SMP which covers Precinct 1: Northern Braddon including Sections 1, 2, 4, 5, 6 and 9 Braddon) is said to have been "prepared in the context of the neighbourhood planning process and addresses particular issues of concern with regard to urban redevelopment". While again it is written in fairly general terms, it does indentify a number of "sections' of Precinct 1: Northern Braddon to which specific "controls" are applied, by way of annotated maps. The controls for Section 2 (in which the subject land lies) do not make any reference to a requirement for any particular mix of dwelling types (though the general control for Variety of Dwelling Types on p 20 of the Braddon SMP, cited above in para 37, does apply).

50. The Code has nothing to say about any particular mix of housing types, other than obliquely in Element 2 - Building Appearance and Neighbourhood Character, where Intent 12.2 is

To ensure in redevelopment that buildings are designed to form part of a larger composition of the area and there is diversity in building type and size.

That portion of the Code cited by the applicants (P13.4) relates to the need to maximise "potential for personal space and privacy" in dwellings designed for more than one person. It has nothing to do with the size of the dwellings (measured in terms of bedroom numbers).

51. Even if the controls in the Braddon SMP are to be taken as binding, we consider that the provisions of the control on p 20

Redevelopment Sites greater than 3000m2 shall provide a variety of dwelling sizes within the development, 1, 2 and 3 bedroom dwellings are required

by clear implication means that sites less than 3000m2 are not required to have a mix of 1, 2 and 3 bedroom dwellings. We find nothing in the 2002 Plan that makes the provision of any particular mix of dwelling types in B12 areas mandatory. We therefore conclude that the proposal is, in this respect, not inconsistent with the 2002 Plan.

(b) Failure to consult the community and neighbours about either the original development of the revised proposal, as required by the Braddon SMP;

52. We have already dealt with the issue of consultation in paras 25 to 29 above when considering whether the revised proposal as shown in the reconsideration plans should have been publicly notified. We concluded that public consultation had been undertaken in accordance with the provisions of the repealed Act and that there were no grounds for re-notification.

A significant aim of the new process is that proponents consult with ..., the community and neighbours at an initial, conceptual stage of the design process as part of the pre-application process.

It is clear from the original DA and the objections lodged by the applicants following notification that this was not done. However, as noted in para 45 above, there is no clear indication in the Braddon SMP of what the consequences of not meeting its aims might be.

53. There is nothing in Part A3, Section 9 (Consideration of Land Use and Development proposals) nor the Part B1 (Residential Land Use Policies) nor the B12 Area Specific Policy of the 2002 Plan that requires pre-application consultation. Part A3, Section 9.2 requires the Authority to carefully consider

(d) any comments of a person or body to which the application has been referred for comment; and

(e) each objection or other submission received in relation to the application which has not been withdrawn

but these apply only in relation to "an application to undertake a development", not to pre-application processes.

54. We do not consider that the provisions of the Braddon SMP oblige a proponent of development to undertake any greater level of consultation than that required by the Act. Consequently, we reject the contention of the applicants that the proposal is, to that extent, inconsistent with the 2002 Plan.

(c) The design and appearance of the building being out of character with the street and the neighbourhood

55. The applicants contended that the proposed new building was of an ultra-modern style with masonry at the ground level and metal colorbond-style cladding of the upper walls and balconies, with a low pitched roof. They contrasted this with the existing housing in Burra Place which they described as generally masonry and with either the traditional tiled pitched roof or a metal roof that slopes gently from the middle peak. In their view, the ultra-modern design and especially the colorbond corrugated walls were completely out of character for the street and the neighbourhood. They said that colorbond-clad walls were not used elsewhere in Braddon.

56. They submitted that one of the goals of the Braddon SMP at Section 1.5 was that "Braddon's heritage and unique character is enhanced" but pointed to no relevant controls in relation to building appearance in Section 2 of Precinct 1 (in which the subject land is located) that would restrict the style of redevelopment in the neighbourhood.

57. Mr Pankhurst considered that the built form, massing and spatial separation of the proposed 2-storey development was sympathetic to the development in the precinct and maintained the high quality of landscape setting. He contended that the inclusion of contemporary materials and the proposed architectural style was also in keeping with other developments in this precinct of Braddon, where a diverse streetscape has come about from the redevelopment of the area to comply with a future character envisaged by the Braddon SMP. In his opinion, the inclusion of metal walling was used to create an innovative built form and architectural style. It was durable, easily recycled and with appropriate insulation could have excellent thermal properties during summer and winter.

58. The Intent of Element 12 of the Code is to facilitate measures to reduce energy, resource and water consumption and includes among its Performance Criteria and Acceptable Standards are:

P12.4 Building materials and insulation assist in providing acceptable thermal conditions.

A12.7.1 Buildings are constructed of materials which

(a) cause minimal environmental impact in terms of extraction and/or production and require minimal energy inputs to their extraction and production; and

On Mr Pankhurst's evidence, these requirements of the Code will be met.

59. The Braddon NP contains a series of sections dealing with each neighbourhood precinct and that for Precinct 1: Northern Braddon has the following Goals:

• Enjoy the vibrancy of a diverse residential community with easy access to the commercial hub and Civic;

• Have a liveable and predominantly residential character; and

• Retain significant key heritage elements to enhance its character.

Among the Strategies identified to achieve these goals are

P1-3 Built forms reflect or be sympathetic to the antecedents of this part of the suburb as a 1950s 'garden city' development;

P1-4 Recognise and protect qualities that establish local identity and distinctiveness;

P1-5 Maintain the high quality of the landscape setting and the street trees;

P1-7 Create section specific built forms in scale, height and mass with adequate privacy, sufficient solar access, suitable internal layout etc.

60. In Part 2 of the Braddon NP entitled The Braddon Neighbourhood Character Statement, the following paragraphs appear:

Braddon is undergoing significant change. It has a unique character because of this, consisting of a great variety of architectural forms - extending from the traditional red brick styles to the more contemporary forms. The residential sections accommodate a diverse community by providing a range of housing options that include duplexes, units, townhouses, multi-storey and single storey dwellings.

The northern part of Braddon located to the north of Haig Park, is becoming more densely populated due to an increasing trend for multi-unit redevelopment since the introduction of the B11, B12 and B13 residential policies. These policies form a key component of the ACT Government's commitment to concentrating housing density along key transport corridors to increase sustainability.

61. We do not find any basis within either the Braddon SMP or the Braddon NP for the contention that multi-dwelling redevelopment in Precinct 1 should reflect the architectural characteristics of existing dwellings. On the contrary, there is a recognition that change is occurring in a great variety of architectural forms.

62. The Code does deal with Building Appearance and Neighborhood Character in Element 2, which has the following Intent

12.1 To ensure that the appearance of developments from streets and adjoining areas is attractive and visually compatible with either attractive surrounding development or the identified future urban character of the area;

12.2 To ensure in redevelopment that buildings are designed to form part of a larger composition if the area and there is diversity in building type and size. Buildings are to enhance existing patterns of development.

The Performance Criteria (P) and Acceptable Standards (A) associated with this Element relevantly include the following:

P 2.3 Buildings are designed to reflect relevant features of the prevailing character of surrounding attractive streetscapes, features and built form character

A2.3.1 Building design, roof form, colours, detailing and materials visible from public areas and adjoining properties are generally consistent with the character of attractive neighbouring buildings identified by an approved Section Master Plan

P2.4 The building design, detailing and finish provide an appropriate scale to the street, add visual interest and enable differentiation between dwellings when viewed from public streets

(There is no relevant Acceptable Standard for P 2.4)

63. It is difficult to know what to make of these Performance Criteria and Acceptable Standards. A literal reading of P2.3 would suggest that new developments should be reflective of what already exists, where as P2.4 suggests that visual interest and differentiation is the goal. The Acceptable Standard A2.3.1 requires general consistency only with "the character of attractive neighbouring buildings identified in an approved Section Master Plan". As indicated above in para 44, the Braddon SMP is not an approved Section Master Plan within the meaning of control (c) of the B12 Area Specific Policies and therefore that can be no "identified attractive neighbouring buildings" (whatever that may mean) with which the proposed development must be consistent.

64. There can be little doubt that the proposed development will be significantly different from that which presently surrounds it. However, Mr McCarthy drew attention to the AAT's decision in Downer Community Association and ACT Planning and Land Authority [2007] ACTAAT 20 (5 September 2007) in which the Tribunal had observed that

It does not follow from the fact that a development proposes an observable difference to the existing style of development that it fails to respect it.

It is clear that this area of Braddon has already undergone a significant degree of change consistent with its B12 status and that further redevelopment is bound to occur. It seems to us most likely that, in due course, much of the single dwelling development that still exists in the Precinct will be replaced by higher density development, such as is here proposed. That is the intention of the 2002 Plan. Consequently, the Tribunal is not persuaded that the proposed development is inconsistent with the 2008 Plan in this respect.

(d) The absence of provision for a "street tree" in the landscape planning as required in the Braddon SMP

65. The applicants contended that one of the Urban Design Principles of the Braddon SMP was to

Maintain grassed nature strips and protect, replace and supplement street trees

and that Element 1 of the Code was to provide attractive streetscapes which included retaining existing verges and conserving all street trees. In their opinion, that should be done by requiring the developer to plan a street tree of the appropriate species

66. Neither the original plans nor the reconsideration plans provided for a street tree to be planted on the verge. In the case of the original plans, the proposed provision of two driveways and verge crossing on a narrow fronted block did not allow room for such a tree. The reconsideration plans deleted the second crossing for waste collection. At the time of approval of the reconsideration plans, the Authority stated in its Findings on Material Questions of Fact (T-40) that

Matters regarding the planting of new street trees are the responsibility of Parks

Conservation and Lands, TAMS. TAMS have not prescribed that a street tree be provided as part of this development.

However, at the hearing, Mr McCarthy advised that the Authority proposed that the following new condition 2(a)(v) be added to the approval

Planting of a street tree on the verge adjoining Block 3 Section 2 Braddon, of a species and at a place approved or specified by the Department of Territory and Municipal Services.

67. The proposed condition should satisfy the concerns of the applicants on this aspect.

68. It will be evident from the conclusions we have reached in relation to each of the matters raised by the applicants that we find the proposed development not to be inconsistent with the 2002 Plan. Consequently we propose to affirm the decision to approve it with conditions, subject to the following. Mr McCarthy drew attention to typographical errors in the Authority's Decision and its Findings on Material Questions of Fact, for which he proposed the following corrections:

Notice of Decision (Reconsidered) (Page 2, T-22)

In para 2(a)(iv), the numerals 9, 10 and 11 should be replaced with 15, 16 and 17.

Findings on Material Questions of Fact ( Page 12, T-32)

In line 2 of the para headed Control 3.5(a) Area Specific Policy, the word "not" should be deleted so that the sentence will read:

The development does comply with Area Specific Land Use Policies - B12 Increased Density Development (maximum two storeys).

The Tribunal agrees that these corrections should be made. It will order that the decision under review be varied accordingly and that the additional condition proposed by Mr McCarthy (see para 63 above) should be added to the Further Information Required section of the Decision as para 2(a)(v).

RESPONDENT: ACT PLANNING & LAND AUTHORITY & ORS

TRIBUNAL MEMBER/S: DR D MCMICHAEL Senior Member

DATE/S OF HEARING: 17 SEPTEMBER 2009PLACE: CANBERRA

DATE/S OF DECISION: 12 OCTOBER 2009 PLACE: CANBERRA

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