Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) s 68

Planning and Development Act 2007 (ACT) ss 48, 50, 55, 119, 120, 121, 122, 144,146, 149, 162, 407, 408

Tree Protection Act 2005(ACT) ss 10, 25

Legislation: Multi Unit Housing Development Code C36, C40, R15, R 30, R36 Table A6

Planning and Development Regulation 2008 (ACT) Reg 1A(2)(b)

Tree Protection (Approval Criteria) Determination 2006 (No 2) (ACT)

Cases cited: Amarso Pty Ltd & Ors v ACT Planning and Land Authority [2012] ACAT 9

Baptist Community Services v ACT Planning and Land Authority & Ors [2015] ACTCA 3

Finlayson v ACTPLA [2009] ACAT 35

Walkington and ACT Planning and Land Authority [2010] ACAT 81

The Tribunal having exercised a power of the ACT Planning and Land Authority under section 144(1) of the Planning and Development Act 2007, to further amend the Development Application in accordance with the further amended plans which are exhibit C 6, and under section 146(3) of the Planning Act having waived the requirement to publicly notify the further amended development application,

1. The decision under review is varied as follows:
   • (a) Development Application No 201425446 is approved in accordance with the further amended plans which are exhibit C 6 in these proceedings.
   • (b) Approval for removal of regulated tree 19 is omitted from paragraph (d) of the decision under review.
   • (c) Condition B2 in the decision under review is amended by the addition of ", 8" after "7", and the addition of ", 14" after "12".
   • (d) New condition B8 is added: "B8. All air conditioning units are to be located so as not to be visible from Gawler Crescent."
   • (e) New condition B9 is added: "B9. Prior to building work on the site commencing the lessee shall lodge amended plans with the ACT Planning and Land Authority in accordance with the Tribunal's decision, including a final plan of landscaping which shows in detail the retention of the regulated tree 19 and modification of the surrounding areas, and the location of all air conditioning units."

1. Deakin Residents Association Inc (Deakin Residents) has sought review of a decision of the ACT Planning and Land Authority (the Authority) made under section 162 of the Planning and Development Act 2007 (the Planning Act) to approve, subject to conditions, a Development Application (DA) made by Turco & Associates Pty Ltd (Turco) for the construction of seven 2 storey, 3 bedroom units with basement garages at 24 and 26 Gawler Crescent, Deakin (Blocks 10 and 11 Section 13 Deakin) (the subject site).

1. In summary, the Tribunal's reasons for decision are as follows. On the application of Turco, the Authority amended the DA, and then considered and approved the Amended Proposal subject to conditions. On the application of Turco, the Tribunal made further amendments, and then considered the Further Amended Proposal.
2. Deakin Residents challenge the approval by the Authority and oppose the approval of the Further Amended Proposal on a number of specific bases, namely the limited separation of the buildings, the encroachments on private open space, tree removal and landscaping, and traffic and parking.
3. As to these, first, the Tribunal believes there is an issue about the limited separation between the buildings, but finds that the separation proposed will be consistent with C 36 of the Multi Unit Housing Development Code (the Multi Unit Code), in effect that it will be consistent with the desired character, namely the RZ2 zone objectives, and the separation of existing buildings in the immediate neighbourhood (see paragraphs 23-72).
4. Second, the Tribunal finds the identified encroachments are none-the-less consistent with the Multi Unit Code (see paragraphs 73-79).
5. Third, the Tribunal finds that the requirements for the removal of Tree 19 have not been met but that the Further Amended Proposal for landscaping when revised to show the retention of Tree 19 will be consistent with the Multi Unit Code (see paragraphs 81-93).
6. Fourth, the Tribunal notes the traffic and parking issues raised by Deakin Residents, but finds that the Further Amended Proposal meets the relevant requirements (see paragraphs 97-99). In addition to considering section 119 of the Planning Act, the Tribunal has considered section 120, and does not think that there is a basis for refusing the Further Amended Proposal.
7. The Tribunal therefore confirms the decision of the Authority concerning the Amended Proposal, in relation to the Further Amended Proposal, except for the decision concerning Tree 19, and with some variations of the conditions. The Tribunal's detailed reasons for this decision follow.

1. The DA was lodged with the Authority in April 2014 (the Original Proposal).[1] The Proposal was considered in the merit track under sections 119-122 of the Planning Act and no issue about this was raised before the Tribunal. Public notification was undertaken.[2] Following the close of public notification, the receipt of entity comments and completion of an assessment, the Authority requested further information from Turco to address issues including building separation, the impact of courtyard walls, landscaping, overlooking from Unit 1 and fencing.[3]
2. In response, Turco lodged amended plans and documentation under section 144 of the Planning Act providing for building separation, privacy screens for Unit 1, revised tree and hedge planting and reduction in the height and extent of courtyard walls (the Amended Proposal).[4] The Authority amended the DA under section 144 of the Planning Act and waived the requirement to notify publicly the amendment under section 146(3) of the Planning Act.
3. The Authority approved the Amended Proposal, subject to conditions. It did so under section 162 of the Planning Act which provides in part:

(b) approve a development application subject to a condition; or

1. This decision was subject to statutory requirements in sections 50 (effect of Territory Plan), 119 (merit track - when development approval must not be given) and 120 (merit track - considerations when deciding development approval), which are discussed below where relevant.
2. A decision under section 162 to approve a development application is reviewable by the Tribunal under sections 407, 408A and Schedule 1, item 4 of the Planning Act.[5] Deakin Residents is an eligible entity which can apply for review of the decision.[6] This review is limited by section 121(2) of the Planning Act, namely to the extent that the development proposal is subject to a rule and does not comply with the rule, or no rule applies. Under section 68 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) the Tribunal may exercise any relevant function given by an Act to the Authority, and must confirm the decision, or vary the decision, or set aside the decision and make a substitute decision, or remit the matter for reconsideration.

1. Deakin Residents challenge the decision on the basis of 4 issues, and the Tribunal considers these in turn:

1. limited separation of the buildings (see paragraphs 23-72) 2. encroachments on private open space (see paragraphs 73-79)

1. tree removal and landscaping (see paragraphs 81-93)

1. traffic and parking (see paragraphs 97-99)
2. The hearing of the Tribunal took place on 26 and 27 March 2015. The Tribunal visited the subject site and the surrounding neighbourhood on the first morning of the hearing in the presence of the parties and their representatives and witnesses. Deakin Residents provided statements by Mr Peter Wurfel, Mr Richard Thwaites, Mr John Bell and Ms Di Johnstone, who are all local residents. The Authority provided a Statement by Ms Rumana Jamaly, technical co-ordinator in the Planning Delivery Branch of the Authority. Turco provided statements by Mr Michel Giese, Associate of Turco, and Mr Vivian Straw, Principal Town Planner of Tract Consultant. Mr Wurfel, Mr Thwaites, Mr Bell, Ms Jamaly, Mr Giese and Mr Straw all added to their statements with oral evidence and were cross-examined.

1. Further proposed amendments were received by the Authority on 6 March 2015 (the Further Amended Proposal) and were provided to the Tribunal.[7] Turco also tendered copies of letters from Mr Bradbury of Bradley Allen Love on behalf of Turco to owners/occupiers advising them of the revised plans, their effect and providing a copy.[8] The changes are described in the Statement of Ms Jamaly (exhibit R3) at paragraph 7.
2. Under section 144(1) of the Planning Act, the Tribunal, exercising a power of the Authority, may amend a DA.[9] However, it must not do so unless satisfied that the development applied for after the amendment will be substantially the same as the development applied for originally and the assessment track will not change (section 144(2)). The parties before the Tribunal did not oppose the amendment. The Further Amended Proposal continues to provide for the construction of seven 2 storey, 3 bedroom units with basement garages on the subject site. It makes amendments generally to address issues raised by Deakin Residents in these proceedings. The changes are not more significant than those made by the Amended Proposal, in relation to which no issue was raised. The Tribunal is of the view that the development applied for in the Further Amended Proposal will be substantially the same as the development applied for in the Original Proposal and in the Amended Proposal, and that the assessment track will not change. The Tribunal therefore amended the DA accordingly at the hearing on 26 March 2015.
3. There is an issue about whether this amendment should be publicly notified. Section 146(2) provides that the Authority must generally notify an amendment where the original application was notified. But section 146(3) provides:

_(3) However, the planning and land authority may waive the requirement to publicly notify the amended application for development approval if satisfied that - _

(a) no-one other than the applicant will be adversely affected by the amendment; and

(b) the environmental impact caused by the approval of the amendment will do no more than minimally increase the environmental impact of the development.

1. The Tribunal regards the public notification processes as fundamentally important. However, in this case there are significant factors suggesting that no-one other than the applicant will be adversely affected by the amendment.
2. The Original Proposal was publicly notified. There were a significant number of representations.[10] All representors were notified of the decision.[11] The Amended Proposal and the Further Amended Proposal generally seek to address issues raised in the representations and in this Application for Review. Further notification has been given by Turco of the Further Amended Proposal including that this will be considered in these proceedings.[12] Turco and the Tribunal have had no response to this further notification. The Tribunal is of the view that there is no reason to suppose that anyone who did not object to the Original Proposal would object to the Further Amended Proposal.[13] The rights of persons within the processes established by the Planning Act are therefore unlikely adversely to be affected.
3. Further, the substance of the amendments themselves are unlikely adversely to affect persons. As noted, the Amended Proposal and the Further Amended Proposal generally seek to address issues raised in the representations and this Application for Review.
4. The Tribunal notes that the side setback of Unit 7, on the eastern end of the subject site, has been decreased in some places by the Further Amended Proposal.[14] But the Original Proposal and the Amended Proposal were substantially the same as the Further Amended Proposal, and the changes will give rise to no additional overshadowing or privacy concerns,[15] and are minor.[16] While Deakin Residents have raised some issues in these proceedings concerning encroachment on private open space (see paragraphs 73-79 below), it has not raised concerns about this particular amendment. The Authority and Turco argued that the requirement for further public notification could and should be waived. Deakin Residents did not take a position on this issue. The Tribunal concludes that no-one other than Turco as applicant will be adversely affected by the amendment and the environmental impact caused by the approval of the amendment will not increase the environmental impact of the development. The Tribunal therefore waived the requirement for further public notification at the hearing on 26 March 2015.

1. Deakin Residents challenge the decision of the Authority on the basis that the proposed development is not consistent with R 36 or C 36 of the Multi Unit Code concerning building separation.
2. Section 119 of the Planning Act provides in part:
   1. Merit track - when development approval must not be given

_(1) Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with - _

(b) if the proposed development relates to land comprised in a rural lease - any land management agreement for the land; and

(c) if the proposed development will affect a registered tree or declared site - the advice of the conservator of flora and fauna in relation to the proposal.

1. The Territory Plan is provided for under section 46 of the Planning Act. The subject site is zoned 'RZ2 - Suburban Core Zone'.[17] The Zone objectives for RZ2 are at Pt 3.1 of the Territory Plan. Moving up Gawler Crescent from Deakin shops, this RZ2 zoning ends at Fergusson Crescent, and the zoning thereafter becomes 'RZ1 Suburban'.[18]
2. 'Relevant code' in section 119(1)(a) means a code that the relevant development table applies to the proposal (section 3 and Dictionary); the 'development table' means the table in the Territory Plan (section 3 and Dictionary and section 54); the codes are also in the Territory Plan that covers the zone (section 3 and Dictionary and section 55). Part 3.1 of the Territory Plan entitled 'RZ1-RZ5 Objectives and development tables' deals with the RZ2 Suburban Core Zone and states that development proposals in residential zones must comply with the Residential Zones Development Code (the Residential Code).[19] The Residential Code at Pt 3.2 of the Territory Plan makes clear in Table 1 that multi unit housing must also comply with the Multi Unit Code. The Multi Unit Code at Pt 3.4 of the Territory Plan applies to multi unit housing in all zones, subject to exceptions which are not relevant.
3. The purpose of the Multi Unit Code is to provide "additional planning, design and environmental controls to support the objective of the relevant zone".[20] The Introduction to the Multi Unit Code provides that each "element has one or more rules, each having an associated criterion (unless the rule is mandatory). Rules provide quantitative or definitive controls, while criteria are chiefly qualitative in nature".[21] The Introduction goes on to state that proposals in the merit track:
   • must comply with each rule or satisfy its associated criterion, unless the rule is mandatory...Where a rule is fully met, no reference to a related criterion needs to be made. Where there is a departure from a rule, or where a criterion only applies, the onus is on the applicant to demonstrate that the relevant criterion is satisfied, through supporting drawings and/or written documentation.[22]
4. According to the Authority, the Original Proposal did not meet the mandatory requirement in R 8 of the Multi Unit Code that in RZ2 the maximum plot ratio is 50%.[23] The Authority decided that the Amended Proposal met this requirement.[24] The Further Amended Proposal also appears to meet this requirement and this position was not challenged by Deakin Residents.
5. The Original Proposal also did not meet the mandatory requirement in R 15 of the Multi Unit Code that in RZ2 on single dwelling blocks the maximum number of dwellings in any building is four. 'Single dwelling block' is defined in Pt 13 of the Territory Plan to mean a block with one of the following characteristics:

(a) originally leased or used for the purpose of single dwelling housing; or

(b) created by a consolidation of blocks, at least one of which was originally leased or used for the purposes of single dwelling housing.

1. At least (b) would catch the subject site. The Original Proposal provided for seven dwellings in one building.[25] However the Amended Proposal shows two separated buildings, one with four dwellings and another with three. The Authority decided that the Amended Proposal did satisfy the requirement in R 15 for a maximum of four dwellings in any building, subject to the issue about R 36 set out in the next paragraph.[26] The Further Amended Proposal continues to do so, and this position was not challenged by Deakin Residents.
2. The fact that the Amended Proposal provided for two buildings on what was to be a consolidated block brought into play R 36 and C 36 of the Multi Unit Code, which provide as follows.

3.27 Building separation - single dwelling blocks - RZ2

This rule applies to single dwelling blocks in RZ2.

The minimum horizontal separation between a building containing 2 or more dwellings and any other building on the site is 4m.

For the purposes of this rule, basements are not part of a building.

The siting of buildings on single dwelling blocks in RZ2 achieves all of the following:

b) consistency with the separation of existing buildings in the immediate neighbourhood.

1. As noted above the subject site is a single dwelling block. The Amended Proposal provided for a separation between the buildings at ground floor level of 5.4 metres for a depth of 2.5 metres, and then 1.5 metres, and the Further Amended Proposal increased the ground floor separation to 6.4 metres and then 2.8 metres.[27]
2. At the upper level, the Amended Proposal provided a separation of 5.43 metres and the Further Amended Proposal a separation of 6.44 metres. Deakin Residents suggested that this formulation is somewhat misleading, indeed Mr Nelson for Deakin Residents suggested it was a fiction, and the Tribunal has some sympathy for this view. The measurement includes the void areas in the building as part of the separation. As the street elevation in Exhibit C 6 demonstrates, looking at the buildings from the street the separation between most of the buildings at the lower and upper levels in the Further Amended Proposal appears to be only 2.8 metres.
3. The Further Amended Proposal was not sought to be justified under R 36 but was sought to be justified under C 36 and must meet both requirements in C 36.
4. There was some consideration in the hearing as to the relationship between R 36 and C 36. Mr Thwaites in his statement for Deakin Residents suggested that the rules and criteria are intended to be associated in their application, and that for elements where both a rule and criterion apply, the rule is the point of departure for assessment, with a requirement for any departure from that rule to be justified by reference to the criterion.[28] The Tribunal thinks there is some merit in this approach. Context is an important tool in statutory interpretation[29] and the requirements in C 36 should be informed by the terms of R 36. In effect C 36 allows a lesser separation than 4 metres but requires this to be justified. Both R 36 and C 36 implement a particular purpose and policy, and this purpose and policy should inform the interpretation of C 36.[30]
5. In this case the purpose and policy is not completely clear. The provisions are headed "building separation", suggesting that a separation is required. The reason for requiring such separation is not specified in either R 36 or C 36. The requirement was introduced by Variation 306 to the Territory Plan in February 2013. Deakin Residents provided at Exhibit A2 Attachment B a document entitled 'Keeping the neighbourhood character in RZ2 zones Draft Variation 306' issued by the ACT government in June 2011, which discusses possible proposed changes, and which preceded Variation 306 and the introduction of R 36 and C 36. This document is referred to in the Explanatory Statement to Variation 306. [31] It states that the proposed changes follow public concern in 2010 about RZ2 development, particularly the scale and character of development, then as follows:[32]

• To ensure development is more in keeping with the character of the area, DV 306 proposes to restrict the overall scale and distribution of buildings on consolidated blocks.

• No building will contain more than four dwellings. This will reduce the overall scale of the buildings and prevent one large building dominating a site.
  • Any building with two or more dwellings will be at least four metres from any other building on the site. This separation will reduce the scale of the overall development, making it more consistent with the suburban character.

1. This suggests that while RZ2 allows for multi unit developments, what were to become R 36 and C 36 were concerned to address the scale of these developments, and to avoid "one large building dominating a site", and to make it in that way more consistent with the suburban character. It should be noted that while this statement suggests a requirement for a 4 metre separation, C 36 clearly does not do so. However the statement suggests that in considering the flexibility provided by C 36, mechanisms for addressing the scale of the development are important.
2. Mr Straw suggested that the 4 metre requirement "provides a reasonable guide to maintain the appearance of a residential low-density building scale and is intended to provide for a broken building facade where building bulk might be problematic".[33]
3. The Planning Act at section 55 provides that a code "must be consistent with each objective for the zone to which the code relates". In light of this, the policy of the Multi Unit Code can also be ascertained from the RZ2 zone objectives. The Supreme Court in Baptist Community Services v ACT Planning and Land Authority and Ors [2015] ACTCA 3 confirmed that zone objectives are relevant to interpreting a code, and thereby assessing compliance with it.[34] In this case, C 36(a) in effect refers to the zone objectives through use of the term desired character (see paragraph 40 below). The RZ2 zone objectives themselves suggest the need for balancing between, on the one hand, providing for a mix of single dwelling and multi-unit development (objective (a)) and, on the other, the policy of making a positive contribution to the neighbourhood and landscape character of the area and not having unreasonable negative impacts on neighbouring properties (objective (e)). Criterion C 36 is a part of that balancing.

1. The first requirement in C 36 is that the siting of buildings on single dwelling blocks in RZ2 achieves consistency with the "desired character". There is a definition of 'desired character' in Pt 13 of the Territory Plan which is:
   • the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant zone precinct.
2. Consistency in this context takes its general meaning of agreement or compatible.[35] Ms Jamaly stated that there are no relevant provisions in the Deakin precinct code.[36] Deakin Residents also did not point to any relevant provisions in the precinct code.[37] In summary therefore the elements of this first requirement in C 36 are that the siting of the buildings achieves consistency or compatibility with the form of development provided for by the RZ2 objectives. It is necessary to focus on those objectives.
3. RZ2 zone objective (a) is to provide for "residential areas where the housing is low rise and contains a mix of single dwelling and multi-unit development that is low to medium density in character particularly in areas close to facilities and services in commercial centres". The Authority thought that the Amended Proposal implemented this objective.[38] Mr Straw noted that the development was consistent with this objective.[39] The Tribunal is of the view that the Further Amended Proposal is consistent with this objective. The development is a multi-unit development. It will provide a mix; there is currently no multi-unit development in the immediate neighbourhood other than dual occupancies on single blocks. It is medium density in character. The subject site is close to the facilities and services at the Deakin shops.
4. Deakin Residents suggested that one of their underlying concerns was that the proposal would be a precedent development, and that others, perhaps many, would follow. The Tribunal notes that zone objective (a) provides for a mix; as noted there is currently no multi-unit development in the immediate neighbourhood other than dual occupancies on single blocks; but if this proposal does proceed there will be, and any further development will need to be assessed on the basis of the desired mix at that stage and its impact on that mix.
5. RZ2 zone objective (b) is to provide for "opportunities for redevelopment by enabling a limited extent of change with regard to the original pattern of subdivision and the density of dwellings". The Amended Proposal and the Further Amended Proposal are within the density requirements and will provide for such a change. The proposed separation will be at the current boundary between Blocks 10 and 11, and the current separation of the buildings on them, thus maintaining the original pattern of subdivision. The Further Amended Proposal is therefore consistent with the form of development envisaged by zone objective (b).
6. RZ2 zone objective (c) is to provide for "a wide range of affordable and sustainable housing choices that meet changing household and community needs". The Further Amended Proposal is consistent with the form of development contemplated by this objective.
7. RZ2 zone objective (d) is to contribute to the "support and efficient use of existing social and physical infrastructure and services in residential areas close to commercial centres". The Further Amended Proposal is consistent with this objective.
8. Deakin Residents particularly rely on objective (e) which is to "ensure redevelopment is carefully managed so that it achieves a high standard of residential amenity, makes a positive contribution to the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties." This provision makes reference to "neighbourhood", "area", and "neighbouring properties"; these are not defined terms, and take their general meaning. It also refers to "unreasonable negative impacts"; the Tribunal is of the view that unreasonable takes its general meaning as not guided by reason or good sense; where the development has impacts which arise simply from being a multi unit development, this is not an unreasonable negative impact. It is important to note that the first requirement in C 36 is that the siting of the buildings achieves consistency with the desired character; the siting of the buildings is therefore of key importance. The definition of "desired character" then refers to the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape. It was implicit in the argument of Deakin Residents that the siting, bulk, scale and streetscape of the Further Amended Proposal would be both inconsistent with zone objective (e) for the purposes of C 36(a), and inconsistent with the separation of existing buildings for the purposes of C 36(b).
9. Objective (e) refers to the current neighbourhood and landscape character. The Authority described the subject site as located close to the Deakin Local Centre in a neighbourhood comprising a mix of land uses (residential, commercial, community and recreational) and with a range of building types. As to the RZ2 area in particular, this has undergone some redevelopment ranging from additions/alterations to existing dwellings to dual occupancy developments. It contains a mix of old and new dwellings in a range of styles and external finishes. Existing multi unit developments in the vicinity of the subject site are all dual occupancies, substantially larger than the original dwellings. The streetscape of this part of Gawler Crescent comprises a wide carriageway, wide verges with footpaths and regular street planting of evergreen mature trees. Existing developments have varying front setbacks, building heights and alignments to the street.[40] The Tribunal agrees with this description.
10. The Further Amended Proposal is as the Tribunal has noted for the construction of seven 2 storey, 3 bedroom units with basement garages, across 2 current blocks as set out in the plans which are Exhibit C6.
11. Deakin Residents emphasised that "the area surrounding the development is primarily single dwellings with the exception of a few dual occupancies where the upper level separations are generally 6 metres apart."[41] In effect Deakin Residents argue that the development would be inconsistent with the policy behind C 36 to restrict the overall scale and distribution of buildings on consolidated blocks.
12. In this regard, the Authority stated in its Notice of Decision:[42]
    • Although the proposed development is larger than the adjoining dwellings, the facades are well articulated both in the horizontal planes (including the roofline) to reduce its visual impact. This is achieved by varying setbacks, stepping the dwellings down with the fall of the land, changes in external materials and colour, building elements such as openings, canopies and fin walls which reduce the visual bulk of the buildings. The front facade is broken up into smaller building elements and proposed changes in material help reduce the scale of the façade. The spatial separation between the upper level building elements provide visual relief in the facade.
13. In her Statement, Ms Jamaly at paragraph 22 indicated that in her view the Further Amended Proposal "will clearly provide a high standard of residential amenity," that it will be "a significant improvement to the neighbourhood", and that it would not have "an 'unreasonable' negative impact". She stated that the street frontage is sympathetic to the existing streetscape.
14. The subject site has a street frontage of approximately 50 metres. Units 2-4 and units 5-7 will each have a facade 18.12 metres long.[43] As Ms Jamaly noted this is similar to:
    1. Block 1 Section 14 with a street frontage of approximately 40 metres and dual occupancy units 15.95 metres and 12.37 metres wide;[44]
    2. Block 6 Section 13 with dual occupancy units 17.1 metres and 17.4 metres wide;[45]
    3. originally a dual occupancy site and now subdivided as Blocks 21 and 22 Section 10 with frontages of 14.2 metres and 13 metres;[46] and
    4. single dwellings in the immediate neighbourhood with front facades between 17 metres and 20 metres wide.[47] There was evidence that the residence on Block 1 Section 47 had a facade to Fergusson Crescent of 25.47 metres.[48]
15. Mr Straw gave evidence for Turco. He has had extensive experience working for councils, including Gosford City Council and as General Manager of Snowy River Shire Council. He has been President of the ACT division of the Planning Institute Australia since 2010, is a principal planner for Tract, and a part time lecturer in planning at the University of Canberra. Mr Straw noted that there were a number of tools available to improve the external appearance of the building and reduce its apparent bulkiness. Separation is one. Another is articulation, that is setting back some parts of the building further from others and creating vertical lines. He noted that here the designers have articulated the building so that its front facade is broken up and have added some vertical lines so that it does not present a flat large surface. Yet another technique which has been utilised here is taking advantage of the streetscape and the existing well landscaped public domain and the shape of the land. Mr Straw stated that "the need to maintain a 4 metre distance between buildings is considered to be unnecessary to achieve the same level of streetscape amenity" and that the "bulk, imposition on the streetscape and character of the development are considered to be comparable to 2 alternative residential buildings". As the Tribunal has noted the purpose of C 36 is to address the scale of multi unit developments, and avoid one large building dominating a site. As Mr Straw has suggested, the Further Amended Proposal seeks to address this scale, and comply with C 36, by separation and other tools.
16. Mr Straw concluded:[49]
    • The development makes a positive contribution to the neighbourhood through: the redevelopment of a site that contains relatively old buildings close to the end of their economic usefulness, increasing residential density, potentially improving commercial opportunities, providing a wider range of residential opportunities within the suburb, refreshing the existing building stock and building to a scale that is not inconsistent with the height, bulk and appearance of surrounding buildings and fitting the buildings into the existing streetscape.
17. The Tribunal notes that the Further Amended Proposal, especially as it addresses the street, will be larger than buildings in the surrounding neighbourhood and that the separation will be limited to 2.8 metres at the ground level and 6.44 metres, or 2.8 metres in the Deakin Residents' submission, at the upper level. However, the neighbourhood already has a range of dwellings and a number of large building facades. The proposed separation will be at the current boundary between Blocks 10 and 11, and the current separation of the buildings on them, thus maintaining the original pattern of subdivision. The 2.8 metre separation is significant and is 70% of that required by R 36. Additionally, the Further Amended Proposal seeks to address its scale in a range of other ways in addition to the building separation, through articulation, varying setbacks, changes in external material, colour and building elements, and utilising the existing streetscape. Therefore, the Tribunal is of the view that the Further Amended Proposal will achieve a high standard of residential amenity, make a positive contribution to the neighbourhood and landscape character of the area and will not have unreasonable negative impacts on neighbouring properties, and hence is consistent with zone objective (e).
18. The Further Amended Proposal is also consistent with zone objective (f) which concerns opportunities for home based employment consistent with residential amenity, zone objective (g) which provides for a limited range of small-scale facilities to meet local needs consistent with residential amenity, zone objective (h) which is to promote good solar access, zone objective (i) which is to promote energy efficiency and conservation and zone objective (j) which is to promote sustainable water use, to the limited extent these are relevant to this issue.
19. In the Tribunal's view the Further Amended Proposal, in particular the siting of the buildings, will achieve consistency with the form of development provided for by the RZ2 zone objectives_._

(b) Consistency with the separation of existing buildings

1. The second requirement in C 36 is that the siting of buildings on single dwelling blocks in RZ2 achieves "consistency with the separation of existing buildings in the immediate neighbourhood".
2. Deakin Residents argue that dual occupancy developments should not be taken into account in this respect, since they are approved under a different code.[50] The Tribunal does not accept this argument. There is no limitation in C 36 to separations approved under the same code; nor is there any basis for an implication to this effect. The requirement relates simply to what exists in the immediate neighbourhood.
3. There was some discussion before the Tribunal as to whether regard could be had to the separation of existing buildings on adjacent blocks, or only existing buildings on single dwelling blocks. The Tribunal is of the view that the separation between existing buildings on adjacent blocks can be considered; this is consistent with the plain meaning of C 36(b), since there is no express limitation to existing buildings on single dwelling blocks; this is consistent with the purpose of C 36 which requires regard to what currently exists in the neighbourhood. Whilst as noted below the Tribunal therefore had regard to such separations, this was not determinative and the Tribunal would reach the same conclusion if these were ignored.
4. The Further Amended Proposal has a building separation of 2.8 metres at ground level and 6.44 metres of usable space at the upper floor. The Tribunal has noted above issues about this upper floor calculation. Ms Jamaly noted that this separation is similar to:

1. Block 1 Section 14 with dual occupancies separated 1.2 metres at ground floor level and 6.8 metres at the upper floor level.[51] 2. Block 6 Section 13 with dual occupancies separated 1.29 metres at the ground floor level and 13.5 metres at the upper floor level.[52]

1. Originally a dual occupancy site and now subdivided as Blocks 21 and 22 Section 10 with no separation, rather a two storey party wall.[53]
2. If regard is had to the separation between existing single dwellings in the immediate neighbourhood, in addition to Blocks 21 and 22 in Section 10, there are a number of buildings on adjacent blocks with very limited separation.
3. But Deakin Residents particularly emphasised that the separation at the upper level of the Further Amended Proposal is practically only 2.8 m, and this is significantly less than that of the dual occupancies mentioned above. Further, Mr Thwaites noted that the dual occupancy developments in question are each configured with substantial setback, do not impose a continuous bulk on the streetscape, and are at a 1.5 metre proximity only for the depth of one room and the height of one storey.[54]
4. In relation to setback between buildings, the Tribunal has noted these above. In relation to setback from the street, the Further Amended Proposal is approximately 7.6 metres at the upper end of the subject site and approximately 6.3 metres at the lower end of the site.[55] When considered in the context of the wide verges with footpaths, street planting, proposed planting, the front courtyards and revisions made to these in the Amended Proposal, the Tribunal considers these setbacks to be adequate and comparable to buildings in the neighbourhood.
5. The Tribunal has considered the issue of bulk and scale above and would repeat those remarks here.
6. The issue of depth needs to be considered. At ground level, the Further Amended Proposal provides for a separation between the buildings of 6.4 metres for a depth of 2.5 metres, and then 2.8 metres till the back courtyard area and then garden is reached. Attachment B to the statement of Ms Jamaly[56] shows that the limited separation between buildings on Block 1 Section 14 with dual occupancies extends for greater than one room. The separations between buildings in the area on adjoining blocks has greater depth than one room, see for example Blocks 21 and 22 Section 10. R 36 does not regulate depth, nor does it require the separation to be in a straight line; this suggests that depth is a lower order consideration.
7. A related issue considered at the hearing was the extent to which the separation could be viewed from Gawler Crescent. Ms Jamaly noted that the separation would not be evident unless a person stands directly in front of the subject site due to the curvilinear nature of the road and other issues; she suggested reducing the separation from 4 metres therefore would not make a significant difference.[57] Deakin Residents argued that these factors suggested a separation of less than 4 metres should not be allowed, since a lesser distance would make the separation less visible from the street.
8. Mr Straw noted that there is little consistency as to separation in the neighbourhood, and in particular with single domicile residential buildings, where outbuildings seem to be built up to the property boundary. He stated:[58]
   • Taking into account the inconsistency of adjoining side setbacks the imposition of a 4 m setback between these buildings is, in my view, unnecessary in order to achieve consistency with the separation of existing buildings in the area and would not add any value to the development or necessarily achieve a better planning outcome in the neighbourhood.
9. The Tribunal notes that there is clearly an issue about whether there will be consistency with the separation of existing buildings in the immediate neighbourhood. However, the separation proposed is significant, and has been expanded in the Further Amended Application to address the concerns of Deakin Residents. There is inconsistency in the immediate vicinity as to separation, with examples of limited separation between dual occupancies and adjoining single residencies. In the view of the Tribunal, the separation under the Further Amended Proposal will be consistent, and is compatible, with existing buildings in the neighbourhood.
10. Particular concerns about the upper level separation go to some extent to the bulk and scale of the building, which the designers have sought to address in other ways (see paragraph 54 above). The evidence of Mr Straw is that requiring a 4 metre separation in this case would not add any value. For these reasons the Tribunal thinks that the C 36(b) criterion has been met.
11. As the Tribunal has noted the purpose of C 36 is, within the overall objective of providing for 'a mix of single dwelling and multi-unit development' (zone objective (a)), to avoid 'one large building dominating a site', and make it in that way more consistent with the suburban character (see paragraphs 36 and 37 above). The Tribunal is of the view that the Further Amended Proposal is sufficient to meet this goal, and the requirements of C 36.

1. Deakin Residents contend that the Authority "should have properly considered the setback requirements of the development and the adverse impact on the privacy of adjoining blocks because of the size of the proposed development".[59] It points out that the decision of the Authority acknowledges that the Amended Proposal does not comply with some setback requirements, but none-the-less that the Authority approved it on the basis that there was either adequate spatial separation or adequate screening. There is concern that Block 8 Section 13 Deakin is to be overlooked by the proposed development, in particular the open space, including fruit trees, retractable clothes line and vegetable garden. The hedge adjoining Blocks 7, 8 and 9 is said to be in poor condition and over a drainage easement, and retaining it to provide privacy "cannot be justified". It is said that people on the deck of Unit 1, or looking through the windows with high sills, will still be able to see directly into the rear of Blocks 7, 8 and 9.[60]
2. The Authority notes several encroachments in relation to rules in the Multi Unit Code provided for in the Amended Proposal and Further Amended Proposal:
   • (a) a small part of the basement for Unit 7 is less than the required 3 metre setback from the eastern side boundary required by R 30 and Table A6. The Authority stated that this meets the criterion at C 30,[61] and the Tribunal agrees with this assessment. The Tribunal does not think this affects the privacy (C 30(c) and (d)) or amenity of adjoining owners;
   • (b) the western wall of bedroom 3 in Unit 1 and the adjoining front screened deck are less than the required 6 metres from the adjoining Block 13 required by R 30 and Table A 6. This issue was addressed to some extent by changes made in the Amended Proposal. The Authority stated that this meets the criterion at C 30 [62] and the Tribunal agrees with this assessment. The Tribunal thinks that there is still a reasonable separation (C 30(b)) and that this does not affect the privacy of the adjoining Block 13 (C 30(c) and (d));
   • (c) front courtyard walls are at a setback of 1.65 metres less than the 3 metres required by R 42(b)(ii). This issue was addressed to some extent by the Amended Proposal, including by deleting the courtyard walls parallel to the front boundary and replacing them with hedges, lowering the walls between the hedges, and increasing plantings. The Authority stated that this meets the criterion at C 42,[63] and the Tribunal agrees with this assessment; and
   • (d) part of the required 1 metre setback of the driveway is not planted to a width of 1 metre as required by R 73(c). The Authority stated that this meets the C 73 criterion,[64] and the Tribunal agrees with this assessment. The Tribunal thinks this allows reasonable residential amenity to Block 12.
3. In addition, the Amended Proposal and Further Amended Proposal provide for larger trees than originally planned and of an advanced stock in the rear yards. The Approval has a condition A1(a) requiring a 1.8 m high lapped and capped fence to be provided along the side and rear boundaries.[65] The Approval also has a condition that "unless agreed in writing by the relevant lessee, the existing hedges (shown on the Site Plan) along the common boundaries with Blocks 7 & 9 Section 13 Deakin (12 & 16 Fergusson Crescent) shall be retained and adequately protected during construction. Hedge protection fencing shall be erected prior to the commencement of any work on the site".[66] The issue of this hedge was contentious. Mr Giese suggested it was not a screening element.[67] But the Tribunal thinks that efforts should be made to retain it, if the neighbours request this, including the resident in Block 8. Therefore, the Tribunal proposes retaining condition B2 and extending it to the lessee of Block 8. In effect the hedge can be removed with the consent of the relevant adjoining lessees.
4. The Further Amended Proposal provides for a decrease in the side setback of Unit 7 from the eastern boundary at the ground floor level [68] from 3 metres as required by R 30 and Table A6 of the Multi Unit Code to 2.6 metres. The evidence was that this adjustment was made to enable widening of the separation between the buildings in the Further Amended Proposal, and that reducing the side setback was the preferred way of addressing this. The Tribunal is of the view that this satisfies the C 30 criterion. At the ground floor level the encroachment will be where there is no upper floor level and the setback increases to 4.5 metres towards the front of the block.[69] There will be the 1.8 metre fence, and possibly the hedge, between Unit 7 and the adjoining blocks. In the view of the Tribunal this will be a reasonable separation in the circumstances and will allow for the reasonable privacy for dwellings on the adjoining blocks and for the principal private open space on those blocks. The building on the subject site at present is itself close to this boundary.[70]
5. Particular concern was also raised in relation to the upper floor of Unit 7 and the privacy of Blocks 7, 8 and 9. Ms Jamaly[71] and Mr Giese[72] confirmed that the sill height of the windows at this level will be 1.7 metres above the finished floor level, which would prevent overlooking. Concern was also raised in relation to the upper level deck of Unit 1 which is not screened and faces Blocks 7, 8 and 9. However Unit 1 is a significant distance from Blocks 7, 8 and 9 and looks across Units 2, 3, 4, 5, 6, and 7.
6. The Tribunal is mindful that the residents of Blocks 7, 8 and 9 will look beyond the proposed 1.8 m high lapped and capped fence, and possibly the hedge if visible, to the new development, in particular Units 1 and 7. The Tribunal acknowledges the concerns of Deakin Residents in this regard, in particular Mr Bell who gave evidence of these. However this of itself does not make the Further Amended Proposal inconsistent with the Multi Unit Code. Therefore the Tribunal agrees with the decision of the Authority on these issues, and applies it to the Further Amended Proposal.
7. The Tribunal has concerns about the operation of Schedule 1A, Pt 1A.2 of the Planning and Development Regulations 2008 (ACT) (the Planning Regulations) in relation to permitted construction tolerances in this case. Regulation 1A(2)(b) allows for the buildings to be built 0.34 metres closer to the side boundaries than provided for in the Further Amended Proposal. Given the case before it, the Tribunal would be concerned about such a further reduction in the side setbacks. The Tribunal notes however that any encroachment towards the eastern boundary would require construction of building over an existing easement, and is not of such likelihood that the Further Amended Proposal should be refused approval on that basis alone.

1. Deakin Residents argue that the Authority was wrong in approving the removal of a regulated tree (Tree 19; Eucalyptus bicostata; which is near Gawler Crescent and the boundary between Block 10 and 11 Section 13, close to the existing buildings and other trees). The Applicant also argues that the Authority was wrong in approving the amended landscaping plan.[73]

1. Drawing no. C104 submitted with the original DA shows an "existing tree to be retained" on or near the boundary between Block 10 and Block 11.[74] Drawing no. C102 shows this tree with the note "install tree protection fencing".[75] The site plan at DA100 refers to this tree as a "regulated" tree.[76] The tree management plan at DA110 gives this tree the number 19.[77] This is the only tree shown to be retained and protected. All other trees on the site are shown to be removed.
2. On 16 May 2014, the Authority referred the DA to the Conservator of Flora and Fauna (the Conservator) requesting consideration of it and written advice. The Conservator's advice to the Authority dated 28 May 2014 was that the proposal "may be approved on development grounds by ACTPLA. The proposed works are likely to kill the only regulated tree proposed to be left on the block located in the front yard. There were no grounds under the Tree Protection Act 2005 (the Tree Protection Act) to approve the removal of this young (only just regulated due to height) Eucalyptus bicostata. All other trees on the blocks have been approved for removal by the Conservator". The Conservator also stated that the Eucalyptus bicostata is "a Schedule 2 tree and if it survives the works will grow up to damage the courtyard walls". The Conservator also comments on the landscaping plan as follows: "the proposed trees are grow (sic) to a size smaller than many shrubs and will not soften the development".[78]
3. Tree 19 meets the definition of a regulated tree in s 10 of the Tree Protection Act. A regulated tree is a protected tree as defined in section 8 of the Tree Protection Act. Section 25 of the Act provides that "within 30 days after the conservator receives the application, the conservator must decide whether to approve the activity to which it relates". In making a decision on the application "the conservator must have regard...to the approval criteria". Criterion 1(2) of the Tree Protection (Approval Criteria) Determination 2006 (No 2) states that the Conservator may give approval to remove a regulated tree "if the tree is located on a block of less than or equal to 1200m2 and is a species listed in Schedule 2". The subject site has an area greater than 1200m2. Schedule 2 is a list of problematic tree species for the purposes of criterion 1(2) and includes Eucalyptus bicostata.
4. The Conservator provided further advice on 24 and 25 July 2014. On 24 July the Conservator wrote to the Authority that "this tree is very tall and skinny...it doesn't meet any criteria for removal under the Tree Protection Act but could be removed under the provisions of the Planning Act as it is not significant in the landscape".[79] On 25 July the Tree Protection Officer wrote to the Conservator as follows:

I believe I have made it quite clear that there are no grounds under the Tree Protection Act 2005 to remove the Eucalyptus bicostata...It is situated in the front yard next to proposed courtyard walls. With the level of proposed development there is a more than 50% chance that the tree will die. It is only just regulated and is easily replaced with another tree with minor affect (sic) to the landscape, as everything else on the blocks is approved for removal and will be removed. A young tree will grow to the size of this one in a couple of years - depending on the species.[80]

1. Sections 119 and 120 of the Planning Act provide requirements for the assessment of development applications in the merit track and make specific reference to advice provided by the Conservator. Section 119(1) is set out above at paragraph 24 and states that development approval must not be given unless the proposal is consistent with, if the proposed development will affect a registered tree or declared site, the advice of the Conservator in relation to the proposal.
2. Sections 119(2) and (3) then state:

_(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.

1. A registered tree is defined in the Tree Protection Act as a "tree that is registered (or provisionally registered) under Part 7 (Registration of trees)". The Conservator has not advised that the Eucalyptus bicostata is a registered tree. The Notice of Decision stated that "this decision approves the removal of the Eucalyptus bicostata tree and therefore, the decision is inconsistent with the Conservator's advice in relation to this tree. However, pursuant to section 119(2) of the Act, I have considered the advice received as well as the relevant guidelines and any realistic alternative to the development proposed or aspects of it. A decision to approve this application is consistent with the object of the Territory Plan, in that, the removal of this tree will allow for efficient use of the site".[81]
2. Section 119(2)(b) of the Planning Act requires that the decision is consistent with the objects of the Territory Plan. It is not completely clear what this is referring to. The object of the Territory Plan is broadly stated in section 48 of the Planning Act as "to ensure...the planning and development of the ACT provide the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation". The Tribunal considers that neither retention nor removal of the tree will conflict with this object, nor with the relevant RZ2 zone objectives.
3. Section 119(2) of the Planning Act also requires consideration of "any applicable guidelines". The Tribunal was not referred to any such guidelines, and Ms Jamaly stated that there were none.[82] On behalf of Deakin Residents, Peter Wurfel at Attachment E, page 6 of his witness statement noted that the decision was made "without any apparent consideration of alternative proposals that could involve retention of the tree. The sole criterion 'efficient use of the site' has not been defined, and can only be justified if design alternatives have been considered".[83]
4. The Tribunal considers that Mr Wurfel is correct and that there is no evidence of any alternative proposals being considered by the Authority. Ms Jamaly told the Tribunal that "there is no realistic alternative but removal of the tree because construction of the courtyard wall of Unit 4 and possibly Unit 5 and the services and paving are important for the amenity and efficient use of the space and depend on removal of the tree." [84] The Tribunal does not consider this statement sufficient to support the claim by the Authority that it had considered "any realistic alternative to the development proposed". As noted, the Original Proposal provided for the retention of this tree. This suggests that the retention is a realistic alternative. In particular, the Tribunal does not believe that sufficient, if any, consideration has been given to modifying the design of the front areas of Unit 4 and Unit 5 so that the regulated tree may be adequately protected during construction and form part of the completed design. It is noted that in Amarso Pty Ltd v ACT Planning and Land Authority (2012) ACAT 9 three alternative designs which saved the regulated trees were investigated.[85]
5. The Tribunal does not accept the comment of the Conservator that the Eucalyptus bicostata is "not significant in the landscape". This is the only tree on the subject site where consideration has been given to retention. Nor does the Tribunal agree with the Tree Protection Officer that it is "easily replaced with another tree with minor affect to the landscape" or that "a young tree will grow to the size of this one in a couple of years". The Tribunal is of the opinion that Tree 19 is a major element of the streetscape when viewed from many directions. At the site view on 26 March, the Tribunal noted the significant crown of Tree 19 and noted also that its height is almost equal to that of the street trees immediately outside the subject site.
6. The Tribunal is of the view that the requirements in s 119(2) have not been properly addressed by the Authority in its decision to allow the removal of the regulated Tree 19. It is the opinion of the Tribunal that retention of the regulated tree will contribute significantly to the landscape quality of the subject site and the immediate environment of Deakin.
7. Accordingly, the Tribunal varies the decision of the Authority to remove the approval of the removal of Tree 19. The Tribunal has also imposed a condition requiring and the submission of plans showing means by which the tree will be protected during construction and after completion of the works.

1. Criterion C 43 of the Multi Unit Housing Development Code requires that air conditioners and a number of other external facilities are screened or adequately separated from public areas. Mr. Giese told the Tribunal that he would accept a condition that air conditioning units not be visible from the street. Accordingly, the Tribunal has imposed a condition that the plans submitted for approval in paragraph 93 above show also the location of all air conditioning units, none of which are to be visible from Gawler Crescent.
2. Deakin Residents also question more generally the landscaping designs for the subject site. The original landscaping plan was criticised in a range of submissions[86] and Mr. Wurfel stated that the Authority "has ignored submissions from landscaping professionals". The Authority commented on the Original Proposal as follows:[87]

The proposed development does not maintain a high-quality landscape setting in that all existing vegetation on the block including regulated trees is to be removed and replaced with minimal planting. All proposed trees are deciduous and small. Plant spacing is also not adequate.

1. In the Amended Proposal the landscaping plan was significantly revised. It provided for larger trees both in the front and rear yards; the number of new trees in the front yard was increased from 3 to 10; all new trees are to be of advanced stock; the extent of hedge planting along the front boundary was increased; the spacing of all hedge planting was revised to allow for a maximum 900 cm; the retention of existing hedges was provided for (see paragraph 75 above).[88] The Further Amended Proposal maintains this approach.
2. Criterion C 40 of the Multi Unit Code deals with landscape design. In the Tribunal's view the criterion set out there will be adequately addressed with the lodgement for approval of a final plan of landscaping which shows in detail the retention of the regulated tree and modification of the surrounding areas as noted above.

1. Deakin Residents also contend that the Authority "did not properly examine the traffic and parking problems the development would cause in Gawler Crescent with the proximity of three educational facilities".[89] The significant congestion around Gawler Crescent, Hopetoun Circuit and Fergusson Crescent in school hours, including by school buses; the number of bus routes using Gawler Crescent; the limited on-street parking and at Deakin shops were noted, amongst other factors.[90]
2. Ms Jamaly noted that Gawler Crescent is a minor collector road with a carrying capacity up to 3,000 vehicles per day. The most recent survey conducted in September 2012 indicated weekday traffic of about 1,400 vehicles per day. The Further Amended Proposal is expected to generate an additional 42 vehicles per day.[91]
3. The Further Amended Proposal provides for parking of 15 vehicles for residents and 2 vehicles for visitors, and is in accordance with the Parking and Vehicular Access General Code (the Parking Code).[92] Deakin Residents did not dispute this. It was not suggested that the Further Amended Proposal was inconsistent with the Parking Code. The Proposal will allow cars to enter and exit efficiently and safely without reversing; it will also allow residents to walk to the Deakin shops and schools.
4. Mr Straw noted that Gawler Crescent is relatively wide, and the intersection has good sight distance. On the day he visited the site the local road network was relatively uncongested and vehicles moved along the street at relatively high speeds with significant distances between them.[93] But Mr Straw only visited the site on one day.
5. The Tribunal does not doubt that school traffic in the area is at times congested, including by school buses. But the Tribunal does not regard it as appropriate to ask the Further Amended Proposal to address this issue. Otherwise, the Further Amended Proposal provides significant parking for residents and visitors, is consistent with the Parking Code and Multi-Unit Code, and Gawler Crescent is operating well below capacity. The Tribunal therefore does not consider this issue provides a basis for rejection of the Further Amended Plan.

1. The Tribunal has considered above the issues raised by Deakin Residents relevant to section 119(1)(a) and (2) of the Planning Act in the context of the Authority's consideration of the Amended Proposal, and the Tribunal's consideration of the Further Amended Proposal. The Authority considered section 119(1)(a) more generally,[94] and no additional basis was put to the Tribunal to suggest that this assessment was incorrect in relation to the Amended Plan and the Further Amended Plan. The Tribunal notes that the right of review in these circumstances is only to the extent that the development proposal is subject to a rule, and does not comply with the rule, or no rule applies to the development application.
2. For completeness the Tribunal also notes that section 120 of the Planning Act requires that in deciding a development application for a development proposal in the merit track, the decision maker must consider further matters:

(a) paragraph (a) refers to the objectives for the zone in which the development is proposed to take place. This was considered by the Authority[95] and has been considered generally by the Tribunal;

(b) paragraph (b) concerns the suitability of the land for a development of the kind proposed. The Authority regarded the land as suitable,[96] and the Tribunal agrees with this;

(c) paragraph (c) relates to an opinion of environmental significance and is not relevant;

(d) paragraph (d) refers to representations received by the Authority in relation to the application. The issues raised by Deakin Residents before the Tribunal are found in some of these representations. The Tribunal has considered these representations in relation to the requirements in section 119, and more generally under section 120, and does not think that they provide a basis for refusing the Further Amended Proposal. The Authority considered all the representations,[97] as has the Tribunal;

(e) under paragraph (e) if an entity gave advice on the application in accordance with section 149 the entity's advice must be considered. The Authority considered the advice of the Conservator[98] and the Tribunal has also done so;

(f) paragraph (f) relates to public land and is not relevant; and

(g) paragraph (g) refers to the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts. The Authority considered this issue,[99] as has the Tribunal.

1. Section 50 of the Planning Act provides that a territory authority must not do any act, or approve the doing of an act, that is inconsistent with the Territory Plan. A territory authority includes the Authority and the Tribunal.[100] The operation of this provision was recently considered by the Supreme Court in Baptist Community Services v ACT Planning and Land Authority and Ors [2015] ACTCA 3. No issue under the Territory Plan, additional to those noted above, was identified by the Authority or by Deakin Residents.

1. The Tribunal therefore varies the decision under review, to approve the development application in relation to the Further Amended Proposal, except in relation to the removal of Tree 19, and with some variations of the conditions.

[1] Exhibit R1, Application Number 201425446, T documents pages 414-495

[2] Exhibit R1, T documents pages 392-404

[3] Exhibit R1, Request for information, T documents pages 265-268, and Statement of Findings by the Authority, 15 December 2014, T documents page 90

[4] Exhibit R1, Application Number 201425446S144B dated 4 October, 2014, T documents pages 199-234

[5] See also section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACT)

[6] Sections 407, 408A and Schedule 1, item 4, of the Planning Act. Deakin Residents made a representation under section 156, see Exhibit R1, T documents pages 315-321

[7] Exhibit C 6 and Application for Interim or Other Orders - General made by Turco to the Tribunal on 6 March 2015

[9] This course was undertaken in Walkington and ACT Planning and Land Authority [2010] ACAT 81, based on the reasoning and authorities set out there

[10] Exhibit R1, T documents within pages 312-341

[11] Exhibit R1, T documents pages 51-89

[13] Walkington and ACT Planning and Land Authority [2010] ACAT 81 at [3]; Finlayson v ACTPLA [2009] ACAT 35 at [61]

[14] Summarised in Exhibit R3. the Statement of Ms Jamaly, at paragraph 7, dot points 3, 4 and 5

[15] Application for Interim or Other Orders - General made by Turco to the Tribunal on 6 March 2015

[16] Amarso Pty Ltd v ACT Planning and Land Authority [2012] ACAT 9 at [19]

[17] Territory Plan, Territory Plan Map

[18] Exhibit R1, Assessment Reports, T documents page 126

[19] Other relevant codes applying to the Further Amended Proposal include the Parking and Vehicular Access General Code the application of which is discussed later in these reasons

[22] Pages 1-2. See also Pt 1.1 of the Territory Plan, entitled Governance, page 6

[23] Exhibit R1, Additional Information Required, T documents page 266

[24] Exhibit R1, Notice of Decision, T documents page 63

[25] Exhibit R1, Additional Information Required, T documents page 266

[26] Exhibit R1, Notice of Decision, T documents page 62

[27] Exhibit R1, Notice of Decision, T documents page 62; see also T documents pages 212, 213 and 215

[29] Legislation Act 2001 (ACT), section 140

[30] Legislation Act 2001 (ACT), section 139

[31] Regard can be had to the Explanatory Statement and this document under sections 141 and 142 of the Legislation Act 2001 (ACT), and to determine the purpose of the Multi Unit Code provisions

[33] Exhibit C5, Report dated 6 March 2015, page 3

[34] Refshauge and Penfold JJ at [48] and [62], Burns J agreeing at [79]

[35] Friends of Maua Bay Inc v Perkins (2014) 203 LGERA 14 at [42]-[43]; Macquarie Dictionary Online

[36] Exhibit R3, Statement of Ms Jamaly, paragraph 20

[37] Exhibit A3, Statement of Mr Thwaites, page 2

[38] Exhibit R1, Notice of Decision, T documents pages 62, 91 and 92

[40] Exhibit R1, Notice of Decision, T documents pages 19-20

[41] Deakin Residents Statement of Facts and Contentions, page 5

[42] Exhibit R1, Notice of Decision, T documents page 60

[43] Exhibit R3, Statement of Ms Jamaly, paragraph 27. See also Exhibit C 6

[44] Exhibit R3, Statement of Ms Jamaly, paragraph 29

[45] Exhibit R3, Statement of Ms Jamaly, paragraph 30

[46] Exhibit R3, Statement of Ms Jamaly, paragraph 30A

[47] Exhibit R3, Statement of Ms Jamaly, paragraph 31

[50] Exhibit A3, Statement of Mr Thwaites, page 3

[51] Exhibit R3, Statement of Ms Jamaly, paragraph 40

[52] Exhibit R3, Statement of Ms Jamaly, paragraph 41

[53] Exhibit R3 , Statement of Ms Jamaly, paragraphs 30A and 41A

[54] Exhibit A3, Statement of Mr Thwaites, page 3

[59] Deakin Residents Statement of Facts and Contentions, paragraph 18

[60] Exhibit A4, Statement of John Bell, pages 2-3

[61] Exhibit R1, Notice of Decision, T documents page 63 and Statement of Findings, T documents page 92

[62] Exhibit R1, Notice of Decision, T documents page 63 and Statement of Findings, T documents page 92

[63] Exhibit R1, Notice of Decision, T documents page 64 and Statement of Findings, T documents pages 92-93

[64] Exhibit R1, Notice of Decision, T documents page 64 and Statement of Findings, T documents page 93

[65] Exhibit R1, Notice of Decision, T documents page 14

[66] Condition B2, Exhibit R1, Notice of Decision, T documents page 15

[69] Exhibit C4, Statement of Mr Giese, page 3; Exhibit C 6, Site Plan

[73] Deakin Residents Statement of Facts and Contentions, paragraph 19

[82] Exhibit R3, Statement of Ms Jamaly, paragraph 65

[83] Exhibit A2, Statement of Mr Wurfel

[84] Exhibit R3, Statement of Ms Jamaly, paragraph 65

[86] Exhibit R1, T documents pages 324, 332-333, 340

[88] Exhibit R1, Notice of Decision, T documents page 58

[89] Deakin Residents Statement of Facts and Contentions, paragraph 20

[90] Exhibit A2, Statement of Mr Wurfel, Attachment F pages 7-8

[91] Exhibit R3, Statement of Ms Jamaly, paragraph 76

[92] Exhibit R1, Statement of Findings, T documents page 93

[94] Exhibit R1, Statement of Findings, T documents pages 91-93

[95] Exhibit R1, Statement of Findings, T documents pages 91

[96] Exhibit R1, Statement of Findings, T documents pages 93-94

[97] Exhibit R1, Statement of Findings, T documents page 94

[98] Exhibit R1, Statement of Findings, T documents page 94

[99] Exhibit R1, Statement of Findings, T documents page 95

[100] Legislation Act 2001 (ACT) 2001, s 2 and Dictionary. The Authority and the Tribunal have not been excluded by regulations