List of legislation: Planning and Development Act 2007, ss 50 120 121 and 146

- RZ2 - Suburban Core Zone - Zone Objectives

- Residential Zones - Multi Unit Housing Development Code, Rules 15, 89 and 90; and Criteria 54, 87, 89, 90 and 94

List of cases: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226

Griffith/Narrabundah Community Association Inc and ACT Planning & Land Authority [2005] ACTAAT 34

Raphael & ACT Land and Planning Authority [2009] ACAT 35

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

Zhang v Canterbury City Council [2001] NSWCA 167

List of Texts/Papers: ACT Planning and Land Authority, Griffith Neighbourhood Plan

1. The decision under review is varied by approving the Development Application subject to the submission of new drawings showing revised paths within the development that allow passage of wheelchairs and like devices to pass, to the satisfaction of the ACT Planning and Land Authority.

In AT10/120, Mr John Edquist and Ms Deborah Price have sought review of a decision of the ACT Planning and Land Authority ("the respondent") made on 3 December 2010 to approve, subject to conditions, Development Application ("DA") 201018065. During the respondent's consideration of the proposal, GAP No 2 ("the developer") lodged revised plans under section 144(C) of the Territory Planning and Development Act 2007 ("the Planning Act") and again under section 144(d) of that Act, but these changes were not re-notified on the grounds that the changes were minor and would improve the quality of the development.

As amended, the proposal sought approval to: * the demolition of existing single dwellings on blocks 2, 3, 4, 5, and 6 of section 75 in the division of Griffith; * the erection of 31 units in four blocks of single storey buildings and four blocks of 2 storey buildings comprising of seventeen 1 bedroom units, ten

2 bedroom units and four 3 bedroom units; * the construction of two basement car parks; * the construction of two new driveway verge crossovers; and * associated landscaping, paving and other site works.

The site in question comprises a row of adjacent blocks, each having on it a red brick cottage, on Stuart Street opposite the Griffith Shops. These blocks fall within the RZ2 Suburban Core zone and decisions about development on them are subject to the relevant provisions of the Planning Act, the RZ2 Zone Suburban Core Objectives and Development Tables and to the Residential Zones - Multi Unit Housing Development Code ("the MUHD Code") of the Territory Plan 2008 ("the Territory Plan").

In AT 10/121, Mr Edquist and Ms Price have sought review of a separate decision of the respondent, made on 8 December 2010, to approve DA 201017954 seeking consolidation of the five blocks identified in paragraph 2 above and the variation of the subsequent Crown Lease to permit 31 dwellings on it. Their grounds for seeking review were the same as those for matter AT10/120. Consequently, on 19 January 2011, Presidential Member Spender directed that the two matters be heard together. No separate evidence was given nor were submissions were made in respect to matter AT10/121. A decision in relation to it and the reasons there for are given below.

The developer, GAP No 2 Pty Ltd, was joined as the first party in both matters.

Ms Vanessa Hawes, a resident of an adjacent property, was joined as the second party in matter AT10/120, but was not joined in AT10/121. Her contentions and submissions were essentially similar to those of the Applicants, although she was particularly concerned about the potential impact on her amenity arising from the driveway and refuse enclosure adjacent to her residence. Ms Hawes witness statement of 11 March 2011 was tendered as Exhibit 1, but she was not called to give oral evidence nor for cross examination.

1. By the time this matter came on for hearing, the Territory Plans had again been altered to replace the four 3 bedroom units with four 2 bedroom units, that is, the four 3 bedroom units were reduced to 2 bedroom units. This was done as the original proposal was found to have exceeded the allowable plot ratio of 50%. Rule R15 of the Code, which is mandatory, states:

On a standard block (or a block resulting from the consolidation of these blocks), the maximum plot ratio does not exceed 50%, except for dual or triple occupancy housing, where at least one dwelling does not directly front a public road from which vehicular access is permitted, the plot ratio does not exceed 35%.

1. This change to the Territory Plans then raised the issue as to whether this should have been regarded as a new application. The approved plans show the 3 bedroom townhouses. The revised plans tendered at the hearing have reduced those to 2 bedrooms, and the size of each has been reduced from 116m2 to 102.1m2.

2. The Tribunal has previously considered this issue in Walkington and Ors and ACT Planning and Land Authority [2010] ACAT 81. This Tribunal is not bound by a decision of an earlier Tribunal, but unless good reason can be shown as to why a later Tribunal should depart from the reasoning of an earlier Tribunal, it is in the interest of certainty in administrative decision making that decisions be consistent. In any event, the reasoning of the Tribunal in Walkington is persuasive and this Tribunal has no difficulty in following it.

1. The revised plans removed an entire category of housing from the proposed development, namely the 3 bedroom units, but replaced them with 2 bedroom units on the same sites. Section 144 of the Territory Planning Act states: * (1) The Territory Planning and land authority may, if asked by the applicant, amend a development application.

• (2) However, the Territory Planning and land authority must not amend the development application unless satisfied that -

• (a) The development applied for after the amendment will be substantially the same as the development applied for originally; and * (b) The assessment track for the application will not change if the application is amended.

3. As this Tribunal stands in the place of the respondent, we must decide whether the development applied for will be substantially the same as that originally applied for and whether its assessment track would change as a result of the amendments proposed. We consider that the development, as amended, will be substantially the same as that originally applied for and that there will be no change in the assessment track that applies. Consequently, we can amend the DA as provided in section 144(3)(a).

1. This then brings sections 145 and 146 into play. Section 145 applies if the proposal was referred to an entity before its amendment and that is the case here as the proposal was referred to several government agencies for comment. Section 145(2) requires a further referral to the entity unless (section 145(4)) the Territory Planning authority is satisfied that the proposed amendment does not affect any part of the application in relation to which the entity made a comment. In this case, we are satisfied that the amendments do not affect the proposal in any way about which any entity made a comment and that there is, therefore, no need for a fresh referral.

4. Under Section 146 (2) the Territory Planning authority must publicly notify an amended proposal if the original proposal was publicly notified, and that is the case here. However, under section 146(3)(a), the Territory Planning authority may waive this requirement if satisfied that no-one other than the applicant, (that is, the developer), will be adversely affected and that the environmental impact caused by the approval of the amendment will do no more than minimally increase the environmental impact of the development. While we are satisfied that there will be no change in the environmental impact, we need to consider whether anyone other than the developer will be adversely affected by it. If not, there would be no need for further public notification.

5. The Applicants contended that they were adversely affected by the amendment. The argument put forward on this relates to Criterion 87 of the MUHD Code, which states:

Where a Neighbourhood Plan exists, development demonstrates a response to the key strategies of the relevant Neighbourhood Plan.

There is a Griffith Neighbourhood Plan ("the GNP") which was issued in September 2004. It has something for everyone. Other than as a means of confusing anyone who tries to interpret the Territory Plan it is difficult to understand the purpose of the GNP. The GNP has not been updated and, unhelpfully, refers to the Territory Plan in force as at 2004.

The Griffith Neighbourhood Plan guides this established garden suburb as it meets the challenges of both contemporary life and those that are predicted to arise over the next fifteen years.

This document is, therefore, expected to still be relevant up to 2019. The current Plan began in 2008, and there is a draft variation now released which, if implemented, will make changes that may directly affect Griffith.

1. Part D of the GNP is entitled Griffith in the future. According to the GNP the future character is driven by a neighbourhood vision as follows:

Planned by Walter Burley Griffin in 1918, Griffith will remain a peaceful, attractive, safe, accessible neighbourhood focused on a central park, which gives it a unique identity. The historical significance and garden suburb character of its streetscapes, open spaces and single storey residential buildings will be valued. Griffith will offer lifestyles suitable for all age groups and well utilised, centrally located, mixed use community facilities. It will have unique and vibrant commercial centres. Griffith will be recognised as an original garden city suburb and its unique character will be respected.

It is difficult to imagine a statement that matches this "vision" for its ability to feel good and say nothing. Things may be "valued", but considering the changing nature of the Territory Plan that does not mean they will not change, perhaps, substantially. The commercial centres will be "unique", but in comparison to what other centres, they will be unique is left unsaid. Manuka commercial centre has some similarities to Kingston; Griffith local centre has some similarities to Narrabundah and Red Hill. The Shorter Oxford Dictionary (OUP 1973) defines "unique" as:

1. Of which there is only one; one and only; single, sole, solitary. 2. having no like or equal; superior to or different from all others; unparalleled, unrivalled.

The Tribunal is required, as was the respondent, to take the GNP into account, but that does not mean that the GNP is at all helpful or that it can easily be integrated into a planning decision

1. The Applicants referred to the following passage in the GNP:

• Provide a diversity of housing choice for singles, couples and families of different sizes and ages in appropriate locations.

• Promote high-quality residential development that is sympathetic to the existing garden suburb neighbourhood character in terms of scale, form and landscape setting.

1. The argument from the Applicants was that the diversity of housing in the proposed development had been reduced. We do not accept that argument. The key strategy does not require that any one development must have diversity, but that residential areas as a whole should provide diversity. This development will provide that diversity, as it is a unit development of 1 and 2 bedroom units. The current housing stock in the area is largely single residences on large blocks with 3 or more bedrooms.

2. The Tribunal does not accept that the Applicants are adversely affected by the amendment, as the proposed development is so similar to the approved plans as to be almost indistinguishable. That does not end the matter, because we also have to consider any other person who may be eligible to object would be adversely affected. For the same reasons that we do not consider that the Applicants are adversely affected, we do not consider that any other person would be adversely affected.

3. As a result of these considerations, we conclude that the amended proposal does not need to be publicly notified again and under section 146(3) of the Planning Act, we waive the requirement of section 146(2).

1. The matter was first heard on 12, 13 and 14 April and resumed on 24 and 27 June 2011. The Tribunal viewed the site and surrounding neighbourhood in the presence of the parties and their representatives on 12 April 2011. The applicants and the second party joined were represented by Mr C Erskine SC of counsel; the respondent was represented by Dr D Jarvis of counsel; and the first party joined was represented by Mr P Walker of counsel.

2. The first witness called was Mrs Christine Purdon, a qualified urban planner and Fellow of the Planning Institute of Australia and Director of Purdon Associates Pty Ltd, who gave evidence for the Applicants and the second party joined. Next was Mr Greg Garrett, an Assessment Officer with the respondent. Mr Garrett had not been the assessing officer for this matter, but had reviewed the file. Finally Mr Paul Tilse, a director of GAP No 2 Pty Ltd and of Paul Tilse Architects, the architect of the proposed development; and Mr Paul Cohen, an experienced and qualified urban and regional planner who is a Fellow of the Royal Australian Planning Institute and Director of Campbell Dion Pty Ltd gave evidence on behalf of the first party joined.

1. The main focus for the Applicants case was with respect to the Zone Objectives. The RZ2 - Suburban Core Zone objectives are:

a) Create a wide range of affordable and sustainable housing choices to accommodate population growth and meet changing household and community needs

b) Ensure that development addresses the street and the existing neighbourhood characteristics in scale, form and site development

c) Facilitate efficient use of existing social and physical infrastructure and services in residential areas close to commercial centres

d) Provide opportunities for home based employment consistent with residential amenity

e) Provide for a limited range of small-scale facilities to meet local needs consistent with residential amenity

f) Promote energy efficiency and conservation and sustainable water use

1. As is usually the case in planning matters the main focus is never left as a lonely issue. Other issues relating to compliance with the MUHD Code were also raised, and we will deal with those first.

1. The first issue is the front setback. The set back required by Rule R54 of the MUHD Code is 6 metres. Most of the proposed development meets that Rule, but each unit has a fin wall that protrudes 600mm forward of that line. This Rule is not mandatory, and there is a Criterion 54 of the MUHD Code which states:

b) provides for the most efficient use of the site

c) will not significantly compromise the amenity of residents of the proposed building and residents of adjoining and adjacent dwellings

d) is related to the height of the building and to the width of the street to ensure pedestrian scale at street level

e) space is provided for street trees to grow to maturity

f) parking and garages do not dominate the frontage of the development.

1. Mrs Purdon's evidence was that the criterion is not met as the existing streetscape character of the surrounding area is partially defined by the front setbacks many of which are greater than 6 metres. Mrs Purdon also referred to the GNP, but as we have observed above, that is a document that assists all who read it. Amongst other things the GNP states:

Maintain and enhance the existing street pattern by ensuring buildings relate to the street rather than detract from it.

Identify, recognise and protect the qualities that establish the neighbourhood's South Canberra suburban identity and distinctive character as a Garden City planned suburb.

The faces of buildings should be articulated and avoid continuous "walls of development" (i.e. long, uninterrupted and unbroken building frontages produced by redevelopments).

Good design delivers a density appropriate for a site and its context, in terms of floor space yields (number of residents and functions). Appropriate densities are sustainable and consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality.

1. While there is something for everyone in these statements, that does not assist us when dealing with the issue of setbacks. Mr Cohen simply made the point that the fin walls are ornamentation, and that they satisfy the Criteria. We accept his evidence in that regard.

2. The side and rear setbacks comply with Rules R55 and R56 respectively and, therefore, pursuant to Section 121(2) of the Planning Act, those issues are not open to review.

3. Private open space ("POS") was also an issue. Rule 90 of the MUHD Code states:

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

b) not forward of the building line except where permitted by, and illustrated in, an approved estate development plan

(i) not to the south, south-east or southwest of the dwelling, or

(ii) to maintain a minimum three hours sunlight onto 50% of the ground between the hours of 9:00am and 3:00pm on 21 June (winter solstice)

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

1. The POS for each unit is forward of the building line and as there is no approved estate development plan, is therefore in breach of Rule 90, although that Rule is not mandatory. Criterion 90 states:

a) Private open space is capable of enabling an extension of the function of the dwelling for relaxation, dining, entertainment and recreation

b) Private open space forward of the front building line ensures the amenity of the private open space and the dwelling is protected whilst maintaining opportunities for passive surveillance.

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

1. The proposed units face north-east. While Mrs Purdon considered that the POS forward of the building line was not appropriate, we have noted the evidence of Mr Garrett and Mr Cohen. Both those witnesses concluded that while the Rule was not met, the Criterion was well met, and in particular, as regards to solar access. Mrs Purdon also had concerns as to the privacy of these areas. The latest landscape plans show more mature bushes being planted in these places, and Mr Cohen regarded that as sufficient. We accept and Mrs Purdon agreed at hearing, that the plantings would provide sufficient privacy.

1. A further aspect of the POS is the size of the areas. The issue is that the area is meant to be at least 6 metres by 6 metres. This is a requirement of Rule 89 of the MUHD Code, however this is again not mandatory and Criterion 89 states:

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

1. Again the witnesses disagreed. Mrs Purdon considered that the characteristics of the people who may occupy the units is unknown, and, therefore, it is unsafe to allow this, as families with children, in particular, would not be suited to the development. As the development is now only to be 1 and 2 bedroom units, that would appear to us to be less relevant. We accept the evidence of Mr Garrett and Mr Cohen that the dimensions of the POS satisfy the Criterion.

2. Common areas are also a point of contention. Mrs Purdon pointed out that some of the paths do not seem to meet Criterion 94 of the MUHD Code. There is no Rule. The Criterion states:

Common areas, including driveways and access/internal roads, are designed to have clear function, provide equity of access and ensure high levels of residential amenity of all dwellings.

1. Mr Garrett considered that, while the path between Blocks E and F was narrow at 1.32 metres, nevertheless it was adequate as there was a passing space. We do not consider that such a passing space, akin to an overtaking lane, is appropriate. It will be a condition of an approval that it can be demonstrated that the paths are adequate for wheeled devices, such as chairs and personal mobility devices, to be able to pass adequately along the paths within the development.

1. As said above the first major issue for the Applicants was whether the Zone Objectives (ZO) had been met. Section 120 of the Planning Act requires a decision make dealing with a development proposal in the merit track to consider, inter alia, the objectives for the zone in which the development is to take place. Those objectives are set out above in paragraph 20. Mr Garrett's evidence was that he had not done an independent assessment of the ZO. Mrs Purdon and Mr Cohen did deal with the ZO and, in particular, Mrs Purdon dealt with the issues in considerable detail.

2. ZO (a) uses the adjectives "affordable" and "sustainable" without defining either. Mrs Purdon gave evidence that "affordable" commonly refers to housing where the lowest 40% of income earners pays no more than 30% of that income on housing. However, as the term is not defined in the Territory Plan, we are left to ponder to whom this housing would be affordable. No planning document will mention unaffordable housing, as such a concept is almost unimaginable: there would normally be someone who could afford the most expensive housing. We conclude that "affordable" must relate to the area in which the housing is located. The proposed development is in an area of Canberra that is generally regarded as a desirable residential location and where housing prices are generally high. Affordable would then relate to the person who may aspire to live, and can afford housing, in such an area. As such, we do not accept the evidence of Mrs Purdon that the term relates to people on a lower income. This proposed development appears to us to be relatively affordable to the people who would live in the Griffith area.

3. As to the meaning of "sustainable" this is a word that has come widely into use in recent decades, probably as a result of the concept of "sustainable development" enunciated by the World Commission on Environment and Development in its 1987 report "Our Common Future". The Territory Plan includes, at part 2.1, a Statement of Strategic Directions, of which section 1 is entitled Principles for Sustainable Development, which stresses the need for planning processes to balance economic vitality, community well-being and environmental quality. While the word has a clear meaning in relation to development of human societies, it seems to us that it no clear meaning in relation to residential housing. Dr Jarvis submitted that it related to energy efficiency and more efficient use of infrastructure and that the RZ2 zone helped to achieve this through avoiding greenfields suburban expansion. If that is so, then this development may be considered sustainable.

4. ZO (b) relates to "addressing the street and the existing neighbourhood characteristics" and was dealt with in Raphael & ACT Land and Planning Authority [2009] ACAT 35. In that decision the Tribunal stated:

The meaning of the expression "addresses" was canvassed by the Applicants noting that the Intent of Element 1 for the RZ2 zone seeks to ensure development is of a density that "respects" adjoining development. Mr McCarthy submitted that an ordinary definition of "addresses" such as that in the Macquarie Dictionary - "direct ones attention to" - might be used. In BDH Projects at [66] the Tribunal found that:

A new development in the RZ2 zone is not required to mimic or replicate the existing single dwelling development in the RZ1 or RZ2 zones, it is required to be sympathetic in scale, form and site development.

1. Mrs Purdon gave evidence that as half of the proposed development is set back behind the blocks of units that do front Stuart Street, they, therefore, do not address the street. We regard that as an erroneous way to consider this issue. It is the "development" that must address the street, not each part of it. This development does address the street even though about half of it clearly does not. An example of a development that does not address the street may be one where the entrance to the residences are at the rear of the building away from the street, or which have undercroft parking facing the street. Such buildings may not address the street, but each would need to be looked at on a case by case basis. This proposed development has buildings that face the street with POS also to the front. Above that are balconies that also face the street.

2. The second part of ZO (b) is in relation to "existing neighbourhood characteristics in scale, form and site development". This was perhaps the most contentious issue for the parties and the issue that seemed to have most concerned the Applicants.

3. Much evidence was presented in relation to the existing neighbourhood characteristics and the concept of the garden suburb (as Griffith is described in the GNP). The Tribunal undertook an extensive view of the area. Much of the area is single houses on large blocks with substantial back yards, and that is what the Applicants want us to see as the existing character. The houses have front setbacks ranging from 5m to 14m according to Mrs Purdon, and that accords with the other evidence and what we observed. Griffith, however, is not homogeneous. Other parts of Griffith have multi-unit developments, such as the Throsby Court development that is across the road from this site. Also across the road is the Asprey development which is multi-unit with commercial tenants on the ground floor. It is built to the boundary of the block, or if it is not, then any set back is minor. Between those two are the local centre, a long 2 storey commercial building with shops on the ground floor, and the first floor occupied by offices and other commercial activities.

4. Next to the shops is a community hall and then the now disused primary school, which is to be replaced with an aged care facility. With respect to other residential buildings, on the same side of Stuart Street to this site is a number of multi-unit developments. This site adjoins one of these on its north-west boundary. It is an older building. The proposed development would have some similarities in appearance to that development. That development is mirrored on the other side of the entrance to Favenc Circle by a multi-unit development that appears to have been built at the same time and to the same design. Next to it in Favenc Circle is a multi-unit development that was built within the last few years. It is 4 townhouses with a basement car park. It replaced a single cottage on a large block. (See Griffith/Narrabundah Community Association Inc and ACT Planning & Land Authority [2005] ACTAAT 34 (21 December 2005))

43. To the south-east, Stuart Street meets Strzelecki Street. On that corner is a more recent multi-unit development. That block is in Narrabundah, but in the same RZ2 Zone. The ZO only refers to the neighbourhood, and that development is clearly in the same neighbourhood as the one under review.

1. The view of the Tribunal is that the existing neighbourhood is a mix of old and new, single housing and multi-unit developments. The proposed development, as a multi-unit development, fits into this mix. Furthermore, the blocks forming the site are zoned RZ2 which is a zoning designed to permit somewhat more intense development that in the RZ1 Suburban Zone in which much of Griffith is located.

2. That still leaves other aspects of the neighbourhood, and, in particular, the density of the housing for consideration. Mrs Purdon gave evidence that the density of housing in this development would be far greater than surrounding developments. This is true as to the developments on the same side of Stuart Street, but Mr Cohen gave evidence as to the density of the Asprey development almost directly opposite, which is clearly a more dense residential building than the proposed development. Throsby Court is also a dense residential development, but not as dense as the proposed development.

3. The proposed development will increase the density of the residential area. But section120(b) of the Planning Act requires us also to consider:

the suitability of the land where the development is proposed to

take place for a development of the kind proposed;

1. This consolidated block is close to the local centre. It will have easy access to buses. The evidence as to the traffic load on the street does not suggest that there will be any problems in having extra vehicle movements as a result of the development. In these circumstances, the land seems suitable for this type of development. There do not seem to be any factors that would make the land unsuitable. This does not mean that any such development in a RZ2 area could be approved. There are many factors such as traffic impact, access, overlooking, solar access and others that may make a similar development elsewhere in the zone inappropriate.

2. The parties did not have any difficulties with the remaining ZO, and Mrs Purdon for the Applicants gave evidence that she accepted that those ZO were met.

Other Section 120 considerations

1. Section 120 also requires the decision maker (and the Tribunal) to consider the following matters:

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

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

120(e) if the proposed development relates to land that is public land - the Territory Plan of management for the land ; and

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

1. While section 120(e) is irrelevant to this proposal, the others may be. We note that the representations that were made are listed and discussed in the respondent's reasons for decision and we consider that the views expressed by the respondent represent a fair and adequate consideration of those representations. Entity advice was also sought from a number of agencies and in our opinion, the conditions of approval imposed by the respondent reflect that advice. As to the probable impact of the proposed development, we do not consider that it will have any environmental or other impact that is different from the present situation of five separate residences. Mrs Purdon contended that there would be a significant increase in traffic movements compared with the existing development, but reports by Northrop Consulting Engineers asserted that the increase in traffic from this and the nearby aged care facility development would still be within the theoretical capacity of Stuart Street, even on a worst case scenario. Mrs Purdon also contended that the location of the driveways for the two parking basements on the side boundaries of the consolidated site would adversely affect the neighbouring residents and suggested that the driveways should be relocated more centrally within the development. However, no evidence was adduced on this aspect of the proposed development and we have not considered it further.

2. The Tribunal, as decision maker, must "consider" the matters set out in s 120 of the Act. Paragraphs a), b), c), d) and f) are relevant and each has been considered by us.

3. In Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 the court approved of the stance taken in Zhang v Canterbury City Council [2001] NSWCA 167 that:

1. The submissions in this Court proceeded on the basis that Talbot J had applied a proper test to determining whether or not as a matter of law the Commissioner had complied with the statutory obligations. The test was whether the Commissioner had given "proper, genuine and realistic consideration to the provisions of the DCP". This formulation is derived from the judgment of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (Gummow J, 11 December 1987, unreported) and see Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 483 per Gummow J. As indicated by this Court in Ligon (supra) at 28, this formulation was in substance the equivalent of the test of "real consideration" applied to the predecessor section of s79C of the Environmental Planning and Assessment Act in Parramatta City Council v Hale (1982) 47 LGRA 319 at 331 and 335-336 and 339-339. See also Bruce v Cole (1998) 45 NSWLR 163 at 185-186. A number of equivalent formulations appear in the case law. (See Aronson & Dyer Judicial Review of Administrative Action (2nd ed) at 225). Care must be taken that this category of judicial review or appeal on question of law is not elided into a review on the merits or an appeal on the facts (Bruce v Cole supra at 186).

4. We have attempted to give proper consideration to the matters listed in section 120 and in particular to the ZO.

1. The final issue is the RZ2 "intent of the elements" in the Territory Plan. Mrs Purdon contended that the proposed development is not consistent with the intent of some of the elements of the MUHD Code. She noted that the Planning Act identifies the Rules and Criteria as matters for consideration when assessing development applications, but not the intent of each element. Nevertheless, she contended that as the intent of each element is part of the Territory Plan, and because under section 50 of the Planning Act no approval could be given that was inconsistent with the Territory Plan, it was necessary to ensure that a DA was consistent with each intent of each element.

2. The Introduction to the MUHD Code states that the elements of the several Parts of the Code describe the various issues for consideration, such as restrictions on use, building and site controls, amenity etc, while the intent describes the purpose of the development controls. These are expressed as Rules (quantitative) or Criteria (qualitative) controls for development.

3. For example, under Part A 2 which applies to the RZ2 Suburban Core zone, Element 1 deals with Restrictions on Use and its sole Intent is

To allow a moderate level of flexibility to accommodate a variety of additional housing to meet changing community needs and preferences whilst ensuring development is of a density that respects adjoining development

The relevant development control is Rule R12, which permits multi unit housing on consolidated blocks greater than 1,400 m2. Likewise, Element 2 deals with Building and Site Controls and Intent (a) is

To ensure buildings are compatible with, and complement, the built form, siting and scale of surrounding properties and are of an appropriate residential character.

However, the Rules and Criteria that constitute the relevant development controls make it clear that 2 storey multi unit developments with basement car parking are permissible. Presumably therefore, the intents of Elements 1 and 2 cited above are not meant to be read as requiring development that does not differ from the existing surrounding properties (all of which are in the RZ2 zone and may well be redeveloped in a similar manner in due course.)

1. It is not for the Tribunal to determine how the intent of any element of the Territory Plan is to be taken into account. Perhaps the drafters of this element did not anticipate this type of development. Perhaps they did, and lay people who read it did not expect this type of development. We may never know, but in any event it is irrelevant. This development is consistent with the Elements and the relevant Rules and Criteria of Part A 2.

1. Pursuant to section 50 of the Act the Tribunal cannot do anything that is inconsistent with the Territory Plan. In our opinion this proposed development in not inconsistent with the Territory Plan subject to the conditions of approval being complied with. Approving this development with an additional condition in relation to pathways would not be in breach of that section.

2. Given that we will approve the development, it follows that the lease consolidation and variation can also be approve, because it complies with the mandatory Rules R12 and R28 of the MUHD Code. The consolidated block will be 4,646m2 (well in excess of the 1,400m2 required by Rule R12) and the consolidation is part of an integrated housing development as required by Rule 28.

1. The decision under review is varied by approving the Development Application subject to the submission of new drawings showing revised paths within the development that allow passage of wheelchairs and like devices to pass, to the satisfaction of the ACT Planning and Land Authority.