Cases cited: Javelin Projects Pty Ltd v ACT Planning and Land Authority [2017] ACAT 87

Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority [2018] ACAT 38

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

Noah's Ark Resource Centre Incorporated v Act Planning and Land Authority & Anor [2017] ACAT 44

Tribunal: Senior Member G Lunney SC (Presiding)

TRIBUNAL: Senior Member G Lunney SC (Presiding)

1. The decision under review is varied to include the following conditions, which are additional to the conditions attached to the decision under review.

Further Conditions of Approval to be Included at A1 of the Notice of Decision

The Development Application number 201731656 lodged with the respondent on 31 May 2017 and 31 October 2017 is approved subject the following further conditions:

Within 28 days from the date of this decision, or within such further time as may be approved in writing by the planning and land authority, the applicant shall lodge with the authority a complete set of drawings reflecting the latest amendments to the proposal including all conditions as set out at T-document 36 and the further conditions as set out below.

(a) ...

(b) ...

(c) ...

(d) DRIVEWAY INTERNAL RADIUS

• (i) The proposed driveway north of unit 5 is to be designed with a minimum 4 metre internal radius.

(e) VISITOR PARKING SIGNAGE

• (i) Signage is to be located adjacent to Units 5 and 9 to indicate the location of the visitor parking space at the northwest corner of the site.

(f) NO STRUCTURES (as defined in the Territory Plan 2008 (Territory Plan)) IN FRONT OF THE BUILDING LINE

• (i) No structures (as defined in the Territory Plan) are to be located above natural ground level (as defined in the Territory Plan) forward of the building line other than the one signage and mailbox structure, which is identified on drawing A200.

(g) REVISED DESIGN OF UNIT 1

• (i) The design of Unit 1 is to be modified so that it has access to the principle private open space from the living area; an eastern window to the dining area, and removal of the gate and fence to the rear of the unit aligned with the communal terrace.

(h) SCREENS TO BEDROOM 3 OF UNITS 10-15

• (i) A suitable screening device (as defined in the Territory Plan) is to be applied to the windows of each Bedroom 3 in Units 10-15 to achieve privacy to the northern courtyards of Units 5-9.

(i) REVISED DESIGN OF UNITS 10-15

• (i) The designs of Units 10-15 are to be modified so that they are in accordance with the revised drawing A605 amendment 2 (Exhibit 8).

(j) PERMIABLE PAVING

• (i) Suitable porous paving is to be designed to achieve 40% of the site being pervious.

1. This is an application for review of an administrative decision giving approval to a development application (DA). The application was initially made by the first two applicants, and they were joined by three others with interest in opposing the approval of the application. Two other interested parties were joined, the first of those being the DA applicant; the second who supported the applicants.
2. The DA related to redevelopment of two blocks in the Canberra suburb of Weetangera which were to be combined. They were at a right angle bend in a local street, and each being roughly triangular, the resultant block was approximately square.
3. The proposed development was in the RZ2 Suburban Core Zone (RZ2) and the relevant code for the purposes of section 119 of the Planning and Development Act 2007 (PDA) is the Residential Zones Development Code (RZDC) which mandates application of the Multi Unit Housing Development Code (MUHDC). Other codes are relevant.
4. The application alleged that the approval was inconsistent with the MUHDC referring specifically to the rules concerning site open space, building separation, and principal private open space (PPOS). Other issues were raised including the likelihood of increased on street parking in the area. It alleged that the development was inconsistent with RZ2 Zone objectives (a), (b) and (e).

1. At the hearing: the first and second applicants, Mr and Mrs Gingell appeared in person; the Friends of Hawker Village Incorporated were represented by Ms Coghlan; the fourth and fifth applicants, Mr and Mrs McKay appeared in person; the first party joined was represented by counsel; and the second party joined, Mr Johnson attended the first day and excused himself for the remainder of the hearing.
2. The hearing commenced with a view of the subject blocks and their environs. The hearing was adjourned for one day to accommodate a public holiday, and concluded at the end of the fourth day.
3. At the outset, a potential procedural issue was identified by the parties being the meaning and effect of section 121 of the PDA. It was determined by the Tribunal that the issue should be dealt with at the end of proceedings or in the course of them if it became necessary. The issue will be dealt with in the course of these reasons for decision.

1. A number of issues were identified in the documents filed in accordance with directions prior to the hearing. The issues that remained in contention at the conclusion of the hearing are dealt with below. Some issues have been dealt with by the imposition of conditions.

3.1 Dwelling replacement - single dwelling blocks

This rule applies to single dwelling blocks in all residential zones that are proposed to be redeveloped for multi unit housing, but does not apply to supportive house.

1. where there has been no consolidation of blocks - 1 replacement dwelling
2. in all other cases - a number equal to the total number of blocks originally leased or used for the purpose of single dwelling housing that have been consolidated or proposed to be consolidated.

For this rule the following number of bedrooms per replacement dwelling are provided:

1. where the original dwelling is one or two bedrooms - 2

1. where the original dwelling is three or more bedrooms - 3 or more

This is a mandatory requirement. There is no applicable criterion.

1. The DA proposed one single bedroom dwelling, and thirteen three bedroomed dwellings. No dwelling with greater than three bedrooms was proposed. There had been one dwelling on each of the uncombined blocks; one of which had three bedrooms and there was evidence that the other had four bedrooms. Mr Davies' said that the plans for the dwelling on Block 13 show three bedrooms and a multipurpose room.[1] Without making a determination, the Tribunal will assume that it was a four bedroom dwelling.
2. The contention of the applicants was that at least one of the dwellings replacing the two original ones should have four bedrooms. They pointed to the explanatory material relevant to the creation of the rule as well as a recently published discussion paper published by the Environment, Planning and Sustainable Development Directorate which they submitted supported their interpretation. They further submitted that were the rule not to be interpreted as they suggested, 4 and 5 bedroom dwellings would disappear as multi-unit redevelopment proceeds.
3. The respondent and the first party joined supported the decision made. They pointed to the simplicity of the wording of the rule and suggested that it allowed flexibility but did not compel a 'like for like' result when the initial dwelling was of three or more than three bedrooms.
4. The Tribunal accepts the submission of the respondent and first party joined. The meaning of the rule is clear, and imposition of a 'like for like' interpretation would not do justice to the clear meaning of the rule.

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 a part of the building

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

1. consistency with the desired character
2. consistency with the separation of existing buildings in the immediate neighbourhood.

1. Rule R36 has not been complied with in respect to separation between dwellings 6 and 7; and between dwellings 13 and 14. The lineal departure from rule R36 in the case of dwellings 6 and 7 is less than the departure in the case of 13 and 14. The first and second applicants (the applicants) note this in their submissions and say at paragraph 20 in relation to dwellings 6 and 7.

We agree that compliance with C36 is achieved as the divergence from R36 does not adversely impact views of building bulk and scale.

1. The Tribunal agrees with that statement. They go on to submit that separation of dwellings 13 and 14 is not compliant with C36. They refer to the definition of desired character, point out that for 13m of the 13.8m length of the building separation, the separation is 1.35m or 33% less than the minimum, and relying on Javelin Projects Pty Ltd v ACT Planning and Land Authority [2017] ACAT 87 at [73] submit that the degree of separation has no ameliorating features that would justify departure from the rule.
2. The respondent and the first party joined submitted that the criteria were met and set out their submissions in support. These were supported by quite extensive evidence of Mr Davies.[2] Included was an analysis of degrees of separation found in other areas of section 1. His conclusions are briefly stated at [70] of his statement:
   1. On balance the rule departure is considered to be low impact and Criterion 36 is met given the limited streetscape impact and existing nature of some of the dwellings surrounding the development site.
3. The Tribunal accepts that evidence and the conclusion reached by Mr Davies.
4. The Tribunal finds that Criterion C36 is met.

Not less than 40% of the total site area is allocated to one or more of the following:

1. Communal open space with a minimum dimension of 2.5m
2. Private open space that complies with all of the following -
   1. a minimum dimension of 2.5m
   2. is associated with dwellings at the lower floor level.

Not less than 20% of the total site area is planting area.

Open space on the site achieves all of the following:

1. sufficient useable space for the recreation and relaxation of residents to support active living
2. sufficient space for planting, particularly trees with deep root systems

1. provision for on-site infiltration of stormwater run-off

1. provision of outdoor areas that are inclusive and readily accessible to all residents for a range of uses and activities.
2. reasonable connectivity for pedestrian and cyclists to key local destinations and community uses.

One or more of the following matters may be considered when determining compliance with this criterion:

1. whether the total area of upper floor level private open space contributes to the function of other open space on the site
2. whether any adjoining or adjacent public open space is readily available for the use of residents.

1. The applicants concede that the component of this rule relating to minimum planting area is met. However they contend that the amount of compliant open space is only 33.8% of the site and consequently neither the rule nor the criteria are met.
2. Mr Davies in his statement says that he measured the Site Open Space (SOS) on the plan[3] at 1711.8sqm, equating to 36.4% of the combined block area of 4704.8sqm. Compliance with the rule would require 1881.6sqm of open space. His assessment supporting compliance with C38 is at T-documents 9 page 109.
3. The respondent submits that there are areas of SOS less than the 2.5m minimum dimension which could be considered for the purpose of the criteria. In his statement Mr McCallum indicates that all open space occupies 37.9% of the combined block.[4] The respondent submits that criteria C38 is met for the following reasons.

(a) The total is close to the quantitative standard of 40%.

(b) Planting area (21%) and Personal Open Space location and dimension are compliant with R38.

(c) As a result of its location, size and facilities (for seating) the main open space which has been amended to provide seating, pathways and landscaping, contributes a useful open space area for recreation accessible to all residents.

1. During the hearing there was discussion relating to criterion C38(c), and the first party joined agreed to a condition increasing the amount of pervious paving by about 76sqm.
2. During the site visit on the first day of the hearing the Tribunal was taken to the nearby neighbourhood park, Block 19 Section 6 Weetangera which is four residential blocks from the subject site. The park is zoned Urban Open Space with an area of 8462sqm. The Tribunal has had regard to criterion C38 which states "One or more of the following matters may be considered when determining compliance with this criterion ii) whether any adjoining or adjacent public open space (POS) is readily available for the use of residents." The Tribunal considers that the park is situated near or close to the subject site and taking this into account is in general agreement with the submissions of the respondent and accepts the evidence of Mr Davies. The Tribunal does not agree with the submissions that areas with a dimension less than 2.5m may be included in the assessment of site open space.
3. Criterion C38 has been met.

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

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

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

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

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

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

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

1. The first party joined relied on drawing A110 which they contend depicts the POS and PPOS for each of the 14 units. The units are numbered 1 to 15 as there is no unit designated unit 2. We have concluded that the minimum dimensions of the PPOS with respect to compliance with the rule in most of the units are depicted incorrectly on drawing A110. The acceptance of the proposed redesign of Unit 1[5] and the inclusion of a condition to amend the DA to incorporate this redesign the Tribunal has determined that six dwellings meet the requirements of rule R61: Units 1, 3, 4, 7, 10 and 15.The first party joined relied on a drawing titled Concept Plan[6] which they contend shows how the area of PPOS to Units 5 and 6 may be used to address criterion C61 a) and b). Units 5 and 6 are the two dwellings designated as adaptable housing to meet R54.
2. The Tribunal has consider the plans and has determined that the minimum dimension of the PPOS for Unit 5 with respect to compliance with the rule is 250mm greater than the dimension shown on A110 and the total area is approximately 50sqm, excluding any area with a dimension less than 2.5m.
3. The minimum dimension of the PPOS for Unit 6 with respect to compliance with the rule is 500mm greater than the dimension shown on A110 and the total area is approximately 45sqm excluding any area with a dimension less than 2.5m.
4. Units 11 to 14 have a minimum dimension of 5.3m. Unit 8 has a minimum dimension 400mm greater than the dimension shown on A110 and Unit 9 has a minimum of 300mm less than the dimension shown on A110. All units are in excess of the minimum area measurement of 36sqm. However, since not all dwellings meet rule R61, each must be assessed against criterion C61.
5. The applicants say that they consider criterion C61 (a) to (d) to be met.[7] In their final submissions at [39] they say that outstanding issues relating to privacy and solar access had either been answered during the hearing or made the subject of conditions.
6. The first party joined made extensive submissions concerning rule and criterion 61. The Tribunal does not accept its analogy with an upper level unit, but does consider that the spaces provided do permit adequate area for personal and private activity and relaxation of the type that might be expected in the backyard of a dwelling.
7. When considering compliance with criterion C61, the Tribunal considered that the circumstance that the area for each dwelling met the area requirement for the rule was relevant in assessing compliance with criterion C61(a). The Tribunal further notes the definition of 'Private Open Space' contained in the Territory Plan.
8. The Tribunal considers that all elements of criterion C61 are met.

1. During the hearing AMC Architecture submitted design amendments that involved changes to Unit 1 and the area of the subject site between Unit 1 and the front boundary. The core of the changes were:
   • (a) the deletion of walls, and the gate and fence aligned with the communal terrace; and
   • (b) the addition of new windows to Unit 1.
2. The first revised version of the drawing depicted a window in the eastern wall of one of the bedrooms in Unit 1.
3. The version submitted as Exhibit 15 was a revision of the same drawing which the Tribunal was informed was to show the bedroom of Unit 1 without the eastern window. Exhibit 15 however included a new note on the drawing "1.8m high timber fence" with arrows pointing to locations in front of the building line.
4. The Tribunal has determined that the fencing depicted by the note on Exhibit 15 was not a consideration in the hearing and as such does not form part of the development approval.

Section 121 of the Planning and Development Act 2007 (PDA)

121 Merit track - notification and right of review

(1) To remove any doubt, if a development proposal is in the merit track, the application for development approval for the proposal must be publicly notified under division 7.3.4.

_(2) If there is a right of review under chapter 13 in relation to a decision to approve an application for development approval for a development proposal in the merit track, the right of review is only in relation to the decision, or part of the decision, to the extent that - _

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

1. The applicants commenced their final submissions after the close of evidence as follows:
   1. The main genesis for us seeking this review by the tribunal was the approval by the ACT Planning and Land Authority of a multi unit development that provided no capacity for onsite absorption of the likely parking requirements of residents and visitors. Only the minimum number of car parking spaces for residents and visitors has been provided once allowance is made for the minimum requirements of both the Parking and Vehicular Access General Code and the Access and Mobility General Code.
   2. Unlike other dwelling in the neighbourhood, where driveways and space in front of garages can absorb extra demands, additional car parking demand from multi unit residents and visitors can only be met by overflow parking along a 90degree bend in a narrow street. We contend that more than the minimum provision of resident and visitor car parking spaces is necessary given the adverse consequences for neighbourhood amenity of overflow parking in a narrow street.
2. This concern was echoed by the third applicant in its statement of facts and contentions.[8] It was a view supported by the fourth and fifth applicants. The applicants made other general submissions based on RZ2 zone objectives as did the third applicant in its written submissions.
3. The respondent and the first party joined had at the outset made submissions that the Tribunal's review function was of limited compass as a result of the provisions of section 121 of the PDA as interpreted in Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority [2018] ACAT 38 (Sladic). The effect of their submissions were that this Tribunal would not be able to consider the submissions above and would be confined to examination of whether the decision conforms to the relevant rules and criteria. The applicants submitted that to do so would seriously undermine their rights of review. This would reduce the scope of review open to them where there had been approval by the authority to a mere examination of compliance with the MUHDC and other relevant codes.
4. The Tribunal does not consider it necessary to conduct an extensive review of the relevant ACT cases which has been done in the Sladic case. That case contains an examination of the decision of the ACT Court of Appeal in Baptist Community Services v ACT Planning and Land Authority & Ors [2015] ACTCA 3. That case set out principles to be taken into account by the decision maker when making a decision under the PDA ab initio. Sladic sets out the principles to be applied on review of such a decision as a result of section 121 which are necessarily circumscribed as described in the section.
5. Those principles are also set out at paragraphs 226 to 230 of Noah's Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2017] ACAT 44.
6. In this case the applicants have not shown any contravention of the rules and criterion in the applicable codes assuming that imposed conditions are observed.
7. It is the decision of the Tribunal that it therefore does not have jurisdiction to examine the largely discretionary matters raised by all the applicants beyond consideration of the code provisions.
8. The decision of the Tribunal is to dismiss the applications and vary the decision under review to include the following conditions discussed at the hearing which are additional to the conditions attached to the decision under review.

Further Conditions of Approval to be Included at A1 of the Notice of Decision

The Development Application number 201731656 lodged with the respondent on 31 May 2017 and 31 October 2017 is approved subject the following further conditions:

Within 28 days from the date of this decision, or within such further time as may be approved in writing by the planning and land authority, the applicant shall lodge with the authority a complete set of drawings reflecting the latest amendments to the proposal including all conditions as set out at T-document 36 and the further conditions as set out below.

(c) ...

(d) ...

(k) ...

(l) DRIVEWAY INTERNAL RADIUS

• (ii) The proposed driveway north of unit 5 is to be designed with a minimum 4 metre internal radius.

(m) VISITOR PARKING SIGNAGE

• (i) Signage is to be located adjacent to Units 5 and 9 to indicate the location of the visitor parking space at the northwest corner of the site.

(n) NO STRUCTURES (as defined in the Territory Plan 2008 (Territory Plan)) IN FRONT OF THE BUILDING LINE

• (i) No structures (as defined in the Territory Plan) are to be located above natural ground level (as defined in the Territory Plan) forward of the building line other than the one signage and mailbox structure, which is identified on drawing A200.

(o) REVISED DESIGN OF UNIT 1

• (i) The design of Unit 1 is to be modified so that it has access to the principle private open space from the living area; an eastern window to the dining area, and removal of the gate and fence to the rear of the unit aligned with the communal terrace.

(p) SCREENS TO BEDROOM 3 OF UNITS 10-15

• (i) A suitable screening device (as defined in the Territory Plan) is to be applied to the windows of each Bedroom 3 in Units 10-15 to achieve privacy to the northern courtyards of Units 5-9.

(q) REVISED DESIGN OF UNITS 10-15

• (i) The designs of Units 10-15 are to be modified so that they are in accordance with the revised drawing A605 amendment 2 (Exhibit 8).

(r) PERMIABLE PAVING

• (i) Suitable porous paving is to be designed to achieve 40% of the site being pervious.

[1] Statement of Mr Davies, Exhibit 5 at [20]

[2] Statement of Mr Davies, Exhibit 5 at [61] to [70]

[4] at [48] and annexure B, drawing A111

[7] Applicants' statement of facts and contentions at [81]