Whether Housing ACT's financial management decisions are a relevant consideration[30]

1. The applicant sought to question whether Housing ACT was obtaining maximum value for money from the development, noting that the objects of the Housing Assistance Act 2007 include to facilitate the provision of housing assistance for those most in need and to maximise value for money in the provision of housing assistance.[31] The applicant submitted that the block is valued at over $1.5 million and that the estimated cost of construction is $475,000. An expedited sale of the property and investment in other suitable housing would accord with sound financial principles and maximise value for money in the provision of housing assistance.
2. Such considerations do not arise under sections 119 and 120 of the Act and are therefore irrelevant to the Tribunal's decision in this matter.

Consistency with the Residential Zones Development Code (RZDC)

1. The issue under C3(a) is whether buildings accommodating supportive housing achieve consistency with the 'desired character'.
2. 'Desired character' is defined in the Territory Plan to mean 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 precinct code.
3. 'Streetscape' includes the visible components within a street, or part of a street, including the private land between facing buildings, including the form of buildings, treatment of setbacks, fencing, existing trees, landscaping, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.[33]
4. As there is no applicable precinct code, consistency with the desired character must be assessed against relevant RZ1 zone objectives. These are reproduced in the schedule at the end of these reasons.
5. We agree with and adopt the tribunal's statement in Village No 22 Pty Ltd v ACT Planning and Land Authority[34] that the:

... definition of 'desired character' permits consideration of whether the manner or style of arranging and coordinating the component parts will have a "pleasing or effective result" regarding siting, building bulk and scale and resulting streetscape" and that whether the result is achieved "must be assessed by reference to relevant zone objectives.

1. The issue we must decide is whether the siting, bulk and scale of the buildings and their effect on the streetscape, produces a result that is consistent with relevant zone objectives.
2. The applicant submitted that RZ1 zone objectives (a), (b), (d) and (e) are relevant. Sturt Avenue, it is said, "epitomises the objectives of an (sic) RZ1", consisting of an area where the housing is low rise and predominantly single dwelling and low density in character. An ACTmapi aerial photo depicts how the proposed three units would impact on five adjoining neighbours and the street, although the submissions do not speak to the nature of the impact. (In fact, all the photo shows is that the block shares boundaries with five neighbouring properties.) Further, the proposed development is said to "consist of modern brutalist architecture with modern materials and colours that will sit in the middle of an RZ1 zone comprising single dwellings on each block".[35]
3. In a supplementary submission filed on 17 October 2022, the applicant relied on parts of the Narrabundah Neighbourhood Plan, which was prepared by ACTPLA in September 2004 following a period of consultation with the local community. The purpose of the plan was to "outline the future character of the neighbourhood whilst protecting and enhancing the features currently valued" and to provide "planning strategies for the future of the local shopping centre, open spaces, residential areas, community facilities and movement networks" over the next 15 years.[36] At the time of publication it was intended that a "major and comprehensive review" of the plan would be undertaken seven years after it was placed on ACTPLA's Register of Planning Guidelines. However, following a search of ACTPLA's website, the Tribunal could not find any information about the creation or existence of such a register, or about any neighbourhood planning updates after August 2004.[37] While the plan provides information about the existing and planned future character of the Narrabundah residential areas as of 2004, the applicant did not make submissions about the present status of the document or the permissible use the Tribunal could, or should, make of it.
4. The plan does make clear, however, that no part of it overrides the Territory Plan. Thus, while it contains information of a kind that may have been relevant to an assessment of the 'desired character' of the Narrabundah residential areas at some point in time, the current Territory Plan definition of 'desired character' provides that relevant zone objectives and any statement of desired character in a relevant precinct code are the only permissible points of reference the Tribunal may consider.
5. The point the applicant seeks to emphasise is that the present character of the area has been maintained essentially because three-dwelling redevelopments historically have not been permitted in RZ1 and consequently there are no such developments in the area.
6. There are at least four difficulties with this submission.
7. First, it overlooks that the zone objectives provide for the establishment and maintenance of a predominantly, rather than exclusively, low rise, single dwelling, low density residential area.
8. Second, increased density of development is permitted in RZ1 on a block where the development is for supportive housing. A maximum of three single dwellings is permitted on a block with an 1100m2 site area.[38]
9. Third, the provision of supportive housing in RZ1 is consistent with zone objective (c). The social policy considerations informing the ACT Government's decision to encourage such developments in RZ1 are not open for debate in the Tribunal.
10. Fourth, the submission assumes that the issue for determination is whether the development is consistent with the 'desired character'. However, C3(a) raises a narrower issue: whether buildings accommodating supportive housing achieve consistency with the 'desired character'. The facts that may determine whether a particular element in a development is consistent with the 'desired character' will depend on the context in which the issue arises. For example, in the MUHDC achieving consistency with the 'desired character' is a relevant criterion where the development does not comply with rules relating to the building envelope,[39] front, side and rear boundary setbacks,[40] courtyard walls,[41] and residents' car parking.[42] Different considerations may be relevant in each case.
11. C3(a) of the RZDC requires buildings accommodating supportive housing on an RZ1 block in Narrabundah (where there is no applicable precinct code) to be assessed against relevant zone objectives. The Tribunal considers that buildings will not achieve consistency with the desired character where the siting, bulk and scale of the buildings, and the nature of the resulting streetscape:

(a) detracts from the character of the surrounding area with respect to the original pattern of subdivision and/or the density of dwellings; > > (b) disrespects valued features of the neighbourhood and landscape character of the area; and/or > > (c) unreasonably negatively impacts neighbouring properties.

12. Evidence before the Tribunal often consists of little more than bare assertions that something is or is not consistent with the desired character. Assertions of that kind do not acquire probative value merely because they are uttered by a person having apparent expertise as an architect or town planner.
13. Obviously, specific features to which parties may wish to draw the Tribunal's attention on a view will be critically important. However, the parties are responsible to identify the factual findings they say the Tribunal should make based on what the Tribunal observed on the view.
14. A party seeking to persuade the Tribunal that an aspect of the development does not achieve consistency with the desired character must be able to explain to the Tribunal why that is so. Typically, this will require answers to at least some of the following questions, depending on how the issue is framed:

(a) What is the character of the surrounding area with respect to the original pattern of subdivision and/or the density of dwellings? > > (b) How does the siting, bulk and scale of the buildings, and the nature of the resulting streetscape detract from the character of the surrounding area with respect to the original pattern of subdivision and/or the density of dwellings? > > (c) What are the valued features of the neighbourhood? > > (d) How does the siting, bulk and scale of the buildings, and the nature of the resulting streetscape disrespect the valued features of the neighbourhood? > > (e) What is the landscape character of the area? > > (f) How does the siting, bulk and scale of the buildings, and the nature of the resulting streetscape disrespect the landscape character of the area? > > (g) How does the siting, bulk and scale of the buildings, and the nature of the resulting streetscape negatively impact neighbouring properties? > > (h) Is the negative impact unreasonable?

15. The converse applies to a party seeking to uphold a development approval on the grounds that a particular aspect of the development achieves consistency with the desired character.
16. To say that a three-dwelling supportive housing development "will sit in the middle of an RZ1 zone comprising single dwellings on each block" - as the applicant submitted - says nothing about whether the buildings achieve consistency with the desired character. Even if it is accurate to describe the development as "modern brutalist architecture with modern materials and colours", it does not follow that the buildings are not consistent with the desired character.
17. The assessment that C3(a) calls for is more nuanced.
18. Ms Hartfiel's evidence did not shed much light on the issue. In her witness statement she claimed that the development is consistent with the desired character because it is similar in scale, comprises a single storey and is constructed from similar materials as the (previously) existing dwelling, with walls constructed predominantly of red brick with Colorbond 'Monument' (dark grey) coloured windows and cladding. However, she did not explain what she meant by 'desired character'.
19. In oral evidence, Ms Hartfiel said the development picked up the "character and aesthetics of the houses around it". This begs the question because the neighbouring property on the southern side consists of a large, modern two-storey home, featuring dark face brick and light coloured cement rendered panels and a dark metal roof. The house dominates the streetscape whilst bearing no resemblance to the general style of established single storey homes located nearby. The neighbouring property on the other side consists of a red-brick house undergoing extensive renovations, including the addition of a large garage and a modern two-storey box-like extension at the rear.
20. Ms Hartfiel went on to say:

So I mean the character of Narrabundah is changing. It's becoming gentrified and densified. So on this block or this section alone, there's a number of blocks that have been redeveloped and have a newer character about them. The corner blocks have been subdivided. So they've taken the small single dwelling and turned it into two large dwellings, and that's - I can see that's occurring two or three times, you know, in close proximity to this development, and if you drive down Sturt Avenue you will see the same things, multi dwellings popping up in place of a single, you know, often an ex-govie house. So there is a mix of old and new on Sturt Avenue in Narrabundah.[43]

1. In his witness statement, Mr Sandeman said that the proposed siting of the dwellings on the block meets the required setbacks, and the building bulk and scale and the proposed building materials, textures, and finishes are not inconsistent with existing surrounding development. He noted that the adjoining dwelling is a large two-story contemporary single dwelling with a mix of veneer brick and cement rendered facade facing Sturt Avenue and that dwellings located on the opposite side of Sturt Avenue include large two-storey dwellings with Colorbond metal roofs.
2. Mr Sandeman was given leave to provide a written statement of the 'desired character' after the hearing, which became exhibit R5 and is reproduced below. It is more accurate to treat this as Mr Sandeman's evidence describing the character (rather than the desired character) of the neighbouring area, which the Tribunal accepts as generally correct.

The desired character within the vicinity of ... (the subject block) consists of predominantly low density one and two story dwellings with some blocks (such as ... 49-44 Sturt Avenue) consisting of two dwellings. The dwellings feature various building forms (e.g., L shape, rectangular) and various building materials and textures (such as brick veneer, cement rendered facades) with various roof shapes such as hip, or skillion with tiles and/or Colorbond roofs. The blocks along with the dwellings feature a mix of grass, shrub and tree growth. The topography of the area is generally flat with slight falls on respective blocks from the rear boundary to the front boundary and side to side boundary.

Several blocks, such as ... 34 Sturt Avenue ... appear to consist of a complete demolition and new two-storey re-build. Other dwellings, such as ... (1 Frome Street) appear to consist of a large building footprint on the block .... Some blocks located along Sturt Avenue have an open frontage where others have an established hedge.

Side setbacks of dwellings to other dwellings along Sturt Avenue vary from between approximate 2.5 metres to 6 metres. Setbacks of dwellings to respective dwelling front boundaries appear to be between 5 metres to 6 metres. Fencing between various blocks consists of a mix of material types, such as standard wood palings and Colorbond. Some blocks, such as... (4 Warburton Street) have brick feature pillars (approx. 1.8m high from datum level) located on their front boundary.

Sturt Avenue consist of a two-lane (one way) road separated by a grassed median strip, and a slip lane located on each side of the two-lane road directly servicing individual blocks. Sturt Avenue verge consists of a mix of grass and tree growth. Driveways consist of different surfaces and materials, such as paving, cement, cement drive strips, and bitumen. Some verges adjacent to blocks (such as the verge to 6 Warburton Street which is an approx. 120 metre walk to the subject block) support utility infrastructure facilities (i.e., a pad mount electrical transformer).

1. The Tribunal finds that C3(a) is achieved. The buildings do not appear to be inappropriately sited. Nor do they present as having excessive bulk and scale compared to other properties in the neighbourhood. The architectural design is unremarkable, as are the materials and textures chosen for the buildings. The buildings have minimal impact on the resulting streetscape, noting that the adjacent two‑storey dwelling dominates the streetscape and the general lack of consistency in style and character of other housing in the neighbourhood.

1. The applicant claimed initially that the proposal did not satisfy C3(b), which requires buildings accommodating supportive housing to achieve reasonable levels of privacy for dwellings on adjoining residential blocks and their associated private open space. The applicant presented no evidence and did not pursue the issue at the hearing. The Tribunal has treated the issue as abandoned.

1. R4 is a mandatory rule which requires all dwellings for the purpose of supportive housing to comply with Australian Standard AS 4299 Adaptable Housing (Class C) (AS 4299) and the Access and Mobility General Code (AMGC).
2. AS 4299 defines an 'adaptable housing unit' as a housing unit which is designed and constructed to meet the performance requirements stated in clause 2.2 and to include the essential features listed in Appendix A. An adaptable housing unit must be designed so that it can be modified easily in the future to become accessible to both occupants and visitors with disabilities or progressive frailties.[44]
3. The standard provides for three classes of adaptable housing units - Class A, Class B and Class C - the intention being that they be certified as such by an independent, suitably qualified person.[45]
4. Class C must include all essential features listed in Appendix A but need not incorporate any of the first priority or desirable features that distinguish a Class A or Class B adaptable housing unit. Dwellings for use as supportive housing must meet all of the requirements of a Class C adaptable housing unit.
5. Clause 2.1 states that the objectives for adaptable housing are:

(a) That housing be designed and constructed or altered in a way which satisfies the performance requirements for adaptable housing enumerated in Clause 2.2 below. > > (b) That housing is designed in such a way that later alterations to suit individual requirements will be achievable at minimal extra initial cost. > > (c) That housing be designed in such a way that it will easily adapt to suit the widest possible range of lifetime needs. This will include the needs of people with physical disabilities (including people who use wheelchairs, people with disabilities who are ambulant, and people with manipulatory disabilities); people with sensory disability (vision, hearing) and people with intellectual disability. > > (d) The initial design will allow for visitability through an accessible path of travel to the living room and toilet.

6. Clause 2.2 states that an adaptable housing unit shall be designed and constructed to meet the following requirements (omitting notes):

(a) Visitability To be visitable by people who use wheelchairs, in that there must be at least one wheelchair accessible entry and path of travel to the living area and to a toilet that is either accessible or visitable. > > (b) Avoidance of level changes To have no steps and to avoid level changes where possible. > > (c) Manoeuvrability This shall include the following: > > > (i) To provide space sufficient to manoeuvre a wheelchair within a living area, the kitchen and an accessible path of travel linking these areas. > > > > (ii) To provide space sufficient to manoeuvre a wheelchair within a bedroom, a bathroom and a toilet or to provide a design and details whereby after adaptation there will be sufficient space to manoeuvre a wheelchair within these facilities and an accessible path of travel linking these facilities to the entry, living and kitchen areas. > > (d) Ease of adaptation If the design for adaptation requires further demolition of walls then these walls shall be non-load-bearing and free of electrical and plumbing services. > > (e) Ease of reach To provide electrical controls, taps, and some shelves and cupboards at levels to suit people who use wheelchairs. > > (f) Future laundry facilities To provide laundry facilities that after adaptation will be accessible to people who use wheelchairs. Those laundry facilities may be external to the adaptable housing unit, providing a wheelchair accessible path of travel is available from the adaptable housing unit to the laundry facilities.

7. Clause 2.3 provides that to obtain certification as an adaptable housing unit, 'as built' drawings must be provided showing the housing unit in its pre-adaptation and post-adaptation stages, with a description of how the adaptation is to be achieved.
8. Clause 3.3.1 requires that the development must be suitable for people with varying degrees of mobility, so that as a minimum, access for people with disabilities is available to at least one entry to the adaptable housing unit. Consideration should be given, among other things, to provision of on-site turning area for vehicles and driveway location with regard to resident's safety and security.
9. Clause 3.3.2 provides in part:

Accessible pathway An accessible path of travel from the street frontage car parking area or drop-off point shall be provided to all adaptable housing units. As a minimum, this accessible path shall comply with AS 1428.1 and shall be continuous, slip-resistant, hard-surfaced and shall not incorporate any step, stairway or other impediment which would prevent it from being safely negotiated by people with disabilities.

1. Essential features for a Class C adaptable house enumerated in Appendix A include that drawings must be provided showing the housing unit in its pre‑adaptation and post-adaptation stages.
2. The Goodwin report was given to ACTPLA as evidence of compliance with R4. The report states that "The following assessment is based on the Preliminary issue of Development Application drawings prepared by SQC Group 20th August 2021".[46] The author opined that the requirements of the AMGC and AS 4299 "have been generally met" in the development proposal drawings and that "detailed design issues can be resolved or confirmed at BA stage".[47] Earlier, the author stated that "some design detailing will be necessary in the BA/documentation stage to ensure conformance shown on plan is maintained in elevation".[48] The report listed the ten drawings on which the author based his opinion. The floor plan for unit 3 (drawing A102) was not mentioned, although this may be because unit 3 is the mirror image of unit 2. The version of the drawings on which Commissioner relied at the hearing were much later revisions of the drawings assessed by the author of the report and included additional plan and elevation drawings. There was no evidence whether the revisions affected or had the potential to affect the opinions expressed in the report.
3. The DA assessment found that the proposal "is not inconsistent with the applicable requirements of the AMGC".[49] The meaning of "not inconsistent" is not synonymous with "consistent". The use of "not inconsistent" suggests that ACTPLA applied the wrong test in assessing the proposal against the requirements of section 119(a) of the PD Act. The proponent must establish that the proposal is "consistent with the relevant code". A proposal that meets three of ten mandatory requirements of a relevant code but does not show how the other requirements are met, is not "consistent with the relevant code". Depending on the circumstances, it may be accurate to described the proposal as 'not inconsistent' with the code, but this is not the test. Moreover, to describe a proposal as "not inconsistent with the applicable requirements" of a relevant code, does not enable the proponent, affected parties and the Tribunal on review, to identify the "applicable requirements" with which ACTPLA considers the proposal is consistent, and those where the proponent must do more to demonstrate that the proposal is code compliant.
4. The Reasons for the Decision state that the "application was approved because based on the documentation and in the form modified by the imposed conditions it was considered to meet the relevant rules and criteria of the Territory Plan and section 120 of the Planning and Development Act 2007" (our emphasis). The conditions included the following:

The development is to comply with the relevant provisions of 'AS1428.1-2009 Design for Access and Mobility', any relevant provisions of the Premises Standards 2010 and the Disability Discrimination Act 1992 as applicable.

The proposal must be in accordance with relevant provisions of the Australian Standard AS1428.1-2009 and AS/NZ 2890.6-2009 and the National Construction Code.

1. Clearly, ACTPLA was not satisfied that the proposal met all the applicable requirements for design for access and mobility in AS 1428.1-2019, which means that ACTPLA could not be satisfied that the proposal met the mandatory requirements of R4 of the RZDC. Where the conditions of approval do not identify the respects in which the development does not comply with AS 1428.1, or what changes the proponent must make to make it comply, there is no certainty that compliance can be achieved and, if so, whether the conditionally approved proposal may need to be substantially redesigned to do so. The Tribunal considers that a condition expressed in such broad terms is probably invalid.[50]
2. The power to approve a development application subject to a condition under section 162(1)(b) as an alternative to refusing a development application, is constrained by section 119(1)(a), which states that "development approval must not be given" for a development proposal in the merit track "unless the proposal is consistent with the relevant code". Where a development proposal is not consistent with a relevant code because it does not comply with a mandatory rule, the application must be refused.
3. Conditional approval may be given in those circumstances only if the condition operates to make the development comply with the mandatory rule. This may require something to be done in the future - e.g., it may require a specific change to be made to a plan, drawing, specification, or other document to make the proposal comply with the mandatory rule and for the plan, drawing, specification or other document to be submitted for approval before the development, or a stated part of it, starts.[51] The principles of certainty and finality discussed earlier[52] do not require every last detail of the change to be worked out and documented before approval can be given. Nor do they preclude ACTPLA from applying a degree of practical flexibility to the extent of detail it may require at the development approval stage, particularly in complex developments. However, ACTPLA as the original decision-maker, and the Tribunal on review, must be satisfied that the required change operates to make the development comply with the mandatory rule without significantly altering the development, or causing it to become non-compliant in other respects.[53]
4. The Tribunal considers that the statutory prohibition in section 119(a) against giving development approval to a development proposal that does not fully meet a mandatory rule, cannot be circumvented by a condition that requires, in effect, that the development is to comply with the mandatory rule. This simply restates what the code already requires.
5. The Goodwin report does not establish that the proposal complies with the code requirements for adaptable housing. The author's opinion that the development can be made code compliant carries little weight where the report does not disclose the basis of the opinion and the author was not called to give evidence to enable his opinion to be tested.
6. Ms Hartfiel addressed the issues of compliance with the AMGC in paragraphs 13 to 15 of her witness statement and in her oral evidence. She claimed that the development is designed to meet AS 1428.1, AS 4821.4 and AS 4856 and provides for continuous flat and safe non-slip surfaces throughout both indoor and outdoor spaces and across the entire block. However, no plans were provided showing the proposed accessible pathway, which Ms Hartfiel agreed required pedestrians to use the driveway for access. This becomes relevant later when we discuss C76.
7. It was apparent when Ms Hartfiel gave evidence that the plans contained errors in the depiction of natural ground level and in various site elevations and cross‑sections that were material to the issue whether the development met the level access requirements for adaptable housing.
8. The Tribunal reiterates what it said during Ms Hartfiel's evidence, that providing level access is a fundamental requirement for adaptable housing that must be demonstrated at the development approval stage. A proponent (in this case, the Commissioner) bears the onus on these issues. A bare assertion that compliance has been (or can be) achieved is not enough, regardless that the assertion may be couched as an opinion held by an apparently qualified person. An opinion lacking an appropriate evidentiary foundation and devoid of reasoning carries minimal weight.
9. Drawings showing the dwellings in their pre-adaptation and post-adaptation stages were not provided. It was not possible for the Tribunal to be satisfied whether adaptation can be achieved in a low cost way. Ease of adaptation is a fundamental requirement for adaptable housing and must be demonstrated by evidence at the development approval stage and not merely asserted as something that can be achieved.
10. The Tribunal notes that the ACT Government's Adaptable Housing Requirements for Multi-Unit Developments includes comments on R14 of the MUHDC, which relates to adaptable housing requirements for standard blocks in RZ2. Additional dwellings permitted for adaptable housing above those shown in Table A2 must be designed and constructed to AS 4299 (Class C). The comments include:

This rule may allow you to build additional dwellings if you can show that all dwellings on the block comply with the Standard (Class C). This means that you may need to provide a greater level of detail than normally expected at the development application stage. For example, showing that door handles and hardware will be built to AS 1428.1.

1. Many of the essential features that must be incorporated in a dwelling for it to be termed an 'Adaptable house class C' in accordance with AS 4299, which is a mandatory requirement to meet R4 of the RZDC, were not demonstrated. Whether some of these requirements could be dealt with by conditions under section 162(1)(b) in accordance with the principles discussed earlier was not the subject of submissions. Ultimately, the Tribunal did not have to decide whether the proposal complies with R4 or can be made to comply by an appropriately framed condition, because approval was refused on other grounds.

Consistency with the Multi Unit Housing Development Code (MUHDC)

1. Mr Sandeman conceded that the site open space does not comply with R38 because less than 20% of the total site area is 'planting area'.[55] The applicant submitted that the proposal does not satisfy C38(b), which requires site open space to provide sufficient space for planting, particularly trees with deep root systems, to accommodate on-site infiltration of stormwater run-off.
2. Mr Sandeman considered there was space to plant a deep-rooted tree in the north‑west corner, where Tree 3 is shown on the plans although the tree has been removed. This appears doubtful considering its proximity to the extensions being built close to the boundary on the neighbouring block. As an alternative, he suggested an additional tree could be planted in the south-east corner, although the evidence about this was inconclusive.
3. An assessment whether there is sufficient room for a deep-rooted tree cannot be undertaken without considering the outcome that the criterion is intended to achieve - which is to accommodate on-site infiltration of stormwater run-off. Landscaping and site design affecting the control of stormwater run-off must be considered to determine whether a deep-rooted tree can be planted in a location which will accommodate infiltration and reduce run-off.
4. The block slopes from west to east toward Sturt Avenue and from south to north, directing surface flow of stormwater down the driveway and away from permeable surfaces. We are not persuaded that planting a deep-rooted tree in the north-west or south-east corner would materially improve on-site infiltration of stormwater run-off considering the current landscaping and site design.
5. Ultimately, the Tribunal did not need to decide whether C38(b) can be satisfied because approval was refused on other grounds.

1. The applicant questioned whether the landscape and site design achieves reasonable residential amenity and a contribution to energy efficiency by providing substantial shade in summer for unit 2 and unit 3 but did not press the issue at the hearing.
2. The Commissioner tendered revised landscape plans as part of exhibit C1 to address the concerns. Ms Hartfiel explained that the plans provided for plants to be added between the driveway and dwellings and between the driveway and the boundary, permeable paving to be provided in the front carpark area, and for concrete and hard surface areas located on the south boundary to be redesigned to allow for more planting areas and the use of artificial grass in some difficult to access areas.
3. Mr Sandeman considered that the changes achieved compliance with the relevant criteria without explaining why.
4. Ultimately, the Tribunal did not need to decide whether C40(c) and (d) are satisfied because approval was refused on other grounds.

Rule 41, Criterion 41, Criterion 42[57]

1. Fences are permitted forward of the building line[58] only in the limited circumstances provided in R41, none of which apply to this development. This was not in dispute.
2. C41 provides that fences may be permitted where the proposal meets the requirements in the Residential Boundary Fences General Code (RBFGC).
3. R1 of the RBFGC is a mandatory rule that prohibits front boundary fences or walls forward of the building line, except as provided for in the RZDC in the case of a courtyard wall and in other circumstances that are not relevant here. As the RZDC requires supportive housing to comply with the MUHDC, courtyard walls must comply with R42 or satisfy C42. The development does not include courtyard walls constructed at least partly of brick, block or stonework, as required by R42, and neither Ms Hartfiel nor Mr Sandeman attempted to justify the so-called 'temporary' wire mesh fencing enclosing the unit 1 PPOS as a courtyard wall under C42.
4. It is, in any event, misleading to describe such fencing as 'temporary'. It is a permanent structure, the intention being that eventually it will cease to be visible as the hedge grows around and through the fence.
5. In her oral evidence, Ms Hartfiel claimed that temporary fencing to protect a hedge while it is growing is permitted by the Territory Plan. This is only partly correct. Wire mesh fencing comes within the definition of 'transparent fence' in the RBFGC and is permitted only in the limited circumstances provided for in C2, C4 and C8, which apply to certain corner and battle-axe blocks and blocks with frontages to open space. The Tribunal is satisfied that the RBFGC does not allow wire mesh fencing forward of the building line on this block.
6. The Tribunal is satisfied that the proposal does not comply with R41 or satisfy C41 and cannot be justified under C42.

1. It was common ground that the building façade of unit 1 does not comply with R47. An issue was raised whether unit 1 achieves passive surveillance of the adjoining street as required by C47(a). The Commissioner provided amended plans incorporating a window in the dining/living area of unit 1 facing towards Sturt Avenue, which satisfies the Tribunal that passive surveillance is achieved.

1. The applicant questioned whether the floor or internal wall of a daytime living area of each unit is exposed to not less than three hours of direct sunlight between the hours of 9:00am and 3:00pm on the winter solstice, as required by R57.
2. The Commissioner was given leave to file and serve amended shadow diagrams addressing errors in earlier versions tendered as exhibit C5. This was done on 18 October 2022. The amended shadow diagrams were not given a separate marking but may be taken to replace the version in exhibit C5.
3. The amended shadow diagrams show that some direct sun penetrates into the living area of each unit in the three hour period between 11:00am and 2:00pm.
4. The interpretation of R57 has given rise to a divergence of opinion in the tribunal whether a minimal amount of sunlight is sufficient to comply with R57, or whether some kind of qualitative assessment of the amount of sunlight to which an internal living space is "exposed" is required.[61] That issue remains unresolved, notwithstanding that technical amendments to the Territory Plan, apparently prompted by the decision in Allen v ACT Planning and Land Authority,[62] clarified that overshadowing from vegetation is not considered when assessing solar access under the rule.
5. The Commissioner and ACTPLA submitted that the shadow diagrams demonstrate compliance with R57. The applicant conceded that there may be 'technical compliance' but maintained that the units receive very little sunshine.
6. The Tribunal considers that the interpretation of R57 remains problematic. A related issue is whether a development that meets R57 should necessarily be taken to "promote good solar access" in the context of an assessment under section 120(a) against RZ1 zone objective (g). Counsel for ACTPLA submitted that compliance with R57 necessarily means that zone objective (g) is achieved but did not explain why that result should obtain. It is at least arguable that a narrow and, it might be said, highly technical interpretation of R57 that would allow compliance with the rule to be demonstrated by shadow diagrams showing the slightest amount of sunshine notionally penetrating into an internal daytime living area, when in fact the living area is overshadowed by dense vegetation through which little or no sunlight can penetrate,[63] should not be taken to mean that the development achieves the objective to "promote good solar access". If it is correct to say that an assessment against R57 precludes consideration being given to the amount of sunlight to which an internal daytime living area is exposed during the requisite three hour period on the winter solstice, it may be that such an assessment is essential when considering the zone objectives for the purpose of exercising the discretion under section 120(a) of the PD Act.
7. Because the Tribunal did not have the benefit of considered submissions on these issues and approval was refused on different grounds, it is neither necessary nor appropriate for the Tribunal to express a concluded view whether the proposal complies with R57.

1. The PPOS of unit 1 is intended to be screened from Sturt Avenue and from the adjacent carparking area and driveway by hedge planting comprising Viburnum tinus and Osmanthus delavayi 'Heaven Scent' (200 mm pot size).[65]
2. The Tribunal undertook some searches of the internet, the results of which suggest that Viburnum tinus supplied in a 200 mm pot typically will be about 400 mm high. Depending on the growing conditions, Viburnum can reach about 2 metres and Osmanthus about 1.5 metres at maturity.
3. An established and properly maintained hedge may provide an appropriate level of screening to comply with R61(c). However, the same cannot be said for a newly planted hedge. It may eventually do so, depending on the choice of plants and the level of care and maintenance they are given, although the process can take several years. In the meantime, the PPOS of unit 1 will be exposed to public view from the street, the driveway and the on-site carpark. C61(e) requires the PPOS of unit 1 to achieve reasonable privacy. The Tribunal considers that the proposed hedge does not achieve this. The possibility that it may eventually do so does not alter the result.
4. The Tribunal is satisfied that the PPOS of unit 1 does not comply with R61(c) or satisfy C61(e).

1. It was common ground that the PPOS of unit 2 does not comply with R61(b), which requires the PPOS to have the minimum area and dimensions specified in table A9. For a two-bedroom unit in RZ1 the minimum area is 36 m2 and the minimum dimension is 6 metres. The PPOS of unit 2 achieves the minimum area but lacks the minimum dimension, in that it is only 3 metres wide, which is a significant departure from the rule. The issue therefore is whether it satisfies all of the criteria in C61.
2. Ms Hartfiel said in her witness statement:

The PPOS is proportionate with the size of the dwelling because an 84 m2 outdoor area is quite generous for a 102 m2 two-bedroom dwelling. There is ample room for a single person, couple, or small family to enjoy outdoor entertaining under the pergola, and space to plant a garden, play or keep pets.

The PPOS is an extension of the function of the dwelling because it allows for a pergola to be installed for dining purposes. The planting around the PPOS allows for relaxation and recreation.

The PPOS is conveniently accessed through the open plan kitchen, dining and living area of each dwelling.

The PPOS provides reasonable privacy as it is screened from public areas by being surrounded by fences and planting.

Reasonable solar access is available for all three PPOS areas with each POS facing north and receiving northern sun, but also providing important East and West shade to the house itself. As shown in the shadow diagram...all gardens receive full sun in winter during the middle of the day, with Unit 1 receiving morning sunshine and Unit 3 receiving afternoon sun as well. This is reasonable for clothes drying and planting. In summer the extent of sun received by each unit is greater.[66]

1. Mr Johnston said in his witness statement that the area "would have a poor level of 'amenity' in terms of solar access and private open space" and would not have an area proportionate to the size of the dwelling.[67] In his oral evidence, Mr Johnston said in relation to units 2 and 3 that "the bulk of the private open space is in the form of 3 metre wide strips, which ... are not particularly good, in terms of the quality of the environment that would be generated there. They suffer quite a lot of overshadowing."[68]
2. Mr Sandeman noted ACTPLA assessment that the PPOS met the criteria but opined that it could be improved by having greater separation from unit 1 and altering the front boundary setback for unit 1.[69] However, Ms Hartfiel gave oral evidence that greater separation from unit 1 was not practically achievable. In light of this, Mr Sandeman maintained that the criteria were achieved. Why he thought so was not explained.
3. To satisfy C61(a), the area of PPOS must be 'proportionate' to the size of the dwelling. The minimum dwelling size specified in R55 for a two-bedroom dwelling is 70 m2 excluding balconies and car parking facilities. The minimum area of PPOS specified in R61 for a two-bedroom unit in RZ1 is 36 m2. The point of departure in assessing whether C61(a) is achieved, is that 36 m2 is the minimum area of PPOS that is required for a 70 m2 two-bedroom unit, or just over 51% of the assessable area of the dwelling.
4. To satisfy C61(b), the PPOS must be "an extension of the function of the dwelling for relaxation, dining, entertainment, recreation". Understood in the context of the Territory Plan definitions of 'private open space' - an outdoor area useable for outdoor living activities - and 'principal private open space' - private open space that is directly accessible from a habitable room other than a bedroom - to satisfy criterion 61(b) the area provided must be useable for relaxation, dining, entertainment and recreation.
5. To satisfy C61(f), the PPOS must have reasonable solar access.
6. A six by six metre square area of private open space is considered adequate to meet the desired outcome to provide a useable outdoor space suitable for relaxation, dining, entertainment and recreation for the occupants of a two‑bedroom unit, provided it meets the other requirements of R61. C61(a) and (b) provide flexibility in terms of the shape, area and minimum dimensions of the PPOS. However, the desired outcome remains the same - i.e., a useable outdoor space suitable for relaxation, dining, entertainment and recreation. C61(b) speaks of the PPOS as "an extension of the function of the dwelling" for the specified purposes. It may be accepted that almost any area, whatever its shape and however dimensionally constrained, is capable of being used to some degree for some of those purposes. However, that is not the test of 'useability'. 'Useability' involves a qualitative assessment of the degree to which private open space is suited to be used for all of the required purposes, using the minimum area and dimension in R61 as the comparator.
7. A two-bedroom unit may be expected to accommodate between two and four people living or staying there at any time (a single parent or couple in one bedroom, with one child or possibly two young children sharing the second bedroom). As the proposed use is for supportive housing, one or more adults or children may have special needs.
8. Unit 2 is 110 m2 in area of which 24 m2 is the garage and 20 m2 is the entry and hall extending the full length of the unit. The internal dining area is 9 m2. The lounge area is 14 m2. The kitchen is 10 m2. The internal living space is adequate for a couple or small family but ungenerous, particularly if the occupants include young children. For the purpose of assessing compliance with C61(a), the area of the dwelling is taken to be 86 m2.
9. The PPOS is sandwiched between the eastern wall of unit 2 and the western wall of unit 1. Parts of the area therefore lie to the southeast of unit 2 and are shaded by the dwelling. The space is a maximum of 3 metres wide and approximately 15.4 metres long. Approximately half the length has a concrete paved surface and is partially roofed by a clear Danpalon pergola, noted on drawing A101 revision L as having an area of 13 m2. However, it may be inferred from dimensions shown on the drawing and confirmed by scaling that the pergola is closer to 18 m2 in area. The rest of the open space is covered in artificial grass. A garden bed is located adjacent to the western wall of unit 1. Exact dimensions are not given but working from the floor plan for unit 2[70] suggests that it occupies an area of approximately 7.7 by 0.5 metres. The effective width of approximately half the length of the PPOS therefore is 2.5 metres, not 3 metres. There is a small, landscaped space, approximately 9 m2 in area, on the southern side of the drying area extending to the rear boundary of the block, which will have a mulched surface and be planted with a Cornus kousa 'Aurora', a vigorous compact tree with a dense upright habit, underplanted with Lomandra domestica. We do not consider this area is useable and have excluded it from our assessment of PPOS.
10. The Tribunal calculates the total available area of PPOS of unit 2, including the clothes drying space in the south-eastern corner, as approximately 42.5 m2. The area of the PPOS is approximately 49.4% of the 86 m2 area of the dwelling. We consider this satisfies C61(a). However, the significant departure from the rule, where the space has a maximum width of only 3 metres and is less in parts, does not result in a proportional or functional space for a two-bedroom dwelling. We have also considered the definition of 'private opens space', which allows a maximum of 25% of the area to be roofed over. In this case, the permissible roofed area is approximately 10.6 m2. The area covered by the Danpalon pergola, whether 13 m2 as stated on the plans, or 18 m2 as appears to the Tribunal, exceeds this.
11. Access to the northern end of the PPOS is through a sliding glass door from the dining/lounge room. The plans show an outdoor table with seating for four people under the pergola opposite the door. Drawing A101 revision L shows the corner of the 850 mm square table (scaled from the drawing) and the edge of the chair each encroach into the manoeuvring space outside the sliding door, depicted by a broken line red rectangle. It may be accepted that the size, orientation and location of the outdoor setting is intended simply to illustrate how the area might be used. However, seating for four persons is the minimum the Tribunal considers should be provided for the occupants of the premises but would leave little scope for visitors, entertaining and relaxation.
12. Allowing for a more realistic but still small outdoor setting for four people with a 1.0 metre square table, generally between 0.8 and 1.0 metres should be provided from the edge of the table on each side to allow for seating and circulation for able bodied persons. The minimum space requirement is for a 2.6 metre square area in a space that is only 3 metres wide. Seating for 6 people, to accommodate friends and other visitors, would require a correspondingly larger space.
13. As the proposed use is for supportive housing, useability must be assessed on the basis that at least one occupant may be in a wheelchair. The minimum clear access required for a wheelchair is 1.2 metres. Practically, this means that the useable width of the PPOS under the pergola is limited to a 1.8 metre wide strip adjacent to the western wall of unit 1. Moving the outdoor setting away from the sliding door does not solve the wheelchair access issue. Further, the rear half of the PPOS is even less useable for an outdoor setting. It is not sheltered by the pergola (which already exceeds the permissible roofed area) and, considering wheelchair access to the clothes drying area located in the south-east corner of the PPOS, is constrained by the width of the garden bed, leaving a useable width of only approximately 1.3 metres.
14. The west-facing external brick wall of unit 1, which is up to 3.8 metres high, is likely to receive significant western sun exposure in summer. Resulting heat absorption and radiation into the narrow space may make it uncomfortably hot for daytime use in summer.
15. Shadow diagrams were provided to show that the PPOS of unit 2 receives reasonable solar access on the winter solstice. Solar access is the ability to receive direct sunlight without obstruction from buildings or impediments. While the proposed Danpalon pergola permits daylight to penetrate, there was no evidence about the solar properties of the material. Without this it is not possible to assess the degree to which Danpalon may restrict direct sunlight from penetrating into the covered area. A note on the amended shadow diagrams filed on 18 October 2022 claims that between the hours of 11:00 a.m. and 2:00 p.m. the unit 2 POS receives direct sunlight on more than 50% of the minimum area (i.e., 18 m2). However, the Tribunal's assessment of the shadow diagrams does not bear this out. Rather, it shows that the PPOS of unit 2 receives direct sunlight between 11:00 a.m. and 1:00 p.m. and virtually no sunlight at 2:00 p.m. We have not attempted to calculate the area that receives direct sun between 11:00 a.m. and 2:00 p.m. as no dimensions are provided, the area shown as receiving direct sunlight includes the landscaped area at the southern end which we have found is not useable, the solar properties of the Danpalon pergola are unknown, and the roofed area exceeds what is permissible.
16. The Tribunal considers the evidence whether unit 2 PPOS achieves reasonable solar access is inconclusive. In light of other considerations that require approval to be refused, we do not need to come to a final decision about this. It is sufficient for present purposes that the Tribunal finds that the PPOS of unit 2 does not satisfy C61(b).

1. The Tribunal found that the PPOS of unit 3 does not comply with R61(b) in that the area in question has a minimum dimension of slightly less than 6 metres. However, the Tribunal is satisfied that it meets the requirements of C61(a) to (f).

Rule 73/Criterion 73(a)[71] and (c)[72]

1. R73 stipulates, among other things, that an internal driveway must be set back from an external block boundary by not less than 1 metre and the setback must be planted to a width of not less than 1 metre. Also, windows to habitable rooms and exterior doors within 1.5 metres of an internal driveway must have either an intervening fence or wall at least 1.5 metres high or, for windows, have a sill height of at least 1.5 metres above the driveway.
2. The driveway is set back 350 mm from the northern block boundary for a distance of approximately 27 metres extending from the font boundary. The landscape plans show that Lomandra domestica (also known as 'mat rushes') and Scirpus nodosus (also known as isolepsis nodosa or 'knobby club-rush') will be planted in the setback. Lomandra domestica is a native grass with a clumping habit, with a height and spread of around 60-65 cm and up to 1.0 metre depending on the selected cultivar.[73] Scirpus nodosus is a perennial native grass that forms clumps with upright arching, bright green stems and grows to 30-90 cm.[74]
3. The north facing windows and doors to unit 1 and 2 are within 1.5 metres of the driveway. Neither unit has an intervening fence or wall, although some provision is made for screen planting.
4. It was common ground that the internal driveway does not comply with R73. The issue is whether it complies with C73. C73(a) requires that the internal driveway must provide sufficient space for planting along the property boundary. C73(b) requires sufficient space for planting between internal driveways and buildings. C73(c) requires reasonable residential amenity, particularly in relation to the intrusion of light and noise into habitable rooms. C73(d) requires clear differentiation between the driveway and parking spaces.
5. C73(b) and (d) is achieved. However, as we explain below, the Tribunal considers that the proposal does not satisfy C73(a) and (c).
6. Ms Hartfiel considered that C73 is achieved by "softening the edge" of the driveway with appropriately selected planting.[75] However, in the Tribunal's view, the purpose of R73/C73 is to provide for adequate landscaping of internal driveways to ensure the privacy and amenity of habitable spaces facing the driveway and to soften the effect of a driveway on the resulting streetscape, particularly where a long driveway visible from the street is provided. The Tribunal considers the reason for requiring the setback to the side boundary to be planted to a minimum width of 1 metre is to provide adequate space for a hedge or other tall planting to screen the fence and provide reasonable privacy from overlooking by a neighbouring property, without interfering with manoeuvring clearances for the driveway.
7. Overlooking from the neighbouring property is not an issue in this case because the plans for the new extension and garage show a 25.6 metre long brick wall with a single (approximately 2400 mm by 600 mm) window with a sill height of 1.8 metres. The wall of the garage has almost no setback to the side boundary for the first 8 metres and the rest is set back 1530 mm. However, this means that the outlook from the north facing windows of internal living areas (the kitchen in unit 1 and the dining/living area in units 2 and 3) is towards the driveway, fence and the brick side wall of the neighbouring property.
8. The proposed 350 mm wide planting strip would provide insufficient space for substantial screen planting. The proposed 'accent planting', as it is described on the landscape plans, will not provide adequate screening of the fence or achieve any meaningful improvement of the outlook from the dining/living area of unit 2, which is the worst affected. The narrowness of the planting strip means that if the plants listed in the landscape plan are used, their spread at maturity is likely to restrict the minimum useable width of the driveway. Lower growing plants with less spread could be substituted but would be even less effective to achieve adequate landscaping of the driveway.
9. However, the Tribunal considers that there is insufficient space to provide even a 350 mm wide planting strip, as we explain below.
10. The west elevation of unit 1 on drawing A201 revision J shows, in section, a 1.8 metre high wall above finished ground level (FGL) on the northern boundary. The FGL scales at 0.5 metre above natural ground level (NGL). The top of the wall scales at 2.3 metres above NGL. The east elevation of unit 2 on drawing A203 revision J shows, in section, a 1.8 metre high wall above NGL on the northern boundary. The FGL of the driveway scales at 200 mm above NGL and there is a 200 mm gap between the driveway and the wall on the boundary. The top of the wall scales at 2.3 metres above NGL.
11. The "3D Views drawing A900 revision I" shows the view from south-southwest at the bottom and from the north-northeast at the top. The bottom view shows a fence running the length of the northern boundary. The top view does not show the fence; however, it shows the driveway raised above NGL for most of its length, which is necessary to achieve the maximum permissible slope of 1:20 to comply with access requirements for an adaptable house (class C).
12. Condition 13 of the approval requires the existing fence separating adjoining residential blocks to be replaced with a 1.8 metre high fence. The Tribunal's analysis of the proposed levels for the driveway shown on drawing A001 revision L, shows that at the boundary the FGL is raised approximately 300 mm above NGL for some distance along the driveway.
13. No overall cross sections and no detail sections showing the conditions at the northern boundary are available to resolve the apparent inconsistencies in levels.
14. However, from the Tribunal's analysis of the drawings it appears a retaining wall is required to maintain the FGL and proposed edge planting and to support the new fence. The Tribunal envisages that a 190 mm blockwork wall on a reinforced concrete footing, or similar, would be required, which inevitably must encroach into the space allocated for the proposed 350 mm planting strip. Practically, this would limit the useable width of the planting bed to about 160 mm, or similar, before considering the requirements for footings and the sub-soil drainage.
15. Mr Sandeman suggested the proposal could be improved by increasing the width of the planting strip. However, Ms Hartfiel said:

Unfortunately it can't be. We've talked to our civil engineer, and this driveway has been designed to the absolute minimum size that it can be designed to to (sic) account for all of the turning circles and to get all of the correct parking working.[76]

1. In fact, as we show later, the driveway fails to provide adequate manoeuvring clearance to meet the requirements of the PVAGC.
2. The landscape plan provides for ground cover planting in front of the north-facing full-length window to the dining/living area of unit 2. This provides no effective screening from the driveway, affecting both privacy of the internal living space and the amenity of residents, particularly with respect to the intrusion of light from cars at night. Provision is made for two Osmanthus delavayi 'Heaven Scent' shrubs (200 mm pots size) to be planted in front of the wall beside the window to provide screening to the PPOS. As noted earlier, this will start out about 400 mm high and eventually may grow to about 1.5 metres at maturity. As the shrubs spread, they may eventually provide some measure of screening to the front window, but that may depend more on how the gardens are maintained rather than on the landscaping and architectural design intent. In the meantime, the development does not achieve reasonable residential amenity for dining/living area of unit 2.
3. For these reasons, the Tribunal considers that the proposal does not satisfy C73(a) and (c).

1. C76 requires internal driveways to be designed to be safely used by both pedestrians and vehicles. As noted earlier in our discussion of R4 of the RZDC, Ms Hartfiel acknowledged that the proposed accessible pathway requires pedestrians to use the driveway for access.
2. The proposed use of the dwellings is for supportive housing. Dwellings must be designed and constructed in such a way as to be easily adapted to suit the needs of people with a range of physical, sensory and/or intellectual disabilities.[78]
3. While there may be circumstances where an appropriately designed driveway may be adequate to provide safe, level access for a person with a physical disability requiring them to use a wheelchair, the Tribunal considers that it is inherently unsafe to provide for shared driveway access by a person who may be blind, deaf, and/or intellectually impaired. The safety issue in this case is magnified because the driveway is long and narrow and, as the turning demonstration plans show, does not achieve the required manoeuvring clearances for vehicles entering and exiting the garages of all units.[79] We discuss this further when we consider whether the development is consistent with the PVAGC.
4. The Tribunal is satisfied that C76 is not met.

1. The proposal does not comply with R77(a), which requires resident car-parking spaces on the site to be located behind the front zone, except for apartment parking. Two car-parking spaces are provided for residents adjacent to the front boundary. It is proposed to screen these from the street with hedge planting. Ms Hartfiel said that there was nowhere else for the car-parking spaces to go.
2. The issue is whether car-parking for residents in the front zone achieves consistency with the desired character. The Tribunal is firmly of the view that it does not. While the Tribunal accepts that the character of Narrabundah is changing as a result of redevelopment, particularly with respect to site coverage and the size of new dwellings, the Tribunal saw no evidence that the provision of car-parking in the front zone is either part of the existing character of the area, or that sites that have been redeveloped include provision for parking in the front zone.
3. It was suggested that the extensions to the neighbouring dwelling to the north included provision for parking in the front zone. However, the Tribunal is satisfied that this is a reversing area for vehicles backing out of the garage, to enable them to exit onto Sturt Avenue in a forward direction.
4. The Tribunal considers that permanent parking in the front zone that is visible from the street would have a significant, negative effect on the streetscape and serve as an undesirable precedent for future development in the area.

1. The Tribunal is satisfied that it is not necessary to assess the proposal against R82/C82 because the PVAGC does not require car-parking to be provided for visitors in a development of this size.[82]

Consistency with the Parking and Vehicular Access General Code (PVAGC)[83]

1. Clause 3.1.4 of the PVAGC contains "specific requirements for the location of long stay, short stay and operational parking" for a development in a residential zone. 'Operational parking' refers to vehicles used directly as part of the operation within the development.
2. The Territory Plan definition of supportive housing is mentioned earlier in these reasons.[84] For a residential development to qualify as supportive housing, a Territory approved organisation must be able to deliver services to residents on‑site, including counselling, domestic assistance and personal care as required. As a minimum, one car-parking space must be provided for operational parking. More may be required depending on the nature of the services and the frequency with which they may be provided.
3. Clause 3.1.4 includes a "specific requirement" that operational parking within a development for residential use must be provided on-site. In contrast, clause 3.1.4 permits short stay and visitor parking to be provided on-site or within 100 metres. Although Mr Sandeman said there is a discretion to allow operational parking to be provided off-site, the Tribunal disagrees. The meaning of clause 3.1.4 is unambiguous and precludes this. The discretion that is available to provide for short stay and visitor parking within 100 metres of the site is not available for operational parking. The provision of on-site operational requirement is a "specific requirement" that must be met in a supportive housing development.
4. Mr Sandeman agreed that an assessment of operational parking needs for a supportive housing development requires information to be provided at the development approval stage about the type of supportive housing, and the nature of services to be provided to on-site.[85] Information of that kind was notably absent in this case. Counsel for the Commissioner submitted that the kind of services that may be provided will depend on the particular needs of occupants, and it is not possible to assess the nature of such needs without knowing the identity of the occupants. Nor is it possible to assess the kind of services that may be provided on-site because the Territory approved organisation that may be appointed to manage the supportive housing development has not been identified at this stage.
5. Ultimately, the Tribunal did not have to decide what significance should attend the absence of such information because, as a minimum, one on-site operational car-parking space had to be provided. Ms Hartfiel conceded that this was impossible. The development therefore does not comply with clause 3.1.4 of the PVAGC.

1. Clause 2.3.2 of the PVAGC requires access to a car park to meet certain minimum requirements governed by engineering and other design manuals applicable to works in the Territory, including Design Standard 10 - Parking Areas (Department of Territory and Municipal Services) and AS 2890.1-2004 Parking Facilities, Part 1: Off-Street Parking (AS 2890.1).
2. Appendix B of AS 2890.1 applies to the design of internal driveways. It provides base dimensions (length, width and wheelbase) for two vehicle types (B99 and B85) to which operating clearances must be added to allow for turning, manoeuvring and parking. Base dimensions for the B99 and B85 vehicles are specified in Figures B1 and B2. B99 is the larger of the two vehicles.
3. Paragraph B2.2 requires internal driveways to be designed using the B99 design template, except in limited circumstances that do not apply here. Paragraphs B3.1(a) and B3.2(a) provide:

B3.1 Standard single turn swept path templates

(a) The B99 design templates The B99 template comprises an inner pair of unbroken lines representing the B99 base dimension swept path, and an outer pair of broken lines which includes both the manoeuvring clearance...and the circulation clearance...The broken line templates shall be used in the design of all access roadways, ramps and, circulation roadways, except where otherwise indicated in Paragraph B2.2.

Clearances to be added to the base swept path templates in Paragraph B3.1 to provide the required design standard are as follows:

(a) Manoeuvring clearance To cater for slow-moving vehicles travelling within parking aisles or manoeuvring into parking spaces, i.e. at 10 km/h or less, a clearance of 300 millimetres shall be added to both sides of the turning path.

1. The Commissioner tendered amended turning demonstration plans as part of exhibit C4. It is apparent from the Tribunal's assessment of the plans that inadequate manoeuvring clearance is provided for the B99 vehicle at the entrance to each garage. It is apparent also that the proposed landscaping of the planting strip next to the driveway may further restrict manoeuvring clearance as plants achieve full spread at maturity.

Consistency with Waterways: Water Sensitive Urban Design General Code (WSUDGC)

1. The applicant initially raised issues relating to compliance with R1/C1,[86] R2/C2,[87] R3/C3,[88] R9/C9[89] and C10[90] of the WSUDGC.
2. The Commissioner provide a revised response to the WSUDGC demonstrating compliance with all relevant provisions of the code to satisfy the conditions of approval under section 165 as part of exhibit C4, which Mr Sandeman accepted demonstrated compliance with the code.[91] The Tribunal accepts Mr Sandeman's evidence.

Consistency with the Lease Variation General Code (LVGC)

1. It follows from the Tribunal's earlier findings that the lease variation approved by ACTPLA is not consistent with the Territory Plan because it would permit the development to be used for residential purposes as well as supportive housing, where a development consisting of three single dwellings in RZ1 is permissible only for use as supportive housing.
2. It follows also that although the block is suitable for a supportive housing development, it is not suitable for a development comprising three single dwellings for residential purposes and/or supportive housing as authorised by the lease variation approved by ACTPLA.
3. Accordingly, C1(i) and (ii) are not met.

1. It follows from the Tribunal's earlier finding in relation to the lack of on-site operational parking that insufficient parking is provided in accordance with the PVAGC. Accordingly, C2(i) is not met.

1. The respects in which the Tribunal has found that the development proposal is not consistent with relevant codes appear to stem from a design brief to fit three two-bedroom single dwellings on the block. Although notionally the block is of sufficient area to allow a maximum of three single dwellings for use as supportive housing, the proposed development is not consistent with all relevant codes.
2. There appears to be no scope for the development to be changed to make it code compliant without substantially altering the development.
3. Where the development proposal (as amended in accordance with evidence at the hearing) is not consistent with all relevant codes, and the Tribunal is not satisfied that the inconsistencies can be cured by a condition imposed under section 162(1)(b) of the PD Act, section 119(1)(a) of the Act mandates that development approval must not be given.
4. The correct (rather than preferable) decision in those circumstances is to set aside the decision to grant development approval and substitute it with a decision to refuse approval.

Dr D Denham and Mr J Edquist (authorised representatives)

[8] The plans were marked initially as MFI-1 and later became exhibit C3

[9] The amended plans became exhibit C4. The amended shadow diagrams became exhibit C5

[10] The plans for the extension on the adjoining property became exhibit R1

[12] ARC, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39 (AGPS, 1995), at [2.2], quoted in W. B. Lane and S. Young Administrative Law in Australia (Lawbook Co., 2007) at page 225

[13] Village No 22 Pty Ltd v ACT Planning and Land Authority [2021] ACAT 43 at [49]- [87]; Noah's Ark Resource Centre Inc v ACT Planning and Land Authority [2017] ACAT 44 at [226]- [232]; Noah's Ark Resource Centre Inc v ACT Planning and Land Authority [2018] ACAT 95 at [32]- [33]

[14] Noah's Ark Resource Centre Inc v ACT Planning and Land Authority [2017] ACAT 44 at [226]- [230]

[15] (1992) 75 LGRA 112

[16] (1992) 75 LGRA 112 at [118]-[119]

[17] [2006] NSWCA 23

[18] [2006] NSWCA 23 at [28]

[19] [2008] NSWCA 256

[20] [2008] NSWCA 256 at [48]- [49]

[21] AS 2890.1 - Australian Standard for Parking Facilities, Part 1: Off-street car parking

[22] Duffy v ACT Planning and Land Authority; Davidson v ACT Planning and Land Authority [2021] ACAT 104

[23] Section 139(f) of the PD Act provides that an application for development approval in the merit track must be accompanied by information or documents addressing the relevant rules and criteria

[24] Javelin Projects Pty Ltd v ACT Planning and Land Authority [2017] ACAT 87 at [73], cited in Peraic v ACT Planning and Land Authority [2019] ACAT 118 at [81]- [83]

[25] Allen v ACT Planning and Land Authority [2021] ACAT 88 at [209] and the decisions listed in f.n. 85

[26] Applicant's Summary of Issues, items 4 to 7; Applicant's Submissions, Issues 1-4

[27] Applicant's Summary of Issues, item 3; Applicant's Submissions, Issue 5

[29] Exhibit C2, item (d) in the table on the third un-numbered page of the witness statement

[30] Applicant's Summary of Issues, items 25 and 26; Applicant's Submissions, Issue 6

[31] Housing Assistance Act 2007, s 6(1)(b) and (c)

[32] Applicant's Summary of Issues, item 8; Applicant's Submissions, Issue 7

[33] Definitions, Territory Plan (R268)

[34] [2021] ACAT 43 at [126]- [127]

[36] Narrabundah Neighbourhood Plan, September 2004

[37] apps.actpla.act.gov.au/neighbourhood_plans/#updates

[40] R29/C29, R30/C30, R31/C31, R32/C32

[43] Transcript of proceedings, 10 October 2022, page 17

[50] See the earlier discussion in paragraphs [33]-[39]

[53] We have given an example in [39]

[54] Applicant's Summary of Issues, item 9

[55] 'Planting area' is defined in the Territory Plan to mean an area of land within a block that is not covered by buildings, vehicle parking and manoeuvring areas or any other form of impermeable surface and that is available for landscape planning.

[56] Applicant's Summary of Issues, item 10

[57] The Tribunal raised this as an issue

[58] The Territory plan defines 'building line' to mean a line drawn parallel to any front boundary along the front face of a building or through the point on a building closest to the front boundary.

[59] Applicant's Summary of Issues, item 11

[60] Applicant's Summary of Issues, item 12

[61] Johnson & Xu v ACT Planning and Land Authority [2012] ACAT 53 at [75]- [76] and Hamilton v ACT Planning and Land Authority [2018] ACAT 121 at [117] provides support for the former and Allen v ACT Planning and Land Authority [2021] ACAT 88 at [195]‑[200] provides support for the latter

[62] [2021] ACAT 88

[63] As, for example, was found to be the case in Allen v ACT Planning and Land Authority [2021] ACAT 88 at [203]

[64] Applicant's Summary of Issues, item 13

[68] Transcript of proceedings, 11 October 2022, page 106, lines 15-25

[71] Applicant's Summary of Issues, item 14

[72] The Tribunal raised this as an issue

[73] https://aussiegreenthumb.com/how-to-grow-lomandra-longifolia/;

https://www.ozbreed.com.au/plant-ranges/strappy-leaf-plants/tanika-lomandra/

[74] https://www.australianseed.com/shop/item/isolepis-nodosa-syn-isolepis-nodosa

[75] Transcript of proceedings, 10 October 2022, page 46

[76] Transcript of proceedings, 10 October 2022, page 47, lines 5-8

[77] The Tribunal raised this as an issue

[80] Applicant's Summary of Issues, item 15

[81] Applicant's Summary of Issues, item 16

[82] PVAGC, clause 3.1.5 Schedule of parking provision rates for residential zones - requires 1 visitor parking space per four dwellings, whether comprising attached or detached houses.

[83] The Tribunal raised this as an issue

[85] Transcript of proceedings, 11 October 2022, page 137, line 27 to page 139, line 6

[86] Applicant's Summary of Issues, item 17; Applicant's Submissions, Issue 16

[87] Applicant's Summary of Issues, item 18; Applicant's Submissions, Issue 17

[88] Applicant's Summary of Issues, item 19; Applicant's Submissions, Issue 18

[89] Applicant's Summary of Issues, item 20

[90] Applicant's Summary of Issues, item 21

[91] Transcript of proceedings, 11 October 2022, page 129

[92] The Tribunal raised this as an issue

[93] Applicant's Summary of Issues, items 1 and 2. Although the applicant asserted initially that compliance with C2(iv), C3(i), (iv) and (vii) has not been demonstrated, it abandoned these issues at the end of the first day of the hearing.