1. The hearing was conducted over three days, on 5 July 2018, 6 July 2018 and 11 September 2018. The objectors each appeared in person. The respondent was represented by Ms Katavic of Counsel (instructed by the ACT Government Solicitor), and the Territory by Mr Clynes of Counsel (instructed by King & Wood Mallesons).
2. The objectors called evidence from several Holder residents, including Mr McGoverne, Mr Forsey and Ms J Beitzel.
3. ACTPLA called evidence from Mr George Cilliers, a town planner and senior manager within that organisation. The Territory called evidence from Mr Bryn Challis, a graduate architect employed by Phillip Lesson Architects, and John Samoty, a Senior Civil Engineer with Cardno. Both filed written statements acknowledging the ACT Civil and Administrative Tribunal (ACAT) Expert Witness Code of Conduct.

1. As is not uncommon in these matters, there was an obvious discrepancy in the expertise and professionalism of the parties and their witnesses.
2. While the tribunal is intended to be simple and informal,[2] and may inform itself in any way it considers appropriate,[3] it also has an obligation to act in accordance with the principles of procedural fairness[4] and draw conclusions on the basis of logically probative material.[5] This means that propositions that are not self evident will usually need to be supported by evidence, including sometimes expert evidence, before the tribunal can accept them.[6] As was observed by the tribunal in Bell & De Castella and Rob De Castella's Smartstart for Kids Limited:

ACAT is not bound by the rules of evidence, however, the tribunal must be careful when assessing evidence. Evidence must be given weight and weight will be determined by the substance, the source, and the relevance of the evidence to the issues before the tribunal: evidence must be reliable, relevant and probative in nature.[7]

1. It is in meeting this burden that the consequence of the financial and knowledge imbalance between the parties is most apparent - in short, ACTPLA and the Territory were able to produce expert opinion evidence from credible and professional witnesses, while the objectors were not. While it is impossible to say what the outcome would have been had there been a contest in the expert evidence (it may well have been no different), the consequences of the imbalance, from a procedural standpoint, are evident from our reasons below.
2. It must be emphasised that this observation is in no way intended as a criticism of the objectors, or indeed of ACTPLA or the Territory or their witnesses, whose credibility is not in doubt. Rather, it is a reflection on the reality of adversarial legal proceedings involving technical or expert issues. The solution to this problem, if any, is beyond the scope of these reasons.

1. The law applicable to reviews of planning decisions under the P&D Act comprises multiple, in some ways inconsistent, decisions, made by differently constituted tribunals, including several comprising presidential members. It is, despite the P&D Act being some 11 years old, also still in development. Indeed, the case law is in such a state of flux that ACTPLA fundamentally changed its position on the interpretation of the law during the course of this year.[8] The situation caused the objectors understandable confusion. It also leaves this Tribunal in a very difficult position.
2. Broadly stated, the cause of the confusion arises from two provisions in the P&D Act:
   • (a) section 121(2) of the P&D Act, which sets out the tribunal's power to undertake a merits review of an approved 'merit track' DA; and
   • (b) section 120, which sets out a range of discretionary factors that the 'decision-maker' must take into account when approving a DA.
3. In the context of this matter, the practical question is whether section 121(2) operates so as to confine the Tribunal to a 'code compliance' exercise (however defined) and/or precludes the Tribunal from considering the factors in section 120 when determining whether to uphold a reviewable decision.
4. There are several recent decisions of the Tribunal that consider the history of the Tribunal's interpretations of section 121(2), including most recently Noah's Ark Resource Centre Incorporated v ACTPLA and Anor [2017] ACAT 44 (Noah's Ark 1) and, more fully, Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority[9] (Sladic). It is neither necessary nor appropriate that we repeat the observations in those cases, but it is convenient to set out the 'high points' so as to highlight the dilemma this Tribunal faces in determining its role in this matter.
5. An appropriate starting point is section 119(1)(a) of the P&D Act_._ This section provides, relevantly, that:

development approval must not be given for development proposal in the merit track unless the proposal is consistent with ... the relevant code

1. The 'codes' are part of the Territory Plan,[10] which is established pursuant to section 48 of the P&D Act. The object of the Territory Plan is to

ensure, in a manner not inconsistent with the national capital plan, the planning and development of the ACT provide the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation.[11]

1. Section 51(1) of the P&D Act then prescribes the content of the Territory Plan as follows:

(1) The territory plan must include the following:

1. A 'code', as per section 51(1)(d), is defined as a 'code in the Territory Plan'.[12] Details of what a 'code in the Territory Plan' must include are set out in section 55 of the P&D Act. This provides that:
   1. Codes in territory plan

(1) A code (other than a general code or precinct code that is a concept plan) in the territory plan must contain either or both of the following:

(a) the detailed rules that apply to development proposals the code applies to;

(b) the criteria that apply to development proposals the code applies to, other than proposals in the code track.

(2) A code must be consistent with each objective for the zone to which the code relates.

(3) A code that sets out the requirements that apply to stated areas, or places, or states that it is a precinct code, is a precinct code. Note A concept plan is a precinct code (see s 93 (b)).

(4) A code that sets out the requirements for types of development, or states that it is a development code, is a development code.

(5) A code that sets out requirements applicable to the Territory, the Executive, a Minister or a Territory authority is a general code.

_(6) To remove any doubt, a general code may also contain - _

(b) rules and criteria applicable to development proposals the code applies to.

1. A key point here is that most codes, although not all of them (general codes and precinct codes that are concept codes[13] need not[14]), set out a series of 'rules' and 'criteria' against which a development must be assessed. In broad terms, the rules are quantitative while the criterion are qualitative.[15] Rules, other than mandatory rules, will have corresponding, alternative criteria, so if the relevant rule is not met (on a quantitative assessment) the developer can instead address the criteria.
2. The criteria typically use words such as 'proportionate' and 'reasonable'. Whether something is 'reasonable' or 'proportionate' must be viewed in the context of the rules as a whole[16] and the code more generally. Hence, in Javelin Projects Pty Ltd v ACT Planning and Land Authority, the Tribunal observed that in considering that test:

the Tribunal consider it useful to consider the 'minimum ideal' as set out in the related rule as a useful guide. Whilst clearly 'something less' than the rule requirements may be approved, the degree of divergence from the rule requirement is a matter that will help guide the Tribunal in its consideration of the evidence provided in support of satisfying criterion.[17]

1. The authorities are in agreement that an assessment against the rules and criteria - a 'code compliance exercise' - is the first step in any review under section 121 of the P&D Act.[18] If a rule or criterion is not met the development approval must be set aside, unless the deficiency can be remedied through variation or conditions.[19] A number of the contentions raised by the applicants go directly to compliance with the rules or criteria - these are contentions 1, 3, 4, 5, 6, 7, 8 and 9. Each are considered in turn below.
2. Where the parties differ about the application of the law is what else, if anything, beyond 'rules compliance' the Tribunal can consider when undertaking a review. There is also a question as to what 'rules compliance' means.
3. Starting with the latter issue, it is notable that several general codes do not contain rules or criteria. As will be seen below, the Water Design Code and the PVAGC both contain only 'objectives'. The Water Design Code objectives are broadly worded, but the PVAGC contains specific, quantitative vehicular access and parking requirements for developments.[20] The question is: can the Tribunal consider these codes, and if so, how?
4. The second area of contention is whether the Tribunal can consider the factors set out in section 120 of the P&D Act. This section provides a list of matters that a 'decision-maker' must consider when deciding a development application. The objectors contend that the Tribunal should at least have regard to the following considerations under that section:
   • (a) the objectives for the zone in which the development is proposed to take place, being a community facilities zone (zone objectives);[21]
   • (b) the suitability of the land where the development is proposed to take place for a development of the kind proposed;[22] and
   • (c) the probable impact of the proposed development, including the nature and extent and significance of probable environmental impacts as well as the impact more generally on the applicants social and psychological amenity and the loss of land value and impact of that on the applicants as owners of adjacent premises.[23]
5. The CFZ 'zone objectives', per section 120(a) of the P&D Act, feature strongly in the objectors' submissions. By way of background, the Territory Plan establishes 'zones', or categories of land, and sets out the objectives for each zone.[24] The zone objectives set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone.[25] Section 55(2) of the P&D Act, set out above,[26] provides that a code must be consistent with each objective for the zone to which the code relates. For the purposes of any review, there is a strong presumption that where a development is code compliant, the code objectives will also met.[27] However, section 120(a) appears to provide some scope for a decision-maker to have regard to broader considerations about the general suitability of a proposed development.
6. But can the Tribunal have regard to section 120(a)? The authorities differ.

1. Sladic concerned a review of a proposed supermarket development in Dickson. Several parties were involved, and most were represented by experienced counsel. It is apparent from the reasons that there were extensive submissions on legal issues made on behalf of several parties about the interpretation of section 121(2) of the P&D Act.
2. In Sladic, ACTPLA argued that section 121(2) 'carves out' from the entirety of the decision consideration of the merits of a development where a rule has been met,[28] or where a criterion has been met, but leaves the remainder of the decision open to the Tribunal to review. The Tribunal summarised ACTPLA's position in that case as follows:

(a) there is generally speaking a right to review the entire decision of the Authority to approve the development application;

(b) if the Authority found that a rule was complied with, it is open to the Tribunal to review that part of the decision;

(c) if the Authority found that a rule was not complied with but a criterion was, the finding that the criterion was complied with is open to review by the Tribunal;

(d) if there was no rule, but a criterion, and the Authority found that that criterion was met, the finding that the criterion was met was open to review by the Tribunal; and

(e) because subsection 121(2) is directed to how the Tribunal can review the Authority's decisions in relation to rules and criteria and does not exclude the remaining aspects of section 119 or 120 of the Planning Act from review, the remainder of the discretionary decision remains open to review by the Tribunal.[29]

1. The party joined, Coles, on the other hand, argued that

the Authority's interpretation was wrong, as subsection 121(2) does not 'carve out' impermissible parts of the decision, but rather on its terms provides what the 'extent' of the reviewable decision is.[30]

1. The Tribunal summarised Coles' position as follows:
   • (a) If the Authority found that a rule was complied with, that part of the decision was not open to review by the Tribunal.
   • (b) If the Authority found that a rule was not complied with, but a criterion was, the finding that the criterion was met was open to review by the Tribunal.
   • (c) If there was no rule, but a criterion, and the Authority found that that criterion was met, the finding that the criterion was met was open to review by the Tribunal.
   • (d) No other part of the decision to approve the development application was open to review by the Tribunal. [31]
2. Following this hearing, the Tribunal published a decision in which it undertook an extensive review of previous tribunal decisions and the relevant legislation. In those reasons, the Tribunal observed that:
   1. The meaning and effect of the words used in section 121(2) is a vexed question. Counsel for Coles took the Tribunal to five previous decisions of the Tribunal on this point. Those decisions reached slightly different conclusions on their meaning. Further, in some decisions, as pointed out by Counsel for Coles, the Tribunal's approach taken to the review was not ultimately consistent with what the Tribunal in those cases found the s.121 words meant:

... they have not gone back to the section, worked out what it means and then followed through step by step. A number of decisions have come close to doing so ... and when you then read what they actually did in that decision, they didn't follow through what they had previously decided.

1. During the period of time this decision was reserved, the Tribunal delivered another, slightly different, decision on the meaning and effect of the s.121 words. It is on any view an entirely unsatisfactory state of affairs that, more than a decade after the Planning Act was enacted, there is no certainty as to what is involved in review by the Tribunal of decisions on merit track applications.
2. The Tribunal then went on to consider "the ordinary meaning of the words used, their intended purpose and other principles of statutory interpretation".[32] The outcome of this process was, ironically, another (sixth) interpretation of section 121(2), one that largely accorded with the submissions made by Coles, with the exception that it found that the tribunal does have the authority to review whether a rule has been met, as this is a jurisdictional fact.
3. Hence, the Tribunal's conclusion in Sladic (the Sladic approach) was that:

The Tribunal considers that its task on review of a merit track decision is to consider the questions of code compliance only (section 119(1)(a)). The Tribunal cannot review the decision in relation to other parts of section 119, the broader considerations listed in section 120, or any other matters which may have been relevant to the discretionary decision.[33]

1. In other words, under the Sladic approach, the tribunal's task is simply "to consider only whether the proposed development meets the requirements of applicable codes".[34] If the relevant codes are met, the development application cannot be refused approval on review by the Tribunal by, for example, reference to the discretionary factors in section 120. It is this approach that ACTPLA and the Territory say the Tribunal should adopt in these proceedings, as it is now 'precedent'.
2. The Tribunal understands that the tribunal's decision in Sladic is on appeal to the Supreme Court, and that a notice of contention has been filed regarding the Tribunal's jurisdiction, having regard to sections 119, 120 and 121, although it has been unable to confirm this.
3. The Sladic approach has since been applied by two differently constituted tribunals, first in Gingell & Anor v ACT Planning and Land Authority [2018] ACAT 62 (Gingell) and more recently in McGrath and Anor v ACT Planning and Land Authority & Anor [2018] ACAT 100 (McGrath). In neither of these cases did the tribunal engage in any in depth analysis, with the tribunal in McGrath expressly adopting the Sladic approach "for reasons of precedent".[35]
4. ACTPLA and the Territory both urged this Tribunal to take the path forged in Sladic and Gingell (and, now, in McGrath) both because, they contend, the approach is correct, and also because it is in the interests of the tribunal and the public that a consistent approach be taken to the interpretation of section 121(2). Without making any comment on the prior assertion, this Tribunal certainly agrees with the latter proposition. There is much to be said for taking an approach that enhances the comity of the Tribunal. It would not be helpful for this Tribunal to add further fuel to the interpretative fire by advocating an alternative approach.
5. The difficulty, however, is that since this matter was heard, there has been yet another decision of an again differently constituted tribunal. This decision - Noah's Ark Resource Centre Inc v ACTPLA and Ors [2018] ACAT 95 (Noah's Ark 2) - declines to apply Sladic and instead applies an earlier interpretation adopted in Noah's Ark 1.
6. It is important to note the unusual circumstances under which Noah's Ark 2 was decided. It involved the same parties as the case of Noah's Ark 1, which was decided prior to Sladic. When Noah's Ark 2 came before an identically constituted tribunal to Noah's Ark 1, that Tribunal was required to consider whether to apply the approach to section 121 applied in the preceding case of Noah's Ark 1, or to apply the approach in Sladic.
7. The Tribunal observed that:
   1. ... This is not an appeal from the decision in Sladic or any other decision of a differently constituted Tribunal. Unlike a judgment of a superior court delivered at this stage in the proceedings, the decision in Sladic is not binding on this Tribunal. Hence the issue is not whether the decision in Sladic is correct or binding, but whether the present Tribunal should adopt interpretation of section 121 set out in that case or restate and follow the interpretation set out in the reasons for decision in the previous Noah's Ark case.
   2. Having carefully considered the decision in Sladic (which is on appeal to the Supreme Court, though apparently not on this issue), the parties' submissions, and the stage in the proceedings at which the issue arose, and having reconsidered the approach taken in the previous Noah's Ark case, we have decided to proceed on the basis set out in the decision in the previous Noah's Ark case.
8. The "basis set out in the previous Noah's Ark case" (the Noah's Ark approach) was that the Tribunal could give consideration to both:
   • (a) whether the proposed development complies with relevant codes under the Territory Plan and, if not, whether the non-compliance can be overcome by the imposition of conditions on the development approval; and
   • (b) whether any other matters are relevant to the Tribunal's decision, which includes relevant discretionary factors in section 120.[36]
9. It may be that Noah's Ark 2 is an aberration in the Tribunal's progression toward adopting the Sladic approach as settled law. However, the current circumstance of two recent tribunal decisions applying Sladic and one not means that it is impossible for this Tribunal to consider the interpretation of sections 121(2) and 120 as settled.
10. So where does this leave the Tribunal? Certainly, in a very difficult position, at least insofar as the section 120 discretionary factors are concerned. However, before even looking to the controversial section 120, the circumstances of this case, and the relevance of at least two general codes, also require that the Tribunal consider what 'code compliance' means in the context of Sladic.

1. As set out above, a number of relevant codes, particularly some general codes and potentially some precinct codes, do not contain rules and criteria. The issue for this Tribunal is whether, and how, such codes can be considered in the context of a review, particularly if the Sladic approach is adopted.
2. As noted above, in Sladic, the Tribunal determined that the tribunal's role was to consider 'questions of code compliance only'.[37] But what does this actually mean?
3. On the Territory's interpretation of the Sladic approach, as articulated in its submissions in this case, code compliance requires consideration of rules and criteria only, and hence codes that do not have either cannot be considered under section 121(2)(1). For example, the Territory submitted that:
   1. ... having regard to the terms of section 121(2) ... [t]he Tribunal is not permitted to have regard to any of the issues sought to be raised by the Applicant and other Parties Joined which do not relate directly to compliance with a rule or criteria under a relevant code...

1. The [Water Design Code] does not contain any rules or criteria. Accordingly ... the Territory submits that the code is beyond the Tribunal's jurisdiction in the present matter.[38]
2. ACTPLA's position appears similar, although it is perhaps less clearly stated:

The Tribunal may set aside or vary the decision under review only if it is not satisfied that the development complies with the rules and criteria in the Territory Plan but not because of discretionary considerations in section 120.[39]

1. It seems to this Tribunal that the consequences of adopting this 'rules and criteria only' approach to code compliance are potentially extraordinary.[40] Section 119 does not permit a development approval to be given for a development which does not comply with 'the relevant code.' All parties agree that, for example, the PVAGC is a 'relevant code' for the purposes of section 119. However, if the Tribunal is limited to considering only compliance with 'rules' and 'criteria', then it cannot review compliance with the PVAGC (unless that code is expressly incorporated by a rule or criteria in another applicable code). It also cannot consider the Water Design Code.
2. It does not appear that this issue of general and precinct codes was raised in Sladic.[41] Sladic was decided on the basis that all parties agreed that the word 'rule' in sections 121(2)(a) and (b) of the P&D Act includes both 'rules' and criteria.[42] As best as this Tribunal can discern, the tribunal in Sladic did not turn its mind to whether the concept of a 'rule', as used in section 121(2)(a), might also extend to codes that do not contain rules or criteria (noting these codes usually contain only broad 'objectives'). But could these codes also be 'rules' in the generic sense in which the term is used in section 121(2)(a)?
3. As a starting point, it is noted that section 121(2)(a) and (b) refers only to 'rules' and not to criteria. Elsewhere in the P&D Act, the term 'rules' is used in distinction to criteria - for example, in the definition of 'merit track' as:

merit track (for development proposals that can be assessed using the rules and criteria in the code that applies to the proposals)[43]

1. Some older authorities clearly considered the reference in section 121(2)(a) to 'rules' to only include 'rules' under a code, with criteria being considered under section 121(2)(b) where no rule applies. Hence, Mason and ACT Planning & Land Authority and Ors [2009] ACAT 7 (Mason) outlined that Tribunal's understanding of the interaction between 121(2)(a) and (b) as follows:

If it is established that a Rule has not been satisfied, or if there is no Rule, then the Tribunal is free to consider the extent to which the proposal satisfies the Criteria and, if it concludes that any of the Criteria are not satisfied, then it may set aside an approval of the proposal or impose conditions that will overcome the deficiencies identified. [44]

1. In other words, 'rule' in section 121(2)(a) means a 'Rule' in a code, with section 121(2)(b) making it clear that criteria should be considered where 'no rule' applies. The Tribunal in Mason, much like in Sladic, found that section 121(2) limited the scope of review, and the two approaches are broadly compatible. However, this still leaves open the question of general or precinct codes that do not contain rules or criteria.
2. There is scant case law that specifically considers the status of general or precinct codes that do not contain rules or criteria.[45] There are a significant number of pre_Sladic_ cases where the general codes, most particularly the PVAGC,[46] influenced the Tribunal's decision making.[47] Primarily this is because the rules or criterion in another code expressly refer to the general code (for example, C41 of the MUHDC permits fences where the proposal meets the requirements of the Residential Boundary Fences General Code).[48] Additionally, many of the development codes (for example, the MUHDC) call up the general codes that may be relevant to the development in their introductory passages.
3. One decision that does consider the status of a general code is Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96 (Glass). In that case, the tribunal observed that the Community and Recreation Facilities Location Guidelines General Code (CRFLG) "is not a relevant code for the purposes of section 119 of the P&D Act. It does not contain any mandatory rules or criteria".[49] It is not clear why the tribunal reached this conclusion, but it does not seem to have been a contested issue. The Tribunal then went on to observe that:

Tribunal accepts that ... the Code is only a guide to be considered. However, that statement begs the question of the purpose for which it is to be considered. That depends on the facts and circumstances. In some cases, it might be relevant for determining whether a relevant criterion is met. It might also be relevant when giving consideration to a matter in section 120. It is not, however, a document that can, by itself, be determinative of anything ... it remains only a matter for the Tribunal to consider. The Tribunal's conclusion (and that of the Planning Authority at first instance) would not be determinative, one way or another, of whether to confirm or refuse approval of the development.[50]

1. In other words, in Glass, the Tribunal appeared to accept that a general code that did not have rules or criteria was not a 'relevant code' for consideration of applications under the merit track for the purposes of section 119, but it may be relevant to considerations under section 120.
2. It would presumably follow, from the Glass reasoning, that a code that lacks rules or criteria may not be a 'rule' for the purposes of section 121(2)(a). However, the lack of any definition of the word 'rule' as used in that section means that this is not beyond doubt. The reasoning in Glass, in any case, would have permitted reference to a general code when considering discretionary factors under section 120, thus making some provision for consideration of general codes, notwithstanding any absence of rules or criteria. The Sladic approach does not permit this, which is one of this Tribunal's concerns about that approach, at least as interpreted by the Territory and ACTPLA.
3. So, what are the options for dealing with these codes?
4. The first is to assume that the concept of 'rule' in section 121(2)(a) is a general term that extends to encompass the rules applying to developments generally - "'rules' in a more colloquial sense of the word"[51] - and hence includes all codes. Under this interpretation, whether a development was compliant with the objectives of a general code or a precinct code that is a concept plan would be open to a Tribunal undertaking a merits review. This would usually mean that rules would prevail, and then criteria. However, it is noted that under the P&D Act, where more than one type of code applies to a development and there is inconsistency between provisions, the order of precedence is: precinct code, development code, and general code, so it is possible that a precinct code without rules could prevail over a code with 'rules', although this Tribunal is not aware of a circumstance where that is likely to happen.
5. On the other hand, however, assuming instead that section 121(2)(a) only contemplates consideration of rules and criteria, then what is the relevance of a general code or a precinct code without rules or criteria?
6. It seems to this Tribunal that this is where section 121(2)(b) may be relevant.
7. If, consistent with ACTPLA and the Territory's interpretation of Sladic, we accept that the purpose of section 121 is to define and limit the scope of review, such a 'merits review' is a code compliance exercise that is confined to an 'assessment' using the rules and criteria that applies to the proposal,[52] that leaves open the question as to what purpose should be given to section 121(2)(b).
8. In Glass the Tribunal observed that "where no rule applies, the Tribunal's jurisdiction is stated in section 121(2)(b) at large".[53] On this view, where "no rule applies", section 121(2)(b) gives the Tribunal a jurisdiction to consider any relevant matter.[54] This is potentially a very broad discretion, although the discretion would only apply to limited and otherwise unregulated parts of the development.
9. We do not necessarily accept that the discretion is that broad, but we do not need to. In our view, even on the Sladic interpretation, being that review is limited to 'code compliance', section 121(2)(b) would confer a jurisdiction (whether 'at large' or otherwise) to review a part of a decision that is not addressed by a rule or a criterion, but is addressed by a general or precinct code that does not apply a 'rule' but nonetheless, on its terms, applies to part of the decision.
10. This interpretation would give some efficacy to section 121(2)(b), and enable proper consideration of a number codes that do not contain rules or criterion, including the PVAGC (considered below) and the Water Design Code, without undermining any intention by the legislature (as identified in Sladic) to limit the right of review where "a design feature fully complies with the relevant rule."[55]
11. Ultimately, this Tribunal does not need to decide which interpretation of 'code compliance' it prefers. On either of the above interpretations of section 121(2)(a) or (b), it is open to the Tribunal to consider the impact of a general code that does not contain rules or criteria, at least insofar as that the code does not traverse that part of the decision to which a rule or criterion applies in a code which takes precedence. Accordingly, where appropriate, we have given consideration to the relevant general codes below.

1. The section 120 issue is more difficult to deal with, because the authorities are more clearly in conflict.
2. The Tribunal in Sladic was unequivocal in its decision that section 120 matters are not relevant to a review under section 121(2). This is inconsistent with the position in, for example, Noah's Ark 1 & 2, where the Tribunals considered that the test was:
   • (a) consider whether DA met the requirements of section 119(2)(a), being compliance with the rules or criteria; and
   • (b) even if satisfied that the development is code compliant, review either:
     • (i) the entirety of the decision having regard to the factors set out in section 120 and any other relevant factors; or
     • (ii) at least, review those parts of the decision that are not covered by a rule.
3. The availability of the section 120 considerations is central to many of the objectors' arguments in this case. The position of the objectors is that the DA approval process gave insufficient regard to the 'zone objectives' of the CFZDC, did not properly consider whether the land was suitable for a public housing development of the kind envisaged, and did not properly assess the environmental impacts or the impacts on neighbouring owners. They contend that the Tribunal should, in considering whether to approve the development, have regard to each of these considerations as discretionary considerations that fall within section 120.[56]
4. ACTPLA and the Territory, drawing upon Sladic, contend that the Tribunal's only role is to consider whether the development is compliant with the relevant rules and/or criteria. They say that discretionary considerations, such as the matters in section 120, are outside the scope of the review.
5. Given the uncertainty in the legal position, this Tribunal has considered the review in the context of both the Sladic approach and the Noah's Ark approach. On this occasion, there is no difference in the outcome, so the Tribunal does not need to choose between them.

Contention 1 - The development is not for supportive housing, but is a multiunit development, which is prohibited on community facility zone land

The proposal is for a multi-unit housing development, a prohibited use under the CFZ zone

There is nothing in the lease or the proposed development application that differentiates this development from multiunit housing, which is prohibited on community facility zone land.[57]

1. As the Tribunal understands the objectors' arguments, it is that this development is not truly a supportive housing development at all, but is a multi-unit housing development for general use social housing, deceptively labelled as 'supportive housing' so as to permit it to be built on CFZ land.
2. The objectors' starting position is that a multi-unit housing development is not permitted in a community facility zone.[58] This is not correct. The CFZDC specifically provides that if there is "supportive housing" on a CFZ, it must comply with the MUHDC,[59] so it clearly contemplates that supportive housing developments may be multi-unit developments, in which case they must comply with the MUHDC.
3. However, this is only half the picture. While a multi-unit housing development is permitted in a CFZ, it is only permitted where it is for one of the community uses set out in Table A1 of the CFZDC. This table of permitted uses includes supportive housing (amongst a number of other purposes, such as a health facility, childcare centre or place of worship). Therefore, it is correct that, for this development to be a permissible development, it must be a development that is capable of being used for supportive housing.
4. But what is 'supportive housing'?
5. The term 'supportive housing' is defined in the Territory Plan as:

Supportive housing means the use of land for residential accommodation for persons in need of support, which is managed by a Territory approved organisation that provides a range of support services such as counselling, domestic assistance and personal care for residents as required. Although such services must be able to be delivered on site, management and preparation may be carried out on site or elsewhere. Housing may be provided in the form of self-contained dwellings. The term does not include a retirement village or student accommodation.[60]

This is the definition that the respondents intend to adopt in the crown lease, considered further below.

1. Based on this definition, it is apparent that supportive housing must:
   • (a) be for residential purposes;
   • (b) be managed by a Territory approved organisation, that must provide a range of support services such as counselling, domestic assistance and personal care for residents as required; and
   • (c) permit support services to be able to be delivered on site (although there is no requirement that they actually be delivered on site).
2. The MUHDC and the CFZDC then set out rules or criteria that apply to 'supportive housing'. For example, all supportive housing dwellings must meet both the Australian Standard AS4299 Adaptable Housing (Class C) and the Access and Mobility Code.[61] For the most part, the objectors have not suggested that the development does not meet these criteria.[62]
3. It would be open to the Tribunal to reject this development if it was satisfied that the development was not capable of meeting the requirements for supportive housing - that is, if the Tribunal was satisfied that the development was not fit for purpose.[63] However, there is nothing in the objectors' evidence that causes the Tribunal any concern that the facility, as designed, cannot be used for supportive housing. Indeed, we are satisfied that it clearly can be used for that purpose.
4. The objectors' real concern, it seems to the Tribunal, is not that the development is unsuitable for use as supportive housing, but rather that Housing ACT will not necessarily use the units for that purpose. It is for this reason that the objectors sought orders that various conditions about the use of the property be placed in the development approval or lease condition to ensure that the units are used in compliance with planning requirements. Those conditions sought include, for example:
   1. The lease cannot be sold or leased to a third party.

1. That the management and coordination for delivery of supportive housing should be through an accredited ACT Community Housing Service provider or a Commonwealth Government accredited accommodation support provider.
2. That the purpose of tenancy is to deliver specialist daily on-site care and support associated within an accommodation setting.[64]

1. Even assuming the Tribunal had the power to make the kind of conditions sought by the applicants, it would decline to do so, as the conditions are unnecessary. As a matter of law, the Crown lessor (and through it, any sub-lessor) will be required to comply with all lease conditions that govern the permitted uses for the development - including any condition that requires the units be used for supportive housing, as defined in the lease and the Territory Plan. Inserting repetitious requirements in the lease does not make the law any stronger and serves no purpose.
2. The objectors are concerned these requirements will, in practice, be side-stepped or ignored. Even if this is true (and there is no evidence to suggest it will be), enforcement of lease conditions is not the role of the tribunal. It is a role for the regulatory authority. The lessor will, as a consequence of these proceedings if nothing else, now be well aware that there are concerned neighbours who will monitor the use of the development and report it. Those same persons may also have other remedies, beyond the scope of this Tribunal, if those requirements are breached.

Contention 2 - The development is inconsistent for several reasons with the CFZ objective (f) "to safeguard the amenity of surrounding residential areas against unacceptable adverse impacts including from traffic, parking, noise and loss of privacy"

1. This contention is phrased in such a way that this Tribunal must consider whether or not to apply Sladic.
2. As set out at paragraphs 21 to 29 above:
   • (a) As well as the codes, the Territory Plan establishes 'zones' and also sets out the objectives for those zones. Objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable development table[65] and code to the zone.[66]
   • (b) Section 55(2) of the P&D Act provides that a code must be consistent with each objective for the zone to which the code relates.
   • (c) There is a strong presumption that where a development is code compliant, the code objectives will also met.[67]
3. The relevant CFZ 'zone objectives' are as follows:

1. To facilitate social sustainability and inclusion through providing accessible sites for key government and non-government facilities and services for individuals, families, and communities.
2. To provide accessible sites for civic life and allow community organisations to meet the needs of the Territory's various forms of community.

1. To protect these social and community uses from competition from other uses.

1. To enable the efficient use of land through facilitating the co-location, and multi-use of community facilities, generally near public transport routes and convenience services appropriate to the use.
2. To encourage adaptable and affordable housing for persons in need of residential support or care.
3. To safeguard the amenity of surrounding residential areas against unacceptable adverse impacts including from traffic, parking, noise or loss of privacy.
4. Promote active living and active travel.
5. Provide safe pedestrian and cycling access to community facilities to promote active living.

1. Section 120(a) of the P&D Act expressly requires that a 'decision-maker' deciding an application in the merit track must consider "the objectives for the zone in which the development is proposed to take place". All parties agreed that this compelled ACTPLA to consider the zone objectives, but there was disagreement over whether the tribunal is required or permitted to on a merits review of ACTPLA's decision.
2. As set out in detail above, in Sladic the tribunal considered that the role of the tribunal is not to consider whether a development complies with the objectives, but rather whether it complies with the rules and/or criterion in the Code. On the Sladic interpretation, it would not be open to this Tribunal to reject or place a condition on a DA so that the DA was compliant with the zone objectives, even if satisfied that the original DA was contrary to those objectives. By contrast, the Tribunal in Noah's Ark 2 expressly considered whether the development complied with CFZ objectives.
3. Given the confused state of the law, this Tribunal has given due regard to the CFZ objectives, on the assumption that they are relevant. We are satisfied, for the reasons set out below, that on this occasion the zone objectives do not make a significant difference to the outcome of this case, and therefore we do not need to decide between the competing authorities. Our reasons are as follows.
4. The objectors contended that the development was contrary to objective (f), which states:

[t]o safeguard the amenity of surrounding residential areas against unacceptable adverse impacts including from traffic, parking, noise or loss of privacy.

1. They submitted that the objective was clearly, on its own words, to 'safeguard' them from these impacts - and building on this they contended that the word 'safeguard' did not mean balance impacts, but rather "protect" residents from them. They argued:

Safeguard does not mean minimise impact, it means protect from impact. People invested considerable money on that assurance, their own money, a lifetime of their hard work. Safeguard and the objectives of the zones give you certainty, it means you can buy a house, you can invest in renovations because your property rights are safeguarded or protected by the planning system. ACTPLA say on one hand they are compliant with the rules and criteria and then argue that they do not need to be compliant with zone objectives so long as there is a presumption of compliance with the objective based on compliance with the rules. This is an ambiguous argument. They argue that community facility zone objectives are met if the community facility zone rules are met[68]

1. The development, the objectors argued, clearly does not 'safeguard' them from impacts (even if it technically meet the rules and criteria), and is contrary to the CFZ objectives, and the Tribunal should exercise the discretion open to it under section 120 to refuse the approval.
2. One thing is clear: in making these submissions, the objectors raised genuinely held, legitimate concerns about the impact of the development on local traffic, parking and noise, and perhaps also their personal privacy. They genuinely fear a loss in the value of their homes, for which they have worked hard and invested considerable money. The Tribunal accepts that these impacts are real and does not suggest that the objectors are unjustified or unreasonable in their concerns. However, these concerns do not mean that the development is inconsistent with the CFZ objectives.
3. Objective (f) of the CFZDC does not require that surrounding residential area be 'safeguarded' from all the adverse consequences of development in relation to traffic, parking, noise and loss of privacy. It requires only that they be safeguarded from 'unacceptable' adverse impacts. The key word is 'unacceptable'. It is inevitable that a development in a suburban area will result in some adverse impacts on traffic, parking, noise or privacy. That is the price paid for living in an urban area. The challenge is to draw a line between what is reasonable and what is not. This is where the codes, with their rules and criteria and (in the case of general codes) guidance or objectives, play their part.
4. Section 55 of the P&D Act requires that codes be compliant with objectives, and hence a strong presumption exists that where a development is code compliant, the code objectives will also met.[69] In other words, the codes set out the rules and criteria that, prima facie, define that difficult line between what is considered reasonable for a zone and what is not.
5. Having had regard to the evidence before it (considered more fully in relation to a number of other more specific contentions, below), this Tribunal is broadly satisfied that the development is code compliant in relation to traffic, noise and (with one exception) privacy. In such circumstances, we would need strong evidence of some other, unacceptable, adverse impact that is not already addressed in a code in order to find the development did not meet the objectives. No such evidence was provided by the objectors.
6. The Tribunal also notes that one of the expressed objectives of a CFZ zone is "[t]o encourage adaptable and affordable housing for persons in need of residential support or care".[70] This development is consistent with that objective.
7. Accordingly, even assuming that the Tribunal may consider the zone objectives pursuant to section 120(a), the Tribunal is not satisfied that the development is in conflict with the zone objectives. Indeed, there is an equally strong argument that it is consistent and compliant with them.

Contention 3 - The approval by ACTPLA does not comply with the approved lease rule R1 of the CFZDC

1. It was not in dispute that, at the time the DA was approved, the development did not meet rule R1, as there was no relevant clause restricting the use of the complex as per paragraph (a).
2. To address this concern, ACTPLA proposed a revised draft crown lease that provides that the Territory covenants with the Commonwealth

[t]o use the land for the purpose of supportive housing only.

The use of land for residential accommodation for persons in need of support which is managed by a Territory approved organisation that provides a range of support services, such as counselling, domestic assistance, personal care for residents as required although such services may be able to be delivered on site management and preparation may be carried out on site or elsewhere. Housing may be provided in the form of self-contained dwellings. The term does not include a retirement village or student accommodation.

1. The respondents tendered a draft which included a clause requiring that the land be used for supportive housing.[71] The Tribunal is satisfied that it is appropriate that a condition be imposed on the development that the crown lease be amended in accordance with Exhibit R3.
2. As set out under Contention 1, the enforcement of conditions on the lease is not a matter for this Tribunal.[72]

Contention 4 - The proposed amendment does not comply with mandatory solar access rule R57 of the MUHDC

ACTPLA initially considered the DA against rule 57A, but conceded at the hearing that the relevant rule was rule 57.[73] Rule 57 provides:

1. The objectors contended that ACTPLA's decision that the DA met the requirements for Rule 57 was wrong for two reasons:
   • (a) first, because it did not take into account shadowing by trees; and
   • (b) secondly because it did not take into account shadowing caused by a 1.8 metre fence.
2. In relation to the trees, the objectors submitted that the shadow diagrams:

ignore all trees on and adjacent to the site and the impact these trees have on solar access[74]

the meaning of direct sunlight ... does not include sunlight that has been filtered through vegetation, where the intensity of that sunlight is an unknown[75]

1. ACTPLA and the Territory both conceded that several large trees, primarily eucalypts, will overshadow at least some of the units in the development. The effect of the trees was not shown in the original shadow diagrams submitted as part of the application process,[76] and was not considered by the decision-maker in considering the original DA. During the hearing, the Territory filed further shadow diagrams that made some attempt at evidencing the shadows cast by the trees,[77] but the position of both the Territory and ACTPLA was that this was not necessary, as it is industry practice that shadow diagrams do not show the influence of trees. They cited authority to the effect that landscape features are not taken into account, due to the potential for variation between seasons, health and potential future removal.[78]
2. On one level, it is surprising that shade trees are not considered when assessing shadowing and sunlight in a development. This is particularly startling where, as here, the shade trees are large, evergreen, remnant trees with an indefinite lifespan, and possible protection from removal under the Tree Protection Act 2005.
3. However, the respondent further explained the reasoning for this position as follows: [79]
   • (a) Trees are variable and growth and health cannot be controlled, nor can the amount of foliage or reflective qualities of the foliage;
   • (b) Considering would lead to more trees being unnecessarily approved for removal on planning grounds which would likely be inconsistent with entity advice, create a tension between the retention of trees and achieving solar access.
   • (c) There is a relationship between daytime living areas being adjacent to private open spaces which would likely be landscaped, including trees, which would grow to inevitably create shade; and
   • (d) The practice is consistent with the interpretation adopted in NSW: refer NSW Planning & Environment, Solar Access Requirements in SEPP 65.[80]
4. Further, the respondent contended, if the Tribunal were to take an interpretation that R57 should take account of trees:

that would take into account shadow from trees would produce an absurd outcome. It would necessarily motivate the removal of those trees in order to achieve rule compliance, unlikely to be supported by the Conservator, and lead to approvals inconsistent with entity advice.[81]

1. It seems that on either option, whether one considers or does not consider the effect of shade trees, there is the potential to produce an absurd outcome. On the respondent's argument, the decision-maker is asked to ignore the reality of existing trees, which in this case, on any view of the evidence, cast substantial shadows that were not included in the original shadow diagrams, and may not be accurately included in the revised ones. The objectors' position, however, would require that the developers submit shadow diagrams based on variables that cannot be calculated, prophesise what may or may not happen in the future, and adopt a practice that may result in trees being removed contrary to good public policy.
2. Still, the choice between these two unconvincing options does not need to be made by this Tribunal, because of the effect of a third peculiarity - the effect of the plain words of R57.
3. The purpose of R57 is clearly to ensure an amount of direct sunlight reaches the living areas of units. However, R57, as written, does not provide any criteria or guidance as to the extent or area of the direct sunlight that is required - it simply states that "the floor or internal wall" must be "exposed to not less than three hours of direct sunlight between 9am-3pm on the winter solstice". On a plain reading, this appears to mean the requirement is met by any amount of direct sunlight falling on the floor or internal wall during the relevant period. Hence, in Johnson & Xu v ACT Planning and Land Authority the Tribunal was satisfied that a "tiny amount of sunlight" on a window was sufficient to meet the test.[82]
4. On the evidence available to the Tribunal, the eucalyptus trees do not provide complete shade cover. Some portion of direct sunlight will penetrate the tree canopy. That is sufficient for code compliance. There is no breach of R57 by reason of the trees.
5. The second ground raised by the objectors was the impact of a fence on Block A. The Tribunal is satisfied that the shadow diagrams at T671 show direct sunlight to the daytime living areas of all Block A. The shadow, cast by the fence, does not reach the northern wall of any of the Block A dwellings between 9am-3pm at the winter solstice.
6. Consequently, there is no breach of R57 by reason of the fence.

Contention 5 - The development does not comply with criterion 40 of the MUHDC

1. The applicants contend that the development does not comply with C40 because the units receive inadequate winter sunlight to living areas.
2. Unfortunately, the alleged failure to comply with this criterion was first raised in the applicant's final submissions. Those submissions included a number of assertions for which there was little probative evidentiary support. Indeed, the lack of notice meant that there was little evidence before the Tribunal that went to either side of the argument. This makes it impossible for the Tribunal to give proper consideration to this issue, and to balance what consideration it gives the issue against the requirements of natural justice.
3. At the highest, the objectors' contention is that:

Lived experience shows that residents living in these units will have no sunlight for several months of the year during winter. This will not only cause increased heating bills but also affect the tenant's amenity and wellbeing[83]

1. In their responses, ACTPLA and the Territory refer to the assessment report against the CFZDC, which provides that:

The proposed trees, along with the existing trees, will contribute to the energy efficiency of the development with significant planting along the North-Eastern and Western boundaries.[84]

1. The Territory also refers to the findings of compliance against relevant criteria[85] and the conclusion in the statement of findings,[86] which was that the development is compliant.
2. The Tribunal is asked to weigh the largely unexplained conclusions of the original decision-maker against the "lived experience" of the applicants. Neither is a particularly persuasive form of evidence for the purposes of a review. Perhaps had this issue been raised at an earlier stage in the proceeding, both parties would have been better placed to address it. However, for present purposes, the Tribunal is satisfied, having reviewed the information available, that the development reaches the minimum requirements of this criteria.

Contention 6a - The development does not comply with privacy rule R60 of the MUHDC

1. The first point raised by the objectors is that unit 13 of block C of the development will be able to look into the principal private open space of a Frankland Street residence. Other units in block C, they contend, may also overlook surrounding houses by reason of their position in an elevated location. The respondents, however, point to the 1.8 metre fence along the rear yards of those units. The Tribunal is satisfied that R60 is met by the construction of this fence.
2. The objectors also contend that an east facing window in bedroom 2 of unit 13 is approximately 12 metres from a residence on Frankland Street, is not screened and therefore does not comply with R60. The Tribunal is satisfied that this window is more than 12 metres from the principal private open space of a neighbouring dwelling, and in any case it does not face the rear boundaries of Section 19. No part of the rear yards of block C or the southern windows have a direct line of sight to the rear of Section 19.
3. The objectors also raised concerns about compromised privacy generally, noting, as an example, that unit 7 is elevated 2.8 metres above a Staplyton Street home, such that eye-height from the unit would be 4.3 metres and looked directly into a neighbouring residence. While acknowledging that the objectors' concerns about the aesthetics of the development and the possibility of some overlooking are genuinely held, the Tribunal is satisfied that the units in the development are more than 12 metres from the nearest Stapylton Street residence and therefore there is no breach of R60.
4. Even if the Tribunal is wrong on the application of R60, the Tribunal is satisfied that the corresponding C60 is met, in that there is evidence that reasonable privacy of principal private open space of each dwelling is achieved by appropriate fencing and screening arrangements.

Contention 6b - The development does not comply with privacy rule R61 of the MUHDC

Rule 61 of the MUHDC deals with principal private open space, and provides as follows:

1. The applicants contend that the development is in breach of R61(c), in relation to units 12 and 16, because those units' principal private open space is not screened from the adjoining streets and open space.
2. In relation to Unit 12, the applicants allege that:

Unit 12 will be lower than the adjoining footpath, which will be public open space ... A 0.6m retaining wall and then a 0.5 m retaining wall, will result in unit 12 being 1.1m below the adjacent open space ... a 1500mm high powder coated aluminium slated panel (70 percent solid) will be provided to the front and rear and a 1200 mm high black chain link fence will be provided along the western side boundary to unit 12's private open space.[87]

1. In relation to Unit 16, the submissions were similar:

Unit 16 will be approximately 1.2m below the adjacent parkland and eye-height from that parkland will be 2.7m ... a 1.8m high colorbond fence is provided to screen the principal private open space of unit 16. However, all of the private open space of unit 16 will be clearly visible from the adjourning public open space and cannot be screened[88]

1. Unfortunately, these contentions were first raised in the objectors' closing submissions.[89] Accordingly, neither ACTPLA nor the Territory adduced evidence on this point. ACTPLA did not address this point. The Territory simply relied upon the statement of findings, which it says confirmed compliance with the Code.[90]
2. On the evidence available, the point in relation to unit 12 appears to have evidentiary merit. Having regard to the plans, the principal private open spaces of the units, as designed, are overlooked from the proposed public pathway. Neither R61 nor the alternative C61 are met.
3. One solution is to substitute the chain-link fence and the 1.2 metre Colorbond fence in the south-west corner with a 1.8 metre Colorbond fence. This should surely address the privacy concerns, although it would not appear to be a particularly aesthetically pleasing option.
4. The alternative is an advanced planting screen, such as a hedge. This would eventually screen the principal private spaces, while being aesthetically more pleasing.
5. The Tribunal will make it a condition of the development that:
   • (a) an advanced planting screen be planted along the 1200 mm high black chain link fence to unit 16; and
   • (b) the western side boundary to unit 12's private open space by shielded either by a 1.8m fence, or by an advanced planting screen.

**Contention 7 - Rules in relation to the Crime Prevention Code; and

Contention 8 - The development fails to comply with Rule 47 or Criterion 47 of the MUHDC**

1. Criterion C2 of the Crime Prevention Code provides that multi-unit housing developments must meet the code. The objectors argued that the development "goes against all the principles" set out in this code, but they refer in particular to criteria 3 (c) and (d).
2. Criterion 3 of the Code provides that:

This development proposal reduces the natural surveillance in [the surrounding open space], it cuts down access for people that currently use the space who do have a sense of ownership and remove the amenity from the community, and provides a target for criminal activity, and creates entrapment areas because of the cut and fill and retaining walls required along the pathways.[91]

1. The objectors also allege a breach of R47 or C47 of the MUHDC:

There will be a blind alley at the bottom (Frankland Street) end of this development, and a narrow path sided by a tall retaining wall. The blind alley will comprise a retaining wall of up to 1.5m, plus the need for rear privacy fences of a further 1.8m.

The blind alley and narrow path also fail to comply with Rule 5.1 Criterion 47 of the MUHDC which states that "building achieve passive surveillance" of "adjoining public open space".[92]

1. In response to these contentions, the Territory relied upon the statement of relevant criteria prepared by Philip Leeson Architects,[93] the positive findings in the assessment report[94] and the statement of findings against the Code[95]. The latter provides that:

Dwelling entrances and windows face onto the common driveways and have clear sightlines to/from them. Dwellings have windows with clear sight lines to the adjoining public open space and public pathway. Courtyard walls include a large proportion of slatted panels, rather than solid walls, provided filtered visibility to/from adjoining public spaces...

Garages are open at the back and have perforated roller doors ... natural surveillance is possible through them...

The units are raised above the level of Bill Kennedy Memorial Park, encouraging good passive surveillance of the park from them

1. The Territory also referred to the site plan and submitted that "the Tribunal ought to be satisfied that the development achieves passive surveillance of adjoining streets".[96] ACTPLA made submissions to the same effect.[97]
2. Again, the difficulties that the Tribunal faces with these contentions are, first, that the objectors raised them in their final submissions, and second, they are not supported by probative evidence. The Tribunal acknowledges that the pathway 'alley' in issue, surrounded as it is by residential fences on one side and a three metre barrier on the other, may give rise to aesthetic concerns. However, it is not apparent that there are necessarily any additional safety issues or that the development creates an 'entrapment space'. Similarly, there will no doubt be a reduction in access to the community land upon which the development is sited, but it is not clear that this equates to a reduction in surveillance of the park and open space as a whole.
3. The buildings have windows that open onto adjoining streets and adjoining public space. Passive surveillance is achievable.
4. The Tribunal is satisfied C3 of the Crime Prevention Code and C47 of the MUHDC are met.

Contention 9 - The proposal does not comply with criterion 14 of the CFZDC relating to the amount of traffic

1. The only expert evidence before the Tribunal as to compliance or otherwise with this rule was the report prepared by Cardno Pty Ltd (the Cardno Report) and the evidence of Mr Samoty, a director with Cardno (although, unhelpfully, not the author of the report). The Cardno Report concludes that the existing traffic network in Holder can accommodate the traffic generated by the development.[98] This report was prepared for an 18 unit development, rather than the 16 units now proposed.
2. Mr Samoty's evidence was that C14 is satisfied when the overall picture regarding traffic generation is taken into account.[99] The relevant factors are the level of service achieved at each relevant intersection, the variation of vehicle movements throughout the day and the morning and evening peaks, and the likely distribution of traffic egressing the subject site.
3. There was no contrary evidence from any other expert.
4. The objectors submitted that the Tribunal should find these reports unreliable. They questioned a number of the assumptions made by the experts who prepared the report, and noted that no consideration was given to the traffic likely to be generated by on-site support services coming and leaving.[100]
5. The Cardno Report and Mr Samoty's evidence is the best evidence available. While it is possible to critique some of the assumptions, ultimately the objectors did not submit anything that would suggest that the report was so unreliable as to be incapable of being relied upon. There is no other evidence before the Tribunal to refute it or suggest an alternative, more preferable model.
6. It is worth acknowledging here the significant disadvantage faced by the objectors. The undoubted additional traffic, not just of residents but of likely support personnel, may have a significant detrimental effect of community utility. However, where the Tribunal is confronted with personal experience on one hand, and expert evidence by an appropriate professional on the other, it usually has little option but to give more weight to the evidence of the expert, as we have done in this case.
7. The objectors also suggested that the increase in noise and traffic - an additional 96 vehicles a day, or a 200% increase in traffic - was an unacceptable impact and contrary to objective (f) of the CFZ Objectives. They submitted that:

The 200 percent increase in traffic to be endured by 23 Staplyton and 26 Staplyton Street residences, regardless of the split, will generate considerable noise impacts that were not assessed by the RSA, TCCS or the Planning Authority.

Roads ACT Noise Management Guidelines, 1 June 2018, state as a fact (refer page 4):

"Doubling of the traffic volume increases traffic noise by approximately 3dB if the traffic speed is unchanged."

The 200 percent increase and associated traffic noise will result in a noise increase for adjacent residents is greater than 5dB(A), which is inconsistent with ACT noise management guidance and does not meet the CRFLGGC objective [and] does not meet Community Facility Zone Objective f)[101]

1. For the reasons set out above, in light of Sladic, it is not clear whether the Tribunal can consider the zone objectives, but assuming that it can, there is a strong presumption that the objectives are complied with if the relevant rules are met. While the Tribunal does not doubt that the residents on surrounding streets will experience an increase in noise and inconvenience, this alone does not justify a conclusion that the intrusion is unreasonable, having regard to the objectives of a CFZ. A CFZ permits many forms of community use which are likely to have far more intensive consequences for both noise and traffic than the 16 units proposed.
2. The Tribunal is satisfied that criterion 14 is met.

Contention 10 - The run-off for the buffer zone in the development does not comply with the Water Design Code

1. For reasons set out above, the Tribunal is satisfied that it can have regard to this Code, despite the fact it does not contain rules or criteria.
2. The Tribunal is not, however, satisfied that here is any evidence of any breach of the Code. The objectors could not point to any specific breach - suggesting only that "there is a logical increased risk of down-flow of water from the oval along the rear of the houses that back along Frankland Street".[102] While this may be correct, it does not, of itself, provide a basis for rejecting the development. Consequently, even in the event that the Tribunal can consider the Water Design Code, the Tribunal is satisfied that there is no evidence of a breach of the Code before it.

Contention 11 - The development does not comply with R88 or R93 of the MUHDC relating to storm water

1. The MUHDC provides that compliance with R88 is demonstrated by a suitably qualified person, using a recognised methodology. The Territory relied on a stormwater management report prepared by Sellicks Consultants.[103] It was not suggested that Sellicks was not appropriately qualified. It is not open to the Tribunal to review this any further.
2. The issue of non-compliance with R93 was raised by the objectors in closing submissions. No evidence was led on this point during the hearing, other than assertions about non-compliance made in submission form, and the Tribunal is not in a position to consider it further.

Contention 12 - The run-off for the footpath along the western boundary of the development does not comply with the Water Design Code (Compliance Target 4.2)

1. Whether the Tribunal can consider this Code is considered in paragraph 48 to 69, above. The only evidence before the Tribunal is the report of Sellick Consultants, which broadly confirms compliance with stormwater and water management requirements. In the absence of any probative evidence to the contrary, the Tribunal accepts this report and is not satisfied there is any breach of the Code.

Contention 13 - The proposal does not comply with C14 of the CFZDC relating to the amount of traffic. The proposal does not meet the CRFLGC objective in relation to traffic.

1. The objectors' contentions in relation to C14 are considered above, under Contention 9.
2. The CRFLGC is for use in making decisions about where to locate a broad range of community and recreational facilities, whether new facilities or the re-use of existing ones.[104] Much like the Water Design Code, it has no rules or criteria, but instead lists a number of "objectives".
3. ACTPLA's position is that this code simply does not apply and, even if it does, consideration of it is precluded by reason of the reasoning in Sladic.
4. For reasons set out above, the Tribunal is of the view that it may consider this code under section 121(2)(a) of the P&D Act - on the basis that it is a 'rule' - or under section 121(2)(b) on the basis that it operates to allow consideration of applicable codes where no rule applies.
5. Otherwise, the status of the CRFLGC was considered in Glass, extracted above at 58. It is a guide and non-compliance would not necessarily mean that the DA could not be approved.
6. The Code deals with traffic in the context of pedestrian access:

Safe access is a key location criteria for all community and recreation facilities. Facilities which are used by pedestrians should avoid locations on arterial roads and other roads with high traffic volumes. Walking distances to bus stops, shops and associated facilities should not involve crossing such roads except where safe crossing are provided.[105]

1. It also provides guidance for situating specific types of developments, for example, schools, emergency facilities etc. None of the criteria relate to social housing.
2. There is no evidence indicating any breach of this Code so far as it relates to traffic. Indeed, in broad terms, the DA site would seem to comply with the Code, being located away from major arterial roads, and within walking distance, across Blackwood Terrace, to a bus stop, a local shops with a small grocery store and a medical facility, and with direct access nearby to a park.

Contention 14 - The proposal does not comply with CRFLGC objectives

1. As set out above, the CRFLGC is for use in making decisions about where to locate a broad range of community and recreational facilities, whether new facilities or the re-use of existing ones.[106] Much like the Water Design Code, it has no rules or criteria, but instead lists a number of "objectives".
2. The objectives are as follows:
   1. To protect and enhance social amenity for all ACT resident and visitors. Social amenity includes access to services, safety and equity in the distribution of facilities.
   2. To maximise efficient land use, accessibility and convenience for uses through clustering related facilities and encouraging shared use.
   3. To protect and enhance residential amenity for ACT residents whilst meeting the need to provide access to facilities best located in the residential area.[107]
3. The objectors submitted that:

The ACT draft noise management guidelines are identified by the [CRFLGC] yet the assessing officer indicated this code was not relevant to the proposal.[108]

Roads ACT Noise Management Guidelines, 1 June 2018, state as a fact (refer page 4):

"Doubling of the traffic volume increases traffic noise by approximately 3dB if the traffic speed is unchanged."

The 200 percent increase and associated traffic noise will result in a noise increase for adjacent residents is greater than 5dB(A), which is inconsistent with ACT noise management guidance and does not meet the CRFLGGC objective [and] does not meet Community Facility Zone Objective (f)[109]

1. The purpose of the CRFLGC is to guide consideration as to where specific facilities are to be located, rather than to guide determinations about the form that development is to take. This is clear from the introduction, which provides that:

They document sound town planning practice for agencies providing facilities, and include detailed guidelines which reflect the key location objectives. They are not rigid standards, but a guide intended for ACT planning and facility providers in determining suitable sites and locations for facilities. Location decisions should try to meet the general objectives, recognising that specific guidelines may not be achievable in all cases.[110]

1. Consistent with this, while the 'Roads ACT Noise Management Guidelines' is referenced in the CRFLGC, it is not referenced in any binding sense. The guide is not prescriptive or determinative and there is no 'breach' of any noise regulations in approving this DA.
2. It is noted that the location of this facility does not appear to be inconsistent with any objective in the CRFLGC - and indeed, the development of this land would appear to enhance the efficiency of the use of the land, albeit at the possible cost of some loss of utility and amenity of existing residents.

Contention 15 - This proposal goes against PRZ1 (Urban Open Space Zone) objectives

1. The PRZ1 objectives do not apply to this development and are not relevant considerations.

Contention 16 - The development is on land that has effectively been incorporated, through use, into public amenity space for the purposes of recreation

1. The Tribunal understands that the objectors, and indeed the broader Holder community, have had the use of the land for at least 27 years - since the closure of Holder Primary School in 1990. It has been used as recreational land for all that time, and the government has not prevented such use. On this basis, the objectors contend "the lands ... have been, for all residents, effectively incorporated into public amenity space for the purpose of recreation."[111]
2. The objectors did not identify any legal basis for the assertion that this changes the character or categorisation of the land from a planning perspective and hence this contention is beyond the scope of consideration in a merits review.

1. A further issue that arose in the hearing of this matter was whether there are sufficient parking spaces on or proximate to the subject site to satisfy the requirements of 'supportive housing'.
2. There are no special parking requirements for 'supportive housing' in either the MUHDC or the PVAGC.
3. ACTPLA contends that the multi-unit parking requirements are:

(a) Units - 16 x 2 bedroom units - Unit parking requirement - 1.5 spaces per dwelling

(b) Visitor requirements - 1 space per 4 dwellings = 4 spaces

(d) Total Visitor/additional unit parking provision - 12 spaces.[112]

1. In ACTPLA's submission, compliance with this minimum number is sufficient:

It is not realistic to assume that all service providers will arrive at the one time. There is also no evidence one way or the other whether supportive housing has a greater demand for parking because of service providers or a reduced demand because some residents will not have their own car. This means that in some cases a service provider could potentially use a carpark owned by a resident ... given the proposal already complies with the PVAGC additional visitor car parking spaces are considered beneficial but not necessary.[113]

1. The Tribunal notes that the requirements for on site parking are set out in the PVAGC at Part 3.1.5, with the type of multi-unit development being "attached house". The requirements provide an option for two-bedroom units (all the units have two bedrooms in this development) of either 2 spaces per unit or 1.5 spaces per unit. The proponent has chosen the lesser option. Visitor parking requirements are 1 space per four dwellings. The development provides single garages for each of the 16 units and eight separate common spaces totalling 24 for the residents. There are 4 visitor parking spaces. There are 28 spaces provided on the original DA plans - this is the minimum for a standard multi-unit development.
2. While it may be true, as suggested by the respondent, "that there is no evidence one way or the other whether supportive housing has a greater demand for parking",[114] the nature of 'supportive housing', as defined, requires that the units be capable of providing services on site. This development is located in a suburban area, some distance from a town centre, and with standard suburban public transport links. It may reasonably be supposed that the providers of the 'support' services, assuming they are to be provided on site, will travel to the complex by vehicle. They will need some place to park. If there is insufficient parking on the site, they will park on the surrounding suburban streets.
3. The PVAGC[115] sets out objectives in relation to parking for Community Facility Zones:

1. Amenity
   1. no regular overspill of parking occurs which uses kerbside or other parking in surrounding residential streets.

1. Efficiency.
   1. the parking demand for visitors to the development is catered for on-site consistent with the level of public transport accessibility and other parking opportunities in the vicinity.

1. The Tribunal does not accept that the current arrangements meet the objectives of avoiding regular overspill, and nor does it cater for parking onsite.
2. At the request of the Tribunal, the Territory provided drawings which demonstrate provision of an additional 12-16 car spaces for the providers. There is sufficient space on the site to accommodate the proposed additional 12-16 visitor car parking spaces without having an impact on the development. The Tribunal is satisfied that 12 additional car parking spaces will meet demand.
3. It is acknowledged that there may be some additional upkeep costs, but this was not quantified.
4. As noted above, section 120(1)(a) of the P&D Act provides that, in considering whether to approve a decision, the 'decision-maker' must consider the objectives for the zone in which the development is proposed to take place. The Tribunal acknowledges that, under the Sladic approach, the provision applies only to a first instance decision-maker, and that it is not possible for the Tribunal to have regard to the 'objectives' at this time. The approach in Noah's Ark 1 and 2 is the opposite. If this Tribunal were to consider the 'objectives' of the Code, then it would certainly require the additional carparks.
5. However, the Tribunal does not need to rely on section 120(1)(a) to consider the objectives on the PVAGC. The issue of parking is an issue in relation to which either a colloquial 'rule' applies (being a code, albeit one which gives only objectives), or 'no rules apply' (in the sense of no rules or criteria), and in either case the Tribunal must make a qualitative decision in line with the principles of the PVAGC.
6. The Tribunal is therefore satisfied that it should impose the condition that the development be in accordance with the revised plans with the 12 proposed additional carparks and will make this a condition of the development approval.

1. As noted above, the legal situation in relation to the applicability of the discretionary factors in section 120 of the P&D Act remains uncertain. While the weight of Tribunal opinion appears to be forming behind Sladic, the position will remain uncertain for time - or at least until a Supreme Court appeal, or much needed legislative clarification.
2. Consequently, for completeness, this Tribunal has given regard to each of the factors in section 120. In particular, the Tribunal has considered:
   • (a) whether the development is consistent with the objectives for a CFZ;
   • (b) whether the land is suitable for supported housing;
   • (c) the representations of the objectors in the Tribunal documents;
   • (d) the various entity advices; and
   • (e) the probable impact of the proposed development on surrounding residents, and on the environment.
3. In relation to the entity advices, the Tribunal notes that the objectors questioned whether the DA had been appropriately referred, and whether it was sufficiently evident that it was for a supportive housing development of CFZ land. We are satisfied that the referral was appropriate and that the full circumstance of the DA were evident on its face.
4. In relation to the impact of the development on surrounding residents, this Tribunal acknowledges that the impact will be substantial. The residents will lose access to an area of land that they have used for recreational purposes for some considerable time. They will be affected by additional traffic and noise and some will be overlooked, or will look out upon fences rather than parkland. They may well suffer a diminution in the value of their properties. Some may suffer considerable distress.
5. However, the undoubted and undeniable loss of amenity to neighbouring householders must be weighed against the objective of the CFZ zone objectives, which include;

1. To facilitate social sustainability and inclusion through providing accessible sites for key government and non-government facilities and services for individuals, families, and communities. 2. To provide accessible sites for civic life and allow community organisations to meet the needs of the Territory's various forms of community.

1. To protect these social and community uses from competition from other uses.

1. To enable the efficient use of land through facilitating the co-location, and multi-use of community facilities, generally near public transport routes and convenience services appropriate to the use. 2. To encourage adaptable and affordable housing for persons in need of residential support or care. 3. To safeguard the amenity of surrounding residential areas against unacceptable adverse impacts including from traffic, parking, noise or loss of privacy.
2. CFZ areas are not parks or open land for recreation use - they are sites set aside for community facilities, including supportive housing. The current development serves that purpose, and does so in a way that balances the impact upon surrounding residential areas.
3. Accordingly, even if this Tribunal were to give full consideration to the factors in section 120, the ultimate decision would not be different. The development approval is upheld, subject to conditions that:
   • (a) The crown lease be amended in accordance with Exhibit R3;
   • (b) The development be in accordance with the revised plans at drawing 19 attached to Exhibit TR7, being the revised plan with 12 additional carparks;
   • (c) An advanced planting screen be planted along the 1200 mm high black chain link fence to unit 16; and
   • (d) The western side boundary to unit 12's private open space be shielded either by a 1.8m fence, or by an advanced planting screen.

[2] ACT Civil and Administrative Tribunal Act 2008 sections 6(b), 7(a)

[5] See Medical Board of Australia v Hocking at 19 citing Logan J in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 64 AAR 120 [8]

[6] See Wildcare Queanbeyan NSW Inc & Conservator of Flora and Fauna [2011] ACAT 68, particularly [69]

[7] Bell & De Castella and Rob De Castella's Smartstart for Kids Limited [2013] ACAT 27 [14]; see also [2011] ACAT 68 [6]

[8] For example, Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority [2018] ACAT 38; Noah's Ark Resource Centre Incorporated v ACT Planning and Land Authority & Ors [2018] ACAT 95 - this observation is in no way intended as a criticism of ACTPLA, but rather as an observation of the difficulty in litigating in this area

[9] [2018] ACAT 38 [6]

[14] See, for example, the Water Design Code and the PVAGC; per section 55(1) of the P&D Act, which provides that general codes and precinct codes that are concept plans are not required to contain rules and criteria

[15]For example, see introduction to the MUHDC, cited in Deakin Residents Association Inc v ACT Planning and Land Authority & Anor [2015] ACAT 37 [27]

[16] [2015] ACAT 37 [35]

[17] Javelin Projects Pty Ltd v ACT Planning and Land Authority [2017] ACAT 87 [73]

[19] Glass v ACT Planning and Land Authority & Anor [2016] ACAT 147 [33]

[20] See PVAGC, Purpose of Code, page 1

[27] [2017] ACAT 87 [142]

[35] [2018] ACAT 100 [24]

[36] [2017] ACAT 44 [230]

[38] The Territory's final submissions 31 August 2018

[39] ACTPLA's final submissions 31 August 2018 [8] citing Sladic [72], [93]

[41] It was raised as an issue at paragraph [96] of Sladic in summary of the applicant's submissions in that case

[45] Some general codes do contain rules or criteria, for example, the Access and Mobility General Code

[46] There is a potential argument that the reference to "criteria in section 2" in part 1.3 of the Code could indicate that the General Design and Vehicular Access requirements in section 2 were intended to be 'criteria'

[47] For example, Baptist Community Services Pty Ltd - NSW & ACT v Act Planning And Land Authority & Ors [2016] ACAT 150

[48] Old Narrabundah Community Council Inc v ACT Planning and Land Authority & Ors [2016] ACAT 32 [37]

[52] As per the definition of merits review at P&D Act, section 112(2)(b)

[54] See also Maurer & Ellis v ACT Planning and Land Authority & Ors [2016] ACAT 83 [31]

[55] Sladic [99], quoting the ACT Legislative Assembly, Hansard, 23 August 2007, page 1990

[56] In support of this contention, they do not rely on any particular cases, but instead cite ACTPLA's own submissions in Sladic (which were not accepted by the Tribunal) and in G_lass._ Some support for this proposition, as it relates to section 120, is found in the ACT Court of Appeal's decision in Baptist Community Services v Act Planning and Land Authority and Ors [2015] ACTCA 3. The Court concluded that the only meaningful way to interpret section 120 is to do so according to its terms, so that it gives a discretion to approve or reject a proposal that is code compliant

[57] Applicants' final submissions 13 August 2018 [35]

[60] Territory Plan 2008 [13.1] (Definitions)

[62] The objectors, and in particular Mr Forsey, did suggest at the hearing that the Australian Standard was met in only a minimal way and the design was far from best practice, but even if this is correct, that is not the issue before the Tribunal, as nothing requires the developer to deliver a higher standard than the minimum

[63] Applicants' final submissions 13 August 2018 Attachment A

[67] [2017] ACAT 87 [142]

[68]Transcript of proceedings 11 September 2018 page 10

[69] [2017] ACAT 87 [142]

[73] Transcript of proceedings 5 July 2018 page 23

[74] Applicants' final submissions 13 August 2018 [50]

[76] Transcript of proceedings 5 July 2018 page 51

[77] Exhibit TR5 - albeit with disclaimers that the diagrams were speculative as the modelling software and processes were not equipped to make precise calculations

[78] See The Benevolent Society v Waverley Council [2010] NSWLEC 1082 [137]-[144]

[79] ACTPLA's final submissions 31 August 2018 [42]

[80] Exhibit R6. The same approach apparently also applies in the Northern Territory - see transcript of proceedings, 5 July 2018, page 70 - where Mr Challis described a colleague in Darwin who, he said, was "required to put sunshade awnings on all the windows, nevertheless, because the authorities wouldn't accept the trees - the jungle around that as being sufficient shading" despite that shading being "one hundred percent"

[81] ACTPLA's final submissions 31 August 2018 [41]

[82] [2012] ACAT 53 [75]-[76]

[83] Applicants' final submissions 13 August 2018 [105]

[86] The Territory's final submissions 31 August 2018 [15]

[87] Applicants' final submissions 13 August 2018 [105]

[89] Although it fell from the evidence of Mr Challis on the first day of the hearing, Transcript of proceedings 5 July 2018 page 61

[91] Applicants' final submissions 13 August 2018 [108]

[92] Ibid [111]-[112] (footnote omitted)

[96] The Territory's final submissions 31 August 2018 [17]

[97] ACTPLA's final submissions 31 August 2018 [60]

[98] T-documents page 564; cf T-documents pages 580-587

[99] Transcript of proceedings 5 July 2018 page 77

[100] Applicants' final submissions 13 August 2018 [191]

[101] Ibid [200]-[203] (footnote omitted)

[108] Applicants' final submissions 13 August 2018 [197]

[109] Ibid [200]-[203] (footnote omitted)

[111] Applicants' final submissions 13 August 2018 [211]

[112] ACTPLA's final submissions 31 August 2018 [27]