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2. We have set aside the decision under review on the basis that the development application (DA) exceeds the maximum number of dwellings allowable on the block. This was an issue raised by the Tribunal and the subject of separate written and oral submissions. As reconsideration may allow the development proposal to be amended, we have also set out our reasons for why, but for the restriction on the number of dwellings, we would have confirmed the decision under review. While any reconsideration of the DA is to be done in accordance with these reasons, these reasons do not dictate whether amendments to the DA would be approved. They merely indicate the ways in which the concerns raised by the applicants are, in our view, appropriately considered in the context of the particular block in question. We have therefore focused on the issues in dispute in these reasons.

3. We note that the party joined did not provide any written submissions or material to the Tribunal. They did not participate in the first hearing and made only oral submissions in the resumed hearing on the issue of the maximum number of dwellings.

Questions of onus

4. One of the threshold issues raised by the parties was who bore the onus of establishing whether the requirements for approval of the DA had been met. The applicants, for example, stated in their reply that the fundamental question before the Tribunal was “whether the development proposal, as amended and approved,

1 Orders were made on 30 June 2026 with reasons to be provided later to comply with s 22P of the ACT Civil and Administrative Tribunal Act 2008 which provides that an application for review by the Tribunal of a decision under the Planning Act 2023 (Planning Act) must be decided within 120 days after the application was made. was supported by sufficient information to demonstrate compliance with the Territory Plan at the Development Approval stage”. At the first hearing, the respondent’s representative submitted that, as a practical matter, the applicants have to persuade the Tribunal that the correct and preferable decision was to not approve the DA. The issue of the maximum number of dwellings was not directly raised by the applicants as a basis to set aside the decision under review.

5. Both parties referred to the ability of the Tribunal to “stand in the shoes of the decision maker” in carrying out its review in this matter. Under section 68 of the ACT Civil and Administrative Tribunal Act 2008, when reviewing a decision the Tribunal may exercise any function given by an Act to the entity for making the decision. The Tribunal must either confirm the decision, vary the decision, or set aside the decision. In setting aside a decision the Tribunal can make a substitute decision or remit the matter to the original decision-maker for reconsideration in accordance with any direction or recommendation of the tribunal.

6. In this matter, the decision under review is a decision by the respondent to approve the DA subject to conditions under section 185 of the Planning Act 2023 (Planning Act). Section 185 provides that the decision-maker for a development application must decide whether the DA should be approved, should be approved with conditions (as in the decision under review), or should be refused. The role of the Tribunal in carrying out a review is to form its own view as to how the power to make a decision under section 185 should be exercised.

7. The Tribunal, like the respondent, in making a decision under section 185 must comply with the requirements of the Planning Act. It must consider, among other things, any applicable desired outcomes in the Territory Plan 2023 (Territory 2 Plan) (section 186). The Tribunal may approve a development application only if the proposal is consistent with, relevantly, the Territory Plan (section 189).

2 The Territory Plan 2023 (Territory Plan) is a notifiable instrument made under s 45 of the Planning Act, available at https://www.legislation.act.gov.au/ni/2023-540. The relevant Territory Plan in effect at the time orders were made in this matter was the version R42 effective 17 June 2026. See the discussion below at paragraph [43]. There is also an overriding obligation on the decision maker and the Tribunal not to do any act that is inconsistent with the Territory Plan (section 52).

8. The Residential Zones Policy in Part E of the Territory Plan, which applies to all developments in a residential zone, includes policy outcomes, assessment outcomes and mandatory assessment requirements. The effect of sections 186 and 189 of the Planning Act is that mandatory assessment requirements must be met by all development proposals in residential zones for the proposal to be consistent with the Territory Plan, and for the policy and assessment outcomes to be considered in deciding whether to approve the DA.

9. The respondent referred for its position on there being some form of practical onus on the applicants the decision in Comcare v Power [2015] FCA 1502. Katzmann J in that case said (at [70]): [it] is reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made. The statement the Tribunal made in the present case that Comcare did not discharge its onus should be taken to mean that the Tribunal was not persuaded that Ms Power was no longer suffering from the effects of the compensable injury.

10. In our view this statement does not support the contention that an applicant for review has a practical onus to establish why the decision should not be confirmed. The Court was considering an application for review of a decision refusing an application for compensation. The applicant in that case had been injured at work and claimed she had continued to suffer from the effects of that injury when she fell and sustained additional injuries. The Administrative Appeals Tribunal had considered that the decision-maker, who had made the determination that the applicant no longer suffered from the effects of a compensable injury, bore a practical onus to demonstrate the compensable injury had ceased.

11. The Court in Comcare was critical of the use of the term practical onus, suggesting that speaking of “a party having any onus of proof (whether legal or 3 evidential) … is apt to mislead” and that it was well established that there was 4 no such thing as a legal onus of proof in the tribunal. However, the ‘practical

3 Comcare v Power [2015] FCA 1502 ( Comcare) at [57] 4 Comcare (n 3) at [58] citing McDonald v Director-General of Social Security [1984] FCA 57 onus’ arose from the nature of the factual issue in the decision under review and whether it is the existence or non-existence of a factual circumstance which is determinative of the question under review. That in turn was a question of interpretation of the power to make the decision in question. It was not a question of the party seeking review having a practical onus to establish the basis on which a different decision should be preferred.

12. In this matter the applicants are contesting the decision of the respondent to approve the DA subject to conditions. That decision was largely based on the determination by the respondent that the DA was consistent with the Territory Plan. Under the Planning Act, if the respondent (or the Tribunal), is not satisfied that the DA is consistent with the Territory Plan, then it cannot approve the DA. In our view, it is the respondent, if any party, that perhaps bears a practical onus in satisfying the Tribunal that the DA was consistent with the Territory Plan and could otherwise be approved subject to conditions.

13. In the context of the review, the respondent generally satisfies any such practical onus by providing a statement of reasons for its decision and providing the tribunal documents which include an analysis of the DA’s consistency with requirements under the Territory Plan and Planning Act generally. The focus of the Tribunal is then placed on the matters raised by the applicant in arguing why the correct or preferable decision is to set aside the decision under review. It is open to the applicants to argue that there is insufficient evidence before the Tribunal to be satisfied that the DA should be approved, and for the respondent to indicate to the Tribunal the evidence on which it relied in making its decision or the evidence which, in its submissions, should be considered by the Tribunal under review. The applicants do not have a burden of providing evidence or submissions establishing that the DA is inconsistent with the Territory Plan or otherwise should not be approved.

Maximum number of dwellings

14. The DA which was approved in the decision under review proposes to demolish what is currently a single dwelling and build three dwellings on the block in question. The applicants have proposed that the site is better suited to two dwellings, preferably single storey. Two double-storey dwellings may have been able to be situated on the block so as to reduce the adverse effects on its neighbours without necessarily compromising the other development objectives.

15. The question of how many dwellings can be situated on the block is governed, in this development, by the assessment requirements of the Residential Zones Policy.

16. The development proposal relates to Section 26 Block 23 in Kaleen. It is zoned 2 as RZ2, with a block area of 921 m . The policy outcomes in the Residential Zones Policy for RZ2 include achieving a mix of low to medium density housing, a mix of single dwelling and multi-unit housing, and enabling a limited of change in density. There are various assessment outcomes which are expressed in fairly broad terms which are relevantly discussed below. The mandatory assessment requirements for RZ2 are more technical and objective in nature, including a 5 maximum of two storeys and maximum site coverage for multi-unit housing of 6 45%. The respondent interpreted the assessment requirements to allow up to three dwellings on the block.

17. Assessment requirements 19 and 20 (AR 19 and AR 20) in the Residential Zones Policy state: 19. For multi-unit housing on a standard block in RZ2 (excluding secondary residence developments): a) Minimum block area for more than one dwelling: 700m². b) Maximum number of dwellings per block: 1 additional dwelling for every 250m² (or part thereof) over the minimum. 20. For multi-unit adaptable housing on a standard block in RZ2 (excluding secondary residence developments): a) Minimum block area for more than one dwelling: 600m². b) Maximum number of dwellings per block: 1 additional for every 250m² (or part thereof) over the minimum and all dwelling are built to be adaptable.

5 Territory Plan, Part E – Zone Policies, E01 – Residential Zones Policy (effective 6 June 2025), Assessment requirement 11 6 Territory Plan, Part E – Zone Policies, E01 – Residential Zones Policy (effective 6 June 2025), Assessment requirement 14

18. The respondent’s assessment of the development proposal, in discussing 7 assessment requirements, includes a reference to the dwellings being adaptable 8 so that AR 20 is applicable. However, when discussing site and land use there is a discussion of correspondence from the respondent indicating that the proposed development meets AR 19 without being adaptable, and that approval of adaptable housing was no longer sought after amendments to the proposal under section 168 of the Planning Act. It is then stated that the “site is zoned RZ2 Suburban Core which permits up to 3 dwellings of two storey construction, noting up to 4 dwellings could be proposed if the development was for adaptable 9 housing”. 2

19. The block in question is 921 m . If AR 19 applies to the proposed development, one interpretation of that requirement is that the site allows up to two dwellings. The applicant’s submissions had not raised an objection based on AR 19. The Tribunal, however, as described above is not necessarily limited to the arguments put by the parties and has to reach what it considers the correct and preferable decision on the evidence provided including, where appropriate, upon further inquiries by the Tribunal. The Tribunal therefore invited submissions from any party on: (a) which assessment requirement is applicable to the assessment proposal and why; (b) how that assessment requirement should be interpreted in relation to the number of dwellings permitted on the block in question; (c) if the tribunal was to find that AR 19 applied and limited the development to two dwellings – what implications, if any, does this finding have for the orders sought; and (d) any other issues not already raised that relate to the maximum number of dwellings permitted on the block in question.

7 See T-docs at page 146 8 T-docs page 148 9 T-docs page 149

20. The respondent accepts that AR 19 applies. The amended development proposal which was approved in the decision under review no longer included adaptable 10 housing. The Respondent’s written submission stated: 2 5. AR19(a) provides for the minimum block area on 700m as threshold for multi-unit housing. That means that once the block hits the 2 minimum block area of 700m , you can have multiple dwellings provided that other elements of the Planning Act 2023 (the Act) and Territory Plan 2023 (Territory Plan) are met. 6. AR19(b) provides for maximum number of dwellings per block to be 2 one additional dwelling for every 250m (or part thereof) [emphasis 2 added] over the minimum block area of 700m . The Respondent submits the following in respect of the application of AR19(b) in the present circumstances: 2 (a) The block size for the proposed development is 921m i.e. 221 2 m² over the minimum requirement of 700m . 2 (b) AR19(b) does not require the minimum block size to be 250m or more for an additional dwelling. The use of the phrase ‘or 2 part thereof’ entails that anywhere between 701m –950m² still counts as one full increment (allowing for an additional dwelling). As the minimum block size for two dwellings is 2 2 2 700m , block size of 701m –950m will allow for an additional dwelling under AR19(b). This leads to the total allowable 2 dwellings in subject block with an area of 921m to be three dwellings i.e. two dwellings for the block size being minimum 2 2 of 700m and the third dwelling for additional 221m on the 2 subject block which is ‘part thereof’ 250m stipulated in AR19(b) for an additional dwelling. 2

21. Therefore, the respondent submitted, where the block size is between 701 m and 2 950 m the developer can build three dwellings.

22. The respondents accepted in their written submissions that AR 19 was a mandatory requirement, and if AR 19 is interpreted to only permit two dwellings on the block in question, the decision under review would need to be set aside. However, the respondents requested the matter be listed for a brief hearing on the issue of maximum number of dwellings before the Tribunal reached that conclusion.

23. The Tribunal invited the parties to present oral submissions on this issue at a resumed hearing. The respondent reiterated their view that the literal meaning of

10 see T-docs page 280 AR 19 was that it permitted three dwellings on the block in question. The respondent pointed to the context of the provision, including the requirements relating to site coverage and other assessment outcomes which also acted to restrict the number of dwellings which might be included in a development proposal. The respondent also pointed to the exclusion in AR 19 for secondary residence developments. The assessment requirements for secondary residences are set out in assessment requirements 2 to 5. They include a maximum secondary 2 residence dwelling size of 90 m and minimum block size for a secondary 2 residence of 500 m . The respondent submitted that this meant that blocks over 2 500 m already permitted more than one residence, albeit one residence which was smaller in size. The allowance for three or more dwellings on blocks over 2 700 m therefore should not be considered to be an absurd result as submitted by the applicants.

24. The respondent acknowledged at the further hearing that the reference to ‘minimum’ in AR 19(b) should be read as the minimum floor area referred to in AR 19(a). However, they submitted that AR 19(a) should be read as permitting 2 two dwellings on blocks over 700 m . AR 19(b) then permits one additional dwelling, bringing the total number of dwellings permitted to three. While the respondent accepted that an alternative literal meaning was open, they submitted that their interpretation was not clearly incorrect and should, given the contextual factors indicated earlier, be considered preferable.

25. The applicants contended that AR 19 should be interpreted as allowing only two dwellings and reiterated their earlier submissions that allowing three premises to be constructed increased privacy and solar access concerns. The party joined relied on the respondent’s interpretation and asked the Tribunal to approve the application for the reasons adopted by the respondent.

Consideration

26. In our view the respondent’s interpretation of AR 19 is contrary to the plain meaning of the text and there is nothing in the context or purpose of the requirement that suggests the plain meaning should be departed from. We do not accept that the respondent’s interpretation is a possible interpretation which should be preferred due to contextual or purposive factors.

27. AR 19 is expressed as controlling housing density and minimum block areas for multi-unit housing on a standard block in RZ2. AR 19(a) sets out the minimum block area for more than one dwelling. On its terms it states that to have more 2 than one dwelling the block size must be at least 700 m . For block sizes below 2 2 700 m only one dwelling is permitted; for block sizes above 700 m two or more dwellings may be permitted. AR 19(a) does not address how many houses can be on the block. It is AR 19(b) that sets out the maximum number of dwellings per 2 block, being one additional dwelling for every 250 m (or part thereof) over the minimum.

28. The reference to over the minimum is a reference to the number of square meters over the minimum block size set out in AR 19(a). Once the block size exceeds 2 the minimum (i.e. 700 m ) an additional dwelling is permitted. The reference to additional dwelling is in our view a reference to the number of dwellings which were permitted on a block under the minimum size, not a reference to the number of dwellings permitted on the block in question by AR 19(a).

29. AR 19(a) and AR 19(b) are not stand-alone requirements but must be read together. They establish a tiered approach to the number of dwellings on a block, 2 with one dwelling on blocks between 1–700 m ; two dwellings on blocks between 2 m2 700–950 m ; three dwellings on blocks between 950-1200 and so on. In our view this tiered approach is clearly indicated on the plain meaning of the text of AR 19. It is also consistent with the following contextual elements.

30. The tiered approach to interpreting AR 19 is consistent with the increasing housing density reflected in different residential zones. RZ1, for example, under 2 assessment requirement 16, allows more than one dwelling on blocks over 700 m with a maximum number of dwellings per standard block of two. Under assessment requirement 18, some specific forms of multi-unit housing are 2 permitted on blocks over 600 m , with the same formula of one additional 2 dwelling for every 250 m (or part thereof) over the minimum permitting additional housing. RZ2 blocks, in contrast, are permitted to have increased density of more than one dwelling depending only on the size of the block. Blocks in RZ3 and RZ4 do not have a maximum number of dwellings but instead rely on restrictions on site coverage and an increase in maximum number of storeys to control density.

31. The increasing housing density across residential zones is also reflected in the Residential Zone Policy Outcomes (POs). PO 2 for all residential zones states that “[d]evelopment should be of a scale and nature that recognises and responds to the zone hierarchy”. The POs for RZ1 include to “limit the extent of change that can occur particularly with respect to residential density …”; for RZ2 to allow allowing a mix of low to medium density housing and providing “opportunities for redevelopment by enabling a limited extent of change in density”; and for RZ3, in contrast, to provide for “opportunities for redevelopment by enabling change”.

32. The tiered increase within RZ2 is also supported by assessment outcomes 5 and 6: 5. The proposed use and scale of development are appropriate to the site and zone. 6. Adverse impacts of development on surrounding uses (both within a site and on adjoining sites) is minimised and residential amenity protected. This includes between residential uses and between non-residential and residential uses As discussed below, there are also assessment outcomes relating to solar access and privacy which can be adversely impacted through a redevelopment of a block from one to three dwellings.

33. The legislative history also supports the graduated increase within RZ2. As part of the Territory Plan under the Planning and Development Act 2007, the Multi 11 Unit Housing Development Code provided for the maximum number of dwellings allowable on standard blocks in RZ2:

Table A2 - Maximum number of dwellings allowable on standard blocks in RZ2 block size (m2) maximum number of dwellings <700 1*

11 Available at https://www.legislation.act.gov.au/DownloadFile/ni/2008- 27/copy/158224/PDF/2008-27.PDF. 700 to <1050 2 1050 to <1400 3 1400 to <1750 4 1750 to <2100 5 2 2100 and over 6 + 1 for every 250m ** of site area over 2100m² * not including a secondary residence 2 ** not less than 250m is required for every additional dwelling

34. We note that the position prior to the current Planning Act therefore involved a 2 2 graduated increase in the number of dwellings for every 350 m above 700 m 2 until 2,100 m .

35. The explanatory report setting out changes made to the Territory Plan to accompany the shift to the Planning Act describes the policy changes as including “[m]ulti-unit housing in the RZ2 zone being able to have more dwellings as part 12 of the development”. In describing the changes to zone policies, it discusses the approach taken to policy and assessment outcomes. The residential zones policy is described as combining considerations from several development codes including the Multi Unit Housing Development Code. In summarising the policy changes for number of dwellings, the explanatory report states: “[m]aximum number of dwellings on a RZ2 block amended to one per 250m2 above the minimum block size, as well applying to all blocks in the zone (not just standard 13 blocks)”.

36. The applicants submitted that the respondent’s interpretation leads to what they described as the absurd result that the number of permitted houses is one on a 2 2 2 block of 699 m , two on a block of 700 m , and three on a block of 701 m . We would have described the respondent’s interpretation of AR 19 as permitting a 2 jump from one to three houses as the block size exceeds 700 m . While this may be consistent with a general policy of increasing the number of dwellings in RZ2

12 Territory Plan Explanatory Report, page 21, available at https://www.planning.act.gov.au/\_\_data/assets/pdf\_file/0008/2324672/ACT-Territory- Plan-Explanatory-Report.pdf. 13 Explanatory report at page 23. This was also reflected in the Proposed New Territory Plan – Supporting Report, November 2022 at page 69. Note that the Residential Zones Policy, AR 19 reflected the comment that the maximum number of dwellings in RZ2 was not limited to standard blocks was removed by the Planning (Miscellaneous) Minor Plan Amendment 2024 on 29 February 2024. residential zones, such a significant departure from the previous approach is not consistent with the stated policy outcome of a limited extent of change of density, at least when compared to RZ1. In our view, the interpretation allowing the number of dwellings to increase from one to two as the block increases beyond 2 2 700 m and then from two to three as the block increases beyond 950 m is more consistent with that policy outcome.

37. The reference to secondary residences as submitted by the respondent does not, in our view, change this interpretation. AR 19 is expressed to exclude secondary residence developments. This suggests that any reference to number of dwellings does not reflect the possibility of a secondary residence. This is reinforced by the statement in AR 19(a) that the minimum block area for more than one dwelling 2 is 700 m , which does not allow for the allowance for secondary residences to be 2 built on blocks over 500 m .

38. Therefore, in our view AR 19 restricts the number of dwellings on the block in question to a maximum of two dwellings. It is not in dispute that the development proposal involves three dwellings. AR 19 is a mandatory development control which must be met by development proposals in residential zones. There is no assessment requirement that we are aware of in a district policy which would prevail in the event of an inconsistency which would allow a higher number of dwellings. The development proposal is therefore inconsistent with the Territory Plan. The development approval cannot be approved under section 189 of the Planning Act.

39. The respondent submitted at the hearing that, in the event that the Tribunal considered that that maximum number of dwellings permitted under AR 19 was two, that the Tribunal should either approve the DA on the basis that it be amended to provide for adaptable housing, or remit the development proposal to the respondent for reconsideration. The party joined objected to any proposal to have to change its application for development to go back to adaptable housing. The applicants submitted that it would not be possible to amend the development proposal to provide for adaptable housing without making fundamental changes and that the approval should be set aside and substituted with a decision that the DA is not approved.

40. In our view it is not appropriate to approve the development proposal subject to a condition that it be amended to be for adaptable housing. Adaptable housing is intended to accommodate changing physical abilities over time, including 14 mobility restrictions and wheelchair use. There was no evidence before us about the nature of any amendments which might be required to make the proposed develop adaptable housing so as to come within the terms of AR 20 and its permission of up to three adaptable dwellings on the block. It is not clear whether it would be possible to amend the DA so as to provide for adaptable housing but still come within the terms of any conditional approval. It would also be unclear how an amended development might then impact on its surrounding uses, including the impacts which have been raised as concerns by the applicants in this case. While conditional approval could provide for the respondent to have a role in ensuring any changes to the proposed developed had no greater impact on surrounding properties, the applicants would not necessarily have a chance to raise any objections or seek review of any changes to the proposal.

41. Similarly, given the party joined amended the original DA in part in response to indications from the respondent that three non-adaptable dwellings were permitted on the block in question, we consider it appropriate that the party joined be able to consider revising their proposal to either incorporate adaptable housing, or reduce the dwelling size, to the extent that such changes would still come within the scope of amendments so as to be considered on the basis of the original DA and material provided as part of the process to date.

42. We therefore considered that the appropriate course is to set aside the decision under review and remit the DA for reconsideration in accordance with these reasons for decision. This would permit the party joined to reconsider their proposed development so as to bring it within the permitted number of dwellings, to allow the respondent to assess whether any amendments can properly come within section 168 of the Planning Act or require any further information to be provided, and to allow the applicant’s and other interested parties to be informed

14 The Planning (Residential Zones) Technical Specifications 2025 (No 2), for example, refer to Australian Standard of Adaptable Housing, AS4299 as relevant standards for some forms of development. of any significant amendments, have a chance to object and possibly seek review of any subsequent approval.

43. We note that the Territory Plan was amended with effect from 1 July 2026 by the Planning (Missing Middle Housing Reform) Major Plan Amendment 2026, made under section 75 of the Planning Act. The amendments include removing AR 19 and AR 20 from the Residential Zones Policy. The Major Plan Amendment to the Territory Plan 04, which is approved in the amendment instrument, describes this amendment to the residential zones policy as: block density assessment requirements that limit the number of dwellings and minimum block sizes for redevelopment have been removed. This allows a proposal to instead meet the relevant design provisions of the Territory Plan and design guides supported by the dwelling density targets 15 outlined in the Residential Zones Technical Specification.

44. The current Residential Zones Technical Specification does not provide for the maximum number of dwellings in RZ2.

45. Generally, in considering whether to approve an application the decision-maker 16 is to apply the law as it stands at the time of making the decision. We have not been provided with any submissions relating to the effect, if any, of the amendments to the Technical Plan on any possible reconsideration by the respondent. It may be that the removal of AR 19 may allow a reconsideration of the proposed development without significant amendment. We have not considered what effect the removal of AR 19 or other changes which have been made to the Territory Plan might have on any reconsideration of the development

15 Major Plan Amendment to the Territory Plan 04, at page 7, available at https://www.legislation.act.gov.au/View/ni/2026-246/20260523-89678/PDF/2026- 246.PDF. 16 See e.g. Landau v Territory Planning Authority [2025] ACAT 19 at [51]. We note that under s 69 of the Planning Act “the Territory, the Executive, a Minister or a territory authority must not, during the defined period, do or approve the doing of anything that would be inconsistent with the [Territory Plan] if it were amended in accordance with the draft major plan amendment”. No party made any reference to a draft major plan amendment or its effect on the role of the Tribunal in this matter and so we reach no concluded view. However, s 69 does not displace the requirement for any approval to be consistent with the Territory Plan then in force, and any draft major plan amendment which lessens the requirements for approval may therefore not have significant effect on any approval decision. proposal. Our comments below are made on the basis of the Territory Plan as it stood at the time of our decision on 30 June 2026.

Other issues in dispute Alternative proposals

46. The applicants contended that they were not opposed to development on the site but that the proposed development was not suited to the particular context. They contended that the site was suitable for two three-bedroom dwellings, preferably single storey. The proposal for three double-storey three-bedroom units does not sufficiently account for the impacts on neighbouring blocks and users of the street on which it is sited.

47. As set out above, the Planning Act makes a distinction between the policy and assessment outcomes in the Territory Plan – which have to be considered when making a decision on a development proposal – and the mandatory requirements which, as part of the Territory Plan, have to be consistent with any decision. It could therefore be argued that the mandatory requirements no longer have to be considered once they are satisfied. However, in our view the mandatory requirements, at least in relation to density and number of dwellings, remain 17 relevant to any approval, particularly given the policy outcomes for RZ2. The allowances of number of dwellings, heights and site area help inform the type of multi-unit housing intended to provide for an increase in density in the area. The assessment outcomes can therefore be considered in light of those allowances.

48. The role of the Tribunal is to approve, approve with conditions, or not approve the development proposal in question. Indicating alternatives to the development proposal may be relevant in a number of ways, including in demonstrating how an assessment outcome may be achieved in the context of the site and surrounding area. However, it is not for this Tribunal to form a view on what might be considered a better proposal, or to seek to substantially alter the proposal to better meet a desired outcome. The Planning Act, and the desired outcomes under the

17 This can be compared with the policy outcomes for RZ1 which include that “development respects valued features of the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties” (Residential Zones Policy, 2) Territory Plan seek to balance often-competing objectives. An outcome of minimising adverse impacts of development on surrounding uses, including 18 adjoining sites, and protecting residential amenity may be achieved by rejecting any substantial development. This, however, would be inconsistent with the policy outcomes for RZ2 within the overall objectives of the Territory Plan and the Planning Act as a whole.

Survey evidence

49. The applicants put into evidence without objection a survey of an adjoining property. They argued that this survey demonstrates that the survey used as the basis for the DA was inaccurate. The applicants also submitted that the survey used in the DA expressly states that block boundaries have not been investigated or marked and that the plan was to be used for design purposes only. Several aspects of the DA were therefore uncertain, including setbacks, separation distances, vehicle access and overall spatial compliance (see applicant’s response to email clarification request, page 4). At the hearing, following the site view, the applicants emphasised the change in levels as being inaccurately captured in the survey used for the DA which potentially may affect other issues such as overshadowing.

50. The respondent submitted that final surveys would be required as part of additional approvals before building could commence. They also submitted that the Tribunal should be satisfied that the survey in question was accurate enough to enable the Tribunal to be satisfied of the various elements identified by the applicants. In particular, they indicated how several levels in both surveys differed only by what should be accepted as a negligible extent.

51. In our view the potential inaccuracy of the survey relied upon in the DA is not of itself a basis on which the DA should be refused. In our view the survey used is sufficiently accurate to provide evidence of the assessment outcomes and other requirements for approval. We do not consider it necessary that the DA be based on a survey in which the boundaries had been investigated and confirmed and which could be used for building purposes.

18 Residential Zones Policy, assessment outcome 6 Conditional approval

52. The applicants submitted that the decision under review unduly relies on conditions rather than demonstrated compliance. This was, they submitted, inconsistent with the Territory Plan assessment framework and the requirement that compliance be demonstrated on the proposal as lodged.

53. The respondent submitted that the Tribunal should confirm the approval with conditions as the correct and preferable decision.

54. Section 185(1) of the Planning Act expressly provides for the decision-maker to approve a development application subject to a condition under section 187. Section 187 provides that an approval under section 185 must not include a condition inconsistent with a condition required to be included by the Territory Plan but otherwise does not limit what may be a condition. Section 187(2) sets out examples of conditions, including: (o) a plan, drawing, specification or other document must be prepared by the applicant and submitted to the Territory Planning authority for endorsement before the development, or a stated stage of it, starts; (p) a change must be made to a plan, drawing, specification or other document forming part of the application for approval;

55. Section 187 also provides: (3) a condition may modify the proposed development to make it consistent with the Territory Plan. (4) The Territory Planning authority may endorse a change to a document previously endorsed in accordance with a condition mentioned in subsection (2) (o) if the change— (a) would not make the approval inconsistent with table 210 (When development approvals take effect), item 4; and (b) is consistent with the approval, including any conditions of the approval.

56. Section 205 requires further approval of changes to the development proposal which take it outside the development approval, but a note to that section states that it does not apply to changes in accordance with a condition of the development approval.

57. It is at least implied in these provisions that conditions can be imposed in circumstances where the DA would otherwise not be able to be approved. Similarly, a condition can be expressed in terms which require evaluation of whether the DA as modified now meets the requirements under the Planning Act. Provided the conditions are not so broad as to be uncertain or effectively delegate to the developer or another body the question of compliance with the requirements for approval, a DA can be approved subject to conditions where compliance of the DA as lodged has not been demonstrated.

58. The decision under review included various conditions which relate to other issues raised by the applicants. They are considered in that context below. The applicants did not indicate any other specific conditions which they were concerned about. The Tribunal is satisfied that the conditions on the approval are appropriately imposed under section 187 of the Planning Act.

Traffic and safety

59. The Residential Zones Policy includes various assessment outcomes relating to traffic and safety, including: 7. The functionality and layout of the development is accessible and adaptable, while achieving good connections with the surrounding area. This includes consideration of traffic flow and passive surveillance. … 9. Access to, from and within the site permits safe and legible movement while catering for all users (including pedestrians). This includes consideration of vehicle maneuverability and access routes. … 27. Vehicle and bicycle parking sufficiently caters for the development while minimising visual impacts from the street or public space. This includes consideration of parking location, dimensions and number of spaces provided.

60. One of the conditions in the decision under review is the requirement that the development must address various requirement to the satisfaction of the City and Environment Directorate – Development Coordination Branch (CED-DCB). They include that all vehicles enter and exit the site in a forward-in and forward-out manner, and that the curb side collection pad be relocated, no-parking signs used on collection days and minor pruning and shrub removal used to improve sightlines when exiting the site.

61. The applicant’s submitted that these measures were inadequate to address the safety and traffic hazards they claimed would arise from the development, both during and after construction. They submitted that the DA was amended prior to approval without updating the information about turning templates and driveway plans as required by the Planning (Minimum Development Application Documentation) Guideline 2026 (No 1) (Documentation Guidelines). The applicants submitted that provision for two vehicles per dwelling and no visitor parking may mean additional street parking which would increase traffic and safety hazards. The narrow and curved nature of the street meant that it was difficult to spot pedestrian or other traffic when leaving the development. They submitted that the street on which the development was located acted to feed cars in the area onto the main roads and hence had more traffic than is usually associated with a residential street.

62. The respondent submitted that the amended proposal met the Planning (Residential Zones) Technical Specifications 2025 (No 2) (Specifications) which requires two parking spaces for dwelling with three or more bedrooms. A visitor parking space is required under those Specifications where there are four or more dwellings. The respondent had not sought an updated assessment of the ability of cars to turn around because the amendments had relevantly only widened the driveway. The respondent had referred the DA, both in its original form and two amendments, to CED-DCB for their advice on traffic related matters as well as changes to the verge and stormwater assets. CED-DCB supported the development with the conditions indicated. CED-DCB is said to have used the Guidelines for Transport Impact Assessment (Transport Guidelines) which indicated that an in-depth assessment of traffic impact was not required as the development proposal would not add an additional 20 vehicle trips per hour. In additional comments to the respondent when providing the conditions relating to traffic and safety set out in the decision under review, the CED-DCB stated: 1. It is unclear if the driveway sightline drawing has considered road gradients. However the proposal is considered supportable with the conditions. 2. Attached past 5 year crash data doesn’t appear to show any accidents related to visibility at this location.

63. The Documentation Guidelines are a notifiable instrument made under section 166 of the Planning Act. That section incudes documentation requirements under section 166(2)(c) for the making of an initial application. Under section 168, amendments to the original application are required to include documentation required under section 166(2)(c) “sufficient to allow the authority 19 to assess the proposed amended development”. In our view, while the inclusion of a garden bed complicates the space available on the amended driveway, we are satisfied that the amended plans provide for vehicles to generally have more space than was available on the original plans. In those circumstances the changes to the driveway in the amended plans do not require additional turning templates demonstrating the ability of vehicles to enter and exit in a forward fashion.

64. The Specifications is a notifiable instrument made under section 51 of the Planning Act “to support design guides and the Territory Plan”. They are not part of the Territory Plan, and do not override the assessment outcomes set out in the Residential Zones Policy. As the Specifications state: The primary assessment consideration for a development application is the assessment outcomes in the Territory Plan. In demonstrating compliance with the assessment outcomes, consideration may be given to the relevant planning technical specifications which may serve as a benchmark. While all assessment outcomes are to be met, not all outcomes are covered by a specification. Planning technical specifications are used as a possible solution or to provide guidance for identified aspects of a development proposal. The specifications may also be used as a reference or benchmark in the preparation and assessment of development proposals to demonstrate compliance with the assessment outcomes, and the Territory Plan. Where a proposed development complies with a relevant provision in the planning technical specifications and the development comprehensively addresses the assessment outcome, further assessment regarding those specific provisions will not be required.

65. We agree with the comments made by a differently constituted Tribunal in Khandelwal v Territory Planning Authority [2025] ACAT 48 at [38] that giving consideration to the Specifications is discretionary, and that even full compliance

19 Planning Act s 168(3) with the specifications is not enough to conclude the further assessment is not required or that the development proposal can be accepted.

66. The specifications include requirements for two parking spaces for each dwelling with three or more bedrooms plus one visitor space per four dwellings or part thereof where a complex comprises four or more dwellings (Table 13, page 36). The specifications include: 27.4. Verge crossings and Internal driveways are designed to be safely used by both pedestrians, cyclists and vehicles, such as through the use of vehicle speed reduction measures. … 27.11. d) Driveways that serve 4 or more car parking spaces provide turning spaces on the block to allow vehicles to leave in a forward direction.

67. As a notifiable instrument made under the Planning Act, we consider the Specifications to have significant weight in assessing the compliance of the DA with the Territory Plan. However, the Specifications cannot be considered to be exhaustive of the matters which may be relevant to an assessment of whether the DA meets the assessment outcomes in the Residential Zones Policy. It is therefore open to us, even where, for example, the DA meets the required number of parking spaces, to consider that additional parking should be provided given the particular context of this proposed development.

68. The respondent submitted that the Transport Guidelines are an internal policy document used by CED-DCB in their assessment of traffic related concerns including compliance with Residential Zones Policy assessment outcome 27. The respondent accepted that the Transport Guidelines are not binding on the Tribunal. However, the Transport Guidelines indicate CED-DCB’s assessment of the conditions in which transport impacts may affect approval of a DA.

69. In our view, the Transport Guidelines provide only limited assistance. The reference in the guidelines to proposals generating less than 20 vehicle trips per hour having minimal road network impact is set out in section 4. This section addresses the transport modelling approach to be used in assessing the impacts of a proposal on traffic, the transport network and user behaviour. (Transport Guidelines page 17). It is not clear how an assessment of minimal road network impact relates to the possible safety risks to pedestrians and other road users of a DA. The Guidelines also do not make clear how the particular attributes of the road in question, such as the presence of blind corners or impact of congestion, is reflected in any traffic impact assessment which might be made under the Transport Guidelines.

70. The respondent also submitted that the Tribunal should give significant weight to CED-DCB’s assessment of the proposal. Sections 170 and 171 of the Planning Act provides for when the respondent must refer a development application to another entity for advice or approval, including in section 170(1)(d): if the authority is satisfied that a proposed development is likely to have an adverse impact on a matter in which a government entity …has an interest, or is relevant to matters over which a government entity … has an advisory role—to the government entity;

71. Section 173 provides for the effect of approvals or advice, including in requiring the entity to act consistently with any development approval which was consistent with advice given by the entity. However, the Act does not specify what weight, if any, the decision-maker is to give to the advice. The respondent recognised that the decision-maker, including the Tribunal, is not bound by the advice provided. However, they submitted that the interest of the government entity should be recognised in affording the entity’s advice significant weight before acting against its advice.

72. We accept that the issues relating to traffic and safety raised by the applicants were appropriately referred to the CED-DCB as part of the approval process. We also accept that the advice provided by CED-DCB can be given significant weight by the Tribunal in considering whether the assessment outcomes have been met, but only where the reasons for that advice can be appropriately scrutinised both by the applicants and the Tribunal. As we have set out above, in our view it is not clear how the Traffic Guidelines, for example, contributed to the advice provided, which reduces the weight to be given to that advice.

73. We accept the applicant’s contentions that the development will increase the likely traffic on the road, may lead to increased numbers of cars parking on the road, and may increase the dangers to pedestrians and other road users. However, in our view any increase in traffic as a result of the development, at least after construction is completed, will be minimal. The inclusion of conditions requiring vehicles to be able to exit in a forward fashion, restricting parking during bin collection and providing for vegetation to be removed to improve sight lines, as well as conditions relating to parking during construction, are suitable measures to reduce the effect of the development on the safety of pedestrians and road users. We consider assessment outcomes 7, 9 and 27 of the Residential Zones Policy to be met.

Privacy

74. The applicants submitted that the proposed development will substantially limit the privacy of the fourth applicant and other residents of the property to the north-west. The applicants submit that occupants of the proposed dwellings will be able to look through the second-floor windows and see directly into the fourth applicant’s backyard and through a window from her kitchen and living space. The applicants submit that the windows on that part of the development have a sill height of approximately 1.2 m from the floor, which can be contrasted to windows on the other side which at 1.8 m from the floor are intended to prevent occupants looking down at the adjoining property with a similar level of separation. The applicants also pointed to other surrounding developments, one of which had significantly impacted on the fourth applicant’s privacy.

75. The respondent submitted that privacy requirements must directly impact physically adjoining properties to come within the assessment outcome. Alternatively, even if privacy considerations extend to nearby properties, there was sufficient separation between the proposed development and other properties. The privacy of the residents of the property to the south-east which adjoined the proposed development was sufficiently protected by the separation of a driveway and high windows on the second floor. There is a public footpath between the proposed development and the fourth applicant’s property, meaning that the two dwellings will be separated by 11 to 12 metres. The respondent submits that this separation is sufficient to offset any privacy concerns. Requiring further privacy measures such as reducing the size and height of windows would impact on the solar access of residents of the proposed development. The respondent also submitted that a development should not be restricted due to the current configuration or use of nearby properties. The witness for the respondent indicated that if the setbacks of the second floor of the proposed development had been 6 m from the boundary (instead of the current average of 4 m) the development would, at least on that basis, have been exempt from review.

76. Assessment outcome 16 of the Residential Zone Policy requires “[r]easonable levels of privacy to dwellings and private open space within a block and on adjoining residential blocks …”. The respondent submitted that this outcome only applied to physically contiguous blocks and did not extend to the fourth applicant’s property as it was separated from the proposed development by a public footpath. It is not clear to us whether the definition of adjoining in assessment outcome 16 is limited to the physically contiguous property, at least with respect to considerations of privacy, although we note that the Territory Plan does not define ‘adjoining’ but does set out that “adjacent, to an area, means either contiguous with the area, or, if the area is separated from another area only by a road, the adjacent front boundary of each area faces the road” which would support the respondent’s contention. We note however that the applicants also contend that there would be privacy impacts on residents of the proposed 20 development. In any event, given our conclusions below, we do not have to reach a conclusion on this issue.

77. The Specifications has two specifications relevant to privacy under assessment outcome 16. They are: Separation between walls – multi-unit housing – RZ1 and RZ2 16.1. Unscreened elements and an external wall on the same block or an adjoining block are separated by 3m or more. External walls at the lower floor level on the same block or an adjoining block are separated by 1m or more. … Privacy – multi-unit housing … 16.3 c) Upper floor windows, upper floor balconies and other upper floor elements that allow for potential privacy impacts to adjoining or

20 We note that the Specifications refers to “adjoining or nearby properties”. nearby properties are set back 6.0m from the relevant boundary or greater.

78. These and the other specifications for assessment outcome 16 recognise that, even with a direct line of sight, reasonable privacy can be achieved with sufficient separation. Even accepting that there is a direct line of sight into the fourth applicant’s property, the distance between the windows suggests to us that there will be a reasonable level of privacy available.

79. The applicants submitted that it would be possible, if there were only two dwellings proposed in the development, that it would be possible with good design to avoid the second storey overlooking the fourth applicant’s property. We are not sure how that would be achieved without considerable compromises beyond the reduction in number of dwellings.

80. We accept that compliance with the separation requirements may not be sufficient to afford the reasonable level of privacy required depending on the nature of the proposed development and the current configuration and use of nearby properties. We also accept, however, the respondent’s submissions that privacy is not an absolute condition, and that the outcome refers to reasonable levels of privacy in recognition that any development, particular of two or more floors, will have some impact on privacy. In our view the separation provided by the public footpath, the size and angle of the windows, the uses of the upper floor as bedrooms which are likely to be curtained and not used extensively during the day, and the potential for other screening to be introduced all suggest that the potential privacy impact will be reasonable.

81. At the hearing, the applicants submitted that they had identified at least one comparable development that had not been approved due to privacy impacts similar to those of the proposed development. The respondent submitted that the development put forward by the applicants had ultimately been approved, and involved a single dwelling with much smaller setbacks from the adjoining property.

82. We note that neither the Tribunal nor the respondent is bound by previous approval decisions. Consistency, however, can generally be considered an important aspect of good decision-making. It may therefore be appropriate to consider how other applications for development have been decided. However, in our view the eventual approval of the proposed comparator is not inconsistent with our conclusion that the privacy impact of the development proposal under review is not unreasonable.

Solar Access

83. Assessment outcome 15 requires: Reasonable solar access to dwellings and private open space within a block and on adjoining residential blocks is achieved. This includes solar access into main living spaces within a dwelling.

84. The applicants claim that the proposed development unduly impacts on the solar access of the first applicant’s block which adjoins the proposed development. They claim that the proposed development will cast significant shadows across the first applicant’s property, including shading the windows to his living and dining areas and outdoor entertaining and pool areas. The applicants provided a diagram superimposing the shadow diagrams provided with the proposed development on a satellite image of the first applicant’s property, suggesting that during winter the proposed development will cast shade on much of the property, including solar panels on the roof. The first applicant also provided recent photographs of the afternoon sun being partially blocked by the roof of the current single storey dwelling, suggesting that the windows and brick walls would be substantially in shadow at that time of the day during the winter months.

85. The respondent submitted that the proposed development exceeded the solar envelope by only a minor extent in a way which did not affect the solar access of the first applicant’s property. One of the conditions on the decision under review was that revised plans be provided showing that the “building to be wholly 21 contained within the solar building envelope provisions of the specifications”. At the hearing, the respondent’s counsel also submitted that it was arguable that the requirement in assessment outcome 15 that there be reasonable solar access into main living spaces only applied to dwellings on the block being developed. He also submitted that the shadowing diagrams provided by the applicants

21 Condition of approval 2(a)(ii). overstated the extent to which the roof of the first applicant’s house would be shadowed. The assessment of solar access should not be dependent on the configuration of the neighbouring properties. Even if there was some shadowing of the first applicant’s living spaces, it was only minor, in the afternoon during winter when there was not much heat in the sun in any event, and would be likely to occur even if the proposed development was reduced from three to two two-storey dwellings.

86. The Specifications relevantly provide: 15.1. Buildings are sited wholly within the solar building envelope formed o by planes projected over the subject block at 31 to the horizontal from the height of the ‘solar fence’ on any northern boundary of an adjoining residential block. Where the height of the solar fence is relevantly 3 m from the datum ground level.

87. The amended plans on which the decision under review was based suggest that this solar envelope was exceeded by the tips of the gables of the proposed development only by a very minor amount. Further amended plans were provided by the applicant in response to the conditions on approval, and although those plans have not been assessed while this review is pending, the witness for the respondent gave evidence that in his view they showed the development to be within the required solar envelope. While the Tribunal was not asked to base its decision on these further amended plans, they demonstrated the way in which the breach of the Specifications could be ameliorated.

88. We do not accept that assessment outcome 15 does not include reasonable solar access to main living spaces within dwellings on adjoining residential blocks. There is no convincing textual, contextual or purposive reason to restrict the references to dwellings as only those within the block which is being developed. Even if we accept that the proposed development substantially comes within the specified solar envelope, that solar envelope does not adequately allow for consideration of the impact on different parts of the impacted blocks, including living spaces. We note, for example, that Specification 15.2 refers to daytime living areas when considering solar access to apartments. Whether solar access is reasonable therefore includes consideration of the effect of the development on living spaces in neighbouring properties.

89. However, in our view the proposed development does provide reasonable solar access, at least when considered in light of the allowable number and size of dwellings. The evidence provided by the first applicant shows that his property will be affected during winter afternoons. However, we are satisfied that any effect will be relatively minor given the low angle and heat of the sun at the time of the shadowing. We do not consider the shadowing is likely to have a substantial impact on the amenity or use of either the interior or outside living spaces or significantly reduce the benefits of solar panels on the first applicant’s roof. We also do not consider it likely that reducing the number of dwellings to two two-storey dwellings would make it possible to substantially reduce the solar impact on the first applicant’s property.

Conclusion

90. We have therefore concluded that the proposed development exceeds the maximum number of dwellings allowed under AR 19 and therefore is inconsistent with the Territory Plan as it was at the time of our decision. If the maximum number of dwellings permitted under AR 19 had been three, we would have otherwise confirmed the decision to approve the DA with conditions. Given the possibility of amendment to the DA we considered it appropriate to set aside the decision under review and remit it for reconsideration by the respondent.

Orders

91. The Tribunal therefore makes the following order:

92. The decision under review is set aside and remitted for reconsideration by the respondent in accordance with the reasons for decision.

……………………………….. Presidential Member D Stewart For and on behalf of the Tribunal Dates of hearing: 9 June 2026, 30 June 2026 First applicant: In person Second applicant: In person Third applicant: In person Fourth applicant: In person Counsel for the Respondent: Mr B Buckland Solicitors for the Respondent: ACT Government Solicitor Party Joined: By AVL on 30 June 2026