JOHNSON AND XU & ACT PLANNING AND LAND AUTHORITY AND ORS (Administrative Review) [2012] ACAT 53 | Case summary

JOHNSON AND XU & ACT PLANNING AND LAND AUTHORITY AND ORS (Administrative Review) [2012] ACAT 53 | Case summary | Zoe

[42]

Dr Xu and Mr Johnson ("the applicants") have sought review by the ACT Civil and Administrative Tribunal ("the Tribunal") of a decision made on 22 December 2011 by the ACT Planning and Land Authority ("the Authority"). The decision under s.162(1)(b) of the Planning and Development Act 2007 ("the Act") was to approve, with conditions, Development Application No 20108595 ("the original DA") lodged on 2 September 2010. The original DA sought to consolidate Blocks 27 and 28, Section 13, Division of Garran ("the subject land") and to vary the resulting Crown lease to permit a maximum of 15 dwellings, to demolish the two existing dwellings, and to construct on the subject land 15 dwellings including basement car parking, landscaping and associated works. Subsequently, the original DA was amended to reduce the number of dwellings to 12. Other amendments were also made during the assessment process and the original DA finally became DA20108595D ("the DA"). That part of the approval dealing with the consolidation of the leases and the demolition of the existing houses is not in dispute. In relation to the issue of the new lease, the dispute focussed only on the maximum number of units permitted to be built.
The subject land is flanked by Stone Place, Robson Street and Gay Place and comprises adjacent rectangular blocks, presently numbered 8 and 10 Robson Street, Garran, on each of which is built a single storey detached dwelling and outbuildings. If consolidated, the area of the resulting block would be 2045m2. The amended development proposal consists of 12 units in 3 blocks, one block of 3 units is parallel to Stone Place, a second block of 3 units is parallel to Gay Place and the third block of 6 units is situated between the other blocks parallel to Robson Street.
A single driveway from the basement would exit the block to the south, entering Robson Street at a point opposite an adjacent oval and approximately between Stone Place and Gay Place. There is no formed footpath on the verge in front of the proposed development on Robson Street.
Dr Xu and Mr Johnson were entitled to seek review of the decision made by ACTPLA under s162 of the Act, having made representations under section 156 of the Act. Mr DM Milin and Mr JM Waring are the lessees of the subject land and are the 11th and 12th parties joined ("the developers"). The remaining parties joined live close to the subject land and also made representations under section 156 of the ACT.

[104]

2 September 2010 had ceased to exist. It had been deemed refused because the Authority had not made a decision within the time mandated under section 162 of the Act. Thus it could not be said on 3 June 2010 there was an existing DA that was protected by the "grandfathering" provisions of DV306. 3. Secondly, Mr Arthur proposed that the email of 2 June 2011 (T474) from Ida Schuurmans-Stekhover of the Authority to Tomi Milins saying " I have been instructed to refuse this development application " amounted to a refusal of the DA under the Act. 4. Thirdly, Mr Arthur said that even if the original DA had not ceased to exist the principle in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 (Coty) and subsequent cases should be applied so that the requirements of DV306 would limit the development to five units. 5. Fourthly, he considered that a decision to approve a DA is discretionary and the factors to be taken into account are determined by the subject-matter and scope and purpose of the legislation. He relied on Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; [1985-1986] 162 CLR 24 ("Peko Wallsend"). Mr Arthur said these factors included whether the DA was consistent with the Territory Plan, the circumstances at the time of the decision and whether they are different to the circumstances at the time of the deemed refusal, fairness to the developer, the interests of affected persons in stability and certainty and ensuing orderly development. 6. Fifthly, he said that the development did not comply with objective (b) of the Residential RZ2: Suburban Core Zone which required the development to address the existing neighbourhood characteristics in scale, form and site development. 7. Finally, he took issue with a number of specific rules, criteria and provisions contained in the Residential Zones- Multi Unit Housing Development Code ("the MUHD Code") and a number of general codes which he said the proposed development did not comply with.

[105]

In dealing with Mr Arthur's first argument Mr Walker said that, when the time stipulated for deciding a development application under section162 of the Act had expired, the "deemed refusal" of the application was for limited purposes only. He argued that section 163(3) clarified that that the failure to make a decision within time was to be treated as a refusal of the application for development approval only so as to permit an application to the Tribunal under section 12 of the ACT Civil and Administrative Tribunal Act 2008 ("the ACAT Act") for a review of that "refusal".
He contended that there was no change of status of the DA. It had not ceased to exist but remained an application that had not been finalised. He also said that, as it had been lodged prior to 3 June 2011 it was specifically not affected by DV306.
Mr Walker responded to Mr Arthur's second argument by saying that the email of 2 June 2011 should not be seen as a refusal of the DA. The evidence did not support this interpretation.
Mr Walker argued that DV306 expressly said that it was not to be applied to development applications made prior to 3 June 2011. This was the case with the DA. He went on to say that because the terms of DV306 protected the DA, the principle in Coty had no application. However if it did apply, the weight to be given to it was negligible because there was no major conflict in use between the proposed development and that permitted by DV306.
Mr Walker said that there were no grounds to apply the principle in Peko Wallsend and consider the subject matter, scope and purpose of the Act to determine the factors relevant to making the decision to approve the DA. The Act specifically sets out in sections 50, 119 and 120 those matters which must be considered and also when approval cannot be given. This, he said is not a case where the discretion is unconfined.
In dealing with Mr Arthur's fifth contention that Objective (b) of the RZ2 was not met, Mr Walker said that the development dealt with the characteristics of scale, form and site development in a manner which met objective (b).

[112]

Mr Arthur argued that the Tribunal should apply the Coty principle that where there was a proposed variation to a planning scheme a court " should avoid as far as possible giving a judgment....which would render more difficult the ultimate decision as to the form a scheme should take" (p.125). In Coty the legislation required the court to "have regard to the circumstances of the case and the public interest" (p.123) which Hardy J said "opened up a wide field of enquiry" (p124). In Coty the proposed variation would limit the land to residential when the company sought to expand it's industrial premises and demolish three houses. In administrative decision making, government policy including planning policy, is a relevant consideration: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Canberra Cruises and Tours v Minister of Urban Services (1999) ACTAAT 14.
Subsequently Coty developed into a general principle that it is permissible to take into account a proposed planning scheme that is not finalised: Yu Feng v Maroochy S C (2000) 1 Qd R 306 and also Lewiac v Gold Coast C C (1996) 2 Qd R 266. However in Security Projects v Hollingsworth (1975) 62 LGRA 319 the Queensland Full Court (at p.321) said that Coty_" does not lay down a hard and fast rule about withholding consent to a development which is contrary to the provisions of a draft planning scheme"_.
In Lewiac, the Queensland Court of Appeal indicated that the Coty principle is not always decisive and generally is applicable to major conflicts. It gave the example of a high rise residential development in a low rise area. In Glenella Estate v Mackay RC (2010) QPEC 132, Robin QC DCJ refused an application that would have resulted in a good quality agricultural land being subdivided and used for medium density residential purposes. He did not apply the Coty principle because there was no draft planning scheme sufficiently advanced, but he applied similar reasoning to reach effectively the same result. In Golden Paradise v Kogarah MC (1997) NSWLEC 164, Sheahan J found no error of law when a Senior Assessor approved land for use as a brothel which was then permissible with consent, although a draft variation prohibiting brothels was before the Minister for approval. The Senior Assessor had considered the draft variation but had given greater weight to other factors. In Mal Nichols v Cardinia SC (2011) VCAT 2146, approval was sought but refused to develop an eighty seat licensed restaurant in conjunction with an existing vineyard. A restaurant was permitted with consent under the current land use provisions. An amendment which had been developed over a long period and would have transitioned the land to urban residential use was before the Minister. VCAT upheld the Council's decision on the basis it would have resulted in a large restaurant in a suburban neighbourhood for a lengthy future period.
The question for the Tribunal is whether DV 306 should be applied to this DA. The answer given by Mr Walker is that it should not, because the DA was lodged before 3 June 2011 and it was the clearly expressed intention of DV 306 that it was not to apply to applications received prior to that date. The Tribunal believes that this answer is the correct one.
But if it is not the correct answer, and Coty should be applied to this DA, what weight should be given to the relevant matters? The Coty principle is not necessarily decisive and it is not a hard and fast rule. One relevant consideration is the likelihood that the DV306 will become law. The Tribunal believes this is satisfied as the process is at an advanced stage. Another matter to be considered is the degree of conflict between the proposed change and that permitted by the existing use. One example would be a high-rise building in a low rise area, others would include a business or restaurant intruding into a residential precinct. Coty itself was a proposed industrial extension in a residential space and Glenella concerned agricultural land becoming medium density residential. These examples are major changes to the use of land in a locality.
In the present case the issue is the number of units in the development, not a change in the nature of the use. The locality will remain residential under the DA if approved, although more dense than permitted by DV 306. The approval of the DA will not alter the whole character of the area. The locality also has denser development relatively close by in addition to the local shopping centre, which is one of the reasons the subject land is zoned RZ2. In these circumstances if Coty is to be applied the Tribunal finds that 12 units on the subject land is not incongruous and does not alter the character of the locality to the extent that the approval should be refused or the development limited to five residential units.

[118]

Mr Goodyer said that the dominant characteristic of the neighbourhood of Garran is detached single-storey dwelling houses. This is recognised in the 2004 Garran Neighbourhood Plan. He accepted that RZ2 permits multi-unit development and said that five units on the subject land would be appropriate. He equated scale with bulk and compared the six units proposed to face Robson Street with a typical dwelling house in the immediate vicinity and found the scale to be excessive. He did not object to the two blocks of three units each proposed to face Stone Place and Gay Place. The form of the existing neighbourhood, he said, is the predominance of single dwelling houses. The form of the proposed development, with the projection of the upper levels of Units 4-9 forward of the ground floor, does not address the existing form of development in the neighbourhood. He said that the term "site development" requires all elements of the proposed development on the subject land to be compared to the existing development of the neighbourhood. It is not surprising that Mr Goodyer concluded that the proposed development does not meet the second part of objective (b).
Mr Streatfield noted that in RZ1 - Suburban Zone, a development must_" respect and contribute to the neighbourhood and landscape character of the residential areas"_. Objective (b) of RZ2 shows an acceptance that density may increase with multi-unit developments and, unlike the RZ1 zone, is not required to "respect and contribute" to the low density nature of the existing neighbourhood. With regard to scale he said that in Boothy and Mackaness Places there were examples of higher density development of up to three stories. He saw form in terms of the architectural elements of the existing buildings and found those present in different ways in the proposed development. "Site development", he said, is made up of such elements as height restrictions, plot ratios, set backs and landscaping. Mr Streatfield considered that the proposed development was in keeping with objective (b).
Ms Jamaly considered the existing neighbourhood to be of a mixed character with a variety of buildings including single dwellings, dual occupancies and multi-unit blocks of one and two stories. She observed that the pre-school and child-care centre are close by on Robson Street and that the proposed development is not far from Garran Shopping Centre and thus is consistent with the higher density development in the R2 zone. The scale or bulk of the development would be broken up using a variety of methods. It is in three buildings with spatial separation, different colours, roof forms and materials used. The ground and first floors have staggered set backs from the front boundary. She believed objective (b) to be met by the development.
The phrase "dominant characteristic" does not appear in objective (b) but in the Garran Neighbourhood Plan. It is not particularly helpful to say that the dominant characteristic of Garran is low density single story family dwellings because, as Mr Streatfield observed, most Canberra suburbs can be similarly described. The Tribunal notes that there is medium density housing in Boothby and Mackaness Places off Robson Street. Within sight from the subject land, there are a number of medium density housing developments in Gilmore Crescent, Hopegood Place and Eldrige Crescent. These are part of the neighbourhood as much as single storey houses. Mr Walker pointed out that objective (b) speaks in the plural, that is, of "neighbourhood characteristics" that should be addressed.
Annexure A to Exhibit PJ16 was a three dimensional impression of how the completed development might appear from across Robson Street. The impression was similar to an image taken by a camera. In his evidence Mr Beer explained that his notional "camera" was set several metres above ground level and some distance beyond Robson Street. In this sense, the image was not helpful as it gave an incorrect impression of the development. It was useful however in the way it demonstrated the use of different materials, colours, roof lines, spatial separation and set backs for ground and first floors. It was also helpful in showing the variety in horizontal and vertical elements in the proposal.
It is the Tribunal's conclusion that the neighbourhood is a mixture of building types and uses and the proposed development would be constructed using architectural forms and materials similar to those of the existing neighbourhood buildings. Although larger than its neighbours, its scale or bulk would be broken up by a series of devices so as to reduce its visual impact, and the development of the site would be similar and relevant to the elements of the neighbourhood. In short, the Tribunal finds that the proposed development addresses the existing neighbourhood characteristics in scale, form and site development.

[175]

None of the parties suggested there was an approved estate development plan. As Units 1, 2, 3, and 10 are shown to be forward of the building line, they do not comply with Rule 90(b) and, therefore, require consideration of Criterion 90. The focus of Criterion 90 is on the POS for relaxation, dining, entertainment, recreation, passive surveillance and generally maximum year round use. The development is to be pleasantly landscaped with retention of substantial trees. The outlook to the south is over open space and trees. In other directions there is an abundance of mature trees and well-maintained gardens. The height of the subject land will permit passive surveillance in both directions. The fencing and hedge screening of the POS is intended to ensure privacy while allowing a degree of surveillance.
Rule 90(a) requires the POS to be screened from public view and the question in this case is whether a hedge is an acceptable screen. Mr Goodyer gave little weight to the use of hedges as screening devices. The Land and Environment Court of NSW is similarly unenthusiastic about hedges as, in the Court's view_," the need for continued maintenance, good climatic conditions and good luck"_ were impediments to hedges as screening devices: Super Studio-v-Waverley [2004] NSWLEC 91. Mr Streatfield supported the use of hedging as a screening device. Mr Arthur also said that the decision of the ACTAAT in Bonansea and Commissioner for Land and Planning [2001] ACTAAT 4 had expressed doubt about the use of landscaping to hide an unacceptable building development. The Tribunal notes that the landscape screening in Bonansea was intended to screen a continuous line of building of 73 metres which was 5.5 metres high. It is not surprising that the AAT thought that landscaping was not an acceptable solution. The hedge required in this development proposal is on a more modest scale. The Tribunal does not think that luck is a major a factor in the development of an effective hedge. An owner/occupier of a unit has a degree of self-interest in ensuring that the hedge is well maintained, as does an owners' corporation which would usually employ a contract gardener for maintenance purposes. Provided the plants are suitable for the climate and effective watering systems are in place then the Tribunal accepts that the hedge proposed by the developers will screen the POS from public view. Canberra has many healthy hedges as the hedge at 1 Stone Place demonstrates.

JOHNSON AND XU & ACT PLANNING AND LAND AUTHORITY AND ORS (Administrative Review) [2012] ACAT 53 (13 August 2012)

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Judgment (184 paragraphs)

JOHNSON AND XU & ACT PLANNING AND LAND AUTHORITY AND ORS (Administrative Review) [2012] ACAT 53 (13 August 2012)

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