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……………………………….. Senior Member R Orr PSM KC For and on behalf of the Tribunal REASONS FOR DECISION Introduction 1. Rishi Khandelwal and Surbhi Khandelwal (applicants, or Rishi and Surbhi Khandelwal) are the owners of a property in O’Connor. Their neighbours immediately to the north, Keethingha Sathimoorthy and Haran Ratnasingham (parties joined, or Keethingha Sathimoorthy and Haran Ratnasingham) submitted a development application in relation to their property (subject property) on about 2 November 2024 (development application or proposed development or proposal). On 29 January 2025 that application was approved subject to conditions by the respondent, Territory Planning Authority (respondent or Authority).

2. The applicants seek review of that decision in the tribunal, and lodged an Application for review dated 19 February 2025 (Application for review).

Grounds of review

3. The Application for review lists four grounds, which have been maintained by the applicants in these proceedings. As set out in the Application for review and elsewhere, and summarised by us, these four grounds are as follows.

Ground 1 Impact and shadowing issue

4. First, a failure in acknowledging, assessing and addressing the extent and nature of the impact of the proposed development. Of particular concern is the shadowing of the property of the applicants by the proposed development by the parties joined, including that the shadow diagrams show that the proposed development will significantly block sunlight to the applicants’ property in the winter period, especially in the morning. This issue raises concerns about compliance by the proposed development with the Planning Act 2023 (Planning Act) and the Territory Plan 2023 (Territory Plan), in particular Part E, Zone Policies, E1 - Residential Zones Policy (Residential Zones Policy), in particular the Assessment Outcomes (Assessment Outcomes), and also the Planning (Residential Zones) Technical Specifications 2024 (No.3) (Technical Specifications). Ground 2 Lack of consistency in relation to impact and shadowing

5. The second issue is lack of consistency in assessing development applications. The applicants refer to a comparable application by them where there is relatively insignificant overshadowing, and no objections, but the respondent raised overshadowing concerns to get the size and scale of the property reduced. This raises in effect the same provisions of the Territory Plan as ground 1, and the more general issue of consistent and fair decision making.

Ground 3 Incomplete decision outcome

6. The third ground concerns incomplete decision outcome and notification. It is said that the notice of decision states that the development application is approved subject to minor design changes, but does not indicate the changes requested.

Ground 4 Failure in due process

7. The fourth ground is that the development application was submitted and accepted for assessment without the minimum supporting information, in particular the shadow diagrams, and without extending the public notification period when that material was provided.

Summary of this Tribunal decision

8. The decision of the Tribunal in relation to these grounds is in summary as follows.

Ground 1 Impact and shadowing issue

9. The principal requirement in relation to ground 1, impact and shadowing, is that ‘reasonable solar access to dwellings and private open space … on adjoining residential blocks is achieved’ and ‘reasonable levels of privacy to dwellings and 1 private open space … on adjoining residential blocks is achieved’. The Technical Specifications also deal with solar access, and it is clear the proposal does not comply with these, though there was significant discussion at the hearing as to 2 whether this is to a minor or more significant extent. Shadowing is principally caused by the upper storey of the new proposed building, and it was conceded that this did not comply with the Technical Specifications for setbacks in relation to the proposal from the property of the applicants.

1 Assessment Outcomes 15 and 16 2 Technical Specifications 15.1

10. The applicants argued in particular that the shadow diagrams provided with the proposal showed significant shadowing of their property at the winter solstice, and throughout the winter months, especially in the morning. Also, as noted, the proposal does not comply with the Technical Specifications for solar access or the setback of the upper storey. They suggested that their proposal had been more closely scrutinised than this proposal.

11. The respondent argued in particular that the fact that the applicants’ proposed house will be cut into the ground and that there will be a fence between the properties would in any event be a substantial contribution to the shadowing on their property. It was difficult to assess these issues but it was clear that the new building proposed in the development application would still have an impact on solar access of the applicants.

12. The respondent argued that the failure to comply with the Technical Specifications is minor. The relevant plans were provided to the Tribunal just before the hearing, and there were some omissions in the plans approved by the respondent which make assessment of this difficult, but the applicants and the Tribunal put forward a basis for finding that the failures were not minor.

13. The respondent argued that the proposed development ‘generally complies’ with most of the Territory Plan (and the Technical Specifications), that the applicants have taken an ‘overly strict approach’ to compliance with the Territory Plan (and the Technical Specifications), and that the Territory Plan does not have as a requirement that any development have no impact on others.

14. The Territory Plan does not require that there be no impact, but it does provide as an outcome that ‘adverse impacts of development on surrounding uses both 3 within a site and on adjoining sites) is minimised’, and that there be reasonable 4 solar access on adjoining blocks, in this case the applicants’ block. Our consideration leads us to the conclusion that the proposal does not currently provide reasonable solar access to the applicants, nor does it meet the Technical Specifications, and that this should be remedied to some extent by an amendment

3 Assessment Outcomes 6 4 Assessment Outcomes15 to the development application to setback further the upper storey of the proposed new building so as to increase the solar access of the neighbours, while not significantly interfering with the current design of that house. We also find that the proposal should be amended to deal with the proximity of the proposed new dwelling to the old dwelling.

Ground 2 Lack of consistency in relation to impact and shadowing

15. As to appeal ground 2, the documents before us suggest that in relation to the applicants’ development application, the respondent did take a rigorous approach to these issues. Consistency is an important attribute of decision-making, but as the respondent notes, each development application is different, and should be considered in light of its own particular circumstances. We do not think that the treatment of the applicants’ proposal, or any other development application, is of itself a ground for challenging the decision on the proposed development at issue here. But as noted this decision adds further conditions based on our assessment of the requirements.

Ground 3 Incomplete decision outcome

16. As to appeal ground 3, the Notice of decision contains a range of conditions (see T documents pages T51-56), some of which can be characterised as minor design changes. The respondent notes these as those relating to retaining walls (page T52) and conditions made consistently with entity advices (pages T52-54). As the respondent states there is no requirement for such minor, or standard, conditions to be accompanied by revised designs or documentations. This decision adds further conditions.

Ground 4 Failure in due process

17. As to appeal ground 4, it seems that shadow diagrams were publicly notified on about 14 November 2025. The notification period ended on 29 November; this suggests that the diagrams were notified on the website for close to 15 days. The applicants eventually obtained the diagrams and made representations on the basis of them. This Tribunal in these proceedings has considered the diagrams in some detail, and added conditions based on them. Therefore, we do not think any failure to include the diagrams for the full period of notification is a basis for overturning the decision.

18. We now set out more detailed reasons.

Nature of this review

19. This Tribunal has jurisdiction to hear the Application for review. The respondent 5 did not raise any issue in this regard.

20. The decision to approve the development application is subject to merits review in these proceedings, in which the Tribunal is looking for the correct and preferable decision. Under section 68(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), in such review proceedings the Tribunal must (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and— (i) make a substitute decision; or (ii) remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.

Tribunal process

21. The Application for review had attached to it the Notice of decision dated 29 January 2025. The Application also had attached to it a document provided by the applicants which set out their more detailed reasoning in relation to the grounds of review, together with a number of attachments (exhibit A1).

22. Following directions hearings on 21 March 2025 and 9 April 2025, the applicants also provided submissions dated 8 May 2025, which also attached some documents (exhibit A2). The applicants also provide submissions, in reply to the respondent’s submissions, which were dated 27 May 2025 (exhibit A3).

23. Rishi Khandelwal appeared at the hearing and represented the applicants. Mr Khandelwal adopted his various documents, gave further evidence, was asked questions on that material, and made further submissions.

24. The respondent provided the relevant T documents for the decision (exhibit T1). Just before the hearing additional important T documents were also provided (exhibit T2). They also provided a Statement of findings dated 5 March 2025 (exhibit R1). The respondent provided the tribunal with a letter dated 8 April 2025

5 Transcript of proceedings on 29 May 2025, page 9; Planning Act, sections 504 and 506, and Schedule 5, Part 5.1, item 1, which set out some details about the advertisement of the notification of the development application (exhibit R2). A witness statement by Walid Elhassan dated 22 May 2025 was provided. Mr Elhassan gave further evidence at the hearing and was questioned on that evidence (exhibit R3). Respondent’s submissions dated 26 May 2025 were also filed (exhibit R4). They also usefully provided a document entitled ‘Respondent’s note on relevant Planning Act 2023 and Territory Plan 2023 provisions’ (exhibit R5) (respondent’s note). After the hearing the respondent also provided a copy of the relevant shadow diagram for 9am on the winter solstice showing the boundaries of the applicants’ property (exhibit R6). The respondent was represented by Nathan Sinnathurai instructed by the ACT Government Solicitor.

25. At the directions hearing on 21 March, the parties joined, the proponents of the development application, were added as parties to the proceedings. The parties joined subsequently indicated that they did not intend to participate in these proceedings. The tribunal registry wrote to the parties joined, at the request of the Tribunal, and indicated the benefits of participating, and the risks in not participating. The parties joined did not provide any evidence or written submissions, but participated in the hearing on 30 May 2025, and made oral submissions.

26. The Tribunal conducted a hearing of this matter on 30 May 2025 which commenced with a view of the relevant sites, and then at the hearing evidence was adopted, further evidence was given, questions in relation to the evidence were put, and further submissions were made by the parties.

27. The Tribunal has taken into account all the material provided to it by the parties.

The proposal

28. The development application proposal is described in the Notice of decision as: ‘Proposal for dual occupancy and lease variation – Partial demolition of the existing dwelling and construction of a new two storey dwelling with attached garage to form dual occupancy, new driveway and verge crossing, landscaping, and associated works. Lease variation to specify two 6 dwellings on the block’.

29. The block has an area of 855 m2. An existing dwelling of 103 m2 on the block will be retained. The new dwelling will be 164 m2 with the living areas, the kitchen, the study, and a rumpus room on the ground floor and with four 7 bedrooms upstairs, two of which will have access to the upper balcony. The block for the proposal runs east west, with a slope down the hill from the top western side to the lower eastern side. The applicants’ block is to the south of the proposal and also runs east west, with a slope down the hill from the top western side to the lower eastern side.

Ground 1 Impact and shadowing issue Territory plan requirements

30. Mr Elhassan indicated initially in his statement that the assessment should be against version R10 of the Territory Plan, effective 6 August 2024 to 8 26 September 2024. At the hearing the respondent indicated that the assessment should be at the time of the determination of the development application, not the 9 date of the application. In the Tribunal this should be on the basis of the current Territory Plan. The current version is R25 dated 6 June 2025.

31. Section 189 of the Planning Act provides that a decision-maker may approve a development application only if the proposal is consistent with the Territory Plan. Section 52 provides that the Territory, the Executive, a Minister or a territory authority must not do any act, or approve the doing of an act, that is inconsistent with the Territory Plan.

32. Section 186 provides that in deciding a development application the decision-maker must consider the following:

6 T documents, page 9 7 T documents, page 184 8 Statement of Walid Elhassan, at [10] 9 Transcript of proceedings on 29 May 2025, page 8; respondent’s note at [13], citing Landau v Territory Planning Authority [2025] ACAT 19, at [51]. We think this is correct subject to specific circumstances not relevant here, see for example Legislation Act 2001, section 84 and related common law principle (a) any applicable desired outcomes in the territory plan; … (e) the suitability of the proposed development in the context of the site and the site surrounds, including the permissible uses for those areas; … (g) the interaction of the proposed development with any other adjoining or adjacent development proposals for which a development application has been submitted or development approval given; (h) any representation about the development application received by the territory planning authority and not withdrawn;

33. The key aspect of the Territory Plan is the Residential Zones Policy, Policy Outcomes, RZ1- Suburban zone (Policy Outcomes) which provide specifically in paragraph 4:

34. Ensure development respects valued features of the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties. [Emphasis added]

35. Further, the following Assessment Outcomes (Assessment Outcomes) then provide as follows: 4. The functionality and usability of the development is appropriate for its intended purpose/use. 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. 10

36. These Assessment Outcomes go on to provide: 14. The height, bulk and scale of the development is appropriate, noting the desired zone policy outcomes and the streetscape. This includes consideration of building envelope and setbacks. 15. 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. 16. Reasonable levels of privacy to dwellings and private open space within a block and on adjoining residential blocks is achieved.

37. The Planning Act, section 51, provides that the chief planner may make technical specifications to support design guides and the Territory Plan. The Planning (Residential Zones) Technical Specifications 2024 (No. 3) (Technical Specifications) has been made and is relevant here.

Technical Specifications

37. The Technical Specifications are not part of the Territory Plan. There are some statements about these Technical Specifications in the Territory Plan, Part A, Administration and Governance, and also at the beginning of the Technical Specifications themselves. These commence by providing first that the ‘primary assessment consideration for a development application is the assessment outcomes in the Territory Plan’. Second, these go on to state that: ‘In demonstrating compliance with the assessment outcomes consideration may be given to the relevant planning technical specifications which may serve as a benchmark’. They note that not all outcomes are covered by a specification. Third, they provide that the specifications ‘are used as a possible solution or to provide guidance’. Fourth they provide: ‘Where a proposed development complies with a relevant provision of the planning and technical specifications

10 The numbering used here is of the current version. Earlier versions had different numbering but were the same in substance, see for example version R10 effective 2 August 2024 and the development comprehensively addresses the assessment outcome, 11 further assessment regarding the specific provisions will not be required’.

38. These statements were discussed in the respondent’s note and in the hearing. We think the following principles emerge. (a) We agree with the respondent that the statements give priority to the Territory Plan and assessment outcomes, in this case the Residential Zones 12 Policy, over the specifications, in this case the Technical Specifications. (b) In the assessment, consideration ‘may’ be given to the specifications which ‘may’ serve as a benchmark, which means that there is a discretion to give 13 consideration, and that this is not required. Similarly, they are a possible solution and may provide guidance; they are not requirements; there may be other solutions. (c) These and other factors do suggest that the assessment outcomes are more general, qualitative, and outcomes focussed, and the specifications more specific and quantitative. The content of the relevant Assessment Outcomes and Technical Specifications here shows this. (d) The statement as to the effect of compliance (point 4 in paragraph [37] above) is a little hard to understand. It does seem to be setting out conditions for when further assessment is not required. In our view the structure of the provision suggests that if these conditions are met, further assessment ‘is not required’, but that there is still a discretion to undertake such further assessment. The first requirement is that the development complies with the specifications. As noted the specifications are generally specific and quantitative so compliance can generally be determined. We note that there is no explicit suggestion that compliance is anything other than full compliance, and that partial compliance may be enough. The second requirement is that the development comprehensively addresses the assessment outcome. Comprehensively in this context suggests ‘of large

11 Emphasis added, except for the word ‘comprehensively’ which is emphasised in the Territory Plan, Part A 12 Respondent’s note at [8]; see also Territory Plan, Part A, Hierarchy of Territory Plan components 13 Legislation Act 2001, section 146 14 scope’, and addresses suggests ‘to deal with’. Whatever way this is interpreted, it is clear that even full compliance with the specifications is not of itself enough to give rise to the conclusion that further assessment is not required. (e) The respondent suggested that there is a presumption in favour of the development application being considered to satisfy assessment outcomes where the applicable specifications for those outcomes are met and the development application has explained (or it is readily apparent) how it has 15 satisfied those matters. We agree that talking of a presumption may be a useful way to look at this. But we think this statement is otherwise overbroad. As noted meeting conditions means only that further assessment is not required, but we agree with the respondent that this probably in many cases in effect means can be approved. But further, there are two conditions, one is that the development complies with the specifications, the second is that the development comprehensively addresses the assessment outcome. Both need to be met.

39. We return to these issues below.

40. The relevant parts of the relevant Technical Specifications are as follows. Assessment 1. Reasonable solar access to dwellings and private open space Outcome 15 within a block and on adjoining residential blocks is achieved. This includes solar access into main living spaces within a dwelling. Specification Solar 15.1. Buildings are sited wholly within the solar building envelope formed o building 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 envelope adjoining residential block. The height of the solar fence is: a) For single dwellings on large blocks: i) In the primary building zone – 2.4m. ii) All other parts of the boundary – 1.8m. b) For single dwellings on mid-sized and compact blocks: i) In the primary building zone – 3m. ii) All other parts of the boundary – 2.3m. c) For multi-unit housing except for buildings exceeding 3 storeys in RZ5: i) In the primary building zone – 3m.

14 Macquarie Dictionary (online), ‘to deal with’ 15 Respondent’s note at [9] ii) All other parts of the boundary – 2.3m.

3 1 °

Notes: • This does not apply to those parts of a boundary where the adjacent part of the adjoining residential block comprises only an access driveway (i.e., a “battle-axe handle”). • This does not apply to the part of the building that is specified in a district technical specification to be built to the boundary.

Assessment 2. Reasonable levels of privacy to dwellings and private open Outcome 16 space within a block and on adjoining residential blocks is achieved. Specification Separation 16.1. Unscreened elements and an external wall on the same block or between 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 walls – separated by 1m or more. multi-unit housing – RZ1 and RZ2

Applicants’ evidence

41. As noted ground 1 of the appeal concerns the impact of and overshadowing by the proposal. The applicants have consistently raised their concerns in relation to the significant overshadowing, loss of solar access and loss of privacy. 16

42. They refer to the shadow diagrams submitted with the development application. These show major shadowing of the applicants’ property at the winter solstice at

16 T documents, pages 220 and following 9.00 am, and less but still significant shading at 12.00 noon. The shadowing recedes in the afternoon.

43. Attached to the applicants’ submissions are other shadow diagrams, showing the 17 effect of their development application on the property to the south of them.

44. The applicants argue that the overshadowing of their property will definitely affect the energy rating of their property, lead to higher utility bills not to mention creating a dark and gloomy environment for the impacted property as it blocks 18 the northern sun.

45. Furthermore, they refer to the loss of privacy arising from windows of the double 19 storey proposed residence directly overlooking into their yard.

46. In effect their position is that reasonable solar access to their adjoining residential block is not achieved (Assessment Outcome 15), and that reasonable levels of privacy to their adjoining residential block is not achieved (Assessment Outcome 16). They argue that the bulk and scale of the proposed development has unreasonable negative and adverse impacts on them and is not appropriate (Policy Outcomes 4, Assessment Outcomes 5, 6, and 14), and that the adverse impact of the development on them, an adjoining site, has not been minimised (Assessment Outcome 6)

47. We also note that section 186(e) of the Planning Act provides that a decision-maker must consider the suitability of the proposed development in the context of the site and the site surrounds, and (g) the interaction of the proposed development with any other adjoining or adjacent development proposals for which a development approval has been given, and the applicants’ concerns fall within this requirement. Section 186(h) provides for consideration of any representation about the development application received by the Authority and not withdrawn; the applicants made such a representation.

17 Applicants’ submissions 18 Applicants’ submissions, page 1 19 Applicants’ submissions, page 1 Respondent’s evidence

48. Mr Elhassan states in relation to Assessment Outcome 4 ‘that in his opinion the proposal for a dual occupancy complies fully with the territory plan’, and ‘ensures an appropriate level of functionality and usability across the subject site 20 development’.

49. In his view in relation to Assessment Outcome 5 the scale, use and associated design and siting of the proposed development are considered ‘reasonable in the context of block size’ and the ‘proposed development is consistent with the 21 surrounding built form and align with the objectives of the zone’. In evidence at the hearing he referred to a site analysis plan of the area which showed some dual occupancy blocks. It is not clear that these are two-storey buildings, but even if so we note that they are north of a road, and therefore in winter are shading it, 22 and not neighbouring homes.

50. Mr Elhassan suggests that in accordance with Assessment Outcome 6 the development minimises any adverse impacts on surrounding blocks and that ‘the dense landscaping outlined in the Landscape Plan will enhance and preserve the 23 green, leafy character of the street’.

51. In relation to Assessment Outcome 14 Mr Elhassan states that the new dwelling complies with the required setbacks at both levels, and the proposed tandem garage will be constructed along the side boundary in accordance with the relevant planning provisions. The upper level does not warrant the installation of 24 high sill windows or obscure glazing. As discussed above and below it was conceded that the upper storey of the new house did not in fact meet the relevant setback from the boundary to the applicants’ property.

52. In relation to Assessment Outcome 15 insofar as it concerns the adjoining block he states that ‘the [adjoining] lot is cut by approximately 2.3 metres, and when combined with the presence of the 1.8 metre high common boundary fence, the

20 Statement of Walid Elhassan, at [45] 21 Statement of Walid Elhassan, at [47] 22 T documents, page 213; transcript of proceedings on 29 June 2025, at page 84 23 Statement of Walid Elhassan, at [49] 24 Statement of Walid Elhassan, at [65] proposed development will not result in any additional or unreasonable overshadowing impacts’ and as such ‘the solar access to the adjoining neighbour’s dwelling and private open space will not be adversely affected by the 25 proposal’.

53. In relation to Assessment Outcome 16 concerning the adjoining block he states that ‘the neighbouring dwelling has a U-shaped design that encloses its private open space’ and that ‘this layout inherently protects the space from overlooking or visual intrusion, ensuring that the development does not unreasonably impact 26 the amenity or privacy of the adjacent property’.

Consideration

54. The Tribunal is of the view that there is a basis for the concerns of the applicants. The shadow diagrams in the development application do show significant shade at 9.00am on the winter solstice of over what is the applicants’ house, including a living area. This continues through the morning, and through the winter months of the year. This suggests that there will not be reasonable solar access to their dwelling on their adjoining residential block, including solar access into main living spaces.

Surrounding built forms

55. The respondent refers to a number of factors which suggest there is reasonable solar access. As noted above it was suggested that proposed development is consistent with the surrounding built forms. There are some dual occupancies nearby; but if they are two storeys, as noted, they are north of a road, not neighbouring homes. The only surrounding built form we had detailed evidence of was the applicants’ proposal, which had less shadowing on its neighbouring southern home, and where the applicants stated that in discussions with the 27 respondent this had in fact been reduced during the assessment process.

25 Statement of Walid Elhassan, at [67] 26 Statement of Walid Elhassan, at [69] 27 Applicants’ submissions, attached shadow diagrams of applicants’ proposal; transcript of proceedings on 29 May 2025, page 18-19 Landscaping

56. As noted it was suggested that ‘the dense landscaping outlined in the Landscape Plan will enhance and preserve the green, leafy character of the street’. The Landscape Plan provided just before the hearing does support this conclusion. 28 But this will not promote any solar access.

Setbacks

57. As noted, it was stated that the new dwelling complies with the required setbacks at both levels, but this does not of itself meet the additional specific requirements 29 for solar access and privacy. Further, during the hearing the respondent conceded that the upper storey of the new building was at places setback 5.3m 30 when a setback of 6m was required.

Cut for applicants’ house

58. As noted, reference was made to the fact that the applicants’ proposed house will be cut into the current ground level by approximately 2.3 metres, and when combined with the presence of the 1.8 metre high common boundary fence, the proposed development will not result in any additional or unreasonable 31 overshadowing impacts’. There was limited evidence as to the applicants’ proposed development before the Tribunal. Neither the applicants nor the respondent provided plans, except for the shadow plans for this proposal provided by the applicants attached to their submissions. As these are focussed on the shadowing by the applicants’ proposal, it is difficult to gauge from them the effect of the proposed development the subject of this case on the applicants’ property. Mr Elhassan discussed the cut but at the hearing he could not point to the evidentiary basis for this, which limited the weight of this evidence, which the 32 respondent conceded was appropriate. Further, as Mr Khandelwal noted, the degree of cut on his proposed development should not be accepted as an absolute in the assessment. He said that if the proposal was approved he would be forced

28 Additional T documents, page 239; statement of Walid Elhassan, at [49] 29 Statement of Walid Elhassan, at [65] 30 Transcript of proceedings on 29 May 2023, at page 113 and pages 115-116 31 Statement of Mr Elhassan, at [67] 32 Statement of Mr Elhassan at [67]; transcript of proceedings on 29 May 2025, at page 88 33 to reconsider his intentions for his block and its development. This approach seems reasonable, and it is appropriate for us to take it into account.

Fence

59. It is true that there is a proposed fence between the proposed development block 34 and the applicants’ block, and that this will have some impact on solar access as shown by the shadow diagrams, but these also show a greater impact by the 35 proposed building. . These diagrams do not support the view that the building will have no greater impact than the fence.

Technical Specifications

60. At the hearing the respondent relied extensively on the Technical Specifications. Their position was in summary that the proposal did not meet specification 15.1, 36 set out above, at its top storey. But that this was only a ‘minor’ failure, and therefore met the Technical Specifications, and Assessment Outcome 14, and the Territory Plan in this respect.

61. As noted, the Technical Specifications do not in their terms allow for minor failures or digressions. They provide for specific quantitative requirements, and it seems odd to add to them a general, qualitative assessment, such as whether the proposal ‘reasonably meets’ them, or comes close to meeting them. And as noted failure to meet them does not have any consequences of itself, it simply requires assessment under the Policy and Assessment Outcomes, in which assessment the Technical Specifications can be used as relevant guidelines.

62. During the course of the hearing it became evident that there were some omissions in the plans approved by the respondent. These omissions make complete assessment of the impacts on solar access, and privacy, difficult, Firstly, at T documents page 241 the upper floor plan failed to show the distance of separation to the southern boundary. Mr Elhassan reported to the hearing that he

33 Transcript of proceedings on 29 May 2025, at pages 14-15 34 See T documents page 238 which refers to a ‘1.8m colorbond fence to the front building line’ between the two properties’ 35 T documents, pages 220 and following 36 Additional T documents, page 243 37 had assessed the distance to be 5.3m at the south eastern corner. By scaled measurement of T documents page 241 the Tribunal assesses that the distance could be of the order of 5.1m at the south eastern corner. Secondly at T documents page 242 the east elevation in our opinion fails to include the correct solar envelope, which at the east wall would involve a greater breach than the west elevation breach of the parapet section shown at T Documents page 243. The west elevation is also shown at T documents page T244, section A, where the envelope breach is portrayed at the line shown on the upper floor plan at T documents page 241.

63. Therefore as discussed at the hearing, there is a sound basis for finding that the failure is not minor. The applicants put to Mr Elhassan that the solar encroachment was in fact greater at other sections, and he indicated that he could 38 not answer that. The Tribunal also raised with Mr Elhassan that there are a significant indications the failure was greater than he suggested, and he stated that 39 on this basis he would probably say that this is not a minor encroachment’.

64. Further, as noted, to have an effect, compliance with the Specification also needs the proposal to comprehensively address the Assessment Outcome. The shadow diagrams and failure to meet the specific Technical Specification provide a basis for thinking that while the assessment outcome of reasonable solar access has been addressed to some extent, it has not been comprehensively addressed. This is especially so if there is a way to do so and maintain the basic characteristics of the proposal, which in our opinion there is, as discussed below.

General compliance by the proposal

65. The respondent emphasised that the proposed development ‘generally complies’ 40 and complies with ‘most of the guide and technical specifications’; this is correct but the applicants’ principal concern from the beginning has been the overshadowing since it is this which most affects them, which seems a reasonable and appropriate position.

37 Transcript of proceedings on 29 May 2025, at page 93 38 Transcript of proceedings on 29 May 2025, at page 52 39 Transcript of proceedings on 29 May 2025, at page 108 40 Respondent’s submissions, at [12]; transcript of proceedings on 29 May 2025, at page 113 Overly strict approach?

66. The respondent also suggested that the applicants took an ‘overly strict approach’ 41 to compliance with the Territory Plan. Some comments may have done so, but as noted the applicants focussed on the overshadowing, and it does not seem unreasonable to us that the respondent address this concern in some way, or at least explain why the concern of the applicants was mistaken, neither of which occurred till the hearing. The respondent argued that the Territory Plan does not have a requirement that development must minimise the impact on any other adjoining property. We do not agree. There is a specific requirement in Assessment Outcome 6 which provides that ‘adverse impacts of development on surrounding uses (both within a site and on adjoining sites) is minimised and residential amenity protected’. We do agree that the Territory Plan does not have 42 as a requirement that any development have no impact on others.

Conclusion of consideration

67. The key requirement is however in Assessment Outcome 15 ‘reasonable solar access to dwellings and private open space on adjoining residential blocks …[including] main living spaces’, and the detailed provisions in the Technical Specifications are a guide to this. The shadow diagrams show a significant impact on the applicants; the issues raised by the respondent do not rebut or justify this; the proposal does not meet the Technical Specifications for setback of the top floor by a significant amount; and the proposal does not meet the specification for the solar envelope which protects the applicants by at last a minor amount and probably a significant amount. These considerations and those outlined above lead us to the conclusion that the development application does not currently provide reasonable solar access as required by Assessment Outcome 15. This ground of review is made out. In our view the development application should be amended in this regard to require the parties joined to increase the solar access of the neighbours, while not significantly interfering with the current design of their proposed new dwelling. The evidence was that the southern top floor was 5.3 metres from the southern boundary. We propose requiring that the southern top floor wall be moved further away from the boundary with the applicants’

41 Transcript of proceedings on 29 May 2025, at pages 113-114 42 Transcript of proceedings on 29 May 2025, at page 114 property, and therefore their proposed development. These are amendments to the proposal which can be readily accommodated within the existing design. We therefore vary the approval decision to require the southern wall of the first floor of the proposed new dwelling be relocated to the north of its current position so that it is no closer than 5.8 metres from the southern boundary of the site at the south-western corner, and at any point of that wall. (It is noted that this represents a shortening of the upper floor rooms and stairwell space by at least 500mm and as much as 700mm.).

Privacy

68. This will also assist with compliance of Assessment Outcome 16 requiring reasonable levels of privacy to dwellings and private open space on adjoining residential blocks. The respondent noted that the privacy of the existing dwelling on the site from the proposed new building on that block is safeguarded through the use of high-sill and opaque windows on the upper floor of the new dwelling facing the existing residence. They suggested this is not necessary for the part of dwelling facing the adjoining site because the proposal there inherently protects the space from overlooking or visual intrusion, and is further away and complies 43 with Technical Specification 16.1. Mr Elhassan also mentioned that the fence between the properties, the cut on the applicants’ proposed building, and the distance between the windows and the applicants’ rooms addressed this issue and would make it difficult for someone in the subject property to see into the 44 applicants’ property.

69. We do not think it is appropriate therefore to require high sill or opaque windows or other adjustments to the first storey windows facing the applicants, but the further setback of the top storey as required by the proposed condition will address this issue to some extent.

Proximity of current house and new house

70. On another issue, the Tribunal raised at the directions hearing on 21 March 2025 and the final hearing the awkward relationship between the existing dwelling and the proposed new dwelling on the site, which goes to the residential amenity of

43 Statement of Mr Elhassan, at [65] and [69] 44 Statement of Mr Elhassan, at [69]; transcript of proceedings on 29 May 2025, at pages 92-95 those who live in the existing building when the fourth bedroom is demolished, and its proximity to the new building.

71. The Residential Zones Policy requires that the height, bulk and scale of the development is appropriate, and this includes consideration of setbacks, and that 45 reasonable levels of privacy to dwellings within a block is achieved.

72. It appears that the old building will have a rear access door within approximately 2 meters of a double sliding rumpus room door of the new building, without screening, and a 1-metre separation between the wall, in an awkward shape, creating a small space there. Mr Elhassan’s statement made reference to a fence between the two buildings, but at the hearing we could not locate a plan for this. The respondent was asked if consideration was given to imposing conditions to 46 separate or provide privacy between the two dwellings. Mr Elhassan indicated that the Authority had approved in the past something within this nature, that they looked at each development on its merits, and he thought that this was an 47 acceptable outcome.

73. We think that this issue is significant enough to be remedied. First, we think that the proposal should be amended to provide for a 1.8 metre full screen fencing between the two dwellings. As noted Mr Elhassan thought that there was already a requirement for such a fence, and that this would have provided a better outcome. Second that the design of the proposed new dwelling be amended so that the eastern wall of the study is repositioned in an easterly direction by at least 500mm (reducing the size of the study by at least 500mm and opening a greater physical separation between the dwellings at that location). These are again amendments to the proposal which can be readily accommodated within the existing design. We vary the decision to provide conditions to this effect.

45 Assessment Outcomes 14 and 16. The Territory Plan, Part G, Dictionary provides that multi-unit housing means the use of land for more than one dwelling. The Technical Specifications deal with setbacks, see for example 16.1 and 16.3 46 Transcript of proceedings on 29 May 2025, at pages 80 and 87 47 Transcript of proceedings on 29 May 2025, at page 81 Ground 2 Lack of consistency in relation to impact and shadowing

74. As discussed, the second issue is lack of consistency in assessing development applications.

75. The applicants refer to a comparable application by them where there was less overshadowing of their southern neighbour, there was no objection, but the respondent raised overshadowing concerns to get the size and scale of the proposal reduced. The applicants provided relevant emails in relation to this 48 process.

76. Several issues arise here. These facts suggest that in relation to the applicants’ development application, the respondent did take a more rigorous approach to these issues, in contrast to the approach taken in relation to their neighbours’ application. The respondent sought to justify this on the basis that each development application is different, and is considered on its own particular circumstances and merit, and raises its own issues which need to be addressed in 49 an appropriate way. In our view consistency is an attribute of good decision-making. Of course each approval application should be considered on its merits, but where the same issue is raised, proposals should generally be addressed in the same way.

77. At any rate, we have set out above what we regard as the appropriate approach to this issue for this proposal. In this review we taken this approach. We have had some regard to the applicants’ proposal in the discussion above in relation to ground 1. We impose additional conditions to address this issue.

78. But we do not think that the treatment of the applicants’ proposal, or any other development application, of itself is a ground for challenging the decision on the development proposal at issue here. This has to be considered in light of the specific requirements in relation to that proposal. That other proposals were dealt with in a different way, more thoroughly or less thoroughly, is not directly relevant to this review. Therefore this ground is not made out.

48 Applicants’ submissions 49 Respondent’s submissions at [29] Ground 3 Incomplete decision outcome

79. As noted, the third ground concerns alleged incomplete decision outcomes and notification. It is said that the outcome notification states that the plan is approved subject to minor design changes but does not state, indicate, or attach any documents to demonstrate the changes requested.

80. The Notice of decision is in the T documents at pages T46-67, and also attached to the Application for review. Appendix A at pages T51-56 contains a range of conditions, some of which can be characterised as minor design changes. The Respondent notes these as those relating to retaining walls (page T52) and conditions made consistently with entity advices (pages T52-54). As the respondent notes there is no requirement for such minor, or standard, conditions to be accompanied by revised designs or documentations. This ground is therefore not made out.

81. This Tribunal has made some additional conditions which will require amended documentation.

Ground 4 Failure in due process

82. As noted, the fourth ground is that the development application was submitted and accepted for assessment without the minimum supporting information, in particular the shadow diagrams, and without extending the public notification period when that material was provided.

83. Section 175 of the Planning Act provides that the Authority must publicly notify a development application by giving public notice of the making of the application on the authority website, giving notice to adjoining owners, and displaying a sign on the land. It must be notified for the public notification period. As this is not a significant development under the Planning Act, the period is 15 50 working days. Section 175(4) provides that the validity of a development approval is not affected by a failure by the Territory Planning Authority to comply with this section.

50 Planning (General) Regulation, regulation 36

84. Section 166 sets out the requirements for a development application. A development application must be in the form required by the Authority by notice on the Authority website; and accompanied by the plans, drawings, specifications, assessments and other information and documents sufficient to address each provision of the Territory Plan relevant to the proposed development; and other related requirements.

85. Section 166(4) provides for guidelines about this to be made by the Authority. The Authority referred the Tribunal to the Planning Minimum Development Application Documentation Guideline 2024 (No. 2). This sets out a table which shows the minimum documentation required and for dual occupancy, which is what this development is, for shadow diagrams is a halfway house where they are ‘required if relevant or requested’. It is not clear what relevant means here, but the diagrams were clearly relevant to the applicants in this case. The text then states that: ‘Shadow diagrams are required for all buildings or structures over three storeys in height or when a development extends beyond any relevant building or solar envelopes, as specified in the Planning Technical Specification (if used)’. As noted this development does extend beyond the solar envelope, and 51 therefore it seems the diagrams were required.

86. The respondent’s letter to the tribunal of 8 April 2025 states that public notification of the development application commenced on 11 November 2024 and ended on 29 November 2024. Letters were sent to neighbouring lessees on 5 November, a sign was placed on development site on 8 November, and the application was published on the public register on 8 November. The letter then states that: ‘Additional shadow diagrams were uploaded to the public register on 14 November, 2025’. The respondent clarified at the hearing that these were 52 additional documents, but the only shadow documents uplifted.

87. The applicants state that shadow diagrams were wholly missing from the website, 53 and were not included in the public register until after 14 November 2024.

51 Transcript of proceedings on 29 May 2025, page 124 52 Transcript of proceedings on 29 May 2025, at page 110 53 Application, detailed reasoning document

88. On this basis it seems that shadow diagrams were publicly notified on about 14 November 2025. The notification period ended on 29 November; this suggests that the diagrams were notified on the website for close to 15 days.

89. The applicants agreed that they eventually obtained the diagrams and made representations on the basis of them. The respondent notes that other interested persons could have also requested these. The diagrams and the representations of the applicants were considered in the assessment process.

90. Most importantly, this Tribunal in these proceedings has considered the diagrams in some detail, and made orders based on them amending the decision.

91. Therefore, we do not think any failure to include the diagrams for the full period of notification is a basis for overturning the decision. This ground is not made out.

……………………………….. Senior Member R Orr PSM KC For and on behalf of the Tribunal

Date(s) of hearing: 29 May 2025 First Applicant: Mr R Khandelwal Second Applicant: Mr R Khandelwal, authorised representative Respondent: Mr N Sinnathurai, instructed by ACT Government Solicitor First Party Joined: In person Second Party Joined: In person