Act 2007--Territory Plan 2008 - Multi Unit Housing Development Code - RZ5-High Density Residential Zone - merit track--approval of development application--construction of residential lift - solar access and overshadowing - private open space - setbacks - noise--Unit Titles Act 2001--schedule of unit entitlement.

List of legislation Environment Protection Act 1997

Planning and Development Act 2007 ss 50, 119, 120, 121(2)

Unit Titles Act 2001 s 5

Territory Plan Multi Unit Housing Development Code: Rules 25, 55, 56, 68, 86, 88 90, 222; Criteria 25, 55, 56, 88, 90

List of cases Rudder v ACTPLA [2010] ACAT 24 (29 April 2010)

Thomson v ACTPLA [2009] ACAT 38 (2 October 2009)

Tribunal: Mr John Ashe, Senior Member - Presiding

TRIBUNAL: Mr John Ashe, Senior Member (Presiding)

1. This is an appeal against the decision by the respondent, on 24 March 2010, to approve, subject to conditions, the construction of a residential lift at Unit 3, 25 Giles Street, Kingston (Block 7, Section 24).

1. Unit 3 is one of four 2-storey units at 25 Giles Street, collectively known as Swan's Place. The Second Party Joined, Mr Selwyn David Evans, proposes to attach a small residential lift to the northwestern facade of Unit 3, to facilitate his wife's mobility between the two floors of Unit 3. Mr Evans stated that his wife's mobility has deteriorated to the extent that a lift is now an essential requirement. The overall dimensions of the lift tower are 1.49 metres by

2. The applicants in this case, Mr David Forman and Ms Sara York, are the registered proprietors and occupants of Unit 4, which is immediately adjacent to Unit 3 on the southern side of Unit 3. They object to the proposed lift because, in their view, it will cause overshadowing of the courtyard of Unit 4, and does not comply with the private open space and setback provisions of the Territory Plan Multi Unit Housing Development Code.

1. In September 2008 the ACT Planning and Land Authority approved a previous development application for extensions to the ground and first floor on the south-eastern side of Unit 3. An amended approval was given in

May 2009. The applicants in the current case have objected to the proposed extensions, which are now the subject of proceedings in the Supreme Court. No hearing date has been set in those proceedings.

2. The applicants contend that there is an inter-relationship between the current and previous development proposals and that the current proposal should not be considered in isolation from the previous proposal. The respondent, however, approved the lift on the basis that it was a separate, stand-alone proposal. The respondent contends that construction of the lift will have no bearing on the proposed extensions as they are on opposite sides of Unit 3 and will not interact in any way.

3. Counsel for the respondent submitted at the hearing that the Tribunal should not approve the lift if this would prejudice the matter before the Supreme Court. He proposed that the Tribunal should conduct its assessment of the lift proposal on the basis that if the extensions by themselves were compliant with the Code but the combined effects of the extensions and the lift were such that the extensions were no longer compliant, then the Tribunal should not approve the lift. However, he submitted that there is no material connection between the two proposals and that approval of the lift would not be prejudicial to the matter in the Supreme Court. Counsel for the applicants did not demur.

4. The Tribunal accepts that its decision in the current case should not prejudice the matter before the Supreme Court. We consider the question of interaction between the two proposals below in relation to the issues of overshadowing and private open space.

1. The hearing was held on 2 August 2010. The applicants and the respondent were represented by Mr James Ronald and Mr Geoff McCarthy respectively. Mr Forman provided evidence in support of his application and Mr Simon Hawke appeared as an expert witness for the respondent. The First party Joined, Mr Roger Pegrum, and the Second Party Joined, Mr Selwyn David Evans, represented themselves.

1. The proposed development is subject to the provisions of the Planning and Development Act 2007 ('the Act') and the Territory Plan. As the application concerns multi unit development in the RZ5--High Density Residential Zone, it is subject to assessment in the merit assessment track. The following sections of the Act are relevant in this case:

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.

1. Merit track - when development approval must not be given

_(1) Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with - _

1. Merit track - considerations when deciding development approval

In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:

(a) the objectives for the zone in which the development is proposed to take place;

(b) the suitability of the land where the development is proposed to take place for a development of the kind proposed;

(c) each representation received by the authority in relation to the application that has not been withdrawn;

(d) if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications) - the entity's advice;

(f) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.

1. Merit track - notification and right of review

_(2) If there is a right of review under chapter 13 in relation to a decision to approve an application for development approval for a development proposal in the merit track, the right of review is only in relation to the decision, or part of the decision, to the extent that - _

(a) the development proposal is subject to a rule and does not comply with the rule; or

(b) no rule applies to the development proposal.

1. As the decision under review is a decision to approve an application for a proposal in the merit track, section 121(2) governs the Tribunal's jurisdiction in this case. The interpretation of section 121(2) has been considered by the Tribunal in a number of cases, most recently in Rudder v ACTPLA [2010] ACAT 24. In that decision the Tribunal accepted and adopted the decision of the Tribunal in Thomson v ACTPLA [2009] ACAT 38, and said:

That decision confirms that the Tribunal's decision to review decisions about development proposals in the merit track is limited by section 121(2) of the Planning Act and that the limiting factor is compliance with a relevant rule. If a development proposal complies with a relevant rule, the Tribunal cannot review the decision to approval [sic] the proposal on that point. Compliance with relevant criteria does not limit the Tribunal's jurisdiction (paragraph 15).

1. It was the applicants' submission that the proposed lift structure would overshadow the courtyard at the entry or western side of their unit (Unit 4) and consequently cause detriment to their amenity.

2. Mr Hawke produced evidence in the form of shadow diagrams showing the shadows created both by the existing dwelling of Unit 3 and by the proposed lift structure. These diagrams showed the calculated shadows at 9.00 a.m., 10.00 a.m., 11.00 a.m. and 12 noon on the winter solstice (21 June). Mr Forman's evidence included photographs of the courtyard which, he said, were taken on 21 June 2010 at various times including 9.00 a.m., 10.00 a.m., and 11.00 a.m. approximately. Mr Hawke agreed that these photographs showed a reasonable correlation with his shadow diagrams. There was consequently general agreement between the parties as to the evidence about the extent of overshadowing likely to be caused by the proposed lift structure. The evidence indicates that there would be a small triangular area of shadowing, between 1and 2 square metres in area at its maximum. The Tribunal was not given any evidence to suggest that there was any overshadowing after 12 noon.

3. Within the Territory Plan, the relevant code applying to the proposed development is the Multi Unit Housing Development Code ('the Code'). Mr McCarthy identified Rules R55 and R56 as the only applicable rules together with the related Criteria C55 and C56. Mr Hawke gave evidence that, in his opinion, the requirements of these rules were met.

4. Mr Ronald submitted that Rules 55 and 56 were not the 'be all and end all' on the question of solar access. In his cross examination of Mr Hawke and in submissions he referred to a number of other parts of the Code which expressly deal with amenity and issues of overshadowing and solar access. He identified Rule R25 and Criterion C25 (e), Rule 86, Rule 90 and Rule 222 as dealing with the question of solar access. He referred also to:
   • Part A(5) Element 2 Intent (b): to ensure the amenity of surrounding properties is optimised ,particularly in relation to privacy, overshadowing and solar access.
   • Part C Element 5 Intent (a): Development is sited and designed to maximise solar access to private open space and living areas of dwellings
5. The Tribunal considers that whilst Mr Ronald's submission highlighted the extent to which the Code is concerned with the question of solar access, the task of the Tribunal is to apply only those provisions which are applicable to this development.

The Introduction to the Code describes the structure and nature of the Code and states that each Element of the Code consists of Intents, Rules and Criteria. An 'Intent describes the purpose of the development controls'. Rules and criteria are described as quantitative and qualitative controls respectively. Proposals in the merit track have the option of complying with the rules or criteria unless the rule is mandatory. A proposed development which satisfies a criterion is taken to satisfy the intent of the element. The Tribunal considers therefore that an 'intent' is not itself a control, nor is it to be applied in addition to the rules and criteria. An 'intent' is rather a statement, which in describing the purpose of the controls, assists in understanding the controls to be applied, namely, the rules and criteria.

Turning to the additional rules and criteria identified by Mr Ronald: * Rule 25 which restricts the height of buildings applies only to land within certain distances of other zones. No evidence was provided nor does the Territory Plan map suggest that this rule is applicable, and therefore criterion 25 (e) is not a matter for review by the Tribunal. * Rule 86 relates only to overshadowing of ' the floor or internal wall of the main daytime living area of the dwelling' and as the only evidence of overshadowing related to a courtyard then the rule has no relevance. * Rule 90 deals with the characteristics of private open space. In cross examination by Mr Ronald, Mr Hawke stated that the rule was complied with but in his opinion the rule does not apply since its relevance was to the location of open space in relation to its associated dwelling rather than that of a neighbouring dwelling. The Tribunal notes, however, that the associated criterion C90(c) states that 'private open space is to take account of ... neighbouring buildings or open space and to provide for maximum year round use'. * Rule 222 is found in of Part C(5) of the Code which according to its preamble only has application to areas in Belconnen, Bruce, Hawker, Narrabundah, Woden District and Tuggeranong District. It therefore has no application in this case.

The Tribunal notes that Rules 86 and 90 refer to a minimum of 3 hours of sunlight between the hours of 9.00 a.m. and 3.00 p.m., which for present purposes may be taken as an appropriate minimum standard for solar access. However, the evidence in this case did not indicate any shadowing on the courtyard of Unit 4 between 12 noon and 3.00 p.m. and consequently the 3 hour minimum was met. Thus even had any of the above rules been shown to be relevant there would have been no basis for the Tribunal to find that any of the rules were not met.

Mr McCarthy's view that Rules 55 and 56 are the only applicable rules was not conclusive and at variance with his submission on setbacks (see below). The rules are significant here because if the rules are relevant but not met then the criteria may be applied. Both C55 and C56 include the words: 'the protection of a reasonable amount of privacy and solar access to the dwelling (or adjacent dwellings) and outdoor spaces (or adjacent outdoor spaces').

Rules 55 and 56 fall under the headings of Side Setback and Rear Setback respectively and these terms are used to begin each rule. The Territory Plan includes definitions that:

Setback means the minimum horizontal distance between a building wall ... and the relevant block boundary.

Block means a parcel of land, whether or not the subject of a lease.

1. Subdivision of multi unit sites under the Unit Titles Act 2001 does not create blocks but units. Under that Act (section 5) the term 'parcel' is land 'proposed to be subdivided' or 'the whole of the land subdivided' under the Act. As a consequence the Tribunal takes the view that Rules 55 and 56 relate to distances from the external boundaries of the block and not to distances from internal unit boundaries. This approach is consistent with the view of Mr McCarthy in his submission concerning the applicants' submission that the lift did not meet boundary setbacks (see below). The Tribunal concludes that Rules 55 and 56 are not relevant to the question of solar access in this matter. However, even if R55 and R56 did apply, the rules are met.

2. The Tribunal finds that there was no evidence to support a view that, with regard to solar access and overshadowing, there was any rule in the Code which was not achieved. On this point therefore the proposed development is not inconsistent with the Territory Plan.

3. Mr Ronald also argued that the previous application resulted in loss of amenity to a kitchen/ dining area through reduction of solar access and that with the construction of the lift 'Unit 4 will be robbed of its last remaining morning solar access'. The Tribunal considers that it only has jurisdiction to consider the current application and the cumulative effect of impacts of two separate development applications on different parts of the building or open space is not a matter for the Tribunal to consider. However, we have also considered whether our finding that the lift meets the solar access provisions of the Code would prejudice the matter before the Supreme Court. The Tribunal's view is that the amount of overshadowing is so small that it would have no material effect on any consideration by the Court of the overshadowing effects of the proposed extensions.

The applicants' submission was that the amount of open space as required by Rule 88 was not met if the Tribunal had regard to both the previous application and the current application.

• Rule 88 provides: The average area of private open space per dwelling is not less than 60% of the average area of the block per dwelling less 50m2 as demonstrated by the equation ...

• Criterion 88 provides: Private Open Space is of dimensions to suit the projected requirements of the dwelling's occupants and to accommodate both outdoor recreation needs as well as providing space for service functions such as clothes drying and domestic storage.

Evidence on this issue was provided by Mr Hawke, who had calculated that the average area to be achieved under the rule was 145.9 m2 and that at present the available private open space was 156 m2. As the lift will reduce the area by only 1.9 m2 he considered the rule was met. The Tribunal accepts that Rule 88 is met if one only considers the effects of the lift proposal.

When questioned by Mr Ronald, Mr Hawke estimated that the available open space lost if the previous application was approved would be about 28 m2 and agreed that if that occurred then the required area under R88 would not be met. However, Mr McCarthy argued that the Tribunal should not consider the effect of the previous proposal and that there is no material connection between the extension at the rear and the lift at the front. He stated the need for the applicant to demonstrate that the lift alone would result in non-compliance with the rule.

The Tribunal does not accept that it has jurisdiction to consider whether the previous proposal meets Rule 88 or Criterion 88 and to consider the combined effects of the current and previous proposals. However, we have considered whether there is a sufficient connection or interaction between the lift proposal and the previous proposal such that approval of the lift would prejudice the matter before the Supreme Court. On the evidence before the Tribunal, it appears that the previous proposal would not satisfy Rule 88, and it would be necessary for the proposal to meet Criterion 88 if it were to be approved. The respondent has already determined that this criterion is met. The Tribunal accepts the respondent's argument that the reduction in POS arising from the lift proposal is very small - less than 2 square metres-- and would have no material effect one way or the other in deciding whether Criterion 88 is met. On that basis a decision to approve the lift would not prejudice the matter before the Supreme Court.

The Tribunal's conclusion is that the lift complies with the relevant rules in the Code concerning private open space.

1. The applicants submitted that the proposal failed to meet the requirements of the Territory Plan with regard to setbacks. The plans forming part of the development application showed that the proposed lift was 2.545 metres from the north western unit boundary with unit 2. Rules 55,and 56 which apply to side setbacks and rear setbacks require a minimum setback of 3 metres at the lower floor level and 6 metres at the upper floor level. Mr McCarthy submitted that Mr Hawke's evidence that these controls related to distances from the external boundaries of the block was correct, and has no relevance to unit title boundaries. The Tribunal agrees with Mr McCarthy's submission for the reasons dealt with in more detail above in relation to Rules 55 and 56 under the heading of solar access.

2. Mr Hawke's evidence was that the relevant rule for consideration is R68, under the heading Interfacing, which only requires a 1 metre setback between blank walls. As the setback is approximately 2.5 metres, the rule is met.

3. The Tribunal's conclusion is that the lift complies with the relevant rules in the Code concerning setbacks.

1. In light of advice from the Environment Protection Agency, the respondent approved the lift subject to a condition that the lift complies with the noise zone standard for residential areas both day and night set out in the Environment Protection Act 1997 and Environment Protection Regulations 2005. In their comments on the development application, the applicants objected to the lift on the basis that it would create a noise nuisance. They did not, however, present any evidence on this issue at the hearing. In the absence of adverse evidence, there is no basis for the Tribunal to reject the lift on grounds of noise nuisance. Approval of the lift should, however, remain conditional on compliance with the residential noise standards in the Environment Protection Act 1997 and Environment Protection

1. The Unit Titles Act 2001 governs the arrangements for sub-division of land into units in the ACT. The units plan for a unit development includes a schedule of unit entitlement, which indicates the improved value of each unit relative to each other unit in the particular subdivision. The schedule regulates financial relations and cost sharing among unit owners. The respondent has approved the lift subject to a condition that the approval shall not take effect unless or until the lessee has provided advice from a registered valuer indicating whether the proposed additions would impact on the schedule of entitlements for the units at 25 Giles Street.

2. During the hearing Mr Ronald proposed that the Tribunal should, regardless of the decision that the Tribunal makes, impose a condition requiring the preparation of a revised schedule of unit entitlement that has regard to the extensions as well as the lift. Mr McCarthy argued that there were no legal or planning reasons to agree to this proposal. He submitted that the matter of unit entitlement for the lift could be dealt with separately from that of the extensions and that there was no reason to join the two matters. Mr McCarthy confirmed that the condition imposed by the respondent under the Planning and Development Act 2007 supplements and reinforces the provisions under the Unit Titles Act 2001, which is the primary legislation governing matters relating to unit entitlement.

3. The Tribunal is not satisfied that there is any justification for acceding to the applicants' request, and has concluded that the existing condition should not be amended.

1. The Tribunal is satisfied that the proposed lift satisfies the relevant rules in the Code. Under the provisions of section 121(2)(a) of the Act, the Tribunal has no jurisdiction to consider further whether the respondent's decision should be overturned. The respondent's decision should therefore be confirmed.

RESPONDENT: Mr Andy Bray from ACT Government Solicitor

TRIBUNAL MEMBER/S: Mr John Ashe, Senior Member (Presiding)

DATE OF HEARING: 02 August 2010 PLACE: CANBERRA

DATE OF DECISION: 13 August 2010 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )