ACT Civil and Administrative Tribunal|2009-04-21

Mason and ACT Planning & Land Authority and Ors (Administrative Review) [2009] ACAT 7 (21 April 2009)

MASON and ACT PLANNING & LAND AUTHORITY and ORS (Administrative Review) [2009] ACAT 7

Catchwords: ADMINISTRATIVE LAW - Review brought under Administrative Appeals Tribunal Act 1989 (ACT) - jurisdiction of tribunal - ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT) s 6

LAND AND PLANNING - Review of decision approving multi-dwelling development - consolidation of blocks - whether two storey development appropriate - mains water consumption - servicing and site management - setbacks - unarticulated walls - parking and site access - traffic - private open space

Land (Planning and Environment) Act 1991 (ACT), s 276

Administrative Appeals Tribunal Act 1989 (ACT), Pt 4

ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 9, 22B, 27, 61

ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT), s 6

AMC Projects Pty Ltd and ACT Planning & Land Authority [2006] ACTAAT 13 (2 May 2006)

Brewer & Quinn & Ors and ACT Planning & Land Authority & Anor [2009] ACTAAT 1 (5 February 2009)

ACT Planning and Land Authority, Territory Plan (commenced 31 March 2008), s3

CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 112 of 2008

That the decision of the ACT Planning and Land Authority to approve the application with conditions is to be varied by amendment of condition 7(b) as follows:

Revised drawings, based on the relevant drawings submitted as part of the application and on the drawings constituting Exhibit A of the material tendered in evidence at hearing, showing:

(i) the deletion of the upper floor level balconies to the northern facades of units 1, 2 and 3;

(ii) modifications to the south facing upper floor windows of Units 4,5,6 and 7 to provide for fixed obscure glass to a height of 1.7m above the finished floor level of the upper floor;

(iii) the installation of a 1.8m high screening element to the eastern end of the upper floor level balcony of unit 7 to the full extent of the depth of this balcony;

(iv) the installation of a 1.8m high screening element to the western end of the upper floor level balcony of unit 4 to the full extent of the depth of this balcony;

(v) evidence that documentation has been prepared by a suitably qualified Hydraulic Engineer endorsed by Territory and Municipal Services, demonstrating the proposed development will meet the requirements of the Water Sensitive Urban Design of the Multi Unit Housing Development Code with regard to the relevant rules R46, R47, R48 and R49;

(vi) the site and landscape plan modified to illustrate a reduction in the overall area of hard surfaces occupied by driveways and car parking in accordance with Drawing No SITE-01-03 of Exhibit A;

(vii) evidence submitted to ACTPLA demonstrating that documentation has been prepared in relation to the extent of demolition sought by the development and endorsed by the relevant entities and service providers as required by Rule R29 of the Multi Unit Housing Development Code;

(viii) the garbage collection area on the eastern side of the driveway to be located wholly within the boundaries of the subject land;

(ix) the two windows on the western side of the upper floor of Unit 4 to be fitted with wooden slatted screens in accordance with Drawing No FLOORACCESS-04-03 of Exhibit A; and

(x) the three visitor parking bays abutting the south-eastern boundary of the subject block to be fitted with wheel stops in accordance with the requirements of the Australian Standard 2890.1:2004 Parking Facilities Part 1: Off-street car parking.

CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 112 of 2008

1. Mrs Kathleen and Mr Anthony Mason ("the applicants") have sought review of a decision of the ACT Planning and Land Authority as decision maker ("the Authority") to approve, with conditions, Development Application No 200811758 ("the DA") lodged on June 2008. The DA sought to consolidate Blocks 24 and 25, Section 26, Division of Page ("the subject land") and to vary the resultant Crown lease to permit a maximum of 7 dwellings, to demolish the two existing dwellings and to construct on the subject land 7 two-storey dwellings including car parking, landscaping and associated works.

2. The subject land comprises adjacent triangular blocks, presently numbers 15 and 17 Braine Street, Page, on each of which is built a single storey detached dwelling and outbuildings. If consolidated, the area of the resulting block would be 2071.99m2. The development proposed consists of 7 units in two blocks, one parallel to the north-eastern side boundary of the consolidated block containing 3 units and the other parallel to the south-western side boundary containing 4 units.

3. The two blocks of units would be separated by paved manoeuvring areas, visitor car parks and some areas of private open space. A single driveway would exit the block to the north, entering Braine Street at a point where it bends from a generally north-south direction to a generally east-west direction, on the outer side of the curve. At the kerb, the driveway entrance would be about 1.5m from a public footpath running generally east-west between Braine Street and Carron Street, part of an extensive footpath system in the suburb.

4. Mr and Mrs Mason were entitled to seek review of the decision under s 276 of the Land (Planning and Environment) Act 1991 (ACT) (now repealed) having been objectors to approval of the DA. Mr and Mrs Badgery, Mr and Mrs Suckling, Mr and Mrs Barr and Ms Rudder were entitled to be joined as parties to the application as they too had objected to the DA. Mr and Mrs Mason, and Mr and Mrs Badgery live nearby in Braine Street; Ms Rudder lives directly opposite the proposed development at 12 Braine Street; Mr and Mrs Suckling live next door to the proposed development at 13 Braine Street, while Mr and Mrs Barr also live next door to the proposed development at 19 Braine Street.

5. The review was originally applied for under Part 4 of the Administrative Appeals Tribunal Act 1989 (ACT) ("the AAT Act" now repealed) but by virtue of s 6 of the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 (ACT) ("the Regulations") and because a hearing of the matter had not commenced prior to 14 February 2009, it is deemed to be an application for review by the ACT Administrative and Civil Tribunal ("ACAT"). [Although a Directions Hearing in this matter was held by the AAT on 15 January 2009, that is not considered to be the "hearing" referred to in clause 6 of the Regulations, although that term is not defined.] In effect it is an application for review under s 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) ("the ACAT Act").

6. The two companies who are lessees of the subject land and are the proponents of the development, Jopratz Pty Ltd and Galeotti Holdings Pty Ltd, were also joined as parties.

7. The matter was subject to a preliminary conference held on 27 February 2009 but the matter was not resolved at that conference.

8. The matter proceeded to hearing on 6, 7 and 8 April 2009. The Tribunal had before it the documents (the "T Docs") which were prepared pursuant to s 37 of the AAT Act. There is no equivalent provision in the ACAT Act but the T Docs can be regarded as meeting the requirements of s 22B of the ACAT Act. It also had before it Statements of Facts and Contentions submitted by several of the parties and revised plans tendered by the developer party joined (Exhibit A).

9. The applicants and the objector parties joined were represented by Mr R Arthur of counsel. The Authority was represented by Dr D Jarvis of counsel. The developer party joined was represented by Dr C Ward of counsel.

10. The applicants, Mr and Mrs Mason were not called as witnesses but their Statement of Facts and Contentions was tendered in evidence. It was said by Mr Arthur to represent the general views about the proposal held by the objector parties joined. In addition, Mr Arthur said there would be direct effects on the immediate neighbours and the resident of the dwelling directly opposite the driveway (Ms Rudder). Oral evidence on these potential effects was given by Mr John Barr, Mrs Joan Suckling and Ms Catherine Rudder.

11. Oral evidence on behalf of the decision maker was given by Mr Aaron Oshyer, Technical Coordinator, Merit Track (North) Development Assessments Team, of the ACT Planning and Land Authority appearing as an expert witness. Mr Oshyer's witness statement was also tendered.

12. Expert evidence on behalf of the developer party joined was given by Mr Paul Cohen, an experienced Town Planner, whose witness statement was also tendered. Mr Hugh Gordon, the architect for the proposed development, gave oral evidence about a number of aspects of the proposal and provided amended shadow diagrams during the course of the hearing which, together with his Statement of Facts and Contentions were tendered in evidence. The Statement of Facts and Contentions of the developer parties joined was tendered but they were not called to give evidence.

13. The Tribunal inspected the site of the proposed development and took note of the general character of the neighborhood and the surrounding development.

14. The decision to approve the DA with conditions was made pursuant to s 162 of the Planning and Development Act 2007 (ACT) ("the Planning Act") and is a reviewable decision as defined in section 407 and schedule 1, column 2 of that Act. The Planning Act, at s 409, provides for the applicants to seek review of that decision by ACAT. No application for reconsideration of the decision by the decision maker under s 191 of the Planning Act having been made, ACAT was entitled to hear the matter.

15. The development is subject to the provisions of the Planning Act and in particular, to s 50 which provides that

the Territory, the Executive, a Minister or a territory authority must not do any act, or approve the doing of any act, that is inconsistent with the territory plan.

The 2008 Territory Plan ("the 2008 Plan") has been prepared pursuant to Part 5.1 of the Planning Act and applies to DAs lodged after 31 March 2008. This is such a DA. Neither the Authority, nor ACAT standing in its shoes in this review, may approve the development if it is inconsistent with the 2008 Plan.

16. This is the first review to be undertaken by ACAT (or by the Administrative Appeals Tribunal, its predecessor in relation to planning matters) of a multi-dwelling development since the 2008 Plan came into operation. As there are significant differences between the approach of the 2008 Plan and the provisions of the 2002 Territory Plan ("the old Plan") which has heretofore governed approval of such proposed developments, it is desirable to broadly outline the structure of the 2008 Plan and the way it now operates in relation to such approvals. Further, the Planning Act contains provisions which limit the power of ACAT to review development proposals assessed under the 2008 Plan.

17. Mr Arthur submitted that the 2008 Plan was structured quite differently from the old Plan. It now included, at Section 2, a statement of Strategic Directions which makes clear (inter alia) the intent of securing some intensification of development consistent with maintaining residential amenity, and to that extent it reflects the objectives of the Residential Land Use Policies of the old Plan. Section 3 of the 2008 Plan deals with Residential Zones and begins (section 3.1) with a series of general statements of objectives for the various zones.

b) Ensure that development addresses the street and the existing neighbourhood characteristics in scale, form and site development.

This objective is spelled out in more detail in section 3.3, Residential Zones - Multi-Unit Housing Development Code ("the Code") where a series of elements (which describe the various issues for consideration) are identified and for each element a series of controls is laid down. The Intent (or purpose) of the controls is identified, together with specific controls in the form of Rules and Criteria.

Code's controls are expressed as either rules, which are generally definitive and quantitative, or as qualitative criteria.

Proposals in the merit track and impact track have the option to comply with the rules or criteria, unless the rule is mandatory. Where it is proposed to meet the criteria, the onus is on the applicant to demonstrate, by supporting plans and documentation, that the proposed development satisfies the criteria and therefore the intent of the element.

20. Multi-unit development in the Suburban Core Zone is to be assessed in the merit track by virtue of the Minimum Assessment Track specified in Section 3.1 RZ2 Suburban Core Zone Development Table of the 2008 Plan.

21. Mr Arthur submitted that in effect the "performance measures" or "acceptable standards" of the old Code have become Rules, the "Criteria" of the old Code remain as Criteria and the "objectives" of the old Code have become the Intent. Essentially, nothing has changed in the way a DA is to be considered, apart from the fact that Rules now have a different status - they now are said to determine the issue, that is, if the Rules are complied with a review tribunal can no longer consider whether or not the relevant Criteria will be met, nor whether the general objectives of the zone will be attained.

22. This is by virtue of s 121 of the Planning Act which states that

_(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

(1) An authorising law may set out procedures for dealing with an application made under the authorising law.

(2) Any procedure under an authorising law for dealing with an application prevails over the procedures set out in this Act or the rules for dealing with the application, to the extent of any inconsistency.

(3) To remove any doubt, this Act is not inconsistent with an authorizing law only because 1 Act deals with a matter and the other does not.

This means that s121 of the Planning Act prevails over any inconsistent provisions within the ACAT Act.

24. Mr Arthur submitted that the point of the intent in a zone like RZ2 was to achieve an acceptable balance between the existing residential amenity and the need to intensify development. He considered that the degree of intensification being sought was to be measured by the Rules and if the Rules were obeyed, no more was to be expected. Even if some Rules were not met, there would be circumstances in which one could move outside the Rules and still satisfy the Criteria, for all sorts of reasons including to increase the development potential of a block. However, it was clear that where there was a departure from the Rules it was not to be at the expense of the amenity of either the neighbours or of the residents of the development itself.

25. Dr Jarvis generally agreed with Mr Arthur's analysis of the 2008 Plan, but disagreed that the intent was to maintain a balance between intensification and the maintenance of existing amenity. In his submission the balance was tipped in favour of intensification of development in RZ2 zones and that this had been recognized in relation to Variation 200 to the old Plan which introduced the former A10 Policies, the predecessors of the RZ2 zones. He referred to the decision of the former Administrative Appeals Tribunal in AMC Projects Pty Ltd and ACT Planning & Land Authority [2006] ACTAAT 13 (2 May 2006) where, at [26], that Tribunal wrote:

The extent to which the provisions of Variation 200 might have succeeded in protecting general residential areas is not a matter with which this case is concerned. We observe, however, that many of the features of the proposed development which gave rise to the objections raised by the objectors are the natural consequence of the policies introduced to permit more intensive development in residential core areas. The primary task of the Tribunal in this case is to determine whether the proposed development fails to meet the (reduced) level of protection given by the A10 policies to the amenity of residents in residential core areas (emphasis added).

26. Dr Jarvis endorsed the opinion of Mr Cohen who had written

The Territory Plan indicates an almost continuous RZ2 zone extending from Aranda, through Macquarie and along either side of Belconnen Way, between Jamieson and Hawker Group Centres, indicative of an urban design intention of consolidating development around Belconnen Town Centre. Page is directly adjacent the Town Centre and generally within the area of consolidation indicated by the Canberra Spatial Plan. The Spatial Plan provides for an urban settlement strategy intended to contain 90 percent of future urban development in the next 30 years to within 15 km of Civic. The Spatial Plan seeks to achieve residential intensification within 7.5km radius of the city centre. Under the Planning and Development Act 2007, s 440, the Canberra Spatial Plan is the planning strategy of the Executive for the purposes of s 105 of the Act.

27. Dr Jarvis also disagreed with Mr Arthur's suggestion that the statements of "intent" of the 2008 Plan Codes were the equivalent of the "objectives" of the old Plan. On the contrary, he submitted that the statements of "intent" were no more than an indication of the purpose of the controls. He noted that s 119 of the Planning Act governs approval of DAs in the merit track, and s 120 sets out the matters that must be considered including

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

In his submission, these are the objectives set out in part 3.1 of the Plan, that is, the general objectives for the Suburban Core Residential Zone (RZ2) which read

a) Create a wide range of affordable and sustainable housing choices to accommodate population growth and meet changing household and community needs

b) Ensure that development addresses the street and the existing neighbourhood

characteristics in scale, form and site development

c) Facilitate efficient use of existing social and physical infrastructure and services in residential areas close to commercial centres

d) Provide opportunities for home based employment consistent with residential amenity

e) Provide for a limited range of small-scale facilities to meet local needs consistent with residential amenity

f) Promote energy efficiency and conservation and sustainable water use.

28. Dr Ward preferred to rely on the analysis of the 2008 Plan provisions contained in Mr Cohen's witness statement and on Mr Oshyer's analysis of the extent to which the proposed development met the RZ2 objectives. He observed that the objectives of the RZ2 Zone necessarily involve an impact, which might be positive or negative, on the existing residential character. Section 121 of the Planning Act made it clear that meeting the Rules is but one way of complying with the objectives; the other is by satisfying the Criteria. He submitted that it was not open to the Tribunal to review a Rule where the requirements had been met and in this case, there was significant expert evidence that even where the Rules had not been met, the Criteria had been satisfied.

29. The Tribunal has weighed up these submissions and has reached the following conclusions in regard to them.

i) The Tribunal does not have the same responsibility as the original decision maker in relation to approval or otherwise of the DA. While it is bound by the prohibitions set out in s 119 of the Planning Act, it is not able to have regard to the matters set out in s 120, including the Suburban Core Zone general objectives set out in Section 3.1 of the Plan. Section 121(2) of the Planning Act makes it clear that any review is to be limited to the extent that the proposed development complies with the relevant Rules and Criteria. If a Rule is complied with, then the DA cannot be disapproved by the Tribunal on that aspect of the proposal, even if it considers that the associated Criteria are not fully satisfied or that the Zone's general objectives have not been achieved.

ii) Nevertheless, the Tribunal is entitled to satisfy itself from the evidence given whether or not a Rule has been complied with; it is not obliged to accept the decision of the original decision maker.

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

iv) The Tribunal considers that the Rules of the Code are a set of standards which apply broadly to all residential areas of Canberra in part, but with some specific provisions for different zones such as RZ1, RZ2, RZ3 etc. The Rules apply without regard to the characteristics of a specific site or context. If a Rule is met then there is a presumption that that aspect of the proposal has achieved a desired outcome and meets the intent of the element.

v) Criteria are framed in a quite different way and enable proposals to be assessed having regard to the specific site, its topography and context, including the proximity and characteristics of adjoining buildings and spaces. An assessment against Criteria may potentially be helped by reference to the standard of the related Rule but clearly the Plan does not require this. The assessment that is required under the Criteria is one which more directly considers the impact and design quality of a proposal.

30. The 2008 Plan is a relatively new document and the Tribunal has proceeded on the basis outlined above. It is an approach which may be refined over the course of other appeals as participants in the development process become more familiar with the provisions of the Plan

31. In the sections that follow, we address the specific areas of the code that were the subject of evidence at the hearing and set out our conclusions about the extent of compliance with particular Rules and, where the Rules have not been met, whether or not the relevant Criteria are satisfied.

32. The applicants and the objector parties joined, in their initial objections to the proposal and in the Statement of Facts and Contentions of Mr and Mrs Mason, raised a number of general concerns about the proposed development, as well as specific instances of what they contended were cases of non-compliance with the Rules and Criteria. Included in their general concerns were

the adequacy of the consultation process;
the potential impact of the proposed development on the social character of the neighbourhood;
the possible adverse effects of increased traffic in Braine Street arising from the increased number of residents that will ensue; and
whether two storey development was appropriate.

33. The Tribunal cannot review these matters. The first two concerns do not fall within the matters covered by controls in the Code. No evidence was provided to the Tribunal to suggest that there would be adverse effects from increased traffic in Braine Street. Two storey development is clearly permissible under Rule R5 in the RZ2 Zone. Its impact can only be assessed against controls related to building envelopes and setbacks and how potential overlooking is mitigated.

34. Ms Rudder contended that the headlights of cars exiting the development would affect her amenity. She had chosen the house in which she lived because it was in a quiet area and because she disliked light when she was trying to sleep. The occupants of the existing dwellings had exited their blocks by reversing onto the street, but all occupants of and visitors to the proposed development would exit in a forwards direction. The orientation and slope of the driveway across the verge would cause car headlights to shine directly into her bedroom, especially if they were on high beam.

35. Dr Jarvis suggested that as the land fell away towards her house and as there was a 1m drop from the property boundary to the verge gutter and as there was a considerable amount of screening vegetation at the front of her house, it was unlikely that car lights would reach her front windows. Ms Rudder disagreed.

36. Rules 71 to 78 of the Code deal with Vehicle Access, but the Tribunal's attention was not drawn to any Rule or Criterion that would relate to Ms Rudder's concern, nor was there any expert evidence given in relation to the matter. The Tribunal is therefore unable to conclude that Ms Rudder's amenity would be affected or that any related condition should be attached to the approval.

37. However, there were other specific issues raised in relation to the proposed development which involved consideration of the extent of compliance with the Rules and Criteria and we deal with these seriatim below.

38. The issues which were the focus of the hearing were those where there was a difference of view as to whether or not a Rule had been complied with or, where it was agreed that there was non-compliance, whether or not the relevant Criteria had been met. We have not thought it necessary to address those Rules which had been met and about which there was no disagreement.

39. Mr Arthur identified a number of aspects of the development which only just met the requirements of various Rules and he contended that this was indicative of a proposal close to the limits of acceptability. He referred to Rule R10, a requirement of minimum block frontage width of 20m, with the proposal having 22.925m; Rule R15, a required maximum plot ratio of 50%, with 49.76 % being proposed; and the roof design being amended to enable it just to fit within the building envelope requirement of Rule R19.

40. He submitted that these should be taken into account together with other Rules and Criteria which were not met. The Tribunal however considers that where the requirements of Rules are met, it is unnecessary to make any decision about them. Indeed if all Rules were met, then it would follow that an approval could be granted regardless of how small the degree of compliance.

41. However, there were a number of areas where in his opinion the proposal did not meet the requirements of the Code as follows.

Water Sensitive Urban Design - Mains Water Consumption - Rule R46

Rule R46 is a mandatory requirement and Mr Arthur queried whether it had been met. The Rule reads as follows

R46. Evidence is provided that shows the development achieves a minimum 40% reduction in mains water consumption compared to an equivalent development constructed in 2003 using the ACTPLA on-line assessment tool or another tool as included in the Water Ways: Water Sensitive Urban Design General Code. The 40% target is met without any reliance on landscaping measures to reduce consumption.

43. In response to a request from the Authority, the proponent lodged a document intended to satisfy the requirements of Rule R46 (T-Doc 132, Drawing No STORM-02). On that drawing the proponent had provided a tabular document captioned "this spread sheet is an online tool.. to gauge possible methods of reducing mains water consumption on Multi-unit developments.". It showed a "Percentage Reduction" of 49%. Mr Arthur queried Mr Oshyer about some of the data apparently used in the calculation and asked how the assumptions could be validated or enforced, such as the water ratings of shower heads and washing machines. Mr Oshyer stated that these were matters for the Building Controller and he did not consider that a condition of approval to ensure compliance was necessary. There was no challenge to the accuracy of the data input or the result of the calculation.

44. The Tribunal considers that the document identified is the evidence required by the Rule. As it is a part of the DA, it provides the basis for compliance action if necessary and the question of whether and by whom that action is taken is not a matter for review by the Tribunal. The Tribunal finds that the Rule R46 has been complied with.

Rule 51 of this part requires a DA to be accompanied by a Statement of Endorsement from the relevant agency stating that the waste facilities and management associated with the development are in accordance with the Design Standards for Urban Infrastructure. Such a statement, from Mr Marc-Ian Edwards, Development Applications Coordinator of Asset Services Group, Department of Territory and Municipal Services ("TAMS") was tendered as Attachment B to Mr Oshyer's Witness Statement.

46. The original concept was for waste and recycling bins to be placed on the verge for collection, but the relatively narrow frontage led to a redesign with a 10m by 1.0m area for bin collection being located along the eastern side of the driveway, but extending about 1m onto the verge (Exhibit A, Drawing No SITE-01-03). Mr Cohen said that the garbage pickup zone was consistent with the ACT requirements set out in Development Control Code for Best Practice Waste Management in the ACT at s 4.5. Mr Cohen noted that an area 1200 mm by 800mm was required per pair of bins, making a total of 8.4m by 0.8m for the bins of 7 dwellings - an area smaller than what was proposed to be provided.

47. In response to a question from Mr Arthur, Mr Gordon agreed that the intrusion of the garbage pickup zone onto the verge could be avoided by reducing its length to 9m which would enable it to be contained within the boundary of the subject land. Dr Jarvis observed that if it was proposed to utilize the verge, it would be necessary to have the DA signed by TAMS to meet the requirements of s 139(b)(ii) of the Planning Act.

48. The Tribunal considers that as the garbage pickup zone can be contained within the block boundaries and still meet the requirements of the relevant Code, that this should be made a condition of approval.

Part C - Development Type Controls

Part C(1) - Multi Unit Housing

The plan for the upper floor levels (Exhibit A, Drawing No SITE-03-03) shows that the north east corner of Unit 3 encroaches on the required front street setback of 7.5m. Mr Oshyer described this as "a minor triangular encroachment...of approximately 250mm." This corner of the building containing Unit 3 is the closest to the street, the rest of the building being angled and increasingly further away from the front boundary. (The second building containing Units 4-7 is well beyond the minimum setback.)

50. Mr Oshyer considered it was so minor an encroachment that it would easily meet the various matters set out in Criterion C54. No evidence was given that the infringement resulted in non compliance with the Criterion. The Tribunal accepts the view that the Criterion is met given that the encroachment is both small in extent and represents a very small proportion of the facades of the two buildings which, overall, are well beyond the minimum requirements.

The original plans included upper floor balconies on the northern side of Units 1-3. Those balconies did not comply with the side setbacks required by Rule R55 and were required to be removed as a condition of the Authority's approval. The developer's amended plans (Exhibit A, Drawing No SITE-03-03) no longer show these balconies. Mr Oshyer identified two further encroachments; "a minor triangular encroachment for the lower floor dining room wall of unit 3 at a maximum distance of approximately 150mm and the upper floor window for bedroom 2 of unit 1 is setback 8.3 m to the side boundary, as opposed to the 9m specified by Rule R55". We do not consider the dining room wall encroachment significant, but that of the upper floor windows is a substantial departure from the Rule R55 and requires consideration of Criterion C55.

52. Mrs Suckling, a lessee of Block 10 to the north, in her original objection and in oral evidence to the Tribunal expressed concern about the loss of privacy to her home and backyard by the potential for overlooking from the proposed development. She identified a bathroom window and a bedroom window on the southern side of her house, as well as the use of the backyard for barbecues and social gatherings, as being areas of concern.

buildings and other structures are sited and reflect residential (suburban) scale, height and length to ensure:

(i) sufficient spatial separation between adjoining developments

(ii) the protection of a reasonable amount of privacy and solar access to the dwelling (or adjacent dwellings) and outdoor spaces (or adjacent outdoor spaces).

54. Mr Cohen and Mr Oshyer both expressed the opinion that the existence of a 3m wide pathway between the subject land and Block 10 Section 28 gave additional separation between the proposed building and the Suckling's residence, which mitigated any loss of privacy that might arise as a result of non compliance with the Rule. In addition, they observed that the potential overlooking is from bedroom or bathroom windows which would be less likely to result in overlooking than would be the case from living rooms, or the balconies which have been deleted. As the proposed development lies to the south of Block 10, loss of solar access [which is required to be protected by Criterion C 55 (a)(ii)] was not identified as a problem for the amenity of that block. Both Mr Oshyer and Mr Cohen considered that Criterion C55 was met.

55. Reference was also made by them to the existing dense vegetation along the southern boundary fence of Block 10 which was stated to be 3m to 4m in height and which would inhibit, if not prevent, any overlooking. In her oral evidence Mrs Suckling indicated her intention to replace the boundary fence, which would necessitate removing this vegetation, but she provided no specific time scale for this to happen. Dr Jarvis submitted that there was no urgency about the removal of the fence.

56. The Tribunal accepts that in relation to Block 10, the intervening pathway together with the designed setbacks provides sufficient spatial separation and that a reasonable amount of privacy would be protected by the degree of separation between the buildings and the character of the rooms from which intermittent overlooking might occur, as well as the existing vegetation along the southern fence line of Block 10. In time, plantings of Manchurian Pears on the subject land along this boundary will also provide a measure of screening.

57. Mr Oshyer also noted that, at the upper level of Unit 4 there are two narrow windows from which overlooking of the Barr's property (Block 23 Section 26) could occur. He suggested they would need to be obscure windows to comply with Rule R55 and Mr Cohen considered that obscure glass would contribute to reasonable protection against overlooking from them. Dr Jarvis proposed that installation of fixed opaque glass to a height of 1.7m in these windows should be made an additional condition

58. However, in the revised plans, (Exhibit A, FLOORACCESS-04-03) the architect has proposed that these windows be fitted with timber screens, consisting of fixed, 40mm square wooden battens spaced at 30mm. Mr Cohen considered that these would serve just as well as obscure glass to prevent overlooking. The Tribunal accepts that the use of wooden screens as described would enable the Criterion C55 to be complied with and will make them a condition of approval.

59. Mr Arthur identified the upper floor front balcony of Unit 4 as a place from which residents could overlook Block 23 (the Barr's property.) if they stood at the balcony's front edge. Mr Cohen confirmed that it was possible for this to occur. Dr Jarvis observed that there was a 1.7m high fence topped with lattice along the boundary, a substantial shrub adjacent to the Barr's living room while their main POS was covered with a semi-transparent roof, all of which would mitigate any overlooking that might occur. The balcony itself faces north towards the street and will have a 1.8m high privacy screen along its western edge towards Block 23. The Tribunal considers that this screen would provide "a reasonable amount of privacy" as required by Criterion 55 and the fact that a resident could stand at the edge of the balcony and look sideways did not negate compliance with the criterion.

The relevant provisions of the Code are as follows:

Rear setbacks are a minimum of:

a) 3 m to the lower floor level

*Where design incorporates blank walls, windows with sill heights ≥ 1.7 m from the floor or windows with permanently fixed panes of obscure glass or screened decks.

** Where design incorporates other walls, outer faces or unscreened decks, balconies and external stairs.

Buildings and other structures are sited and reflect residential (suburban) scale, height and length to ensure:

a) sufficient spatial separation between adjoining developments

b) the protection of a reasonable amount of privacy and solar access to the dwelling (or adjacent dwellings) and outdoor spaces (or adjacent outdoor spaces).

61. The original plans for the upper floor level south-facing windows of Units 4 and 7 showed that, while set back 6m, they did not meet the requirements of Rule R56 (b). The Authority, in approving the application, attached a condition that these windows have a minimum sill height of 1.7m to fulfil the requirement of the Rule. The amended plan (Exhibit A, FLOORACCESS-04-03) shows that fixed obscure glass to 1.7m above upper floor level is proposed to be provided in order to satisfy the Rule. The Tribunal accepts that this will serve the same purpose and will vary the condition accordingly.

62. The bedroom windows of Units 5 and 6 on the upper floor level have a setback distance from the rear boundary of 8m as opposed to the 9m requirement of Rule R56. Mr Oshyer contended that nevertheless the Criteria would be met, because the areas overlooked were the rear yards of the adjoining Blocks 8 and 9 of Section 26 and the view would be inhibited by a large metal shed on Block 9 and by existing vegetation.

63. The Tribunal notes that the rear yards of Blocks 8 and 9 are to the north of the dwellings which address Belconnen Way, a road of high traffic volumes. The importance of rear yards to these occupants may be greater as a result. It is noted that this land is also in an RZ2 zone and therefore potentially subject to more intensive redevelopment. The variation of 1m from the Rule is not insubstantial, and there was no clear evidence about the relative height of the shed on Block 9 and the degree to which it limited loss of privacy. The Tribunal considers that in order to ensure the protection of a reasonable amount of privacy it would be preferable to impose a condition requiring the use of fixed obscure glass in these windows similar to that to be imposed for units 4 and 7 thereby resulting in a uniform window treatment to the southern facade.

There is a maximum of 15 m of unarticulated walls ...Wall articulation is provided by

(a) changes in wall planes of a minimum 1.0 m in depth and 4.0 m in length OR

(c) horizontally stepping facades by at least 1.0 m.

Building design, articulation, detailing and finish provide an appropriate scale, add visual interest and enable visual differentiation between dwellings when viewed from public streets

Mr Arthur identified two areas that in his view did not meet the Rule as they were more than 15m in length; first, the wall at the ground floor level of the southern facade of units 4-7 and second, the wall at the upper floor level of the northern facade of units 4-7.

65. No clear submission was made to the Tribunal why, for the purposes of Rule R57 and Criterion C57, references to unarticulated walls should be assessed separately for the different floor levels. In response to a question put to him about the lack of articulation for the lower floor level of the northern facade of units 4-7, Mr Gordon replied that the upper floor level gave variation and articulation and that it was the overall massing of the building that achieved articulation and interest. Nevertheless, in the amended plans (Exhibit A, Drawing No FLOORACCESS-03-03) he had provided additional articulation of 0.25m depth to Units 5 and 6 at the ground floor level. He indicated that he might be able to increase the depth of the articulated sections to as much as 1.0m but would have to consult his clients.

66. Similarly Mr Cohen suggested that the controls sought to deal with the problem of boring, long, unarticulated walls but that in this proposal there were additional fin walls, screens, fenestration, use of different materials, balconies at the upper level and garages and walls of different setbacks at the lower level that achieved the overall intent of the control. He observed that the Criterion referred to the view of the building from a public street. Mr Oshyer in his written statement also contended that the development complied with Criterion C57.

67. The Tribunal prefers the more holistic approach to the assessment of the design of the building in this case, but accepts that the small amount of articulation shown in the amended plans is desirable and will attach a condition accordingly. It sees no need to require the articulation to be increased beyond the 2560mm proposed. The Tribunal therefore accepts that, with the condition proposed, Criterion C57 will be met.

Vehicle Access Rule 71 and Criterion C75

Mr Arthur expressed concern at the potential dangers to users of the pathway that runs between Block 10 and Block 25, particularly from reversing garbage trucks. No evidence was provided other than expressions of concern by residents and the fact that the pathway was used by numbers of people including school children.

69. Mr Oshyer referred to an email dated 27 March 2009 from Mr Marc-Ian Edwards of Territory and Municipal Services (TAMS) which stated inter alia that:

As the driveway location is on the outside of the corner, the site lines are more than adequate to maintain safe sight distance in either direction, thus allowing for the safe reversing movement back into the street

Mr Oshyer considered that TAMS would have considered the pathway in making this assessment. The Tribunal notes that the pathway is 10m from the driveway at the property boundary and that drivers of such waste removal vehicles sit in a left hand drive position when collecting, which is in this case on the pathway side. Any potential conflict with pathway users would occur at the kerb line where there is minimal separation (about 1.5m) between pathway and driveway. The verge itself however allows open visibility.

70. The applicants did not identify a specific rule or criterion that was not met but C76 appears the most relevant. It states:

C76 _Driveways and access/internal roads allow safe and efficient vehicle movement and good connections to the existing street network as well as providing a high quality pedestrian priority environmen_t

Based on the evidence before it, the Tribunal considers this Criterion is met.

The plans shown that the 3 visitor parking spaces which abutted the eastern boundary would not comply with Rule 81(a) in that they were not to be set back a minimum of 1.5m from an external block boundary. Consequently, the relevant Criterion needs to be considered. The relevant part of the Criterion is:

C81(a) Car parking complies with the requirements of the Parking and Vehicular Access General Code and ensures... the amenity of neighbouring residential areas and streetscapes is not unacceptably affected by the provision of parking and access

72. The applicants presented no evidence in relation to the Criterion. Mr Oshyer stated that the car parking provision complied with the requirements of the Parking and Vehicular Access General Code and he considered that, because the area on the adjoining block adjacent to this parking was a landscaped rear yard, the amenity of the neighbouring residential area would not be unacceptably affected. Mr Cohen gave evidence in similar terms, but he noted that in the absence of a kerb, wheel stops should be provided in each space in accordance with the provisions of which is a requirement of Part B - General Development Controls, Element 4 Parking and Site Access of General Code.

73. An aerial photograph in the T Docs indicates that the adjoining dwelling is set back a considerable distance from the rear boundary so that the fact that the parking would not be set back 1.5m would have little effect on the amenity of the adjoining residence. The Tribunal accepts that the Criterion would be met. However, it agreed that it would be necessary to require the wheel stops to be installed in order to comply with the Criterion C38 of the General Code and will impose a condition accordingly.

Rules R88 provides for a minimum average area of private open space ("POS") per dwelling, as well as the total area of POS on a block, arrived at by a formula related to block size and number of dwellings. There was disagreement whether the total required area of POS had been met.

75. Mr Cohen had calculated, from the plans available to him, the amount of open space for each dwelling and his estimates were set out in a Table in his witness statement. He was unable to be precise about the areas included in his calculations and agreed that he had omitted the area in front of the front boundary setbacks. He did not think that the proposal satisfied Rule 88. Mr Oshyer considered Mr Cohen had also not taken into consideration two upper floor level balconies.

76. Mr Arthur contended that the total area required (as calculated by Mr Oshyer) was 893 m2 but in his estimation only 782m2 had been provided (relying on Mr Cohen's calculations with the balcony areas added). However, Mr Arthur had excluded from his calculation areas of open space on the block which were communal in nature, such as the area between the front of the buildings and the front block boundary.

77. The former AAT dealt with this question at [48] - [52] of its recent decision in Brewer & Quinn & Ors and ACT Planning & Land Authority & Anor [2009] ACTAAT 1 (5 February 2009) and at [50], concluded that

There is nothing in the terms of the definition of private open space to exclude areas that are available for the common use of all of the residents of the subject land. The reference in the definition to "an outdoor area within a block" (emphasis added) suggests the contrary.

On this basis, we conclude that the total amount of POS provided may exceed the minimum requirements imposed by Rule 88, but as no precise calculation was available, the matter needs to be considered against the relevant Criterion C 88.

78. Rule R89 (a) provides for a minimum area of POS per dwelling. It was agreed between the parties that this Rule was not met. Mr Oshyer agreed that the wording of Rule R89 (a) which provided that the minimum area of POS per dwelling was to be "10% of the area of the block" appeared to be an error and should read "10% of the average area of the block" as in the old Plan. He stated that the 2008 Plan was intended to transpose controls from the old Plan in a way which maintained the previous policy approach, but in a new format.

79. Rule 89(b) requires that for each dwelling, an area of POS of minimum dimensions 6m by 6m is to be provided. All units except Unit 3 had such an area. The POS for Unit 3 was L-shaped and no area measuring 6m by 6m could be identified within it. Consequently it did not meet Rule 88(b).

80. Both Rules R88 and R89 have corresponding Criteria C88 and C89, which have identical wording viz:

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.

81. Mr Cohen contended that the POS for Unit 3 was adequate to provide space both for outdoor recreation needs and for service functions and thus met the requirements of Criterion C89. Mr Oshyer took a similar view. We accept that Rule 89(a) is an error and that while Rule 89 (b) has not been met, having regard to the opinion of the two expert witnesses and in the absence of evidence to the contrary, we conclude that Criteria C88 and C89 have been complied with.

Rule R90 and its associated Criteria C90 deal with the characteristics of the area of POS required to be provided for each dwelling under Rule 89. The Rule reads as follows:

Except as provided for in Rule 92, an area of private open space with a minimum dimension of at least 6 metres is

b) nor forward of the building line except where permitted by, and illustrated in, an approved estate development plan

(i) not to the south, south-east or south-west of the dwelling, or

(ii) to maintain a minimum of three hours sunlight onto 50% of the ground between the hours of 9.00am and 3.00pm on 21 June (winter solstice)

d) at ground level with direct ground level access from a main daytime living area of the dwelling

83. Mr Arthur submitted that the wording of Rule R90(c)(i) was in error and the final "or" should be "and" so that the relevant open space should both avoid southerly locations and should also receive the defined sunlight exposure. He contended that to read it otherwise could lead to the illogical conclusion that although an area of POS may be on the north side, even if it received no sunlight (eg by virtue of adjacent structures) it would be acceptable. However, Dr Jarvis advised the Tribunal that the earlier wording of this clause had been changed to its present form by Technical Variation 2008-02 of 10 July 2008 (Notifiable Instrument NI2008-289). He submitted that the current wording should be seen as a deliberate construction and R90(c)(i) and (c)(ii) were to be read as alternative requirements for acceptability.

84. The Tribunal considers that it can only proceed on the basis that the Rule as it now stands is what was intended. Consequently as the nominated areas of private open space of minimum dimension of 6m are not to the south, south-east or south-west of the dwellings, it is unnecessary to demonstrate that the minimum sunlight requirement has been met. However, because much of the proposed area of POS for Unit 3 is forward of the building line, it does not meet the requirements of subsection (b) of Rule R90 and Criterion C90 applies.

85. Nevertheless, Mr Arthur observed that the cross examination of Mr Cohen had revealed that many of the private open spaces may not have a minimum of 3 hours sunlight on the ground at the winter solstice because of overshadowing by adjoining fences to the north and by the courtyard walls. In his view, only the POS of Unit 3 would receive acceptable sunlight, whereas all the other POS areas could only be described as having "poor" or "dismal" sunlight in that they did not achieve the required 3 hours of sunlight onto 50% of the ground as required by Rule R90(c)(ii).

86. While drawings showing the extent of overshadowing by the proposed buildings and courtyard walls at the winter solstice were provided to the Tribunal, these did not show the impact of overshadowing by the proposed or existing fences. The architect, Mr Gordon, said that the fences were not shown on the shadow diagrams for reasons of "clarity". In cross examination, Mr Cohen conceded that some of the areas of POS would be overshadowed, either by adjacent fences or courtyard walls, though he contended that the latter, being in part constructed of timber slat infill panels would admit some sunlight and that in any case there would be adequate daylight entering them. Mr Cohen concluded that the Criterion C90 was met. While the private open space of unit 3 in front of the building line was identified as not complying with Rule R90 there was no evidence or submission that challenged Mr Oshyer's statement that this area complied with Criterion C90.

87. The Tribunal was given no evidence to demonstrate that overshadowing by the fences and courtyard walls prevented maximum year round use, which is the only relevant test of C90. In the absence of evidence to the contrary and because the areas of POS under consideration meet the alternate test of not being located to the south, south-east or south-west of the dwelling, the Tribunal accepts that the Criterion C90 will be complied with.

88. Having regard to the evidence and submissions put to us, we conclude that there is no basis on which the DA should not be approved, subject to conditions. In each area of concern, we find that where any Rules have not been met, the proposed development does comply with the relevant Criteria or will do so if the conditions that the Authority imposed on the original approval, as supplemented and modified by the conditions that we have proposed, are implemented. Consequently we will make orders pursuant to s 61 of the ACAT Act varying the decision of the decision maker (the Authority) by amending the conditions attaching to the approval in accordance with the reasons given in the preceding paragraphs.

89. The ACT Civil and Administrative Tribunal orders that the decision of the ACT Planning and Land Authority to approve the application with conditions is to be varied by amendment of condition 7(b) as follows: