Legislation cited: Planning and Development Act 2007 ss 119, 120, 121

Tree Protection Act 2005 ss 8, 10, 21

Cases cited: Deakin Residents Association v ACT Planning and Land Authority [2015] ACAT 37

Downer Community Association and ACT Planning & Land Authority & Anor [2007] ACTAAT 20

Gingell v ACT Planning and Land Authority [2018] ACAT 62

Javelin Projects v ACT Planning and Land Authority [2017] ACAT 87

Noah's Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2017] ACAT 44

Noah's Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2018] ACAT 95

Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority [2018] ACAT 38

Legislation cited: Multi Unit Housing Development Code r & c 7, 29, 30, 31, 40, 47, 56A, 57, 61, 73, 91

1. The decision dated 8 March 2018 of the respondent is set aside

1. The second party joined, Fleming Group Developments Pty Ltd (Fleming), is the Crown lessee of a residential block in the suburb of Curtin (the subject block). Ms Alexandra Arnold is the sole director of Fleming.
2. The subject block is zoned Residential RZ1 Suburban zone and has an area of 1,252m².
3. In 2015, the previous Crown lessee surrendered the lease over the subject block to the ACT Government under the so-called Mr Fluffy buyback scheme. This occurred because the house then on the subject block contained asbestos. The house on the subject block was demolished. The subject block was then remediated and sold to Fleming at public auction.
4. Plan Variation No 343 allows unit titling for dual occupancy development of residential blocks in the RZ1 Suburban zone that are surrendered under the buyback scheme and have an area greater than 700m².
5. On 13 October 2017, Fleming applied for approval to construct two single-storey dwellings on the subject block to form a dual occupancy with carports, associated landscaping, servicing and other site works.
6. On 15 January 2018, the respondent, the ACT Planning and Land Authority (the Authority) refused the application. ACTPLA did so because the development would have necessitated clearing three regulated trees towards the rear of the subject block. Their removal was not supported by the Conservator of Flora and Fauna (the Conservator).[1] The Conservator's reasons were as follows:

Trees 4-6, regulated Quillaja saponaria (not unknown weed species)[2] on the lease, are not supported for removal.

These 17m tall Trees are what was once part of the Cotter Plots and are very rare of this size in Canberra. (I do not know of any bigger, Westbourne Woods barely reaches half their height).

They are classed as excellent specimens of registerable quality.

The trees need to be retained in an appropriately considered development

1. The Conservator noted another regulated tree on the subject block that had not been listed as a regulated tree.
2. The Conservator also noted details about another regulated tree towards the front of the subject block as follows:

Tree 3 (Liquidambar sp now dead) appears to have met with a toxic substance as some severe smell emanated from alongside it upon inspection.

1. In its reasons for refusal of the development application, the Authority determined that removal of the regulated trees would not be consistent with objective (d) of the zone objectives for the RZ1 zone which states:
   1. Ensure development respects valued features of the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties.
2. On or about 14 February 2018, Fleming applied for a reconsideration of the decision to refuse the development application. The application included an amendment so that two of the three Quillaja 'Cotter Plot' trees would be retained.
3. On 8 March 2018 on reconsideration, the Authority approved the development as amended subject to conditions (the reconsideration decision). The notice of decision included conditions that "tree protection fencing shall be erected prior to the commencement of any work on the site" and that "the two trees (tree numbers 4 and 5) shall be retained and all construction activity in the vicinity of these trees must be done in accordance with directions and/or supervision from a suitably qualified arborist."
4. On 5 April 2018 the applicant, Ms McGrath, applied to the Tribunal for an order that the reconsideration decision be set aside and that the original decision made on 15 January 2018 be confirmed (i.e. that the development application be refused). Ms Brennan became a party to the proceedings and, for all practical purposes, worked with and supported Ms McGrath. They presented their cases collectively. Their statement of facts, issues and contentions dated 8 June 2018 was a joint document. For convenience, we shall refer to them in these reasons for decision as 'the applicants'.
5. On 28 and 29 June 2018, the Tribunal heard the application for review. Ms McGrath and Ms Brennan appeared on their own behalf. Ms P Bindon of counsel appeared for the Authority. Mr C Erskine SC appeared for Fleming.
6. The applicants raised several issues as grounds for why the decision under review should be set aside.

1. Section 119(1)(a) of the Planning and Development Act 2007 (P&D Act) provides that "development approval must not be given for development proposal in the merit track unless the proposal is consistent with ... the relevant code". The applicants contended that the proposed development does not comply with the Multi Unit Housing Development Code (the MUHDC). The applicants made a general submission that the reconsideration decision does not provide sufficient justification for non-compliance with rules, where a developer can comply with a corresponding criterion, particularly where the MUHDC provides:

Where there is a departure from a rule, or where a criterion only applies, the onus is on the applicant to demonstrate that the relevant criterion is satisfied, through supporting drawings and/or written documentation.

1. The applicants referred to the tribunal's decision in Javelin Projects v ACTPLA[3] (Javelin Projects) where the Tribunal commented on compliance with a corresponding criterion:

Where terms such as 'proportionate' and 'reasonable' are used in criteria, the Tribunal consider it useful to consider the 'minimum ideal' as set out in the related rule as a useful guide. Whilst clearly 'something less' than the rule requirements may be approved, the degree of divergence from the rule requirement is a matter that will help guide the Tribunal in its consideration of the evidence provided in support of satisfying criterion.

1. In Javelin Projects, the Tribunal referred to an earlier decision in Deakin Residents Association[4] where the Tribunal commented on the relationship between rules and corresponding criteria in the MUHDC:

Context is an important tool in statutory interpretation and the requirements in C 36 should be informed by the terms of R 36. In effect C 36 allows a lesser separation than 4 metres but requires this to be justified. Both R 36 and C 36 implement a particular purpose and policy, and this purpose and policy should inform the interpretation of C 36.

1. We accept the submission of the applicants and endorse the Tribunal's earlier comments in Javelin Projects and Deakin Residents Association. However, the submission by itself does not establish non-compliance with the MUHDC. Rather, it supports consideration of the nature and extent of a departure from an applicable rule where Fleming and/or the Authority contend for compliance with a corresponding criterion. We do so below regarding the numerous instances where the proposed development does not comply with an applicable rule.

1. Section 120 of the P&D Act states seven matters that the 'decision-maker' must consider when deciding a development application. These include the objectives for the zone in which the development is proposed to take place (section 120(a)), each representation received by the Authority in relation to the development application (section 120(d)) and any entity advice given in relation to the application (section 120(e)).
2. The applicants made submissions on each of these considerations, contending that the reconsideration decision had given insufficient regard to the objectives for the RZ1 zone, had not properly addressed the issues raised in the representations received and had not addressed the Conservator's opinion that the regulated trees that were, at the time, on the subject block should be retained.
3. The Authority and Fleming submitted that, pursuant to section 121(2) of the P&D Act, the Tribunal does not have jurisdiction to consider issues arising under section 120, and that its role is confined to consideration of whether applicable rules and/or criteria are met. Section 121(2) states:

_(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. In Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority[5] the Tribunal conducted an extensive review of relevant earlier Tribunal decisions and the relevant legislation. Arising from that review, the Tribunal said by way of summary:

The Tribunal considers that its task on review of a merit track decision is to consider the questions of code compliance only (section 119(1)(a)). The Tribunal cannot review the decision in relation to other parts of section 119, the broader considerations listed in section 120, or any other matters which may have been relevant to the discretionary decision.

1. In Gingell v ACT Planning and Land Authority[6] the Tribunal again received submissions regarding the Tribunal's jurisdiction, having regard to section 121. The Tribunal said:
   1. The Tribunal does not consider it necessary to conduct an extensive review of the relevant ACT cases which has been done in the Sladic case. That case contains an examination of the decision of the ACT Court of Appeal in Baptist Community Services v ACT Planning and Land Authority & Ors [2015] ACTCA 3. That case set out principles to be taken into account by the decision maker when making a decision under the PDA ab initio. Sladic sets out the principles to be applied on review of such a decision as a result of section 121 which are necessarily circumscribed as described in the section.
   2. Those principles are also set out at paragraphs 226 to 230 of Noah's Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2017] ACAT 44.
   3. In this case the applicants have not shown any contravention of the rules and criterion in the applicable codes assuming that imposed conditions are observed.
   4. It is the decision of the Tribunal that it therefore does not have jurisdiction to examine the largely discretionary matters raised by all the applicants beyond consideration of the code provisions.
2. The ambit of the Tribunal's jurisdiction, having regard to section 121(2), has been the subject of many submissions and decisions over the years. Views varied, and still do. Recently, the Tribunal in Noah's Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor[7] stated that "the decision in Sladic is not binding on this Tribunal ... [and that] ... we have decided to proceed on the basis set out in the decision in the previous Noah's Ark case."[8]
3. The Tribunal's decision in Sladic is on appeal to the Supreme Court. We understand that a notice of contention has been filed regarding the Tribunal's jurisdiction, having regard to sections 119, 120 and 121.
4. However, in this case, it was not necessary to enter the debate. After consideration of the applicable rules and criteria which is clearly within the Tribunal's jurisdiction, we concluded that the reconsideration decision should be set aside for non-compliance with applicable rules and criteria.

1. Rule 29 and table A5 of the MUHDC require a minimum front boundary setback of six metres for the subject site. In its assessment of the development application, the Authority referred to a "minor front boundary encroachment" although no dimension for this setback is shown on the plans. Nevertheless, the Authority noted "development...meets criterion".[9] To be met, criterion 29 required the front boundary setback achieve all of a) "consistency with the desired character; b) reasonable amenity for residents; and c) sufficient space for street trees to grow to maturity".
2. The Tribunal agrees that the proposed development satisfactorily addresses these three criteria and agrees that a minor encroachment into the front boundary setback should be permitted, but Fleming should with any future development application for the subject block submit to the Authority a plan prepared by a registered surveyor showing the exact distance of the proposed development from the front boundary of the subject site so that the extent of the encroachment is known and can later be measured for compliance.

Rule 30 and criterion 30 of the MUHDC provide for minimum side and rear boundary setbacks. They state:

1. Table A6, referred to in rule 30 a), relevant to the subject block identifies a minimum setback of 3m from the side and rear boundaries for the subject block.
2. The applicants submitted that the approved plans show boundary setbacks for the proposed development as follows:

For the rear dwelling the distance between the external wall and the boundary is as little as 1.25m on one side, 1.5m on the other side and 2.075m at the rear. The front dwelling has a side boundary of only 2.3m on one side and encroaches slightly on the front setback.[10]

1. In its assessment of the proposal, the Authority incorrectly reported that the side and rear setbacks "complies with rule", meaning rule 30. However, the approved plans show setbacks which do not comply with rule 30, and to a significant extent.
2. Fleming submitted that the reason the side and rear setbacks are less than the required 3m is "to accommodate the two Chilean soapbark trees". Fleming offered no other argument in support of the reduced setbacks.[11]
3. Rule 31 of the MUHDC permits encroachments into the side and rear setbacks for various minor building elements such as rainwater tanks, eaves and roof overhangs not exceeding 600mm in width. The drawings approved by the Authority include cross-sections through both houses which show eaves as 900mm wide. In its assessment of the application, the Authority made no mention of the width of the eaves and noted only and incorrectly that the proposal "complies with rule".
4. The departures from rules 30 and 31 in relation to boundary setbacks and allowable encroachments are not insignificant in their extent or effect. The 900mm wide roof overhangs appear on the drawings to be less on the south east and south west boundaries of the site, but the width of the eaves at these points is not dimensioned. The Tribunal notes that even if the eaves were reduced at these points to 600mm, the separation of the edge of the roof from the adjoining boundaries would be in the order of 650mm for the rear dwelling and 1700mm for the front dwelling.
5. Criterion 30 a) requires that "buildings and other structures are sited to achieve...consistency with the desired character". 'Desired character' is defined in the Territory Plan, Definitions, as follows:

Desired character means the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code.

1. There is no statement of 'desired character' in the Curtin Precinct Code, but the applicants submitted that 'desired character' in this case involves a "consistency of development throughout the suburb, being one of low density single detached houses established on large blocks within a mature landscaped setting of street trees and private gardens".[12]
2. The Tribunal noted the considerable number of elements suggested by the applicants as contributing to this "desired character" and the requirement of criterion 30 b) for "reasonable separation between adjoining developments". In its consideration of boundary setbacks, the Tribunal considered 'reasonable separation' and 'detached houses' to be particularly relevant.
3. A witness statement was provided by Mr Ted Streatfeild, who also gave evidence before the Tribunal and was cross examined. Mr Streatfeild is a registered planner with 15 years' experience in the ACT Government planning authority. Mr Streatfeild states that "side and rear setbacks are less than 3.0m in order to accommodate two high quality protected trees within the design". It was his opinion that the proposal complies with criterion 30 because the encroachments "are similar in nature and effects to many standard single dwelling encroachments in an RZ1 zone...single dwellings are permitted to be 1.5m away from the side boundaries under the Single Dwelling Housing Development Code...the spatial relationships appear consistent with the desired character for an RZ1 zone".[13]
4. In the opinion of Mr Streatfeild, "the eave encroachments appear minor and consistent with the desired character for an RZ1 zone". In cross examination, Mr Streatfeild thought this was acceptable 'because it is quite similar to other class 10 structures that you might get going up towards the boundary".[14]
5. Mr Streatfeild's statements as to setbacks and encroachments for single dwellings in RZ1 zones are not helpful and are not correct. His statement that "single dwellings are permitted to be 1.5m away from the side boundaries under the Single Dwelling Housing Development Code" is misleading because the 1.5m setback permitted by that code applies only to one side boundary and only where the setbacks from the rear boundary and any other side boundary are 3m.
6. As to Mr Streatfeild's reference to "other class 10 structures", the Tribunal notes that this relates only to outbuildings and detached garages or carports and does not apply to that part of a wall with a window of any sort. Likewise the contention of Fleming that the setbacks "are consistent with what would be permissible for single dwellings in RZ1 areas" is irrelevant: this is a dual occupancy.[15]
7. A witness statement was provided by Mr Ronan Moss, who also gave evidence before the Tribunal and was cross examined. Mr Moss is a registered architect and a director of Cox Architecture. In his statement Mr Moss said "we provided the client with high level planning advice" but he made no reference to building setbacks or encroachments. In cross examination, Mr Moss opined that "the choices of the roof and choice of eaves treatment was complementary to trying to achieve something that had more of a robust quality". Mr Moss told the Tribunal he had been given a coloured rendering of the buildings which suggested the roofs would be of a charcoal colour. He also understood that the roofs would be metal with a pitch of 30 degrees.[16]
8. As noted earlier, the Tribunal in Javelin suggested that while "something less" than the rule requirements may be approved, "the degree of divergence from the rule" will guide the Tribunal in its consideration of the evidence supporting the relevant criterion.[17] The Tribunal in Deakin Residents Association noted also that "context is an important tool in statutory interpretation".[18]
9. The Tribunal finds the arguments in Javelin Projects useful in its consideration of the words 'consistency' and 'reasonable' in criterion 30 b). The Tribunal places emphasis also on the context of the proposed development and is of the opinion that the existing pattern in the area of generously separated individual houses on large blocks must be respected. In the opinion of the Tribunal, 'something less' than the rule requirements for setbacks might be approved in this instance were this not unreasonably to impact on the pattern. In the opinion of the Tribunal, the significant divergence in the proposed development from the rules concerning boundary setbacks or projection of the roofs into those setbacks cannot be accepted as a 'reasonable' interpretation of the intent of criteria 30 a) or 31 a) which require that the proposed development achieves consistency with the 'desired character' of the area.
10. Towards the close of the second day of hearing, Fleming told the Tribunal that it would be prepared to accept the following variations to the proposed development:
    • (a) the setback of the rear dwelling from the rear boundary be increased from 2075mm to not less than 3000mm;
    • (b) the setback of the rear dwelling from the north eastern side boundary be increased from 1500mm to not less than 3000mm; and
    • (c) the setback of the rear dwelling from the south western side boundary be increased from 1250mm to not less than 1500mm.[19]
11. The offer by Fleming to increase the setbacks to 3000mm from the northeast boundary and the southeast (rear) boundary was an appropriate response for these boundaries, but the Tribunal does not consider that the offered setback of 1500mm from the southwest boundary will provide 'reasonable separation' from the adjoining property. A setback of at least 2000 mm, still only two-thirds of that required under the rule, should be made.
12. It is clear that Fleming's suggested changes would demand extensive adjustments to the planning and design of the rear dwelling which could not be accommodated simply by shrinking the sizes of internal rooms and spaces. To do so would make the rooms and spaces unworkable and, in all probability, impermissible. Necessary changes would be so extensive that the revised plans, elevations and sections would not bear any realistic resemblance to the existing plans. A setback of 2000mm on the southwest boundary would add to the changes required.
13. The Tribunal considered how best to resolve the issue and concluded that its only sensible or realistic option is to set aside the reconsideration decision. The existing setbacks are not compliant with criteria 30 or 31. With the revised setbacks as proposed by Fleming and 2000m on the south-east boundary, it is not appropriate for the Tribunal to decide or even suggest internal changes to the design. It is for Fleming to reconfigure use of the space within the smaller footprint.
14. The Tribunal offers two other comments about setbacks that may assist with future design.
15. First, it supports in principle the lesser setbacks of the front dwelling from the south west boundary on the grounds that this would occur principally within the primary building zone and would have the benefit of providing articulation of the south west elevation of the proposed dwellings.
16. Second, provided the side and rear boundary setbacks for the walls of the rear dwelling comply with rule 30, the Tribunal would agree to 900mm wide eaves for both dwellings.
17. Where the Tribunal has decided to set aside the reconsideration because of non-compliance with criteria 30 and 31, consideration of other issues is not strictly necessary. However, it records its findings to assist with consideration of future plans.

1. The plot ratio for surrendered residential blocks in an RZ1 zone is determined under rule 7 of the MUHDC. Compliance with rule 7 is a mandatory requirement. It provides:

1. The Authority calculated a plot ratio of 34.3% for the development as a whole and 17% for the rear dwelling. This included an allowance of 18m² for each of the double carport areas, meaning 36m² in total.
2. The actual floor areas of the proposed carports are 38m² and 42m² respectively.[20] The applicants contended that the full area of the carports should be included when calculating the plot ratio of the whole development. When that is done, the plot ratio exceeds 35%, with the result that rule 7 is not met. It follows, they said, that the development must be set aside or varied to achieve compliance with rule 7.
3. "Plot ratio" is defined in the Territory Plan, Definitions, as follows:

Plot ratio means the gross floor area in a building divided by the area of the site.'

1. "Gross floor area" is defined in the Territory Plan, Definitions, as follows:

Gross floor area (GFA) means the sum of the area of all floors of the building measured from the external faces of the exterior walls, or from the centre-lines of walls separating the building from any other building, excluding any area used solely for rooftop fixed mechanical plan and/or basement car parking.

1. The Authority and Fleming contended that because the carport areas do not have doors and are enclosed only at their rear and on one side, their floor areas are not included when calculating plot ratio - save for the mandatory allowance of 18m² for each area.
2. The applicants took issue with this exclusion. Ms McGrath, accurately in our view, characterised the proposed construction as follows:

Perhaps when this rule was developed originally, we are thinking of old-style carports which could just be metal structures - which I argued in my submission is quite different to what we are talking about here. To me, what is being developed and proposed here is a garage that's missing a door and a bit out of the wall. It's quite different to a carport that's, sort of, a separate structure or something that can be taken off later or it's severable in some way. This is very much part of a building, it's a continuous roof, like, you couldn't cut it off later. It's got internal access to the house.[21]

1. We have considerable sympathy for the applicants' viewpoint. In each case, the carports are an integral part of a single building under one roof. The 'intent' of rule 7 is to set a limit on the footprint of a proposed building or buildings relative to the size of the block on which they are to be built. To exclude the carport areas in the manner proposed defeats the intent of rule 7.
2. Also the proposed construction, with brick piers on each side of the entry to each carport, readily lends itself to installation of a secure double garage door. Each carport is, for all practical purposes, a garage awaiting its door.
3. Ms Jamali, who gave evidence as a Residential Outcomes Manager with the Authority, appeared to acknowledge the loophole in rule 7 regarding plot ratio calculations. At hearing, she said:

Because when the territory plan - previously, when we used to have carports, we were not able to include GFA at all because they were, like, open structures and they are not garages. But then it was - however, to make sure that, yes, there is some inclusion of some area in the gross floor area - otherwise you could get, like a triple carport or something which could be quite a bulky thing. But you couldn't add that to the GFA at all. So it was amended, I can't remember when, I think probably back in 2000 when this clarification was added to rule 7 so that at least some of the GFA, like, you know, the area is included in GFA.[22]

1. Ms Jamali's reference to "at least some of the GFA...is included in GFA" was a reference to the obligation under rule 7 to include 18m² for each roofed car space required to meet requirements under the Parking and Vehicular Access General Code for residential car parking.
2. We have carefully considered the applicants' submission but have concluded that, without the garage doors, rule 7 as presently drafted allows Fleming to include only 36m² of the floor areas rather than the actual areas of 80 m². Later installation of the doors is an enforcement consideration, not a matter for planning approval, however problematic and unlikely enforcement would be.

1. Criterion 40 of the MUHDC requires the proposed development to meet all of seven landscape and site design objectives, one of which is the "planting of trees with a minimum mature height of 4m." The applicants contend that there are no details to explain how this objective will be achieved.
2. Fleming contended that this objective is met, relying on the proposed planting of six Pyrus SPP (pear) trees: three at the front of the block facing the street, one to the east of the front dwelling and two to the east of the rear dwelling. These trees, Mr Streatfeild said, can reach a mature height of up to 30 feet or approximately 10m. In addition to the retention of two of the 'Cotter Plot' trees on the subject block required under the reconsideration decision, Mr Streatfeild thought that criterion 40 is met.
3. Ms Jamali was equivocal about whether criterion 40 is met, given its subjective character, and proposed further conditions that the three Pyrus trees to be planted in the front setback area be "advanced stock medium-sized mature trees". She also proposed as a further condition that the proposed shrubs to be planted along the whole of the north-east boundary be "advanced stock fast-growing hedges". These further conditions, she said, "would ensure compliance with criterion 40". We note that Fleming indicated its agreement to all conditions proposed by the Authority.
4. We also note that arising from the removal of the Eucalypt Cinera referred to below regarding regulated trees, Fleming has agreed to a further condition that it plant a replacement tree of semi-mature stock at approximately the same location as the Eucalypt with a mature height of not less than four metres. For reasons discussed below in relation to the applicants' submissions regarding regulated trees, we consider that this further condition should be made in response to any further development application, but require the mature height to be not less than eight metres. It will also add to compliance with criterion 40.
5. The Tribunal concludes that with these further conditions, criterion 40 would be met and that these conditions should form part of any future approval decision.

1. The applicants submitted that the proposed development does not comply with rule 47 b) of the MUHDC because the building facade of the front dwelling facing the street does not have a door with a roofed element such as a verandah or balcony. The front door of the front dwelling faces the north-eastern side boundary. There is no door facing the street, roofed element or otherwise.
2. The applicants then noted that there is no assessment against corresponding criterion 47 as to whether the buildings achieve passive surveillance of adjoining streets and adjoining public open space.
3. The Authority agreed that the proposed development does not comply with rule 47. Ms Jamali said that the Authority had intended to include in its reconsideration decision a condition that the landscape plan be adjusted to provide for an easy way of finding the front door. It proposed that the Tribunal add this further condition.
4. Mr Streatfeild opined that criterion 47 was met because the front elevation windows to the living, dining and kitchen areas of the front residence face the street, and because visitors are directed to the front door through the front open space. The Tribunal is of the opinion that the extensive window treatments facing the street (assuming they remain in any future design plans) will give ample surveillance to the street and that criterion 47 will be met.

1. Criterion 56A of the MUHDC applies to dual occupancy dwellings on surrendered residential blocks in an RZ1 zone. It provides:

1. The applicants noted the absence of plans depicting how the proposed buildings will be seen from the street and contended that the proposed development does not comply with criterion 56A.
2. The applicants also contended that:

The design of the development, with neither house facing the street, does not contribute to a visually harmonious streetscape, nor does it add variety and interest. The front dwelling has only the side of the building as the street aspect. The elevations depict a brick wall with three street facing windows. The main entry door is concealed around a corner. The development has two carports in the middle of the site without closing doors incorporated into the design, both of which will be visible from the street. The proposed development is not consistent with other developments in the street.[23]

1. Fleming stated that the proposed development had been "carefully designed...to harmonise with the existing RZ1 streetscape of Dunstan Street...low rise, pitched roofed, face-brick villas, in keeping with most other houses on Dunstan Street".[24]
2. Ms Jamaly said that in her opinion the proposed development complies with criterion 56A:

The bulk and scale of the proposed development is low impact and will not have an adverse visual impact on the streetscape. The character of the development will blend in with the existing streetscape character and will contribute to a visually harmonious streetscape.[25]

1. Mr Streatfeild likewise contended that the proposed development satisfies criterion 56A:

In my opinion the C56A is satisfied because the design is of a high quality architectural standard as evidenced by the architectural drawings. The low density single-storey nature of the proposal contributes to a visually harmonious streetscape is (sic) consistent with development in the surrounding area and therefore the streetscape character will not be adversely affected. The architectural style of the proposal when viewed from the street is similar to nearby residences except with wider eaves.[26]

1. Mr Streatfeild gave evidence that "when you look at this development from the street, it's going to look quite similar to some of the elements - or all the elements in that street...it's of an architectural character and style and standard that's quite acceptable and good".[27] Mr Streatfeild also reminded the Tribunal that the requirement in criterion 56A for dual occupancy development on surrendered residential blocks to demonstrate "high quality architectural standards" was not found in codes for standard residential development. He said that "in RZ1 there's no real control of a normal single house...that says you have to have high architectural development or standards or harmonious streetscape".[28]
2. Regarding compliance with criterion 56A, Mr Moss said in his witness statement:

The existing streetscape is predominately made up of 'brick and tile' houses with either gable or hip roofs. Many of the houses on the street are very simple in their appearance and are likely to have been built in Curtin's early development. A number of the houses on the street appear to have been originally developed as government houses...

Importantly, the proposal sites its houses so that they make the most of their northerly aspect, ensuring ample sunlight and ventilation is achieved. The arrangement of the houses allows them to be detached dwellings rather than be semi-detached, which greatly reduces the bulk of the development and creates more variety and interest.

1. Mr Moss did not claim to have assisted in the preparation of designs for the proposed development and he made no comment as to whether the designs encouraged high quality architectural standards. Mr Moss concluded that the proposed development "in no way detracts from the existing character of the street as in its built form it represents a contemporary architectural 'take' on the street's typology of brick and tile houses".
2. In this respect, the Tribunal notes a decision of the (former) ACT Administrative Appeals Tribunal in Downer Community Association and ACT Planning & Land Authority & Anor[29] where the tribunal, per President Peedom and Senior Member P O'Neil, made the following observation in the context of a zone planning objective that a proposed development "respects existing streetscapes and adjoining development":

It does not follow from the fact that a development proposes an observable difference to the existing style of development that it fails to respect it.

1. Ms Bindon, counsel for the Authority, made a similar observation:

It's about highquality architectural standards that contribute to a visually harmonious streetscape character. It's harmonious, it's not consistency, and so it's not about being the same. I'm not a musician, but, as I understand harmony, it's about different chords but that work together. So difference in and of itself is not a bad thing, that's a good thing as long as it's harmonious.[30]

1. The Tribunal accepts the approach but notes that no evidence was given by any party as to the degree to which the proposed development might encourage 'high quality architectural standards'. In the absence of a definition in the Territory Plan of 'high quality architectural standards' and without the benefit of any expert opinion in this matter, the Tribunal notes only the contentions of the applicants that the proposed development is not consistent with other developments in the street.
2. If the Tribunal were not already setting aside the reconsideration decision, it would have had difficulty in finding that criterion 56A is met. There is no evidence to support such a finding; the development is no more than a simple design devoid of any positive architectural feature. Mr Streatfeild's observation that encouragement of high architectural standards is not required for standard residential development is irrelevant; for a Mr Fluffy surrendered block it is required under criterion 56A.
3. If future plans are lodged for development of the subject block, the application should at least include full and clear documentation of the proposal including accurate street elevations for each dwelling, articulations and descriptions of the proposed materials and external finishes sufficient to enable an assessment of whether the design "encourages high quality architectural standards".

The floor or internal wall of a daytime living area of the dwelling is exposed to not less than 3 hours of direct sunlight between the hours of 9am and 3pm on the winter solstice (21 June).

1. The applicants contended there is no evidence to establish that rule 57, which is a mandatory rule, is met.
2. In response, Ms Jamali opined that rule 57 is met because "the north easterly aspect of the proposed development takes full advantage of the morning sun and both dwellings will also receive afternoon sun to a certain extent." In her oral evidence, Ms Jamali also said that the Authority did not request a shadow diagram because it was quite confident that the proposed development would receive reasonable solar access.[31]
3. Mr Streatfeild also noted that the "northern windows of each [dwelling will] receive more than 3 hours of unimpeded solar access between 9.00am and 3.00pm."
4. The Tribunal has examined the drawings and is satisfied that the northeast orientation of both dwellings allows for solar access as required by rule 57. A future design will require the issue to be reconsidered.

1. Principal private open space (PPOS) is defined in the Territory Plan, Definitions, as follows:

Principal private open space means private open space that is directly accessible from a habitable room other than a bedroom.

1. Referring to rule 61 b), table A9 to the MUHDC sets out minimum areas and dimensions for the PPOS, depending on the zone and the number of bedrooms. In this case, each of the proposed dwellings is a four-bedroom dwelling, meaning that the minimum area for the PPOS is 45m² and the minimum dimension is 2.5m.
2. Regarding the front dwelling, Ms Jamali opined that it complies with rule 61 a), b), d) and e) but, arguably, not c). As the applicants noted, the PPOS looks directly onto the driveway leading up to the rear dwelling and will be visible from the street unless and until proposed hedge plantings are established. Ms Jamali therefore proposed the following:

I think the proposal includes some landscaping along the main, the principal private open space, which will take some time to grow and then provide privacy. So in my view, it's my opinion that a well-designed courtyard wall would actually provide privacy from day one, and that can incorporate some landscaping along the - in front of the courtyard wall as well, to soften the courtyard wall.[32]

1. We agree with the applicants' concerns and the Authority's proposed additional condition to address it. We note that Fleming proposed that all conditions proposed by the Authority be adopted. We agree that, with the courtyard wall, criterion 61 would be met, however the issue we'll need to be revisited in a further design.
2. The applicants also submitted that the PPOS for the front dwelling does not comply with criterion 61. However, with the further condition to ensure compliance with rule 61 c), no purpose is served by us considering compliance with criterion 61; compliance with the applicable rule is enough.
3. Regarding the rear dwelling, the parties accepted that it does not comply with rule 61, although for different reasons.
4. Mr Streatfield, for Fleming, opined that it complied with rule 61, save for rule 61 e) because the PPOS is located to the south-west of the rear dwelling and is partially overshadowed by the buildings and the retained trees. Nevertheless, he thought it complied with criterion 61, in particular criterion 61 e), because there is "undersized" PPOS to the north and the appropriately sized PPOS to the south-west "will give good cool shading in summer".
5. Ms Jamali said that the rear dwelling did not comply with rule 61 d) because the PPOS is not "directly accessible" from, and adjacent to, a habitable room other than a bedroom. She recommended therefore a further condition that the living room window facing onto the PPOS be changed to an access door to achieve compliance with rule 61 d). Again, we note that Fleming proposed that all further conditions proposed by the Authority be adopted. We see merit in Ms Jamali's proposed condition in response to the existing drawings, but a smaller redesign of the rear dwelling to address necessary setbacks might resolve concerns about its PPOS in other ways.

1. Rule 73 applies to internal driveways that are used by residents of more than one dwelling, as will occur with the proposed internal driveway for the subject block. In such a case, rule 73 a) requires that the driveways "are set back from external block boundaries by not less than 1 m". The proposed internal driveway complies with rule 73 a), except over a distance of approximately 5m opposite the rear dwelling's parking area where the driveway expands towards the boundary. Over this distance, the driveway is 600mm from the boundary in order to provide a turning area for cars to access the parking area. There will still be hedge plantings against the fence, but only to a depth of 600mm. It follows that the proposed internal driveways will also not comply with rule 73 c).
2. The applicants submitted that the departure from rule 73 a) is not justified, as the proximity of cars entering and exiting the rear dwelling carport would cause noise and fumes affecting the private open spaces of the neighbouring property to an unacceptable degree. They also submitted that corresponding criterion 73 a) that there be "sufficient space for planting along property boundaries" is not met with the result that the driveways are inconsistent with these requirements under the MUHDC.
3. The applicants also contended that the requirement under rule 73 f) that an internal driveway provide an "internal radius of at least 4m at changes in direction and intersections" is not met.
4. Mr Streatfield and Ms Jamali both accepted that rule 73 a) is not met but contended that criterion 73 is met.
5. The Tribunal was not persuaded by the applicants' 'noise and fumes' submission. A separation of 600mm rather than 1m would not make any material difference. Also, condition A4 of the reconsideration decision requires Fleming to construct a new dividing timber fence on its north-eastern boundary, 1.8m high lapped and capped, subject to the agreement of the neighbour.
6. We see no need to respond to the non-compliance with rule 73 because a revised design for the rear dwelling is likely to enable compliance with rule 73. We add that, in our view, "sufficient space for planting along property boundaries" to comply with criterion 73 a) would require planting of not less than 1m consistent with the rest of the proposed hedge.

1. Rule 74 provides that internal driveways that serve four or more car parking spaces (as this development will) and connect to a major road must provide turning spaces on the block to allow vehicles to leave in a forward direction.
2. Whilst it was not argued at hearing, there appeared to be no dispute that the subject block faces a major road. We shall proceed on that basis. In any event, driving in a forward direction each way on the internal driveway is probably necessary, and certainly appropriate, for entering and exiting the rear dwelling.
3. The turning circle diagrams for both carports demonstrate that a B99 and a B86 vehicle can access the carports and reverse out of the carports in order to travel each way along the internal driveway in a forward direction. It follows that rule 74 is met.
4. The applicants contend that the compliance is still unacceptable because a sufficient turning space is achieved only by breaching rule 73 a) that requires the driveway to be setback from the north-eastern boundary by "not less than 1m".
5. We do not agree that compliance with rules and criteria can be approached in this way. Each is a stand-alone provision. Rule 74 is met. The fact that compliance is achieved by not complying with another rule or criterion is irrelevant. Compliance with rule 74 is still achieved. Compliance with another rule and/or criterion, in this case 73, must likewise be considered as an independent question. We also expect that with a smaller design for the rear dwelling rule 74 will be met with compliance with rule 73.

1. Under rule 91 of the MUHDC, the Authority was required to refer the development application to the Conservator if the proposed development requires ground work within the tree protection zone of a 'protected tree' or is likely to cause damage to or removal of any 'protected trees'. A 'protected tree' means a 'registered tree' or a 'regulated tree', as defined in section 8 of the Tree Protection Act 2005.
2. In its original application by means of a Landscape Plan dated 13 October 2017, Fleming sought approval to remove four existing protected trees.
3. The first (identified as Tree 3) was described as an unknown species "believed to be dead".
4. The remaining three trees, identified as Trees 4, 5 and 6, in the area proposed for the rear dwelling were described as "weed trees unknown SPP". Fleming applied for their removal on the basis that "their location and size is detrimental to the site as they i) inhibit the construction of a separate dwelling to the rear and ii) constrain the planning of any rear dwelling including building design & size, vehicle access and solar access & amenity, making an alternative design (that retains the trees) unrealistic." [33]
5. Neither the Landscape Plan nor the statement against relevant criteria lodged with the development application made any mention of the Eucalyptus Cinera growing 1.45m from the north-eastern boundary towards the rear of the subject block.
6. At hearing, Fleming contended there was uncertainty as to whether the Eucalyptus was a regulated tree, given (it said) that its height had not been measured. However, at hearing, Mr Erskine SC on behalf of Fleming acknowledged that it was a regulated tree because, even if there was uncertainty about its height, its girth 1m above ground level was greater than 1.5 m.[34] No explanation was given as to why the Eucalyptus was not mentioned on the Landscape Plan or what efforts were made to measure any of its features in order to ascertain whether it was a regulated tree.
7. It is also clear that the Eucalyptus was an important part of the visual amenity of the subject block and the adjoining block. Ms McGrath gave evidence that it provided significant shade and amenity to her rear garden.
8. On 16 November 2017 the Conservator provided advice to the Authority noting the existence of the Eucalypt as a regulated tree, although not listed as a regulated tree in the development application.
9. But for the Conservator visiting the subject block to inspect the trees proposed for removal, many relevant facts may not have become known:
   • (a) Tree 3 (now dead) "appears to have met with a toxic substance as some severe smell emanated from alongside it upon inspection".
   • (b) Trees 4, 5 and 6 were not "weed species". They are, or were, Quillaja saponaria that were once part of the Cotter Plots. The Conservator stated that, at 17m in height, these trees "are very rare of this size in Canberra".
   • (c) The existence of the Eucalyptus Cinera as a regulated tree.
10. On 14 February 2018, the Authority referred Fleming's proposed retention of two of the three Quillaja saponaria 'Cotter Plot' trees to the Conservator as part of Fleming's application for reconsideration of the decision to refuse its development application.
11. By email sent on 22 February 2018, the Conservator still opposed the development, stating among other things:
    • The Quillaja saponaria that is currently being proposed for removal is in the best condition of the three trees (and they are all excellent).
    • The trees need to be retained in an appropriately considered development and the removal of any of these trees is not supported as removing one tree may have a detrimental impact on the other two trees.
    • Another regulated tree (Eucalyptus Cinera) is not listed as regulated and has not been considered at all in the development. This tree is unlikely to survive the impact of the works. It must be noted that this tree has a lean and the tensile roots on the south-western side will need appropriate protection to ensure its stability and health.
12. The need for retention and protection of the Eucalyptus Cinera is implicit.
13. In the ordinary course, a person needs approval from the Conservator to remove a regulated tree. The Tree Protection Act 2005, Division 3.3 and the approval criteria determined under section 21 of that Act have established a scheme governing approval, or otherwise, for the removal of a regulated tree.
14. However, where removal of a regulated tree forms part of a development application under the P&D Act, section 119(2) permits the Authority to approve the removal, regardless of the provisions of the Tree Protection Act 2005. The Authority can override the view of the Conservator that a regulated tree should be retained if it is satisfied that any applicable guidelines and any realistic alternative to the proposed development or relevant aspects of it "have been considered" and the decision is consistent with the objects of the Territory Plan.
15. That is what occurred in this case, at least in part. Notwithstanding the Conservator's advice, the Authority approved removal of one of the Quillaja saponaria, but said nothing about the Eucalyptus.
16. Nevertheless, when the Authority's reconsideration decision was under appeal to the Tribunal, Fleming removed the Eucalyptus.
17. At hearing, the Authority contended that there are "alternative laws" for dealing with Fleming's conduct, but that it was "not something that should trouble the Tribunal."[35] It submitted "the fact is we have to look at the application, the property, as it is now."
18. The Tribunal rejects that approach. It was, with respect, a disappointing submission. What occurred was a blatant frustration of planning laws. Retention or otherwise of trees, particularly trees protected under the Tree Protection Act 2005, is often an important issue when considering a proposed development. Competing interests should be resolved according to law, not by flouting the law. In our view, the fact that the Eucalyptus should still be on the subject block is a factor to take into account.
19. Perhaps with this in mind, towards the close of the hearing, Fleming through its counsel stated that it would agree to a further condition that it plant a tree of semi-mature stock with a minimum mature height of not less than four metres in the approximate location of the former Eucalypt Cinera. The Tribunal agrees that this condition should be included in response to any future development application, but the condition should require that the tree have a minimum mature height of not less than eight metres to reflect, to some degree, the height of the tree that was unlawfully removed and achieve some level of 'make good'. The additional tree will also promote compliance with criterion 40.
20. Before leaving this issue, comment is warranted. The Tribunal appreciates that developers seek a clear site in order to maximise construction opportunities. The Tribunal recognises that trees are often a significant impediment to them achieving their commercial objectives. The Tree Protection Act, rule 91 of the MUHDC and the Office of the Conservator of Flora and Fauna are, together, the Legislature's statements and structures regarding balance between the commercial objectives of developers and protection of trees that provide biodiversity, natural habitat and amenity among other things. We refer generally to the Tribunal's comments in Deakin Residents Association v ACT Planning and Land Authority[36] about a balanced application of section 119(2) before overriding the opinion of the Conservator.
21. Fleming's conduct, both in its scant, inaccurate and incomplete disclosure about the protected trees on the subject block and in its subsequent conduct by removing a regulated tree without approval and when the reconsideration decision was under appeal, cause the Tribunal to observe that greater protections are required. It is not about the applicants' opinions, or the Tribunal's opinion, about the value of trees. It is about compliance with legal structure. At the least, increased responsibility should be placed upon an applicant for development approval to provide full and frank disclosure about protected trees on a block proposed for development with significant adverse consequences for inadequate disclosure.

1. For these reasons, whilst we note issues arising in relation to any further development proposal, we have concluded that the reconsideration decision should be set aside.

[1] Conservator's Advice at T documents page 318

[2] On the plans lodged with the development application, Fleming described the trees as "unknown weed species"

[3] Javelin Projects v ACT Planning and Land Authority [2017] ACAT 87

[4] Deakin Residents Association v ACT Planning and Land Authority [2015] ACAT 37 at [35]

[5] Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority [2018] ACAT 38 at [6]

[6] Gingell v ACT Planning and Land Authority [2018] ACAT 62 at [39] - [42]

[7] Noah's Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2018] ACAT 95

[8] Noah's Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2018] ACAT 95 at [32] - [33]

[9] ACTPLA Assessment of Territory Plan Code Requirements (not dated) at T-documents page 225

[10] Angela McGrath and Megan Brennan, statement of facts, issues and contentions dated 8 June 2018 at [11]

[11] Second party joined statement of facts and contentions dated 25 June 2018 at 3.21

[12] Angela McGrath and Megan Brennan, statement of facts, issues and contentions dated 8 June 2018 at [11]

[13] Ted Streatfeild witness statement dated 25 June 2018 at [25]

[14] Transcript of proceedings, 29 June 2018 page 10, line 40

[15] Second party joined statement of facts and contentions dated 25 June 2018 at [3.1] and [3.23]

[16] Ronan Moss witness statement dated 22 June 2018; transcript of proceedings 28 June 2018 page 54, line 31; page 56, line 15

[17] Javelin Projects v ACT Planning and Land Authority [2017] ACAT 87 at [72]- [74]

[18] Deakin Residents Association Inc v ACT Planning and Land Authority [2015] ACAT 37

[19] Transcript of proceedings, 29 June 2018, page 107, line 11; page 108, line 23

[20] Transcript of proceedings, 28 June 2018, page 30, lines 18 - 21

[21] Transcript of proceedings, 28 June 2018, page 41, lines 35-44

[22] Transcript of proceedings, 28 June 2018, page 41, lines 17-25

[23] Angela McGrath and Megan Brennan, statement of facts, issues and contentions dated 8 June 2018, page 9 at [15.2]

[24] Second party joined statement of facts and contentions dated 25 June 2018 at [3.1]-[3.2]

[25] Rumana Jamaly, witness statement dated 25 June 2018 at [67]-[68]

[26] Ted Streatfeild witness statement dated 25 June 2018 at [50]

[27] Transcript of proceedings, 29 June 2018, page 76 line 20 and line 30

[28] Transcript of proceedings, 29 June 2018, page 73 line 22

[29] Downer Community Association and ACT Planning & Land Authority & Anor [2007] ACTAAT 20 at [17]

[30] Transcript of proceedings, 29 June 2018, page 129, lines 9-14

[31] Transcript proceedings, 28 June 2018, page 72, lines 11-15

[32] Transcript of proceedings, 28 June 2018, page 33, lines 8-13. See also, page 77, lines 23-29

[33] Statement against relevant criteria, page 7 of 9 (T documents page 397),

[34] This circumference causes it to be a regulated tree under section 10(1)(b) of the Tree Protection Act 2005

[35] Transcript of proceedings, 29 June 2018, page 121, line 6

[36] Deakin Residents Association v ACT Planning and Land Authority [2015] ACAT 37 at [89]- [93]