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[2017] ACAT 79
respondent. The Authority's decision approving the development application subject to conditions was confirmed.
The Tribunal reviewed approval of a seven-storey hotel in Forrest. It found that the proposal met the particular planning-code criteria in dispute and was consistent with the relevant CZ6 objectives. In doing so, it assessed the design in the context of the surrounding streetscape and landscape, and interpreted the obligation to protect residential amenity as protection from unreasonable, rather than every, interference. It accepted expert evidence and approval conditions concerning noise, traffic, parking, privacy and overshadowing. It did not deal with the applicant's procedural and community-consultation contentions. The development approval was confirmed.
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2,228 words · generated 01/10/2026
In Morozow v ACT Planning and Land Authority & Ors [2017] ACAT 79, the ACT Civil and Administrative Tribunal reviewed the Authority’s conditional approval of a hotel development at Block 9, Section 19, Forrest. The review was brought by Alexander Morozow, a long-time nearby resident. Several nearby residents were joined as parties, as was Sirocco (ACT) Pty Ltd, the registered proprietor of the development site.
4 cited instruments linked from this judgment.
The approved proposal was for a 227-room hotel in a seven-storey building, with a restaurant, bar and lounge, function room, meeting and office rooms, three basement parking levels and associated facilities and works. It also involved new driveway crossings, landscaping and a variation to the Crown Lease purpose clause. The Authority’s approval was subject to conditions requiring further information and mitigation measures, including wind amelioration, a revised noise management plan and compliance with transport and tree-protection requirements.
Morozow sought review of the decision made under s 113(2) of the Planning and Development Act 2007 (ACT). His requested orders included rejection of the development application, a guideline requiring specified community consultation for any further application, and a requirement that future driveway crossings be on Franklin Street. His substantive planning concerns included the proposal’s height, scale, effects on the surrounding character and residential amenity, traffic, parking, privacy, noise and overshadowing.
The application was lodged on 25 August 2016 and publicly notified from 1 September to 21 September 2016, with the notification period extended to 5 October. The judgment records 21 written representations during that period and one late representation. The matter was heard on 18, 19 and 20 July 2017. The Tribunal inspected the site and surrounding area before the hearing. Neither Morozow nor the joined residents called expert witnesses.
The Tribunal identified three merits issues: whether the development met C57(a), C58(a) and C58(b) of the Commercial Zones Development Code (CZDC) and objective f) of the CZ6 zone; whether it met objective d); and whether it met C57(b) and C58(c). It confirmed the Authority’s decision.
The Tribunal’s starting point was the statutory planning framework. It described s 119 of the Planning Act as requiring a merit-track proposal to be consistent with the relevant code and any applicable entity advice. Section 120 required consideration of specified matters, including zone objectives, land suitability, representations, entity advice and probable environmental impacts. The Tribunal also noted that s 121 limited the scope of review.
The proposal did not comply with CZDC rules 57 and 58. Those rules set a two-storey maximum and a six-metre minimum boundary setback. The relevant question was therefore whether the proposal satisfied the corresponding criteria. The Tribunal observed that the code placed the onus on the applicant for development approval to demonstrate that the relevant criterion was met where a rule was departed from.
For C57(a) and C58(a), the central concept was “desired character”. The Tribunal used the Territory Plan definition: the form of development in terms of siting, building bulk and scale, and the resulting streetscape, consistent with the relevant zone objectives and any relevant precinct-code statement. There was no relevant precinct code for the site.
The Tribunal considered the seven-storey height and the departures from primary setbacks, but did not assess the site as if it were surrounded only by houses. It considered the wider physical context, including nearby mixed-use sites and buildings on Canberra Avenue. It noted that those buildings formed part of the surrounding landscape even though they were subject to a different design regime. The Tribunal’s assessment thus treated character as contextual, rather than equating it solely with the neighbouring residential streets.
The design evidence was material. The architect described a curved form intended to concentrate bulk towards the site’s centre and reduce the building’s impact on the two streetscapes. The Authority’s witness considered the proposal more sympathetic to the streetscape than a hypothetical building with continuous six-metre setbacks, and referred to the design, boundary landscaping and mature street trees. The Tribunal accepted that the building’s form, landscaping and setting mitigated its height and bulk. It found the proposal an appropriate response to its setting and to the scale and function of its use.
On objective d), the Tribunal rejected the applicant’s proposed interpretation that “protect” meant preventing any interference with residents’ amenity. It read the term in the context of the other objectives and the practical reality that development and human activity may affect noise, traffic, parking and privacy. Its stated interpretation was that the objective implied there should be no unreasonable interference with the described amenity.
The Tribunal then considered the evidence relating to each topic. For noise, it relied on a condition requiring a revised noise management plan and the developer’s willingness to comply. For traffic and parking, it considered evidence from transport professionals, who described the predicted impacts as negligible, marginal or not significant. The Tribunal accepted that some impact was possible but found significant harm to local residents’ amenity unlikely. For privacy, it considered separation distances and existing and proposed vegetation, accepting that these would screen or filter views towards nearby houses.
Finally, the Tribunal considered solar access and detrimental impacts. It acknowledged some early-morning shadowing of a western block of flats, but treated its duration and timing as limited. It found shadowing of houses opposite to be minimal, short in duration and confined to a relatively short part of the year. It found no other established detrimental impact from the setbacks and no excessive scale. Those findings supported its conclusion that C57(b) and C58(c) were satisfied.
The judgment does not purport to create a new general planning test. It applies the statutory framework and the CZDC criteria to the evidence in this particular review. Its most useful interpretive point is the Tribunal’s treatment of “protect” in CZ6 objective d). It rejected an absolute reading that would require the complete avoidance of any effect on residential amenity. Instead, it read the term as requiring protection from unreasonable interference, in light of the wording and context of the zone objectives.
The judgment also illustrates how the Tribunal approached the concept of “desired character”. It drew on the Territory Plan definition and assessed the site’s physical setting, including streetscape, nearby buildings, landscaping and trees. This does not establish that height or scale departures will generally be acceptable. The reasoning depended on the particular evidence about the design and surroundings of this site.
The Tribunal referred to Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96 and Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority and Anor [2017] ACAT 44 when explaining that zone objectives may need to be considered where a rule is not met and the corresponding criterion is in issue. It also referred to Stryver Pty Ltd v ACT Planning and Land Authority & Ors [2004] ACTAAT 42 in connection with limiting the review to issues raised between the parties.
On the Tribunal’s account, the review function was not simply to audit whether the Authority had followed every procedure correctly. Relying on Downer Community Association and ACT Planning & Land Authority [2007] ACTAAT 20, it described the principal function as determining the correct or preferable decision on the evidence before the Tribunal. It adopted that approach and declined to deal with the applicant’s consultation and procedural contentions.
The supplied judgment provides no account of any subsequent appeal or later treatment of Morozow. It therefore supports conclusions about what this Tribunal decided, but not claims about how later courts or tribunals have treated it.
“There should be no unreasonable interference with the described amenity.”
This is the Tribunal’s explanation of “protect” in objective d). In plain English, the objective did not require a development to have no effect at all. The Tribunal considered whether the likely noise, traffic, parking and privacy impacts would unreasonably interfere with nearby residential amenity.
The proposal was an “appropriate response to its setting and to the scale and functions of its use.”
This expresses the Tribunal’s conclusion on the desired-character and use-scale criteria. It reflects an assessment of the proposed hotel in its context, including its design, footprint, landscaping and surroundings, rather than a conclusion that a seven-storey building is inherently appropriate in a CZ6 zone.
The Tribunal was satisfied the proposal was consistent with the CZDC for the purpose of s 119.
This was the key statutory conclusion. The Tribunal found the disputed criteria satisfied and, on that basis, confirmed the approval. Its conclusion was connected to the evidence and conditions considered in the reasons.
The Tribunal declined to address the consultation and procedural parts of the applicant’s case.
The Tribunal treated its review task as deciding the correct or preferable decision on the evidence, rather than determining whether the original decision-maker had followed correct procedures. It did not grant the requested order about future community consultation.
The judgment extract supplied here does not display continuous numbered paragraphs for the Tribunal’s reasons. Accordingly, the propositions above are tied to the relevant issue headings and passages rather than to paragraph numbers that cannot be verified from the supplied text.
The judgment is relevant where a development proposal in the ACT merit track departs from a development-code rule and the review turns on whether the associated criterion is met. In this case, the disputed departures concerned the number of storeys and setbacks under CZDC rules 57 and 58. The Tribunal then examined the corresponding criteria in light of the proposal’s actual design and setting.
It may also be relevant where a party argues that a planning objective requiring protection of residential amenity means that no change in amenity is permissible. Morozow shows the Tribunal rejecting that absolute construction in relation to the specific language of CZ6 objective d). It considered the term in context and assessed whether the listed effects involved unreasonable interference.
The case may assist in understanding a desired-character dispute where a site lies near both residential development and other forms of development. The Tribunal considered nearby mixed-use and commercial buildings, as well as residential streets, when assessing the landscape and streetscape. A party relying on the decision would need to account for the factual context and evidence; the judgment does not prescribe a fixed weighting for those elements.
The decision is also relevant to reviews in which procedural complaints are raised alongside merits issues. Here, the applicant’s claims about consultation and statutory process were not determined. The Tribunal relied on Downer and confined its decision to its review function and the issues it considered properly before it.
The supplied judgment records authorities considered by the Tribunal, but it does not report any subsequent decisions that applied, distinguished, reversed or otherwise treated Morozow. A later-treatment history cannot be established from this source alone.
The authorities identified in the judgment are Downer Community Association, Glass, Noah’s Ark Resource Centre and Stryver. Those cases are discussed as part of the Tribunal’s reasoning in Morozow, not as later treatment of Morozow. The Tribunal expressly adopted the approach in Downer concerning the purpose of review. It referred to Glass and Noah’s Ark in discussing the relevance of s 120 considerations when a code rule is not complied with and the corresponding criterion is considered. It generally agreed with the approach in Stryver that a review should not become a wide-ranging reconsideration of every aspect of the original decision.
These references explain the reasoning used in 2017. They do not establish what later courts or tribunals have said about Morozow itself.
The judgment’s interpretation of “protect” was made in relation to the wording and context of the CZ6 zone objective. It does not establish how similar terms in other statutory or planning instruments must be interpreted. A question for later cases is how the “unreasonable interference” formulation applies where the relevant objective, surrounding code or evidence differs.
The reasons describe the proposal-specific design and amenity evidence but do not set out a general method for comparing a proposed development with surrounding buildings. The weight given to mature trees, landscaping, the building’s form, nearby commercial or mixed-use sites and residential interfaces may depend on the evidence available in each case.
The Tribunal considered noise conditions and a revised noise management plan when assessing likely effects. The judgment does not discuss in detail how the decision would have differed if those conditions were absent, uncertain or not accepted by the developer. Nor does it set a general threshold for what counts as significant or unreasonable traffic, parking, noise or privacy impact.
The applicant raised consultation and procedural matters, but the Tribunal did not decide them. The reasons therefore do not determine whether any particular consultation step was legally required or whether a claimed procedural defect would have affected another review. They explain instead why the Tribunal did not address those matters in this proceeding.
Finally, the supplied material does not include later decisions concerning Morozow. Any assessment of its subsequent precedential status, or of later treatment of its interpretation of “protect” and “desired character”, would require sources beyond this judgment.
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The applicant further submits that the proposed development fails to address the safety implications of directing all hotel exit traffic onto Dominion Circuit rather than Franklin Street.
We do not need to dwell on this contention. On the hearing of an application for review of decision the Tribunal stands in the shoes of the original decision-maker. It is not necessarily the Tribunal's concern to determine whether the respondent was right or wrong or whether it followed correct procedures or whether those procedures were flawed or deficient. Its principal function is to determine what, on the evidence before it, is the correct or preferable decision for it to make.[7]
44--For these reasons, the Tribunal concludes that it has jurisdiction to consider the objectives of the zone where the development is approved to occur, subject to the constraint that where a development is subject to a rule concerning an issue or point and is compliant with that rule the Tribunal cannot further consider the issue or point.
45--In this case, it is common ground that none of the proposed buildings comply with rule 7 of the Community Facility Zone Development Code concerning building height. The question then is whether the buildings comply with corresponding criterion 7, as discussed below. However, in that circumstance the Tribunal must also consider the issues in section 120 where relevant. Under section 120(a), those issues include the zone objectives for the Community Facility Zone, but within limits.
Issue 1: Does the proposed development satisfy criterion C57(a) and criteria C58(a) and C58(b) of the CZDC and is it consistent with objective f) of the CZ6 Leisure and Accommodation Zone Objectives?**
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 the relevant precinct code.
f) Ensure that the bulk, scale, size, design and landscaping of development is compatible with the surrounding landscape.
the visible components within a street (or part of a street) including the private land between facing buildings, including the form of buildings, treatment of setbacks, fencing, existing trees, landscaping, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.
Our aim is to create a unique Garden City building typology inspired by Griffin's planning of Canberra. The organic form connects with the natural environment while responding to neighbourhood views as well as the scale of local streets. The building's aesthetic is created through an honest and direct expression of structure and construction, remaining true to the laws of nature.
The building's form has been designed to meet a number of site specific issues relating to the building's context. The curved form with three ends minimises the building's impact on the streetscape and confines the bulk of the building to the centre of the site. The façade wraps its way around the building often recessing to create an entrance or expressing itself to form a defined space such as the function room. This, in addition to the setback on the top floor reduces the perceived scale of the building and creates interesting and varied elevations that have a minimal impact upon the two streetscapes and neighbouring properties. The soft edges that the curved form presents also allow the building to sit respectfully into the prominent corner site that it occupies and its orientation opens up the corner allowing for unrestricted views and sunlight.[11]
In my opinion, the proposed building is more sympathetic to the streetscape compared to a building footprint with continuous setbacks of 6 metres to all of the block boundaries...a building that has continuous setbacks of 6 metres would create more solid continuous building facades along Dominion Circuit and Franklin Street, similar to other buildings in the area that are built close to the block boundaries...in my opinion, the height of the proposed development is consistent with other existing buildings in the area that have exceeded two storeys.[15]
The large boundary setbacks and advanced stock plantings will enable the hotel building to sit within a landscape setting, which also consists of existing tall street trees along Dominion Circuit and Franklin Street...the height of the proposed building is consistent with the heights of the tall mature eucalyptus street trees along Dominion Circuit.[16]
Issue 2: is the proposed development consistent with objective d) of the CZ6 Leisure and Accommodation Zone Objectives?
d) Protect the amenity of nearby residential areas, with regard to noise, traffic, parking and privacy
Based on the additional information received and the subsequent analysis of the supplementary information, including the drawings associated with the development application, I formed an overall view that the development proposal would not have significant adverse parking and traffic impacts which required further remedial measures.[20]
In my opinion, the privacy of nearby residential buildings across Dominion Circuit is protected by the existing and new landscaping and the distance separation between the hotel building and the residential buildings.[23]
Issue 3: Does the proposed development satisfy criteria C57(b) and C58(c) of the CZDC?
Buildings achieve...reasonable solar access to dwellings on adjoining residential blocks and their associated private open space.
Buildings...minimise detrimental impacts including overshadowing and excessive scale.
(1) Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with -
(b) if the proposed development relates to land comprised in a rural lease - any land management agreement for the land; and
(c) if the proposed development will affect a registered tree or declared site - the advice of the conservator of flora and fauna in relation to the proposal.
Note 1 An application cannot be approved if it is inconsistent with the territory plan (see s 50) or the National Capital Plan (see Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), s 11).
(2) Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under section 148 (Some development applications to be referred) unless the person deciding the application is satisfied that -
(ii) any realistic alternative to the proposed development, or relevant aspects of it; and
(b) the decision is consistent with the objects of the territory plan.
(3) To remove any doubt, if a proposed development will affect a registered tree or declared site -
(a) the person deciding the development application for the proposed development must not approve the application unless the approval is consistent with the advice of the conservator of flora and fauna in relation to the proposal; and
(b) subsection (2) does not apply in relation to the conservator's advice.
In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:
(a) the objectives for the zone in which the development is proposed to take place;
(b) the suitability of the land where the development is proposed to take place for a development of the kind proposed;
(c) if an environmental significance opinion is in force for the development proposal - the environmental significance opinion;
Note Environmental significance opinion - see s 138AA. Environmental significance opinions expire 18 months after they are notified (see s 138AD).
(d) each representation received by the authority in relation to the application that has not been withdrawn;
(e) if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications) - the entity's advice;
Note Advice on an application is given in accordance with section 149 if the advice is given by an entity not later than 15 working days (or shorter prescribed period) after the day the application is given to the entity. If the entity gives no response, the entity is taken to have given advice that supported the application (see s 150).
(f) if the proposed development relates to land that is public land - the public land management plan for the land;
(g) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
(1) To remove any doubt, if a development proposal is in the merit track, the application for development approval for the proposal must be publicly notified under division 7.3.4.
(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
SOLICITORS FOR FIRST, SECOND, FOURTH, FIFTH AND SIXTH PARTY JOINED
[1] Notice of decision at T-documents pages 89-147
[6] Exhibit 3, statement of facts and contentions by Alexander Morozow, Rajeev Jyoti, Susan Parr, John Michael Kalish, Jeremy Riley and Desmond Fooks, 22 May 2017
[7] Downer Community Association and ACT Planning & Land Authority [2007] ACTAAT 20 at [5]
[8] Statement of facts and contentions of the respondent at [17] to [24]
[9] Statement of facts and contentions of Sirocco (ACT) Pty Ltd dated 26 June 2017 at [69]
[10] Exhibit 3, statement of facts and contentions by Alexander Morozow, page 2, page 7
[11] 78 Franklin Street Forrest ACT: DA design report dated 8 August 2016 at T-documents 1260; T-documents 1284
[12] Witness statement at [7]; transcript of proceedings 18 July 2017 page 15, line 37; page 16, line 16
[13] Transcript of proceedings page 17, line 18
[14] Exhibit 9, witness statement of Chris Gell
[17] Transcript of proceedings 19 July 2017 page 65, line 38
[18] Transcript of proceedings 19 July 2017 page 64, line 37
[19] Transcript of proceedings 19 July 2017 page 129, line 28
[20] Witness statement of Timothy Adrian Wyatt dated June 2017 at [14]
MOROZOW
ACT PLANNING AND LAND AUTHORITY & ORS
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Planning and Development Act 2007 ss 48, 50, 53, 55, 113, 119, 120, 121, 138, 138AE, 141, 407
Subordinate
Legislation cited: Commercial Zones Development Code cr C57, C58
Cases cited: Downer Community Association and ACT Planning & Land Authority [2007] ACTAAT 20
Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96
Noah's Ark Resource Centre Incorporated v ACT Planning and Land Authority and Anor [2017] ACAT 44
Stryver Pty Ltd v ACT Planning and Land Authority & Ors. [2004] ACTAAT 42
Tribunal: Senior Member G Lunney SC (Presiding)
Senior Member R Pegrum
The Authority's decision approving the development application subject to conditions was confirmed.