PARKES v TERRITORY PLANNING AUTHORITY & ANOR

DATE: 24 December 2025 ORDER The Tribunal orders that:

1. The Tribunal orders that the Notice of Decision is varied as follows: (a) In the entry for the City Renewal Authority on the fourth page of the Notice of Decision, the second paragraph is deleted and replaced with the following: The City Renewal Authority provided advice stating that they support the proposal subject to conditions. (b) The following are to be added to the conditions of approval, under “DEVELOPMENT-SPECIFIC CONDITIONS”, with the heading CITY RENEWAL AUTHORITY: (i) If not already provided for, bike racks, seating and landscaping are to be added at the front of the development to improve aesthetics and encourage social connection and active travel. (ii) Where practicable, paving used on the site is to be permeable. (iii) The driveway for collection of waste and recyclables is to be no longer than necessary for servicing by the collection vehicles, with any space saved being surfaced with permeable paving, turf or mulch.

2. The decision is otherwise confirmed.

……………………………….. Senior Member M Hyman For and on behalf of the Tribunal REASONS FOR DECISION Introduction 1. On 8 August 2025 the Territory Planning Authority (the Authority, or the respondent) made a decision under the Planning Act 2023 (the Act) approving with conditions a development application lodged on behalf of the Commissioner for Social Housing (the Commissioner) in respect of a site in Macarthur Place, O’Connor (the site). The site comprises two existing blocks of residential land (previous dwellings having already been demolished), and the approved development is for a three-storey multi-unit dwelling comprising eight apartments, basement parking, driveways, landscaping and associated works, with a variation to the crown lease to consolidate the two blocks and permit a maximum of eight apartments.

2. The applicant, Ms Jocelyn Parkes, is a resident in Macarthur Place. On 18 May 2025 Ms Parkes made representations during the public notification step 1 of the development application process, and after the development was approved applied for review of the Authority’s decision, under section 68 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). Following Ms Parkes’s application the Commissioner sought to be, and was, joined to the proceedings. 2

3. An initial application in respect of the site was lodged on 10 September 2024; that application was for a development with 11 apartments (the initial application). After feedback from interested bodies, an amended application was 3 lodged on 31 March 2025, with the number of apartments reduced to eight and a revised design, including for waste storage and collection (the amended application). Some of Ms Parkes’s case relates to the initial rather than the amended application, occasioning objections from the other parties on the basis

1 T 209 2 T 1225-1458; there is reference to this application as having been lodged in August 2024, but lodgement is not finalised until the relevant fee has been paid, and that took place on 10 September 2024. That is the date used in this decision as the date of lodgement. Ms Parkes also made representations on the initial application, on 15 October 2024 – see T 1030-1057 3 T 587-696 that that part of her case was irrelevant to review of the decision taken on the amended application. That issue is dealt with below.

4. For the reasons given below, we have concluded that the approved development is consistent with the Act and with instruments made under that Act, including 4 the Territory Plan 2023 (the Territory Plan). We have confirmed the decision under review, but have varied the approved development in one respect as proposed by the Authority and not opposed by the Commissioner.

Positions of the Parties Ms Parkes

5. Ms Parkes put forward a case on several grounds, which she elaborated on and developed in her written submissions and submissions in reply, and in oral submissions at the hearing. The essence of her arguments can be summarised as follows: (a) the development will have negative and unacceptable impacts on access, parking and congestion in the street, and on the safety of pedestrians using it; (b) the approved performance-based solution for waste management is not viable or acceptable; (c) that solution was not validly approved by Transport Canberra City Services (TCCS), and as a result the Authority could not validly have approved the development application; (d) the Commissioner provided false and misleading information in the initial application, enlivening the discretion in the Act to refuse the application, and the Tribunal should exercise that discretion; and (e) the development application was not compliant with the Territory Plan, in that it did not meet the requirements of the Development Control Code for Best Practice Waste Management (DCC), the Leasing Policy and the Residential Zones Policy.

4 The version of the Territory Plan in force at the time the initial application was lodged was version R10, in force from 6 August – 26 September 2024

6. More generally, Ms Parkes stated that the process followed by the Authority was unsatisfactory and incomplete, and failed to meet the requirements of the Act, particularly because the Authority failed to take account of or respond to the issues raised by her, or by others making representations.

7. Ms Parkes emphasised, and we accept, that her objections to the development application have no relation to the public housing aspect of the development.

The Commissioner

8. The Commissioner took issue with each of Ms Parkes’s grounds, contending that in each case the issues raised by her had been considered by the Authority, and where relevant by those bodies that have input into development assessments, and that all the necessary approvals had been obtained. In respect of the contention that the Commissioner had included false and misleading information in the initial application, the Commissioner in written submissions asserted that as the contention related to the initial rather than amended application, it was irrelevant; at the hearing, the Commissioner supplemented that argument with a detailed analysis of why, even if the contention was not dismissed as irrelevant, it was not in accordance with the facts.

The Authority

9. The Authority contested Ms Parkes’s submissions, in particular contending that to the extent those submissions related to the initial development application they were irrelevant, as it was the decision relating to the amended application that was under review. The Authority relied on the witness statement and oral evidence of its witness, Mr Minh Pham, to support its case that the matters raised by Ms Parkes had been considered in the assessment process, and that the approved development is compliant with the Territory Plan and relevant documents made under it, specifically the leasing policy and residential zones policy.

The hearing

10. The Tribunal held a hearing on 24 November 2025, preceded by a site visit.

11. At the hearing the Authority called Mr Minh Pham, a delegate under the Act who had not been involved in the assessment of the application, to provide an overview of the development and its assessment against relevant criteria. The Commissioner called Mr Ross Costello, a transport engineer at Taylor Thomson Whitting (TTW), the project’s engineering consultant, to give evidence about the performance-based solution for waste collection at the site and associated issues.

12. The Tribunal had before it the documents used in the assessment and decision-making process (the T-documents, identified as paginated, T 1 to T 1468) and additional documents were tendered by the parties, including witness statements by Mr Costello and Mr Pham, taken into evidence as exhibits and so identified in this decision where relevant.

The legislative framework

13. The Act sets out how planning proposals are brought forward, assessed, and decided on. The early part of the Act provides principles that govern the planning 5 6 process. There must be a territory plan, and broad outlines of its purpose and 7 8 contents are specified. The Act establishes the Authority and the Chief Planner; 9 the Authority’s functions include deciding applications for development.

14. Development proponents may apply under the Act to the Authority for approval 10 to undertake developments. The Authority may seek more information about 11 the application from the proponent, and may amend the application with the 12 proponent’s written agreement. The Authority must refer the application to various entities (such as utilities and agencies providing services to premises) for 13 advice, as prescribed by regulation or by the Territory Plan. Where an application is substantially amended, the Authority must refer the amended

5 Act, ss 7, 8, 9, 10, 11, 12, 13 6 Act, s 45 7 Act, ss 46, 47, 48 8 Act, Ch 3 9 Act, s 18(1)(k) 10 Act, s 166 11 Act, s 167 12 Act, s 168 13 Act, s 170 14 application to the entities. Entities to which an application is referred must give 15 the Authority advice about the development application. The Authority must, in 16 general, give public notice of development applications, and must provide 17 further public notice where a development application is substantially amended. 18 Anyone may make representations about a development application; a person who makes such a representation, and does not withdraw it, may apply for review 19 by the ACAT of a decision approving a development application.

15. Section 185(1) of the Act provides for decisions to be made on development applications, as follows: 185 Deciding development applications (1) The decision-maker for a development application must— (a) approve a development application; or (b) approve a development application subject to a condition under section 187; or (c) refuse a development application.

16. Section 186 sets out the considerations that must be taken into account in making a decision under section 185(1). It reads, relevantly: 186 Considerations when deciding development applications In deciding a development application under section 185, the decision-maker must consider the following: (a) any applicable desired outcomes in the territory plan; (b) any applicable design guidance in a design guide; … (e) the suitability of the proposed development in the context of the site and the site surrounds, including the permissible uses for those areas; (f) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts; … (h) any representation about the development application received by the territory planning authority and not withdrawn;

14 Act, s 171 15 Act, s 172 16 Act, s 175 17 Act, s 178 18 Act, s 180 19 Act, ss 504, 506 and Schedule 5, Part 5.2 (i) any advice given by an entity to which the development application was referred under section 170 (When authority must refer development application) or section 171 (Further entity referral— more information or amended application); …

17. The Territory Plan includes at Part D District Policies (among them the Inner North and City District Policy) and at Part E Zone Policies (among them the residential zones RZ1 to RZ5). The “design guide” referred to in paragraph 186(b) above is guidance on design made by the Minister under section 50 of the Act.

18. Guidance on the making of a decision subject to conditions is given in section 187, including examples of the kinds of conditions that may be attached to an approval. A decision-maker may approve a development application only if the application is consistent with the territory plan and, with limited exceptions, the 20 advice of any entities to which the application has been referred. An application in which, or in relation to which, the applicant has provided false or misleading 21 information may be refused.

19. Written notice of a decision under section 185 must be given to the applicant for the matter decided, anyone who made representations on the application, and any entities to which the application was referred; the Notice of Decision (NOD) must 22 be published on the Authority’s website.

Issues

20. In reviewing a decision, the Tribunal may exercise any of the functions of the 23 body that took the decision under review. The ACAT Act requires that the Tribunal confirm, vary or set aside the decision under review; and if setting it aside, the Tribunal must either remit the matter to the original decision-maker, with or without directions or recommendations, or substitute its own decision for 24 that under review. It is well established in the case law that the Tribunal, in

20 Act, ss 189, 190 21 Act, s 189(6)(a) 22 Act, s 196 23 ACAT Act, s 68(2) 24 ACAT Act, s 68(3) 25 reviewing the decision, “stands in the shoes” of the original decision-maker; that it makes a fresh de novo decision, based on all the evidence available at the 26 27 time of the review; and that it is seeking the “correct or preferable” decision.

21. In the present context, the Tribunal is making afresh the decision on whether the development application, as amended, should be approved under section 185 of the Act, with the focus on the issues that Ms Parkes has raised: (a) whether the impacts of the proposed development on parking, congestion and safety are within reasonable bounds; (b) whether the arrangements for waste management are acceptable, including in regard to the particular objections Ms Parkes has made to the process followed in this matter in arriving at a decision on waste management; and (c) whether, as a whole, the development meets the requirements of the Territory Plan and the various documents made under it.

Consideration

22. Macarthur Place in O’Connor is a cul-de-sac just under 200 metres in length, with two bends which have the effect that the head of the street is not visible from the entrance. The map at Attachment A to this decision shows the street, with the site (made up of blocks 25 and 26 in section 43 of O’Connor) at the head, where there is a turning circle. There is no footpath, and the verges are overgrown in some parts, so that pedestrians are compelled to walk on the road. Parts of the street allow unrestricted parking, and other parts allow parking at particular hours. When cars are parked on the street, it is effectively reduced to a single lane.

23. The initial development application was for a three-storey development with 11 dwellings. The amended proposal reduced that number to eight, and other changes were made at the same time. The changes relevant to issues raised in the present review are the movement of the driveway to be used for waste collection

25 Re Costello and Secretary, Department of Transport (1979) 2 ALD 934, 943 26 Shi v Migration Agents Registration Authority [2008] HCA 31, at [30]-[51] (Kirby J) 27 Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409, 419 to the left-hand side of the block (viewed from the road), with consequential changes to the areas for waste storage and collection.

24. Ms Parkes’s submissions of 19 October 2025 include a substantial amount of material relating to earlier iterations of the development application — not only the initial application lodged on 10 September 2024, but also an earlier proposal dating from 2017 and evidently not pursued by the Commissioner. Material relating to these earlier applications, much of it obtained through a freedom of information (FOI) application and accordingly containing some redactions, was attached to the submission. The Commissioner objected to the admission of most of this material into evidence on the ground that as it related to applications that had been withdrawn or substantially amended it could not be relevant to the decision under review. Ms Parkes did not press for the admission of the material relating to the 2017 application, and pages 30–58 of her bundle were accordingly 28 excluded from consideration. Neither the Commissioner nor the Authority objected to the admission of pages 72–4, and these were admitted as Exhibits 29 30 A1 and A2.

25. With respect to the remaining material, pages 59–60 related to administrative matters and did not touch on the substance of the development, and were accordingly excluded. Pages 62–71 comprised exchanges of emails relating to a variety of issues, many of an administrative character, but including comments or requests about substantive aspects of the development. It was Ms Parkes’s position that this material supports two aspects of her case. First, it shows that the approval of TCCS for the process of waste management collection cannot, in her submission, have been validly obtained, in that the necessary agreement had been denied under the initial application (in particular by the waste transporter), and that position had never been reversed under the amended application. And second, because no valid approval by TCCS had been given in respect of the

28 Pages 1-23 of the document is Ms Parkes’s submissions, and pages 24-29 is a timeline of events 29 Pages 72-3, email exchange between Housing ACT and the architects (Philip Leeson Architects) dated 2 July 2024 relating to approval of a “bins performance solution” 30 Page 74, email between officers in TCCS dated 14 May 2025 relating to the need to complete a “full waste management plan” for the development initial application, Housing ACT had given false and misleading information when lodging the initial application.

26. At the hearing we took the view that the evidence the subject of Ms Parkes’s claims had at best a tenuous connection to the matters in dispute, and that the relevance of that material was therefore marginal; but that the preferred course was to admit the material and deal with the limitations of its relevance and, probably more tellingly, the weight that could be given it, when the claims came 31 to be considered. Accordingly, the material was admitted as Exhibits A6 and 32 A7.

27. It is a requirement of the Act (section 186(h)) that any representations made about a development application and not withdrawn be taken into account in the assessment of the application. Ms Parkes’s submissions state that this did not occur in respect of her representations as the development application was progressed. Any procedural failures of that kind, or any other procedural imperfections in the decision-making process — and this is not intended to concede that there have been any such imperfections — will be cured by the Tribunal’s review.

28. The contentions raised by Ms Parkes are dealt with sequentially below. Although Ms Parkes’s objections to the development application are focused on density and related questions of access, congestion, safety, and residential amenity generally, a great deal of her attention has been given to how the waste management solution adopted, with conditions, in the development approval will affect those matters. There are three distinct lines of argument relating to waste in her submissions, as follows: (a) the adopted solution is inherently unsuited to the layout of the street and will have unacceptable impacts on amenity; (b) the endorsement of the solution by TCCS is invalid; and

31 Pages 62-3, email exchange dated 22 April 2024 between Housing ACT and Philip Leeson Architects 32 Pages 64-71, email exchange dated variously from 23 April to 3 June 2024, between Philip Leeson Architects, Housing ACT and possibly other recipients whose names have been redacted (c) Housing ACT provided false and misleading information when making its initial application stating that onsite waste collection had been endorsed by TCCS.

29. These arguments are considered in the above order in the second, third and fourth sections below.

Are the effects of the development on access, parking, congestion, and safety within reasonable bounds?

30. The proposed development is on Blocks 25 and 26, Section 43 O’Connor at the turning head of the Macarthur Place cul-de-sac. The proposal is for a three-storey development of eight dwellings with parking (resident and visitor) accommodated in a basement on site. The development will replace two duplexes (now demolished) and backs on to existing multi-unit developments. The site is within an RZ4 medium density residential zone.

31. The Tribunal conducted a site visit together with all the parties on 24 November 2025 and observed the residential context of the site and surrounds including existing single and multi-unit blocks of 2-3 storeys; high rise commercial developments visible towards Northbourne Avenue; the road and verge configuration of the Macarthur Place cul-de-sac; its leafy character; and current street parking restrictions. The Macarthur Avenue and Macarthur Place context presented as an area in transition with new medium density developments that retain residential character in scale and building design.

32. The expert witnesses of the Authority and the Commissioner gave evidence at the hearing as to the effect of the proposed development on pedestrian access, potential congestion and safety for pedestrians, other road users, and residents in the new development. Ms Parkes did not give evidence herself or call any witnesses, but she made clearly known her perspective on the impact of the development on Macarthur Place, its residents, and the neighbourhood.

33. Ms Parkes contended that “the development is too dense for the street and that street infrastructure cannot support it … I believe that … [the development] … 33 would compromise safe access to the street”, citing the Macarthur Place cul-de-sac configuration, lack of a pedestrian footpath, the pinch point towards the head of the cul-de-sac, the increase in the number of dwellings proposed, the potential spill of visitor parking from the development onto the street, and street parking restrictions, as contributing to congestion and creating an unsafe resident, pedestrian and vehicular environment. Ms Parkes drew particular attention to the proposed waste collection for the development as creating an unsafe 34 environment.

34. Ms Parkes referenced similar concerns made by nine of the 11 public representations in the first round of public notifications for the initial 35 development application, contending that transport was not properly addressed in the development assessment: no part of the ACT Government has assessed current local traffic and parking congestion … in the development application itself, no consideration was given to the current parking or traffic conditions in the street, nor the impact the development would have on safe access to the street. The entire development proposal and subsequent approval appear 36 to be based on a false assumption about the level of traffic in the street.

35. Both the Authority and the Commissioner rejected these contentions. They drew attention to the fact that the application had been amended to reduce dwelling numbers from 11 units to eight, with an associated reduction in parking and changes to access and waste collection provisions. These changes they noted were made and duly assessed by the Authority in response to public representations as 37 well as entity advice forthcoming from the initial development application.

36. Mr Minh Pham (Assistant Director with the ACT City and Environment Directorate) gave evidence at the hearing. Mr Pham had conducted his own site and locality observations; taken pictures of points of interest; viewed the

33 Transcript of proceedings, 24 November 2025, page 6, lines 5-8; see also page 79, line 10 34 Transcript of proceedings, 24 November 2025, page 6, lines 24-30; page 7, lines 4-9, 25-30 35 Applicant’s submissions of 19 October 2025 at [16] 36 Applicant’s submissions of 19 October 2025 at [20] and [21]; see also [23]-[27] and Transcript of proceedings, 24 November 2025, page 6, line 43; page 7, line 2 37 Submissions of the Commissioner dated 5 November 2025 at [24]-[28] and [33]. Transcript of proceedings, 24 November 2025, page 10, lines 40-45; page 11, lines 2-23; page 12, lines 5-22; page 82, line 44; page 83, line 20 restricted parking areas on the street; and made an independent assessment of the 38 application. Mr Pham had regard to the Residential Zones Policy and its assessment outcomes, including the themes of Site and Land Use (Outcome 5); Access and Movement (Outcomes 7 and 8); and Parking, Services and Utilities 39 (Outcomes 27 and 28). In his evidence he noted the surrounding context of multi-unit, multi-storey developments in the locale and adjoining the rear of the subject site, as demonstrative of the changes anticipated in RZ4 zones. In his opinion the proposed development was consistent with such strategic planning 40 outcomes. Mr Pham gave evidence that: the street infrastructure of Macarthur Place has existed since around 1967 … [with no footpath] … as such pedestrians would travel on the road … I observed 3 vehicles parked on-street with Macarthur Place … and did not experience any hazardous traffic or obstacles along the way … the road is a relative short distance of approximately 110m from Macarthur Avenue to the cul-de-sac and contains two turns which can further limit vehicular 41 speeds for pedestrian and cyclist safety.

37. At the hearing Mr Pham also confirmed that pedestrians could use the verge as it was free of obstructions in accordance with TCCS requirements and management 42 responsibilities. We note his comment on the small number of vehicles parked in the street; but we cannot know from his evidence whether this number is in any sense typical.

38. Mr Pham outlined the responsibilities of TCCS in assessing traffic and parking requirements as part of the development application process; the extent to which the planning authority relies on that advice; and the associated conditions applied 43 in the NOD. The NOD confirms the conclusion of TCCS that the proposed

38 Exhibit R2, witness statement of Minh Pham dated 17 November 2025, Annexure A 39 Exhibit R2, witness statement of Minh Pham dated 17 November 2025, pages 5-7 40 Transcript of proceedings, 24 November 2025, page 26, line 41; page 27, line 4; page 37, lines 19-45 41 Exhibit R2, witness statement of Minh Pham dated 17 November 2025, Annexure A at [42(a)] and [44(b)] 42 Transcript of proceedings, 24 November 2025, page 38, line 38; page 39, line 38 43 Transcript of proceedings, 24 November 2025, page 36, lines 25-44 parking within the development complies, under the imposed conditions, with the 44 Territory Plan outcomes and satisfies required standards.

39. Mr Ross Costello, (Senior Civil and Traffic Engineer at TTW) also gave evidence as an expert witness. Mr Costello’s evidence related primarily to waste management and the need for collection vehicles to manoeuvre safely vis-a-vis cars parked in the street and pedestrians. He observed that: I agree that there is a safety risk in vehicles turning in the turning head while pedestrians or other vulnerable road users are travelling within the roadway. I do not believe that the risk is greater for the proposed vehicles than the existing waste collection vehicles performing the same manoeuvre. … It is noted that between 9am-11am and 1pm to 3pm there should be no vehicles parked within the street, and as such collection vehicles should be 45 able to perform turning manoeuvres during this time.

40. In oral evidence Mr Costello noted that “Macarthur Place is relatively narrow and allows on street parking … vehicles will likely be travelling at a lower speed ... [giving] ... greater time to spot any pedestrians that are on the road, allowing both 46 vehicles and pedestrians to move out of the way”. Mr Costello also clarified the application of the entity requirements relating to waste included in the NOD: The only issue is the truck turnaround in the cul-de-sac to access the complex. As usual the Territory waste contractor will decide on the collection of this site when they undertake an inspection after OA […] to identify any risks or issues that need to be rectified before any service commence.

41. Mr Costello added that “the civil consultant must provide a certification of compliance with supporting documents to TCCS at design review stage”. He explained that design review would certify that the waste plans complied with the DCC; and that the contractor would be involved in deciding on collections at the site and in so doing would consider the timing of collections including having 47 regard to parking restrictions and pedestrians. Mr Costello said that in his view

44 T 39 (TCCS entity advice); T 41(Parking); T 44 (Appendix A Parking); T 45 (Entity Requirements 11. TCCS) 45 Exhibit PJ2, witness statement of Ross Costello, page4 at [18]-[19] 46 Transcript of proceedings, 24 November 2025, page 60, lines 10, 17-19 47 T 46 NOD (Waste); Transcript of proceedings, 24 November 2025, page 74, line 6; page 75, line access and safety risks would be no greater with the development than in the current circumstances.

42. Mr Pham came forward as an expert witness, and there is no doubt that he is qualified to speak on the issues before us. We recognise that Mr Pham is an employee of the Authority; but he demonstrated that he was aware that as an expert witness his role was to give dispassionate and independent evidence to assist us in considering the issues before us. We found his evidence complete and thorough, if not always penetrating. The expert evidence of Mr Costello impressed us as measured and careful. Little of the evidence of either witness was effectively challenged by Ms Parkes in cross-examination.

43. Taking all the above into consideration, we appreciate Ms Parkes’s concerns, but based on the evidence, we do not consider that the development is “too dense” for the locale, or that there will be unreasonable vehicular or pedestrian use impacts within Macarthur Place. We note, too, that “the locale” or “the neighbourhood” can extend well beyond Macarthur Place itself. What is now proposed for Macarthur Place in the present application is very much in keeping with what is happening elsewhere in O’Connor, as demonstrated in Mr Pham’s evidence. And in our view public representations made in response to the development application notifications were appropriately addressed by the Authority, and due regard was given to entity advice, including through the 48 imposition of their requirements as conditions in the NOD.

44. We find accordingly that the development is a permissible use within the zone 49 and is suitable in the context of the site and surrounds; and that the probable impacts on access, parking, congestion, and safety will be within reasonable 50 bounds.

Is the solution for waste collection acceptable?

45. As noted above, Ms Parkes has raised issues that go to the validity of the endorsement of the waste collection by TCCS, and has contended that Housing

48 T 38-42 NOD (Reasons for Decision); T 44-46 (Entity Requirements) 49 Pursuant to the Act, s 186(e) 50 Act, s 186(f) ACT included false and misleading information in its initial application. Those arguments are considered in the next two sections. For the purposes of this section, the question to be resolved is whether the waste collection arrangements proposed in the amended application and endorsed by TCCS are acceptable. For those purposes we have confined our deliberations to the current approved development application, associated entity considerations and imposed conditions within the NOD dated 8 August 2025.

46. It is evident from the NOD that representations raising concerns about waste collection for the development, including whether the cul-de-sac is capable of facilitating onsite waste collection, were considered and the proposal was duly assessed as compliant by TCCS and accordingly approved by the Authority with 51 imposed conditions.

47. Although much of Ms Parkes’s case focused on the initial application and entity 52 advice, she contends that despite changes to the proposal for onsite waste collection, the development proposal remains inconsistent with the DCC which “defines the minimum necessary waste requirements for new developments”. Her references in support of her opinion include pinch point clearance requirements; swept path constraints; safe entry and egress of the waste vehicle onto the public 53 road; and parked cars on or near the cul-de-sac.

48. We note that the DCC objectives can be met by a performance-based solution (PBS) which must comply with relevant objectives or be at least equivalent to the deemed-to-satisfy solution, which is what appears to be contemplated for this development. The latter requires residential developments to be capable of being 54 serviced by a Territory waste transporter. TCCS determines if a PBS complies with the relevant DCC objectives.

51 T 39 (Statutory Considerations - Parking, Services and Utilities); T 46 (Appendix A - Entity Requirements- Waste (n -q)); T 47 (Standard Conditions – Waste Management During Construction). Submissions of the Party Joined of 5 November 2025 at [33] (Waste); 34-36 52 Applicant’s submissions of 19 October 2025 at [28]-[57] 53 Applicant’s submissions of 19 October 2025 at [65]-[71] and [83]-[88]; Transcript of proceedings, 24 November 2025, page 79, line 41; page 80, line 4 54 DCC 2.3.2 (Objective); 2.3.3 (Performance-based solution); 2.3.4 (deemed to satisfy solution)

49. Ms Parkes also referenced Leasing Policy requirements including Assessment Outcome 1 (future adverse impacts on surrounding areas) and Outcome 3 (capability of the site to be appropriately serviced in terms of infrastructure and utility services), asserting that “approval of onsite waste removal by hopper truck 55 from the site in accordance with the DCC is not possible”. Similarly Ms Parkes contends that Residential Zones Policy Assessment Outcome 5 (scale) and Outcome 28 (amenity impacts) are not met “because the proposed scale of the development is not appropriate to the site” and “because waste cannot be appropriately managed on site without having a detrimental impact on local 56 residents and the surrounding area”.

50. The Commissioner drew our attention to the customary process in which development applications are appropriately amended in response to representations and entity advice. The present application process was an example: the TCCS considered the amended waste solution and gave their support with explicit conditions being imposed on the approval. The Authority also drew attention to Mr Pham’s evidence that the Authority relies on the expert advice of TCCS regarding waste management. While acknowledging that her opinion is “not expert evidence”, Ms Parkes does not accept that TCCS could be 57 satisfied with the proposed waste solution.

51. It was Mr Pham’s evidence that Residential Zones Policy Outcome 28 was achieved because the proposed Waste Management Plan demonstrated manoeuvrability of the waste/recycling vehicles; revised drawings showed improved clearances to turning templates; TCCS supported the proposal subject to conditions; and the post occupancy waste management facility was also 58 endorsed by TCCS and is consistent with RZ Technical Specifications (28.1).

52. The Commissioner noted that “there is no evidence in the form of expert report … by the applicant regarding the inability of the proposed development to be

55 Applicant’s submissions of 19 October 2025 at [92]-[94] 56 Applicant’s submissions of 19 October 2025 at [101] and [105] 57 Transcript of proceedings, 24 November 2025, page 8 lines 25-45; page 9, lines 5-45; page 79, lines 31; page 80, line 22 58 Exhibit R2, witness statement of Minh Pham dated 17 November 2025 at [46] serviced by a front-lift garbage truck”, and referenced Mr Pham’s evidence as providing “considerable detail as to why the proposed development as amended is consistent with the relevant outcome requirements and specifics as related to 59 the residential zones policy and leasing policy”.

53. The Authority was also of the view that the contentions of Ms Parkes regarding the viability of the proposed waste solution had no basis in evidence, noting that there was: no evidence … that there has been any previous accidents or anyone injured on MacArthur Place due to the waste truck collecting bins on the kerbside … this has been in place since 1967 … so there is no evidence whatsoever that the waste will not be collected. To the contrary, there’s evidence that the … collection is set to occur in a particular manner which is compliant 60 with the Territory Plan’.

54. The Commissioner clarified that the DCC vehicle access and manoeuvrability requirements (Appendix 7.3) related to “the design of roadways” rather than “to 61 waste management necessarily” or “an established cul-de-sac”.

55. Mr Costello gave expert evidence succinctly describing the way in which a waste management vehicle would enter and exit the development including forward and reverse entry and turnaround manoeuvres within the cul-de-sac turning head; explained the relevant civil drawings; referenced the supporting modelling using demonstration software and the Heavy Rigid Vehicle (HRV) DCC-required turning templates. Mr Costello concluded that “collection vehicles will be able to enter and exit the development as well as turn around in the turning head without 62 encroaching on neighbouring properties or the verge of Macarthur Place”.

56. Mr Costello outlined how the proposed waste collection solution would be consistent with the DCC, the relevant Australian standard (AS2890.2:2018) and Engineering Advisory Note (EAN 24). He also provided detail regarding turning clearances and constraints “such as a wall or fence” and the “edge of roadways”; and explained that the 12.5 m HRV turning template applied under the DCC is

59 Transcript of proceedings, 24 November 2025, page 87, lines 28, 45 60 Transcript of proceedings, 24 November 2025, page 89, lines 21-26, 36 61 Transcript of proceedings, 24 November 2025, page 87, lines 38-9, 42 62 Exhibit PJ2, witness statement of Ross Costello dated 5 November 2025, at [10] conservative and is “larger than actual trucks used for waste collection”. He noted that this resulted in compliance with the code having “significant tolerances built in that are above and beyond the Australian Standards for vehicle 63 manoeuvering”.

57. Mr Costello’s expert opinion is the only expert evidence on waste management that has been tested before the Tribunal through cross-examination. Most of his evidence is unchallenged. He concluded that the development complies with AS2890.2:2018, the DCC2019, and EAN 24, and had been validated through turning demonstrations and the TTW civil drawings (239126-TTW-00-DR-C1- 12012 — corresponding to Waste Management Plan Rev E dated 15 October 2025); that clearances from vertical obstructions and between a parked waste vehicle and edge of the driveway will allow for passing vehicles. He also noted that minor layout adjustments may be made during the TCCS design review phase; that consultation with and approval by TCCS included input from ACT NoWaste; and that turning demonstrations are compliant with the conservative 64 DCC. Mr Costello’s turning demonstration showed the hopper trucks making a four-point turn to reverse into the driveway; but he acknowledged that if cars were parked at the head of the cul-de-sac, a six-point or even eight-point turn might be needed.

58. Mr Costello described the types of trucks that would be servicing the development as DCC nominated front lift trucks (12.5 m long with the tynes down and 10.5m 65 with tynes up) for hoppers and a rear load truck (10.4 m long). He noted that to meet DCC requirements, the vehicle manoeuvring diagram used for the development was based on a longer vehicle than that which would be servicing the site. He confirmed the way in which the design had considered and met DCC clearance requirements at pinch points and how a parked waste collection vehicle 66 would allow cars to pass in and out of the development. Mr Costello also gave

63 Exhibit PJ2, witness statement of Ross Costello dated 5 November 2025, at [14] 64 Exhibit PJ2, witness statement of Ross Costello dated 5 November 2025, at [15] 65 The “tynes” (sometimes spelt “tines”) are the metal prongs at the front or rear of the truck, used to pick up and empty the hopper 66 Transcript of proceedings, 24 November 2025, page 51, lines 25-45; page 52, lines 9-28; page 53, lines 11-35; page 54, lines 15-18; and T 650-651 expert evidence in respect of DCC requirements and restrictions on trucks reversing into the site vis-a-vis consultation with TCCS and ACT NoWaste, and 67 on the proposed waste enclosure provisions and collection zone operations.

59. We note that the amendments to the application, while leaving many of the parameters for waste collection unchanged, altered others in significant ways: the driveway for waste collection was now on the side of the site away from the driveway for the use of residents and visitors, and the hoppers storing the wastes and recyclables were now much closer to where the collection vehicles would operate. This evidently addressed many of the issues that had caused concern for TCCS in the initial application, and presumably encouraged them to endorse the amended application. What we can say is that the relevant endorsements have been obtained, and that the only expert evidence available to us is that the solution for collection of waste and recyclables is in accordance with the DCC. We are satisfied that the waste management proposal for the development, with the conditions imposed by TCCS in the NOD, is acceptable.

Was there a valid endorsement of the waste collection solution by TCCS?

60. Part of Ms Parkes’s claim relating to collection of waste and recyclables, a point clearly signalled in her submissions of 19 October 2025 and submissions in reply of 21 November 2025, and repeated in her oral submissions at the hearing, is that Housing ACT, when submitting the initial application, did not have valid advice from TCCS that the performance-based solution for collection of waste and recyclables was acceptable to it (this also meant that the initial application, by stating or implying that TCCS had signed off on the solution, was false and misleading). And because the statements made by the waste contractor to TCCS that the proposed performance-based solution was completely unacceptable were never contradicted, there could not have been a valid endorsement of that solution, either in respect of the initial application or the amended application; and therefore the Authority, in approving the application, could not have complied with section 173(1) of the Act.

67 Transcript of proceedings, 24 November 2025, page 55; page 58, lines 35-46

61. In these contentions Ms Parkes relies on evidence related to the initial rather than amended application. In our view that was not an approach that could be immediately excluded. An examination of the application to amend the initial 68 application shows the extent to which Housing ACT emphasised the continuity between the initial and proposed amended applications; and indeed it is a requirement under section 168(2)(b) of the Act that the Authority may amend an application only if satisfied that the amended and initial applications are substantially the same. Nevertheless, on examination the evidence would need to be of continuing relevance to our consideration of the proposal before us — the amended application — if it is to be accorded any weight.

62. Relevant questions for us, on review, go to the merits of the proposed waste management solution for the site and whether it has been endorsed by the relevant entity, TCCS. In questioning the validity of the TCCS endorsement of the initial application, Ms Parkes is asking us to go behind endorsement by TCCS, and question how it was arrived at — and not endorsement of the amended, but of the initial application. The argument is, therefore, that the invalidity in the initial process continues into the amended application and infects the ultimate decision with error.

63. Ms Parkes raised her argument about invalidity in both of her written submissions. In her submissions of 19 October 2025 the point is made several times in the following terms: In my first representation, I made extensive submissions on the published email chain that Housing ACT relied on as the required approval. In short, the correspondence made no sense. Housing ACT’s engineer, TTW Engineers (TTW) has initially advised TCCS that it was not possible for a hopper truck to perform the 6-point turn necessary to reverse into the site, given the tight dimensions of the cul-de-sac, Further, TCCS denied approval for hopper truck removal on 7 March 2024. The next email in the chain is 2 months later when, on 13 June 2024, TCCS told TTW that “as discussed” they could proceed with the attached proposed hopper collection option … I was concerned that the purported approval was 69 illogical and invalid, … …

68 T 587-696; under s 168 of the Act it is the Authority that is empowered to amend a development application, on application by the proponent 69 Applicant’s submissions of 19 October 2025 at [38] (references and names of officials omitted) On 13 February 2024, ACT NoWaste requested that the Territory’s waste contractor be asked how they are collecting waste from Macarthur; whether they are doing 6-point turns; and whether this was an issue. On 14 February 2024, ACT NoWaste stated that the waste contractor had advised that the MGB side-lift truck was doing a 6-point turn to try and turn around, partially because of the parked cars in the street already. The waste contractor further advised that any excessive turning would cause their tyres to rip up the bitumen and cause excessive wear and tear to their vehicles. The contractor subsequently confirmed, unequivocally, that they would not collect waste by hopper truck from the site because they could not safely access the street. They also advised that onsite services were not an option for the property due to the 70 street design. … In my second representation, I submitted that in light of the FOI evidence, TCCS could not validly approve hopper truck removal for the amended design and that, if they purported to do so, any approval would be legally unreasonable and the 71 Authority could not validly rely on it. … It is not clear how TCCS reached the conclusion that the requirements of the DCC were met, particularly in light of the advice previously given to it by its waste contractor. Again, it is hard to understand how TCCS could be satisfied that DCC requirements were met in circumstances where the waste contractor has previously advised that it was not possible for them service the site by hopper 72 truck. 73

64. In her submissions in reply Ms Parkes put her case as follows: The waste contractor's advice of February 2024 continues to be relevant to the current design and the Commissioner's suggestion that the advice can be disregarded by the Tribunal because it predates the amendment application is misconceived. The waste contractor identified specific operational constraints which led to its advice to Transport Canberra and City Services (TCCS) that onsite waste collection for the property was not an option. These constraints were: • The normal mobile garbage bin (MGB) collection truck is currently required to do a 6-point turn to turn around in the cul de sac, partially due to the parked cars in the street. • Parking congestion along the street makes it unsafe for a hopper truck to enter the street. • Cars parked in the street will affect the hopper truck's manoeuvrability. • Excessive turning would cause the hopper truck's tyres to rip up the bitumen and cause damage to the truck.

70 Applicant’s submissions of 19 October 2025 at [44] (references and names of officials omitted) 71 Applicant’s submissions of 19 October 2025 at [53] (references omitted) 72 Applicant’s submissions of 19 October 2025 at [77] 73 Applicant’s submissions in reply of 21 November 2025 at [7]-[10] and [12]-[14] (references omitted) Critically, none of these constraints have been addressed or altered by the change of the location of the waste driveway. The street is the same; its design and shape are the same; the site is the same; parking conditions and congestion in the street are the same; and the hopper truck dimensions are the same. A hopper truck attempting to access a driveway on the left side of the property faces precisely the same operational difficulties as one accessing a driveway on the right side, when there are any cars parked along the head of the cul de sac. The contractor's advice that it would not service the site by hopper truck, and that normal MGBs would need to be used instead, was based on the street conditions and vehicle constraints (which remain unchanged) and not on the internal layout of the development or the specific location of site access. … The contractor's advice goes to a key question before the Tribunal: can this site be safely and practically serviced by hopper truck collection? The contractor's answer was unequivocally no, and nothing in the amended design changes the factual premises underlying that advice. The advice remains relevant to the issue of waste and is uncontradicted. My arguments about the invalidity of TCCS approval have not been addressed by either party. There is no explanation of why TCCS initially relied on and accepted the waste contractor's advice and then subsequently decided to ignore it. The Commissioner or the Authority could have led evidence from TCCS clarifying the issue but have declined to do so. I submit that the Tribunal should draw the inference that the inconsistencies in TCCS' position cannot be adequately explained and find that the proposed waste solution is not capable of valid endorsement by TCCS. TCCS' endorsement is procedurally defective because it contradicts the waste contractor's own technical advice without explanation. An endorsement is not self-validating and must be grounded in genuine compliance with DCC objectives and requirements.

65. There appear here to be two separate lines of argument advanced relating to invalidity: one is that onsite collection at the site was ruled out by the Territory’s waste transporter (referred to by Ms Parkes as the “waste contractor”), a position that was never reversed; the other is that the acceptance of onsite collection by TCCS in June 2024 cannot be understood as the logical and well-ordered result of the examination of options by TCCS, and it cannot therefore be valid.

66. The arguments that Ms Parkes has put forward on these lines are, on examination, insubstantial. The overriding consideration is that there is no requirement for the Tribunal to go behind the endorsements by the various entities except where circumstances call for it. There is a well-established presumption that decisions 74 by governments and their officials can be regarded as properly made:

74 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, 164; see also Johnson v Director of Consumer Affairs Victoria [2011] VSC 595, at [56]-[60]; R v City of Doncaster and Templestowe; Ex parte Mayor [1971] VR 466 Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.

67. Under that presumption it is open to us, in reviewing the Authority’s decision, to accept the endorsement of the amended application by TCCS without going behind that endorsement. And it was similarly open to Housing ACT and to the Authority to accept the endorsement by TCCS in June 2024; the qualification that a reconciliation with the DCC would be necessary signalled that TCCS would do what was needed to ensure that the solution accommodated its own processes (including, impliedly, the needs of the waste transporter). The evidence of Mr Pham was, very plainly, and as a practical reflection of the presumption, that the Authority accepts the endorsements it receives from the various entities to 75 which an application might be referred. It is the business of the entities to get their advice right, not the responsibility of the Authority.

68. Like all presumptions, the presumption of regularity is rebuttable; Ms Parkes no doubt regards the evidence she has gathered as demonstrating that the presumption cannot stand. But in our view the evidence Ms Parkes has been able to bring forward cannot bear the weight she is trying to place on it.

69. It is worth examining that evidence, much of it obtained through FOI. Ms Parkes points to exchanges of emails during early 2024 between TCCS and TTW, the engineering consultant advising Housing ACT on the project, tabulated by her in 76 summary form in her second representation. These illustrate an extensive debate about how best to provide waste collection services to the site. A number of options were canvassed, including a performance-based solution in which a truck would reverse the length of the street, and others in which residents of the complex would have mobile garbage bins (MGBs) which would have to be moved to a designated place in the street for collection, as the frontage of the site was too small to accommodate them. When the latter option was rejected attention returned to onsite collection, although there was considerable doubt if

75 Transcript of proceedings, 24 November 2025, page 28, lines 6-7; page 30, lines 6-16; page 36, lines 25-44 76 T 212-214 that option could be made to work given the narrowness of the street. It is fair to say that the general tenor of the comments from TCCS was decidedly against onsite waste collection.

70. Among the comments in the various email exchanges are advice from TTW that “the turning movement for a 12.5m hopper-collecting truck to be able to reverse 77 into the block is not possible given the tight dimensions of the cul-de-sac”; and an exchange within TCCS reporting that the Territory’s waste transporter, Veolia, had advised that they could not safely access the street in a HRV (i.e. a hopper 78 truck). There is a good deal of additional comment, but it is perhaps of note that Veolia, the waste transporter, stated that they were unwilling to undertake onsite collection, because the DCC states that “For residential developments, a performance-based solution must be capable of being serviced by the Territory’s 79 waste transporter, unless otherwise approved by TCCS” (original emphasis). Ms Parkes’s argument is that the rejection of onsite waste collection by Veolia in February 2024 was fatal to the development application, as no contrary opinion has ever surfaced, and the waste collection from the site is so similar in the amended application as to be effectively the same.

71. Ms Parkes’s argument fails for a number of reasons. In the first place, the evidence is of very limited probative value for such a fundamental point. There are four messages over a short period in February 2024, all passing among members of the “Service Delivery” part of TCCS (within the unit identified as 80 “NoWaste”). On 13 February 2024, one member of the group asks another “How is Veolia collecting in MacArthur Place now? Are they performing 6-point turns? Is this an issue. If we are already performing 6-point turns can we do it to reverse into blocks 25 and 26?” (reference omitted). The reply, dated 14 February 81 2024, is as follows: I have raised this with Veolia who have advised the below. 77 T 1330, T 258 78 T 268 79 DCC, page 6, at 2.3.3 80 T 268; this and later quoted messages contain the errors, omissions and other mistakes common in working level exchanges. The messages are quoted as they appear, without correction or comment 81 T 268 The sidelift is doing a 6 point to try and turn around here partially because of the parked cars in the street already. Any excessive turning will cause our tyres to rip up the bitumen and cause excessive wear and tear to our vehicles. I cannot advise without seeing this in practice however my first thoughts would be this is still unacceptable.

72. The next message, dated 15 February 2024, asked for “clear advice” from Veolia, with the instruction “we need ‘yes’ or ‘no’ responses from Veolia”. The response, dated 16 February 2024, reads: “[name redacted] has clarified the below; No we 82 cannot safely access the street.” A few days later, on 19 February 2024, a TCCS official asked an addressee whose name and identity are redacted: “I understand that you have advise that Veolia will not be able to services, however can you please advise on a service solution for this site.” The reply, sent the same day, was: “Onsite services are not an option for this property due to the street design.” This was followed by brief advice about bin placement for kerbside collection and a map of a different street where that solution had been used. The sender’s identity and origin are redacted, but from the internet and street addresses, it 83 appears that the email was sent by an employee of Veolia.

73. All these messages except the last are hearsay — reports from TCCS about what had been heard from the waste transporter. Only the last message is persuasively from Veolia itself. Nevertheless, we can be reasonably sure that in February 2024 the Territory’s waste transporter was resistant to the idea of using a hopper truck to service the new development. It should not come as a surprise that at this stage, with views being exchanged between working officials and employees of the transporter, the latter preferred to collect more bins in the street using its side-lift truck than to send a separate hopper truck to service the site. The exchange appears to imply that all the comments made by the waste transporter were offered without having visited the site to make a specific assessment (although the transporter’s staff servicing the street would have been familiar with it, it is not obvious that their views were called on). We doubt very much that anything about the waste transporter’s current attitude to the collection of waste under the amended application can be deduced from those early, limited working

82 T 268 83 T 284 exchanges. We note that no evidence has been called from Veolia itself, and that they, as the Territory’s waste transporter, felt no need to make representations about the development application. Nor is it apparent that the early objections by Veolia represented a considered, corporate opinion from the company.

74. The email exchanges Ms Parkes has managed to discover through FOI have the appearance of the day-to-day exchanges of colleagues within the bureaucracy, dealing with a complex challenge and searching for an acceptable solution. It is clear that onsite waste collection was deeply unpopular with TCCS, but it is also clear that the alternatives, once properly explored, were found to be unacceptable. At some point, plainly, a decision was taken that the only viable solution, given the design, was for onsite collection. When agreement was given, on 13 June 2024, there was no need for the Authority to look further; the Act does not require anything of an entity except its advice. The proper formulation of that advice is then a matter for each entity; in the case of TCCS, the internal control comes about through the DCC, and the terms of the agreement given clearly indicate that some work remained to be done to align the waste collection process with that Code.

75. Turning then to the second of Ms Parkes’s arguments, it is the essence of Ms Parkes’s objection that the endorsement of onsite waste collection by TCCS in June 2024 cannot be regarded as a valid decision for the purposes of the Act because it is not logically connected with the sequence of views exchanged in the preceding period, as revealed by the material obtained under FOI. That endorsement, dated 13 June 2024, read as follows: “As discussed, you can proceed with the proposed option attached with the onsite hopper collection. However you still need to provide a full submission as per Waste Code 2019 at 84 DA stage.” Housing ACT treated this email as the entity sign-off by TCCS, and lodged its application once complete.

76. Ms Parkes’s position is misconceived. In the first place, when the application was amended, a new process began for each of the entities required to provide advice. The assessment by TCCS began anew, and Ms Parkes has not identified any

84 T 366 problems of validity, so far as we can see, that would call the subsequent conditional endorsement into question. Any issues with the endorsement of the initial application — and we are not persuaded that there were any — were surely overtaken by the new assessment process and the new endorsement. The objections by the Commissioner and the Authority at the hearing were well founded: an issue of logic or validity in the context of the initial application could not be relevant to the amended application.

77. The invalidity argument, in any case, is threadbare, on examination. Once again, the presumption of regularity allows the Tribunal, standing in the authority’s shoes — and allowed the Authority — to regard the endorsement by TCCS to have been properly made. Ms Parkes assumes perhaps that her FOI request will have turned up every piece of evidence that might have contributed to the picture of how the decision was arrived at. But government decision-making does not always, and need not, follow some predictable and idealised path. The paper trail might, arguably, have fallen short of best practice record-keeping, but even if so, that does not make its outcome invalid. This was an issue on which, it appears, there was a difference of view between TCCS and Housing ACT; at the whole of government level some accommodation between them was arrived at. That is all that the Authority ever needed to know; and on review we do not even need to be sure of that point, as the question of invalidity does not, in our view, carry on to the amended application.

78. The additional material attached to Ms Parkes’s submissions of 19 October 2025 (Exhibits A1, A2, A6, A7) does not assist her on these points. The material in A7 is an exchange between the architects, the engineers and Housing ACT over the period April – June 2024 in which TTW was tasked to compare the turning circles for an HRV in Macarthur Place with those for two other cul-de-sacs where onsite collection was already practised. The messages include occasional comments such as “I am very concerned for the direction this project may take if we cant 85 have this solution approved” , “Housing want to challenge TCCS on the waste

85 Exhibit A7, page 66 86 solution … ” and “However they do you want some supporting information to 87 take to the fight” .

79. In our view these messages simply reflect and reinforce the picture discussed above: Housing ACT was determined to find a waste solution, and wished to press TCCS to arrive at a solution. This was in the context of the conditional endorsement by TCCS in June 2024, the knowledge that a waste solution still needed to be tested and accepted, and a recognition that an amended application was coming forward. Again, there is nothing either unusual or improper in this kind of exchange; it is through such processes that ideas are tested and the best solutions identified.

80. It was normal and appropriate for the Authority to accept the approval given by TCCS in June 2024, and we do not accept that the evidence shows that there was any irregularity of invalidity in the advice that TCCS gave to the Authority under section 171 of the Act. And nothing has come forward to suggest invalidity in respect of the amended application.

81. Coming afresh to the matter, and considering all the evidence, we can see no reason to consider that the endorsement given by TCCS to the amended application is affected by any irregularity or invalidity.

Did the Commissioner include false and misleading information in the initial application (and if so what flows from that)?

82. It is clear that once the contentions relating to the waste transporter’s objections and the more general question of invalidity have been put to one side, the argument about false and misleading information loses some of its force.

83. Ms Parkes’s line of argument on this issue is as follows: (a) The DCC required that the TCCS provide written endorsement of a performance-based solution before a development application is submitted,

86 Exhibit A7, page 71 87 Exhibit A7, page 71 and the Territory’s waste transporter must be able to serve the solution, 88 unless otherwise approved by TCCS. (b) When Housing ACT lodged their initial development application in September 2024 the endorsement of a performance-based solution had not been obtained. (c) Housing ACT presented the development application stating or implying that all requirements had been met. (d) That action was false and misleading.

84. For reasons explored below, we agree with the positions put by the Commissioner and the Authority that the evidence relating to the initial application on this point is irrelevant to the consideration of the amended application, and we therefore do not need to consider it. But providing false and misleading information is a criminal offence, and at the hearing the Commissioner was understandably eager to establish that Housing ACT had not offended against the provision. If only for the purposes of completeness, we consider it appropriate to consider his arguments, and those of Ms Parkes, on this point.

85. Ms Parkes relies heavily on the evidence explored above in the context of the contentions relating to invalidity, especially T 254 to T 366 and Exhibit A7, but also Exhibits A1 and A2. She submits that because the Commissioner did not advance evidence contradicting her claims, we should draw an inference that no such evidence is available. We do not accept that an inference of that kind is available to us, given the Commissioner’s emphatic arguments that the evidence advanced is irrelevant — arguments which we have accepted. And at the hearing, for the purposes, it appears, of not leaving Ms Parkes’s arguments unanswered, the Commissioner pointed to evidence to the contrary.

86. Section 189(6)(a) of the Act reads as follows: The decision-maker may refuse the following development applications: (a) an application in which, or in relation to which, the applicant has provided false or misleading information;

88 DCC, page 6, at 2.3.3 Note It is an offence to make a false or misleading statement, give false or misleading information or produce a false or misleading document (see Criminal Code, pt 3.4).

87. In our view Ms Parkes’s contentions about false and misleading statements are not supported by the evidence and, indeed, verge on the fanciful. While it is true that TCCS was strongly opposed to the performance-based solution initially proposed and considered in February and March 2024, the critical emailed acceptance of 13 June 2024 represents a recognition that the development was sufficiently important to the Territory government as a whole that it would proceed in some form, and that a waste management solution would be found. As the initial “As discussed …” suggests, that understanding was evidently shared between TCCS and Housing ACT. We cannot see that anyone would have been deceived by this conditional endorsement into thinking that anything more definite had been arrived at. In particular, Housing ACT was entitled to assume — once again, the presumption of regularity — that TCCS had obtained, or was confident of being able to obtain, the cooperation of the waste transporter in whatever solution was settled on, and as discussed above, we do not see that the initial objection of the transporter in February 2024 can bear the weight Ms Parkes wishes to place on it. The conditional acceptance by TCCS acknowledged that a solution needed to be finalised, but evidently regarded that finalisation as achievable.

88. The evidence suggests that it was clear to all parties throughout the process that the collection of waste from the site would be a challenge. TCCS was resistant to 89 onsite collection at first, but found little joy either in the options for use of 90 MGBs. Eventually after a discussion that went unreported, TCCS agreed that the application could proceed with the option of onsite collection, but a detailed 91 solution compliant with the DCC would need to be worked out. The initial application included that endorsement but also included some of the material 92 debating the options in the lead up to that message. The response of TCCS to the initial application — its entity advice — was scathing, evidently because the

89 See for example T 268, 275-6, 278, 284 90 See for example T 300 91 T 366 92 T 1325-1337 proposal went ahead in a form that had already attracted its highly unfavourable 93 comment, and no changes had been made to reflect those comments; it appears the actual form of the waste collection proposed was essentially a place holder.

89. An examination of TCCS’s comments shows that the concerns being raised went not to the use of a hopper truck, but to the arrangement of the site for it to do so — in particular the interaction between the use of the driveway by residents and visitors on the one hand, and by the hopper truck on the other; and to the 94 arrangement of the hoppers on the site.

90. The amended application deals with waste management in a significantly different way, although access to the site by the collection vehicle is much the same, as Ms Parkes has pointed out. But the driveway used for waste collection is now on the opposite side of the development from that used for parking and the distance of the waste collection location from the hoppers is very much reduced. These changes address the major objections raised by TCCS in their advice on the initial application. In its entity advice on this amended application TCCS gave 95 conditional acceptance.

91. There was no false or misleading information involved in the application then presented to the Authority — and it is notable that the Authority has not come to these proceedings claiming to have been misled. The Authority is obliged by the Act to consider all applications on the same basis, including applications by 96 government agencies, but it is inherently absurd to contemplate the possibility that one agency of the Territory government would make an application to another agency of the same government that contains materially false and misleading information, and expect to see that application proceed.

92. If a proponent were to provide false or misleading information in an application, and then seek and obtain amendment of the application so that the false or misleading information was corrected or removed, how should the Authority deal with the amended application? It seems to us that the logic of the assessment

93 T 1064-1071 94 T 1068: Comments – Waste – at 1(a) and 1(g) 95 T 426-431 96 Unless the development is exempt – see the Act, s 145 process and of the Act generally is that the amended application should be assessed on its merits, and if there were a question about the information at the earlier stage being false or misleading, that could where appropriate be taken up under the Criminal Code 2022 (the Criminal Code), as envisaged in the note to the provision. On that basis, evidence of information at an earlier stage being false or misleading would not be relevant to the assessment of the amended application, and the objections by the Commissioner and the Authority in the present matter were again well founded.

93. Ms Parkes suggests that to exclude the evidence on the grounds of relevance is to 97 rob the provision of its intended application and render it meaningless. In our view that confuses the statutory purposes of the Act and the Criminal Code, the first being focused on the merits (or otherwise) of development applications, the second on criminal behaviour. To consider an application that has been amended to correct any previous false or misleading information is consistent, we think, with the purposes of the Act, while leaving open the option of action under the 98 Criminal Code.

94. As with every discretionary power, the power in section 189(6)(a) involves two steps: first a determination whether the preconditions for the exercise of the power have been met — whether the power has been enlivened — and second the separate question of whether in the particular circumstances of the matter the power, once enlivened, should be exercised. In this case the power is enlivened where it is established that false or misleading information was provided in, or in relation to, a development application. If that were to be established the next question would be whether the discretion to refuse the application should be exercised.

97 Applicant’s submissions in reply of 21 November 2025 at [39]-[40] 98 Sections 337, 338, and 339 of the Criminal Code deal, respectively, with offences of making false and misleading statements, giving false and misleading information, and producing false and misleading documents; in each case there is a fault (or mental) element (recklessness in section 337, knowledge in sections 338 and 339); and the statement, information or document must be made, given or produced to the Territory, or an agent of the Territory, or under or in connection with a Territory law or function

95. Ms Parkes has argued forcefully that the appropriate course of action, should the assertion about the provision of false or misleading information be established in the present matter, is that the application should be refused to deter Housing ACT — which should be a model applicant — from engaging in behaviour of this kind in the future. As a matter of principle, we disagree with that contention: the Act is focused on the merits of development applications and in our view the purpose of section 189(6)(a) is to allow an application plainly lacking in merit and intended to deceive the Authority to be refused without the deployment of the extensive resources involved in the assessment process. If in a particular case it is shown that the development application includes false or misleading information, relevant questions in the context of a possible refusal might relate to issues such as the seriousness of any deception; whether it was intentional, careless or inadvertent; or whether it was corrected by the proponent. But in our view any action intended for deterrence or punishment would be undertaken not through the Act but through the Criminal Code.

96. Our conclusion, therefore, is that the evidence about purported false or misleading information was irrelevant to the decision on the amended application; in any case the evidence did not establish that the development application included false or misleading information; and even had it done so, the response proposed by Ms Parkes was inappropriate.

Is the approved development compliant with the Territory Plan and relevant policies and documents made under that plan?

97. The Territory Plan is a high-level guide to development in the Territory. It is written to be accessible and comprehensible to the wide range of people who may need to make development applications. An overview of governance and administration is accompanied by maps, a set of planning principles, district policies (including that for the inner north and city district), zone policies 99 (including for residential zones), and other policies (including a leasing policy).

99 The policies in the Territory Plan have legislative force and are binding on development applications to the extent they set mandatory requirements (the Act, s 52, prohibits the doing or approving of any act inconsistent with the Territory Plan). They differ, therefore, from administrative policies, which provide guidance and must be applied with flexibility (see Re Drake

98. Ms Parkes contends that the development application, as amended, does not comply with the Territory Plan in three ways: 100 (a) it is not compliant with the DCC; (b) it does not comply with the Leasing Policy, specifically failing to meet Assessment Outcomes 1 and 3 and assessment requirements 1(a), 1(b), 2(b) 101 and 2(c); and (c) it does not comply with the Residential Zones Policy, specifically 102 Assessment Outcomes 5, 7, 8, and 28.

99. An examination of Ms Parkes’s argument makes it clear that any failures against the DCC, Leasing Policy, and Residential Zones Policy arise because, in her submission, the development would involve too great an increase in intensity of use of the site, too great an increase in traffic and congestion in Macarthur Place, too great an increase in the risks to pedestrians and motorists using the street; and because the site could not be adequately and appropriately serviced for the collection of waste and recyclables. What this means is that the purported failures rely on Ms Parkes’s challenges on these issues, considered earlier in this decision, having been upheld.

100. The Authority, which made the decision under review, called Mr Pham as its witness. Mr Pham is a delegate for the Authority, but had not had previous involvement with this application. His evidence was that the development the subject of the decision under review: supports increased housing choice within a well-established residential suburb and reflects the ACT Government’s planning strategies for urban infill and efficient land use. The design is compatible with the surrounding residential character and contributes positively to the ongoing evolution of 103 O’Connor as a diverse and sustainable neighbourhood.

and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33) 100 Applicant’s submissions of 19 October 2025 at [83]-[88] 101 Applicant’s submissions of 19 October 2025 at [[89]-[100] 102 Applicant’s submissions of 19 October 2025 at [101]-[105] 103 Exhibit R2, witness statement of Minh Pham, dated 17 November 2025 at [56]

101. The challenges Ms Parkes raised regarding the Territory Plan — to the DCC, the Leasing Policy and the Residential Zones Policy — are considered in that order below.

DCC 104

102. The DCC states that it is implemented through the Territory Plan 2008, which has now been replaced by the Territory Plan 2023 (as amended from time to time). Neither the Act nor the Territory Plan as it now stands refers to the DCC, and it is therefore unclear that the DCC can be said to have mandatory effect. Nevertheless, it is clearly relied on by TCCS, and we have considered Ms Parkes’s submissions that the development application does not comply with the DCC as if the DCC still had the force of the Territory Plan.

103. The Residential Zones Policy (Theme - Parking, Services and Utilities) Assessment Outcome 28 requires that “waste is appropriately managed on site without having a detrimental impact on residents and the surrounding area”. The evidence of Mr Pham is that this outcome is achieved because the revised Waste Management Plan demonstrates manoeuvres for waste and recycling vehicles to and from the collection point on the site; TCCS has supported the application with conditions; the post occupancy waste management facility endorsed by TCCS is consistent with 28.1 of the Residential Zone Technical Specifications; 105 and the street infrastructure has existed since 1967. Mr Costello’s expert evidence is that the development complies not only with the DCC but also with AS2890.2.2018 and EAN 24. Mr Costello disagreed with Ms Parkes’s assertion that the hopper truck’s turning circle movements would not be capable of meeting the DCC minimum pinch points. He referenced the TTW drawing (239126-TTW- 00-DR-CL-12012-E) as showing the HRV truck turning demonstrations as 106 meeting the minimum clearances as set out in the DCC Ms Parkes asserted that the four-point turn being relied on in the turning manoeuvre for the development would not be achieved if a car was parked in the turning circle, and that DCC clearances from a vertical structure (such as a parked car) could

104 DCC, page 5, at 2.1 105 Exhibit R2, witness statement of Minh Pham dated 17 November 2025 at [46] 106 Exhibit PJ2, witness statement of Ross Costello dated 5 November 2025 at [15] and [16] therefore not be met. Mr Costello clarified that the DCC applied inside of the development (not on the street) and therefore the DCC clearance requirements from a parked car in the street were not applicable. He agreed that if a car was 107 parked in the street more turning manoeuvres would be required. This does not mean that the development proposed is non-compliant with the DCC. As noted earlier the NOD includes requirements for Waste. These provide for considerations of collections on the site that “identify any risks or issues that need to be rectified before any services commence” and also require certificates of 108 compliance. We find that the evidence, taken as a whole, does not support the assertion that the development does not or cannot comply with the DCC.

Leasing Policy

104. For the most part Ms Parkes simply asserts in her submissions of 19 October 2025 that the development application fails to meet relevant assessment outcomes and requirements (Assessment Outcome 1, Assessment Requirement 1(a), 109 Assessment Requirement 2(b)), without any supporting arguments. On these issues, no reasons having been put forward, we cannot regard her case as having been made out.

105. With respect to Assessment Outcome 3, which requires that “The site is capable of being appropriately serviced in terms of infrastructure and utility services”, Ms Parkes urges that the outcome cannot be met because approval of collection of waste from the site in accordance with the DCC by hopper truck is “not 110 possible”. Clearly that is a rearticulation of the argument relating to the validity of the endorsement by TCCS of collection by hopper truck. Earlier in this decision we examined that contention and found it unpersuasive. The evidence suggests that the site can be adequately serviced for the purposes of waste management, and the application is compliant, in that respect, with Assessment Outcome 3.

106. Ms Parkes also submits that the application does not meet Assessment Requirement 1(b), which requires that “The land to which the lease applied is

107 Transcript of proceedings, 24 November 2025, page 63, lines 3-34; page 64, lines 4-375 108 T 0046 109 Applicant’s submissions of 19 October 2025, at [92], [95], and [98] 110 Applicant’s submissions of 19 October 2025 at [94] suitable for the development or use authorised by the varied lease”. Ms Parkes says that the proposed lease variation is inconsistent with the Residential Zones Policy, and that “the land to which the lease applies is not suitable for a 111 development of the scale proposed”. It is our view, as expressed earlier in this decision, that the scale of the development, while an increase on the previous use of the site, is moderate and able to be accommodated within the street and the neighbourhood. We do not see any problem with the application meeting the Requirement.

107. Ms Parkes further submits that the development fails to meet Assessment Requirement 2(c), which requires that adequate post-occupancy waste 112 management and disposal can be provided to the relevant Territory standard. For the reasons given above, we do not accept Ms Parkes’s argument; in our view the application meets the Assessment Requirement.

108. For these reasons we do not accept that the development application fails to comply with the Leasing Policy.

Residential Zones Policy

109. As noted earlier, Ms Parkes raised concerns about several outcomes in the Zone Policy. For the reasons given above, we take the view that Ms Parkes’s objections are misplaced. The inclusion of the area within the RZ4 zone, which allows multi-unit developments, is a clear signal that developments of the kind in the present application ought to be allowed to proceed, provided they meet all the other parameters required by the planning process.

The Territory Plan

110. The development application meets the requirements of the Territory Plan and of the various documents made under it.

111 Applicant’s submissions of 19 October 2025 at [96]-[97] 112 Applicant’s submissions of 19 October 2025 at [99] Conclusion

111. Ms Parkes’s objections to the development application as amended cannot be sustained. Taking into account the mandatory conditions set by section 186 of the Act, the development should be allowed to proceed.

112. Plainly Ms Parkes is attached to the character and quietness of her street, and distressed at the changes that this development will bring to it. But those changes are of a piece with those occurring in the neighbourhood, and, realistically, this is perhaps unlikely to be the last such change in Macarthur Place, as the density of that part of Canberra increases. That increase is contemplated by the zoning in the Territory Plan.

113. We are led, therefore, to confirm the decision under review, namely the development approval granted to the Commissioner; but at the hearing the Authority brought to our attention a suggested amendment, recognising that the entity advice of the City Renewal Authority (CRA) had been described in the 113 Notice of Decision as not approving the development when it was rather a conditional endorsement. The Commissioner does not object to changing the approval to reflect the entity advice correctly. On examination of the relevant 114 entity advice we are satisfied that the decision under review should be varied to incorporate the conditions of the CRA.

114. The Tribunal orders that the decision under review is varied by amending the entry for the City Renewal Authority in the Notice of Decision to read as follows: The City Renewal Authority provided advice stating that they support the proposal subject to conditions.

115. The following conditions are to be added to the conditions of approval: (a) If not already provided for, bike racks, seating and landscaping are to be added at the front of the development to improve aesthetics and encourage social connection and active travel. (b) Where practicable, paving used on the site is to be permeable.

113 T 40 114 T 432-436 (c) The driveway for collection of waste and recyclables is to be no longer than necessary for servicing by the collection vehicles, with any space saved being surfaced with permeable paving, turf or mulch.

116. The decision is otherwise confirmed.

……………………… Senior Member M Hyman For and on behalf of the Tribunal

Date of hearing: 24 November 2025 Applicant: In person Counsel for the Respondent: Ms A Costin Solicitors for the Respondent: ACT Government Solicitor Counsel for the Party Joined: Mr J Larkings Solicitors for the Party Joined: ACT Government Solicitor