1. windows with sill heights at or above 1.7m from the floor
2. screened decks

1. awning sashes with obscure glass and with an opening of not more than 30 cm to the horizontal
2. obscure glass bricks.

1. The external walls between dwellings A and B in the original design did not comply with rule 62. The question was whether they complied with associated criterion 62. The original decision-maker concluded that they did not, stating that "the outlook from windows (unscreened elements) of dwelling A will be impeded by [a] blank wall of dwelling B and therefore, does not meet C62".
2. In relation to the amended design, Ms Jamaly determined that the location of the windows between the dwellings is "staggered". She noted that the windows facing a blank wall are windows either from a passage or from a toilet. She also observed that landscape plantings within the "central courtyards" between dwellings will minimise the visual impact further. In her view, criterion 62 is met.
3. Ms Lana gave evidence that further changes should be made to achieve greater separation between the dwellings in compliance with criterion 62. These changes were removal of the area marked "WC" of dwelling B adjacent to Bedroom 4; removal of the area marked "HS + Bench" in the WIP area of dwelling B; and reconfiguration of the hallway (circulation area) adjacent to Bedroom 1 in dwelling A and (consequentially) Bedroom 1 in dwelling A to increase the distance of the exterior wall of dwelling A from dwelling B.[31] Ms Lana noted that there is space to include the WC in the bathroom adjacent to Bedroom 4. Ms Lana sketched on a copy of the site plan[32] the extent to which the circulation area and consequentially Bedroom 1 of dwelling A should be reconfigured to give greater separation from dwelling B. By reference to the scale of the site plan, I calculated the reconfiguration as requiring the distance of the exterior wall of dwelling A from dwelling B to be increased by 400mm. Dempsey 56 did not oppose any of these further changes.
4. The applicants contended that criterion 62 is still not met, despite the amended design. They referred, in particular, to the proximity between the living area of dwelling A and the guest/rumpus room in dwelling B. As the applicants point out, the corner windows in the living area of dwelling A and the guest/rumpus room in dwelling B are directly opposite each other. Contrary to what Ms Jamaly states, their placement is not staggered.
5. However, the applicants' complaint about overlooking in the context of criterion 62 is misconceived. Criterion 62 is directed to the "outlook" from a window (or any other unscreened element) and whether it is unreasonably impeded by an external wall. Questions of privacy and overlooking are dealt with, as a different issue, under rule and criterion 59. I deal with this issue below.
6. To achieve compliance with criterion 62, I agree with the changes proposed by Ms Lana to achieve greater separation between the living area of dwelling A and the external walls of dwelling B by "removing the corner" of the living area. How this should be done is a matter for Dempsey 56. In addition to the specific areas to be removed, as mentioned above, I will direct only that the design be amended to ensure a separation of not less than 1.2m at any point between the two dwellings as a further condition of approval.

1. Overlooking between the windows in the living area of dwelling A and the guest/rumpus room in dwelling B, where they directly face each other is governed by rule 59 and associated criterion 59. They state:

1. A 'primary window' is defined in the Definitions of the Territory Plan as "the main window of a habitable room". I accept that the living area in dwelling A and the guest/rumpus room in dwelling B are habitable rooms.
2. Ms Lana noted that the window of the guest/rumpus room of dwelling B is shown to be "frosted as per the plans." I could not see this on a plan, but presume her to mean the window facing dwelling A, not the window facing the street, and accept it is so marked.
3. In my view, the 'note' in criterion 59 (stating that the criterion cannot be met by using obscured - for example 'frosted' - glass) should be understood as a reference to a 'primary window' of a dwelling to which a person has a direct line of sight from an unscreened element of another dwelling. The reasoning seems to be that the overlooking must be addressed in the dwelling from where a person can overlook, not the dwelling being overlooked. This is consistent with the definition of 'unscreened element' which includes unscreened windows.
4. Applying these factors, I am satisfied that both dwellings comply with rule 59.
5. Regarding dwelling A, even if there is uncertainty as to whether the 'primary window' of the living area is the window facing the street or the window facing dwelling B (they being the same size), in either case a person does not have a direct line of sight from an 'unscreened element' into either window. The window in the guest/rumpus room of dwelling B facing dwelling A is not an unscreened element because it will be frosted. There is, of course, no unscreened element from which a person has a direct line of sight into the living room window of dwelling A facing the street.
6. Regarding dwelling B, a person in the living room of dwelling A will have a direct line of sight to the frosted window of dwelling B, but the development does not breach rule 59 because the frosted window is not the 'primary window', as defined, of the guest/rumpus room in dwelling B.

1. The applicants complained that the proposed dwellings, having regard to the number of bedrooms in each dwelling, will lead to an overflow of cars that will be forced to park on the street. They complained about the congestion this will cause, especially where Rounsevell Street is a narrow street. They referred to the risks if firefighting vehicles were unable to travel freely along the street.
2. Nothing in the P&D Act or the Territory Plan limits or prevents a person from parking, kerbside, on a street. Limits of that kind are controlled, for example, by designating areas along a street as 'no parking' areas, 'time-limited' parking areas or 'permit parking' areas. Limits of that kind have been introduced on many suburban streets in the interests of residents and others, but not on Rounsevell Street.
3. From a planning perspective, necessary parking is determined under the Parking and Vehicular Access General Code (the Parking Code), and rule and associated criterion 77 of the MUHDC. The Parking Code, at section 3.1.5, provides for different numbers of parking spaces in a residential zone, depending on the use of the land. For a detached house, two parking spaces must be provided "for each dwelling with three or more bedrooms". That is met in this case for each dwelling.
4. Rule 77 states requirements regarding car spaces on a block such as their location on the block, a need for one car space to be roofed and separation from windows or doors of habitable rooms. Rule 77 is met in this case for each dwelling.
5. In addition, as noted in the assessment of the reconsideration application, there is also sufficient space in each driveway for visitor parking.[33]
6. Where the amended proposal complies with all aspects of applicable on-site parking requirements, the Tribunal cannot set aside or vary the amended proposal on the basis that the on-site parking might not prove to be sufficient (for example, for a trailer or a boat) or because persons might choose not to use it. That circumstance is true for any development.

1. The Authority's initial notification of the development proposal was inaccurate. A sign placed outside the subject block, prior to the original decision, gave notice of the proposed construction of "two single-storey dwellings with attached garages, landscaping and associated works" and invited submissions by 13 June 2018.
2. It appears that the error was not addressed, despite protestations from the applicants, until June 2019 when the Authority publicly notified the reconsideration decision. By that stage, it was the subject of the application for review by the Tribunal. On 14 June 2019,[34] the Authority gave further notification by placing a sign on the land and on the Authority website that gave correct details about the proposed development. The notification invited representations about the correctly described proposed development over the following two weeks. There is no dispute that the further notification was done in accordance with section 155 of the P&D Act.
3. The applicants provided pro forma letters from most if not every resident of Rounsevell Street[35] expressing concern about the development proposal, as now correctly described. They contended that they had been misled through the process, that they were concerned about the large building footprint compared to existing neighbours and, they said, about the "unreasonable negative impact on neighbours".
4. The applicants' concerns about inaccurate public notification of the proposed development are justified, but they do not have consequence. Following correct notification, neighbours took their opportunity to express their response to the proposed as correctly stated. Also, as Mr Peraic properly acknowledged, even if there were process and procedure errors leading up to the Authority's decision, the hearing by the Tribunal enabled objections to the development to be heard and determined with accurate knowledge of what is proposed.
5. I refer to remarks of the (then) ACT Administrative Appeals Tribunal in Downer regarding a complaint about alleged procedural unfairness. They are equally relevant to the applicants' concerns about prior inaccurate public notification_:_
   1. 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.
   2. The Tribunal is obliged to give the applicant a fair opportunity to present its case. By the directions it has given and by holding a hearing at which there has been opportunity for the applicant to present all of the evidence on which it wished to rely, to test the evidence relied upon by the other parties and to make a submission to the Tribunal, this requirement has, we believe, been satisfied.[36]
6. Mr Davies nevertheless remained concerned that with all the errors that had already occurred "how do we have any confidence [about] what's going to be built and that the [conditions] that [Ms] Lana made are actually going to be enforced"? This concern is periodically expressed in challenges to planning decisions, but it is not a matter that can be addressed at the planning stage. It is a question of enforcement. During and on completion of the development, one of the building certifier's tasks will be to certify that the development is constructed in accordance with the approved plans and the conditions of approval. Given the scrutiny that this development has attracted, I would be surprised if the certifier did not give close attention to proper compliance with the plans and with all conditions of planning approval.

1. The original decision-maker refused the development application on the grounds that the departures from a number of provisions of the Territory Plan and their cumulative adverse impact on neighbouring residences and on the amenity of the proposed dwellings, could not be resolved by imposing conditions. The original decision-maker also referred to several discrepancies in the design plans, particularly the absence of plans showing the finished floor level for the dwellings. The original decision-maker was also concerned that the separation between the buildings at the front building line is around 4m, but reduced to 2m only 1.5m behind that line.
2. In relation to the amended proposal, Ms Jamaly stated her view that in the context of a 'Mr Fluffy' block the proposed development is compliant.
3. The applicants maintained that the number of departures from the Territory Plan, and their cumulative impact on them (and on future occupants of the proposed dwellings) are so significant that they cannot be resolved by imposing conditions. They noted that the amended plans still do not show finished floor levels. They repeated their concern that criterion 56A is not met.
4. I am not persuaded by a general submission of this kind. It also misunderstands what is necessary to obtain planning approval. The P&D Act does not accommodate the concept that some departures from the Territory Plan are acceptable, but only to a point where their "cumulative impact" becomes unacceptable. Section 50 of the P&D Act prohibits approval of a development application that is inconsistent with the Territory Plan, which means inconsistency with any relevant provision of any relevant code of the Territory Plan. It is for this reason that I have considered each rule and/or criterion about which a challenge to compliance was made. Where I was not persuaded that the amended design does not comply with any applicable rule and/or criterion, the concept of "a number of departures" or their "cumulative impact" on anybody falls away.
5. Also, additional conditions imposed as part of the reconsideration decision, and the additional conditions I will impose with reliance on the evidence of Ms Lana, are not to ameliorate the impact of a departure from a rule and/or a criterion. They are to ensure compliance with a relevant rule and/or criterion. For example, the concern about finished floor levels is addressed by requiring Dempsey 56 to submit plans indicating the correct finished floor levels as a condition of approval of the whole development. I have addressed above the applicants' argument that the amended design will not comply with criterion 56A.

1. Towards the close of the hearing, a question arose as to whether the Authority had, at law, refused the reconsideration application.
2. The applicants referred to section 193 of the P&D Act that provides, in summary, that if the Authority receives a reconsideration application it must reconsider the original decision not later than 20 working days after it receives the application, unless the 20 working day period is extended by agreement. The applicants then referred to section 194 of the P&D Act that provides, in summary, that if the Authority does not make a substitute decision or does not confirm the original decision by the end of the 20 working days, or the end of any extension of that period, the Authority "is taken to have confirmed the original decision." The reasoning appears to be that, on a reconsideration, a developer should not be left 'in limbo'.
3. The applicants contended that because the reconsideration application had not been decided before the expiry of the 20 working day period, and there is no evidence of any extension of that period, the Authority is "taken to have confirmed the original decision" - which was to refuse the development application.
4. The applicants had not earlier made this submission, at least not in these terms. Accordingly, I gave the Authority 14 days within which to respond.
5. The Authority submitted, and I accept, that Dempsey 56's reconsideration application should not be taken to have been accepted until it had paid the required fee. That occurred on 12 February 2019, meaning that 12 February 2019 should be treated as the date upon which the reconsideration application was made rather than 20 December 2018 when it was lodged.
6. The 20th working day after 12 February 2019 was 13 March 2019. On that day, the Authority asked Dempsey 56 for an extension of time until 29 March 2019 to make a decision which was agreed.[37] On 29 March 2019, the Authority asked Dempsey 56 for a further extension until 2 April 2019.[38] On 2 April 2019, the Authority made its reconsideration decision.
7. On the question whether Dempsey 56 agreed to the further extension from 29 March to 2 April 2019 (which included a weekend), the Authority sought leave to file an email in reply from Mr Hunter (on behalf of Dempsey 56) that, it said, is relevant to that question. The applicants would not agree to the request, stating that the Authority "seems to be able to bend the rules as they need to suit them."
8. I was not persuaded that the Authority was "bending the rules". The Authority was not seeking leave to obtain and then tender fresh evidence after the close of the hearing going to some qualitative aspect of the proposal. The email response from Mr Hunter forms part of the record that already exists. The Authority sought leave to tender it only to respond to a question that arose at the conclusion of the hearing. It was also a key document for determining whether the Tribunal was reviewing a decision to approve the amended proposal with conditions, or a decision to refuse it. For this reason, I decided to receive the email as part of the evidence.[39]
9. The email from Mr Hunter, sent on 1 April 2019 at 11:31am, states only "Yes thats fine" (sic).
10. In my view, Mr Hunter's response could only be understood as an agreement, on behalf of Dempsey 56, to the requested extension until 2 April 2019 for making a decision. It follows that section 194 of the P&D Act has no application because the decision was made by the end of the period "as extended by agreement".
11. I add that the character of the reconsideration decision (whether a deemed refusal under section 194, or an approval with conditions under section 162) made no difference to the Tribunal's role. Either way, my task was to review the decision afresh, meaning to determine whether the amended proposal should be approved or refused because it does, or does not, comply with a relevant rule and/or criterion of a code. I determined that, with conditions, it complies and should therefore be approved.

1. Neither Mr or Mrs Jennaway who attended the hearing objected to any of the additional conditions that Ms Lana proposed during the hearing or questioned her about them.[40] Without implying that I may have decided otherwise if objection had been taken, for the reasons given I concluded that the reconsideration decision should be varied by adding the further conditions proposed by Ms Lana, but otherwise confirmed.

Danny Peraic, Ross Davies, Fiona Stevens, Kevin Swain, Edward Watson

[1] For a dual occupancy, rule 2 of the Residential Zones Development Code requires compliance with the MUHDC

[2] Section 196 of the Planning and Development Act 2007 permits the Authority to correct a formal error in a development approval.

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

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

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

[8] Ms Jamaly notes an encroachment of 2mm at the rear of the block, noting that the rear boundary constitutes a 'front boundary' for the purpose of the Territory Plan because it fronts unleased Territory land, but regards that encroachment is negligible. I agree, and the applicants did not suggest otherwise.

[9] Transcript of proceedings 1 August 2019, page 68, lines 22-38

[10] Osmond v Public Service Board [1984] 3 NSWLR 447, 463

[11] Public Service Board of NSW v Osmond [1986] HCA 7 at [13]. See also L & B Linings Pty Ltd v WorkCover Authority of NSW [2011] NSWSC 474 at [108] affirmed on appeal in L & B Linings Pty Ltd v WorkCover Authority of NSW [2012] NSWCA 15

[12] ACT Civil and Administrative Tribunal Act 2008, section 68

[15] Transcript of proceedings 1 August 2019, page 18, lines 10-15

[17] Transcript of proceedings 1 August 2019, page 58, lines 41-43

[18] Transcript of proceedings 1 August 2019, page 59, lines 16-19

[19] Transcript of proceedings 1 August 2019, page 29, lines 45-47; page 33, lines 30-32; page 37, lines 1-4

[20] Javelin Projects v ACT Planning and Land Authority [2017] ACAT 87 at [73]

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

[22] McGrath v ACT Planning and Land Authority [2018] ACAT 100

[25] Witness statement of Sheikh Lana dated 16 July 2019

[26] Explanatory Statement, paragraph 1.2

[27] Explanatory Statement, paragraph 1.6

[28] McGrath v ACT Planning and Land Authority [2018] ACAT 100 at [85]

[29] Photographs at T documents pages 116 and 117

[30] Transcript of proceedings 1 August 2019, page 39, lines 36-39

[31] Witness statement of Sheikh Lana dated 16 July 2019, paragraph 56. See also transcript of proceedings 1 August 2019, page 21, line 30; page 23, line 19; page 46, lines 15-19

[34] Transcript of proceedings 1 August 2019, page 81, lines 23-24

[35] Transcript of proceedings 1 August 2019, page 86, line 27

[36] Downer Community Association and ACT Planning & Land Authority & Anor [2007] ACTAAT 20 at [5]- [6]

[39] I received the email and marked it exhibit R6.

[40] Transcript of proceedings 1 August 2019, page 42, line 9; page 43, line 9