3. The applicant was represented by his son Mr Eric Polleycutt, a former resident of the property, who gave evidence for the applicant. The respondent, ACTPLA, was represented by Mr G. McCarthy of Counsel. Evidence was presented on its behalf by Ms R. Jamaly, Architect and Town Planner. The parties joined, Mr Paul and Mrs Anne Hickey, who are lessees of the adjoining property, were represented by Mr Paul Hickey who gave evidence on their behalf.

4. The matter was heard on 6th and 7th December 2011, and the Tribunal directed that final submissions be lodged in writing.

The subject land has erected on it a building described as a single dwelling house, attached to which are a number of structures which are deemed by the respondent to be unapproved.

The unapproved structures consist of four elements: (i) a roofed deck at the rear of the existing dwelling ("the rear deck"); (ii) a roofed pool enclosure ("the pool enclosure"); (iii) an uncompleted two storey dwelling extension ("the dwelling extension") and (iv) a "lean-to" or covered area between the dwelling extension at the lower level and the boundary ("the lean-to") .

The Tribunal was told that the respondent issued a "stop work" notice in relation to the unapproved works on 19 June 2010.

The DA was lodged with the respondent on 24 December 2010 to seek development approval for the unapproved structures excluding the lean-to. Section 205 of the Act provides for such an approval. During the assessment of the application, the respondent sought further information, and changes were made to the application to ensure that the plans accurately reflected the actual construction.

The DA was refused by the respondent on 18 April 2011 pursuant to section 162 of the Act and, for similar reasons, a reconsideration pursuant to section 193 of the Act confirmed the original decision on 8 July 2011.

Mr Polleycutt referred to 3 earlier development approvals, which related to three building elements similar to those for which approval is now sought. He relied on the earlier approvals as a basis for approval of the current DA.

On 22 December 2000, approval was given for a rear deck. On 21 October 2002 approval was given for a pool enclosure. On 26 October 2006, approval was given for a dwelling extension to the existing dwelling. The Tribunal was given copies of the approved plans. In the broadest terms, the current proposals are similar in character to those previously approved, but different in a number of ways including location, floor levels, external dimensions and internal details.

It was the respondent's submission that what was built in each case did not comply with the approved plans and, as a consequence, the development approvals given had now lapsed (section 184 of the Act) and the structures were unapproved.

The plans approved in 2000 for the rear deck did not show dimensions of the deck nor did the extract of the approved plans given to the Tribunal indicate a scale. The Tribunal was not given evidence about the difference in dimensions between the previously approved structure and the present proposal. The evidence of Mr Polleycutt was that the deck was constructed immediately after the original approval. Without specific evidence it is difficult for the Tribunal to conclude on what basis the structure was deemed by the respondent to be unapproved.

The plans approved for the pool enclosure in 2002 show the roofed over area of 12 metres by 6 metres to be erected 0.5 metres from the side boundary and 5 metres distant from the north west corner of the block. The plans in the DA show the roofed area to be 11.75m (scaled) by 7 metres, erected 0.4 metres from the side boundary and 3.771 metres distant from the north west corner. Clearly, the location on the subject land and the width of the structure, in particular, do not accord with the earlier approval and, consequently, the present structure is unapproved.

The plans approved in 2006 for the dwelling extension show at the upper level a structure 9.5 metres long on the western side, 7.2 metres wide and located 1.5 metres from the side boundary. In the DA before the Tribunal, the upper level is 11.56 metres long on the western side, 8.4 metres wide and 1.64 metres from the side boundary. The earlier approved extension abutted the existing house and was at the upper level accessed by a doorway from it. Its upper floor level was the same as the existing house. In the current DA, there is a substantial void between the extension and the existing house for most of its width. There is no direct internal access between the two, and the floor level is 0.61 metres above the existing house according to measurements by Mr Lilley, a registered surveyor. Access is to be provided by an external staircase from the rear yard and also by some steps connecting into the rear deck. The internal configuration of the rooms is different to those in the previous application.

The respondent submitted that the 2006 application provided for the "lower floor level" to be 1.7 metres above natural ground level (although the approved plan appears also to show levels varying between 1.588 and 1.685). Lower Floor Level as defined in the Territory Plan ("the Plan") "means a finished floor level which is 1.8 metres or less above natural ground level at any point". The building approved in 2006 complied with that definition. The DA proposes a floor level which is greater than 2.4 metres above natural ground level which therefore does not comply with the definition of Lower Floor Level and it becomes an Upper Floor Level. The increase in height and consequent definition of the floor results in the requirement for an increased side boundary setback under the Code than that previously approved. The Tribunal notes that the DA refers to the level below the upper floor level as a basement. However the Plan defines a basement as "a space within a building where the floor level of the space is predominantly below natural ground where the finished floor level of the level immediately above the space is less than 1.0 metre above natural ground level." The proposal does not comply with that definition and it is therefore a lower floor level and is a habitable room. Again, this differs from the previously approved plans. The structure therefore does not accord with the previously approved plans and is an unapproved structure.

Both during the proceedings and in his final submission, Mr Polleycutt said the applicant was not accorded procedural fairness or natural justice. However, the Tribunal considers that this was not the case and that he was treated with procedural fairness and natural justice. The following comments address the matters raised in more detail.

In relation to the assertions regarding the behaviour or competency of ACTPLA officers and the procedures used by them in determining the application, the Tribunal regards them as of no relevance to its determination. Any defects can be corrected if necessary. This was explained to Mr. Pollycutt several times during the hearing. The Tribunal has heard the matter completely afresh. (Downer Community Association & ACT Planning and Land Authority & Anor [2007] ACTAAT 20 (5 September 2007) at paragraphs [4]-[6]).

Mr Polleycutt objected to three documents handed up by Mr McCarthy at the close of proceedings. They were: (i) The Electronic Transactions Act 2001 (ii) the Tribunal decision in Downer Community Assoc. and ACT Planning and Land Authority [2007] ACTAAT 20 and (iii) The Territory Plan 2006 Appendix III.1 Residential Design and Siting Code for single Dwellings. These documents are all public documents. They were not in the nature of authorities to be relied on by him for his case as encompassed by the Tribunal direction of 29 September 2011. They were documents produced to respond to the applicant's submissions.

Mr Polleycutt had the opportunity to consider their relevance prior to making his written submission. The Tribunal sees no disadvantage to Mr Polleycutt in accepting them.

Other documents which the applicant submitted should have been produced or included in the "T" documents predated the development application. Although part of the historical record of dealing with the property and its development, they are not covered by the Tribunal direction of 28 July 2011. It was open to the applicant to seek such documents by subpoena or other means. In the case of previously approved plans for development of the property, if these are not already in the possession of the applicant, then access to them should have been readily available independent of the Tribunal processes.

The Tribunal was advised by Mr Polleycutt and the party joined that their relationship as neighbours had broken down to such an extent that restrictions had been placed on contact between them. The Tribunal took no regard of any comments about the relationship, either present or historical between those parties. The comments had no bearing on the application of the Territory Plan to the development application.

Early in the proceedings the site was visited by the Tribunal with the assistance of the parties. The Hickeys indicated they did not wish to enter the subject land and did not wish Mr Polleycutt to come onto their land. Mr Polleycutt objected to this arrangement on the basis that his case would be prejudiced by not being a party to conversations and by being unable to see the nature of the issues pointed out by the Hickeys while tribunal members were on their land. The Tribunal explained that the purpose of the view was not to take evidence as such but to familiarise the Tribunal members with the sites and for the parties to identify the features which they would refer to in their evidence and submissions. Given the benefits of such an inspection, the Tribunal visited the subject land. The Hickeys did not enter the subject land. Mr Polleycutt gave substantial assistance in identifying the building work and the features of the different structures and their location within the subject land. The Tribunal visited the Hickeys' property without Mr Polleycutt, noting the location and external features of their house and outbuildings and external open space and gardens with a minimum of discussion. Subsequently, when Mr Hickey gave his evidence he submitted plans showing the relative location of the buildings on his property and the subject land. The Tribunal considers its inspection of the Hickeys' property was conducted without prejudice to the applicant's case. It does not agree with Mr Polleycutt's submission that he was unable "to hear or know the case from the Respondent or Joined party's point of view" because he did not visit the Hickeys' property. All evidence was given in the hearing room in Mr Polleycutt's presence or by the written final submissions to which Mr Polleycutt had a right of reply.

Mr E. Polleycutt, who represented the applicant, did not claim any experience or expertise in appearing before the Tribunal. The Tribunal felt that Mr Polleycutt should have the opportunity to explain in his own way why he considered the DA should be approved. In his evidence, he at times strayed into areas properly the subject of submissions. His evidence was occasionally irrelevant, speculative and outside his direct knowledge. However, in the Tribunal's view it would have unnecessarily hindered Mr Polleycutt in making the applicant's case if his flow was the subject of frequent interruptions. The Tribunal from time to time pointed out matters that should be set out in his submissions and explained why some elements of his evidence were not relevant to the matters before the Tribunal.

Mr Hickey was afforded similar latitude. Mr McCarthy was sparing in his objections and that restraint assisted Mr Polleycutt in presenting his case.

Mr Polleycutt raised a number of matters related to the processing of the application by the respondent. The fact that the Tribunal hears the matter de novo generally overcomes many such shortcomings, particularly as to whether or not the respondent's officers assessed or properly assessed various matters or dealt appropriately with the application. (See, Downer Community Association & ACT Planning and Land Authority & Anor [2007] ACTAAT 20 (5 September 2007) at paragraphs [4]-[6]). However, some of the matters raised by the applicant warrant comment in order to explain the Tribunal's decision.

Mr Polleycutt contended that the original DA should be set aside on two grounds. Firstly, he said that the DA had not been validly signed by the lessee as required by section 139(2) of the Act. The evidence was that the applicant to the DA (Asset Certifiers) was acting on behalf of the lessee and that he had authorised them to do so. They lodged the DA electronically and sections 8 and 9 of the Electronic Transactions Act 2001 provide for electronic lodgements to be made in a way that satisfies the legislative provisions of section 139(2) of the Act.

Secondly, Mr Polleycutt submitted that the DA had been so modified by ACTPLA that it could no longer be identified with what the applicant wanted and had applied for. He wanted the application process to be started again. The applicant had the opportunity to withdraw his application from the Tribunal and to lodge a new development application but he did not do so. As the Tribunal deals with the matter de novo, the applicant was encouraged to place before the Tribunal those plans for which he sought approval.

Mr Polleycutt agreed that the purpose of the DA was to regularise, by an approval, those works which had been constructed. It is clear that by seeking more information ACTPLA considered that the plans submitted did not accurately represent what had been built. It validly requested a plan of survey by a Registered Surveyor [section 139(2)(j)]. This showed that the building location in relation to the side boundaries was not accurately shown in the DA.

If the applicant's purpose is to seek approval for the constructed works, then it follows that the plans should accurately depict them, including the locations as determined by the Registered Surveyor. They could, of course, include modifications which the applicant deemed necessary; particularly, to meet the matters raised by ACTPLA or an objector, and it appears that this is what occurred.

Mr Polleycutt submitted that the respondent had not considered section 139(2)(e) of the Act as to whether refusal of the application would create significant environmental effect. He said that the constructed works enabled the Hickeys to enjoy privacy and amenity, which would be lost if the works were demolished. Section 139(2)(e) requires that if the Plan requires an assessment of environmental effects then such an assessment must be provided as part of the DA. Mr Polleycutt did not identify any such requirement in the Plan. Notwithstanding this, the Tribunal agrees with Mr McCarthy's submission that in any event section 205(4) of the Act precludes such a consideration as it must treat the application "as if the development had not been undertaken".

The Tribunal considers that the DA as considered by the respondent and which is now before the Tribunal can lawfully be reviewed.

1. Section 50 of the Act requires that the Territory, which includes the Tribunal, shall not approve a development that is inconsistent with the Territory Plan. The only areas of inconsistency with the Territory Plan for this development identified by the respondent were Rules 6 and 31 of the Single Dwelling Housing Development Code ("the Code"). Where a proposal is inconsistent with a Rule it may still be approved if it is consistent with the relevant Criteria. The respondent consequently assessed the proposal under Criteria 6 and 31.

2. Rule 6 requires buildings to fall within a building envelope which is described in a diagram. It restricts the height of buildings. These provisions make a distinction between areas of a block which are the "primary building zone" and the "rear zone". These are terms defined in the Territory Plan. The applicant did not dispute that the building did not comply with Rule 6 and therefore Criteria 6 applied, or that the structures are within the rear zone.

The built form does not adversely impact on the amenity of neighbouring properties by ensuring:

a) Sufficient spatial separation between adjoining developments

b) The protection of a reasonable amount of privacy and solar access to adjacent dwellings and their associated private open space.

1. Rule 31 requires for a block of over 500 square metres, minimum side setbacks from the block boundary of 1.5metres at the lower floor level and 6 metres at the upper floor level in the Primary Building Zone or 6 metres in the Rear Zone for buildings with blank walls or 9 metres if the "design incorporates other walls, outer faces or unscreened decks, balconies and external stairs". In this proposal, for the 2 storey extension which is in the Rear Zone of the block, the upper floor level is setback 1.64 metres from the boundary and, therefore, inconsistent with the 6 metre requirement of Rule 31.

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

i) sufficient spatial separation between adjoining developments

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

b) Setbacks are progressively increased as wall heights increase to

1. Mr Polleycutt was of the view that the respondent had wrongly assessed the application against the Criteria because it had in part referred to the standard set out in the Rule. He submitted that no reference is required to be made to the standard of the relevant Rule when making an assessment against the Criteria.

Each Codes controls are expressed as either rules, which are definitive and generally quantitative, or as qualitative criteria.

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

It is implicit that if a development meets the quantitative standard of a rule then no further assessment of that issue is necessary to determine consistency with the Territory Plan. A quantitative rule therefore sets a standard which can be regarded as a norm i.e. a usual or typical standard. The Criteria, written in qualitative terms, require a different approach to assessment. Mr Polleycutt helpfully submitted that "Criteria are framed differently from rules, to enable assessment with regard to the specific site, its topography and context, including proximity and characteristics of adjoining building and spaces." The Tribunal accepts that proposition. There may well be special circumstances of a specific site or development where adherence to a rule is not necessary to achieve the intent of a control. For example in Mason and ACT Planning and Land Authority and Ors [2009] ACAT 7 (paragraphs [54]-[56]), the Tribunal accepted that the existence of a 3 metre public lane between properties resulted in a sufficient spatial separation between buildings where the standard set by a rule was not met.

The Tribunal does not however consider it necessary to ignore the standard set by the relevant Rule as suggested by Mr Polleycutt. Whilst it is certainly not sufficient to assess compliance with the Criteria merely by reference to the degree to which a development complies with a rule, the Rule does set a normative standard which can in some circumstances be useful at the very least as a public benchmark. It is reasonable, and in the Tribunal's experience not unusual, for developers to refer to the standard set by the Rule in demonstrating compliance with the Criterion, whether to say there is only some minor non compliance or that in the particular circumstances it is of limited relevance. (see, Mason above).

In respect of the rear deck the respondent indicated that it raised no objection subject to a privacy screen 1.8 metres high being erected on its eastern end. Whilst the deck did not meet Rule 31, the addition of a screen could ensure it met Criterion 31 and justify approval. The Tribunal agrees with that assessment.

The dwelling extension was described by Ms Jamaly as being within the Rear Zone. She distinguished between the Code requirements for the primary building zone, which broadly was where the existing house was constructed, and the rear zone where the unapproved dwelling extension and pool enclosure were located. The Territory Plan required greater levels of separation in the rear zone and that was not achieved for the upper floor of the proposal. She gave evidence that in her view the distance of 1.64 metres from the boundary to the upper floor of the 2 storey structure did not provide sufficient separation between the adjoining developments. The setback at the lower ground floor met the Code requirements. She said that with regard to the blank wall of the extension she considered that firstly it was not just a small proportion of the building, but the whole length of the proposed extension that was less than the standard of the Rule and secondly, that the setback fell well short of that required by the rule. In her view its bulk, scale, height and proximity to the boundary meant it did not provide sufficient separation from the adjoining development. She referred to the cumulative effect of both the existing building and the proposed two storey dwelling extension having an impact on the amenity of the neighbouring property. She did not consider that the existence of a garage and shed on the Hickeys' property mitigated the lack of separation.

Mr Hickey referred also to the cumulative effect of the various buildings along the boundary and submitted a diagram showing that buildings close to the boundary, namely, the existing house, the dwelling extension and the enclosed pool had a total length of almost 40 metres. He described the massing of developments along the western boundary as extensive and excessive and their amenity as substantially compromised. He referred to the location of the primary entry to their house, bedroom windows and outdoor areas where the second storey of the extension was highly visible and dominant.

The Tribunal notes that the extension does not have windows in the upper floor along the side boundary and therefore issues of overlooking and privacy do not occur. Ms Jamaly did not think the view from the rear windows to the north, although permitting sideways views over the rear of the adjoining block would create an unreasonable impact on privacy because it was an oblique view and was of only a small proportion of the vegetable garden. The Tribunal concurs with that assessment noting that the Code does not prevent overlooking but rather protects a "reasonable amount of privacy".

Mr Polleycutt referred to the existing residence with its side setback of 1.5 metres and the previous approval in 2006 for a dwelling extension as precedents for a setback of less than 6 metres at the upper level. He considered the setback to provide sufficient separation. His documentary evidence included photographs of other buildings stated to be in the same street, which he indicated had similar setbacks to the subject building. These photographs were not referred to in oral evidence. Generally, they are taken from the street and show the facades of buildings and, in particular, single storey garages and dwellings. In the absence of clearer evidence the Tribunal is of the view that these photographs seem to show buildings in the Primary Building Zone and are of little assistance to the Tribunal in determining this application where the buildings are in the Rear Zone.

As noted in paragraphs 15 and 16, the building approved in 2006 is demonstrably different to that which was constructed. By changing the height of the floor levels, what was previously capable of approval as a lower floor level has now become an upper floor level with an increased requirement for side boundary setbacks. It is apparent also that the lower level, now described on the plans as a basement, does not meet the Territory Plan definition of a basement, and is capable of some other use which was not described. The earlier approval is therefore of no relevance to the assessment of a different building particularly one with a more elevated floor level. The applicant received an approval and had the opportunity to implement it, which he did not do.

The Tribunal notes that Intent a) of the Code for Building and Site Controls is:

To ensure buildings are compatible with, and complement, the built form, siting and scale of surrounding properties and are of an appropriate residential character.

1. It is within that context, inter alia, that the Rules and Criteria for side setbacks and building envelopes are framed. The Tribunal does not believe that the evidence for the applicant demonstrated that the proposed development satisfied the Criteria. The Tribunal agrees with the assessment of Ms Jamaly that the proposed dwelling extension by reason of its bulk, scale, height, length and proximity to the boundary, does not meet Criteria 6 and 31 in providing sufficient spatial separation between adjoining developments. Nor do the setbacks progressively increase as wall heights increase (Criteria 31(b)).

2. The pool enclosure, which is a single storey structure, is set back 0.4 metres from the side boundary. Rule 31 of the Code requires a 1.5 metre setback. There was some disagreement in evidence about the height of the wall varying between 2.7 or 3.3 metres. The Tribunal did not need to resolve that discrepancy as its conclusion about overall compliance with the Criterion applied even to the lesser height. In the DA lodged on 28 October 2010, the plans showed "clear poly sheet" for the roof and walls. Later versions of the plan showed it having been amended to show "opaque poly sheets" over the roof and walls. During the proceedings Mr Polleycutt identified the plan showing the opaque sheeting as the version for which approval was sought. This would obviate concerns about issues of privacy both for users of the pool and for neighbours. The single storey structure does not have the same visual dominance as either the existing residence or extension, both of which are 2 storeys. It does however have a length of nearly 12 metres and a wall height close to 3 metres. At this scale it is substantially larger than the usual scale of garages and garden sheds, which might typically occupy such a space. Even as a stand-alone structure it creates a significant presence close to the boundary where a setback of 1.5 is the standard set by the Rule. Again the Tribunal considers that the applicant did not show compliance with the Criteria. The Tribunal accepts the evidence of Ms Jamaly and Mr Hickey and concludes that the structure does not meet Criterion 31 as it does not reflect residential (suburban) scale, height and length to ensure sufficient spatial separation between adjoining developments.

1. The respondent accepts that with the addition of a privacy screen the deck and pergola would not be inconsistent with the Territory Plan, but considers that, as a small portion of the application, no purpose is served in approving that structure on its own. The Tribunal disagrees. The DA has its genesis in 3 separate earlier development approvals. Whilst accepting that those approvals are no longer valid and the structures are not in accordance with them, the Tribunal understands that this single application is a "package" to seek approval for the unapproved structures. The Tribunal considers that if it is able to resolve one of the matters within the package then it is appropriate to do so. It will therefore make an order for approval of the rear deck subject to the erection of a privacy screen to a height of 1.8 metres on its eastern end.

2. The DA as it relates to the dwelling extension and the pool enclosure is refused for the reasons stated above.

1. In Mr Polleycutt's initial submission he sought an order for costs to be awarded for the Tribunal proceedings. He provided no basis for that claim. Section 48(1) of the ACT Civil and Administrative Tribunal Act 2008 provides that parties must bear their own costs unless otherwise ordered by the Tribunal. The Tribunal has not decided the application in favour of the applicant in any substantial way [section 48(1)], no other party has caused unreasonable delay or obstruction [section 48(2)], and no order of the Tribunal has been contravened. As a consequence, the Tribunal makes no order as to costs.

1. The Tribunal notes that the party joined has both in its original objection to the development and in its submission to the Tribunal raised the question as to whether the existing development is in fact a single dwelling. If it is not, then the assessment by ACTPLA under the Code is wrongly based. The respondent appears not to have addressed this issue in either the original decision or in its submissions to the Tribunal. The Tribunal notes that the plans show a lower floor area in the existing building which is arguably capable of separate occupation distinct from the upper floor. Both floors have independent external access, kitchens, bathrooms and bedrooms. It may be that the Multi Unit Housing Development Code is the proper basis for assessment. In the event both the Multi Unit Housing Development Code and the Single Dwelling Housing Development Code have equivalent provisions for building envelope and side boundary clearances i.e. the basis on which the application was refused. The Multi Unit Code has however additional requirements which if it is applicable should have been addressed and may need to be addressed in any future application for this property.

DATE/S OF HEARING: 16/11/11, 17/11/11, 6/12/11, 7/12/11

DATE/S OF DECISION: January 2012 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )