1. The area of the consolidated block is 1519 m² and the gross floor area of the proposed units is 758.6m². This gives a plot ratio of 49.9%, which is within the 50% ratio provided in the Code (Rule 11).

1. The development comprises two buildings, each having three 2-storey units. Each unit has three bedrooms, together with living/family/dining/ kitchen areas and bathrooms, in varying configurations and sizes. The buildings run east-west at right angles to the street, and are separated by a single driveway. The fronts of the units face onto the driveway. Units 1 and 6 have each have 1.8 metre courtyard walls facing the street.

1. Each unit has a single enclosed garage, and in front of each garage is a tandem car space. There are two visitor car spaces at the rear of the development.

1. The houses on the southern side of Callabonna Street in the vicinity of the development are generally single storey. The house on Block 7, immediately next to the development on the northern side, is a 2-storey building, having had a Cape Code renovation at some stage. On the high side of Callabonna Street, to the west of the development, the houses are generally more substantial than on the low side, with garages under the living areas, and having the appearance of 2-storey buildings.

1. The hearing took place over four days, on 27-29 April and 1 May, 2011. The tribunal visited the site of the proposed development with the parties and their counsel on 27 April 2011.

1. The applicant, Mr Anthony Scherl, was represented by Mr Philip Walker, and Dr Doug Jarvis represented the respondent. The first party joined, Ms Herta Scherl, represented herself and spoke only briefly at the hearing. The second party joined, Ms Diane Kosev, represented herself. The third party joined, Ms Patricia Abdilla, did not take part in the hearing. Mr Ted Streatfeild represented the fourth party joined.

1. Mr Paul Cohen gave expert evidence on behalf of the applicant, Mr George Cilliers gave expert evidence for the respondent and Mr Ted Streatfeild gave expert evidence for the fourth party joined. All are experienced urban planners with qualifications in urban planning and related fields, and with experience in the assessment of development proposals.

1. The tribunal had before it a large amount of documents, comprising the Tdocuments, statements of facts and contentions by the parties, and witness statements by the expert witnesses. During the course of the hearing, a number of exhibits were tendered, including proposed amended plans submitted by the fourth party joined.

1. It is of concern to the tribunal that the plans submitted with the DA and the reconsideration proposal were of poor quality. This made the tribunal's task of assessing the proposal more difficult than we would have preferred. It also made the task of the parties in providing evidence and assistance to the tribunal, more difficult than it should have been. The problems included plans lacking titles, legends or other explanation; plans with unconventional and confusing names; plans without necessary dimensions; inconsistencies between plans; plans containing significant mistakes; shadow diagrams of uncertain reliability; and a lack of documentation giving the dimensions of private open space.

1. The respondent stated that the DA and drawings and the material submitted in the application for reconsideration were 'not of the high standards of many proposals assessed by the respondent', but together contain sufficient information for the proper assessment of the proposal. Mr Cohen described the plans as 'the least helpful set of plans I have come across in a long period of time'. The tribunal has considerable sympathy for that point of view.

1. During the course of the hearing, some of the deficiencies in the plans were overcome by the provision of exhibits by the parties. They include plans prepared for the applicant by an independent architect, including shadow diagrams. Despite the significant deficiencies in the plans, and with the assistance of the witnesses and with the benefit of the exhibits presented at the hearing--in some case hurriedly and at short notice-- the tribunal has been able to assess the proposed development and make the decisions it is required to make.

1. During the hearing and within the various documents presented to the tribunal, a large range of matters were raised that those opposing the proposed development considered to be important and relevant to an assessment of the development. The tribunal has considered them all. However, in light of the evidence and the examination of that evidence during the hearing, the tribunal is of the view that there are only a small number of issues that are crucial to a determination of this application. We have, therefore, in this statement of reasons, focused for the most part on the central issues.

1. Development applications are subject to the Act, the Territory Plan and the relevant codes within the Territory Plan. Under section 50 of the Act, the tribunal, standing in the shoes of the original decision-maker, may not give approval to a development proposal that is inconsistent with the Territory Plan.

1. The land (Blocks 5 and 6) is within the RZ2-Suburban Core Zone. Being a multi-unit residential development, the proposal is subject to the Residential Zones-Multi Unit Housing Development Code ('the Code' or the 'MUHD Code') and is to be assessed in the merit track. Two other codes area also relevant: the Parking and Vehicular Access General Code and the Crime Prevention through Environmental Design General Code. Approval may not be given if the proposal is found to be inconsistent with these codes.

Planning and Development Act 2007

1. Section 53 of the Act states

The objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable development tables and code to the zone.

1. Section 55(2) states:

A code must be consistent with each objective for the zone to which the code relates.

1. The relationship between these two sections is discussed further below.
2. Section 119 identifies circumstances when development approval must not be given to a proposal in the merit track:

_(1) Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with - _

(2) Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under division 7.3.3 ...

1. Section 120 sets down a range of matters that the decision-maker must consider when making a decision on a development proposal in the merit track. They are:

(a) the objectives for the zone in which the development is proposed to take place;

(b) the suitability of the land where the development is proposed to take place for a development of the kind proposed;

(c) each representation received by the authority in relation to the application that has not been withdrawn;

(d) if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications) - the entity's advice;

(e) if the proposed development relates to land that is public land - the plan of management for the land;

(f) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.

1. Section 121(2) limits the right of review in relation to a decision to approve a development application, and is applicable in this case:

_(2) If there is a right of review under chapter 13 in relation to a decision to approve an application for development approval for a development proposal in the merit track, the right of review is only in relation to the decision, or part of the decision, to the extent that - _

(a) the development proposal is subject to a rule and does not comply with the rule; or

1. A central issue in this case is whether the proposed development complies with the provisions of the Code concerning private open space ('POS'). The Territory Plan defines POS as follows:

Private open space means an outdoor area within a block useable for outdoor activities, and may include balconies, terraces or decks but does not include any area required to be provided for the parking of motor vehicles and any common driveways and common vehicle manoeuvring areas. Up to 25 per cent of any part of private space may be roofed over, except that a balcony may be entirely roofed over.

1. The documentation provided with the original DA and the reconsideration application does not appear to provide either the linear dimensions of the areas of proposed POS or their areas in square metres. At the request of the tribunal during the hearing, Mr Streatfeild provided calculations of the dimensions and areas in square metres of the proposed areas of POS during the hearing (exhibit PJ6).

1. All units except unit 5 have a single area of POS. Unit 5 has two POS areas, to the front and rear of the unit. The POS areas for all units include clothes lines, paving from the units to the clothes lines, water tanks and shrubs.

_The average area of private open space per dwelling is not less than 60% of the average area of the block per dwelling less 50m_² ...

The total required area of private open space is the average area of private open space per dwelling multiplied by the proposed number of dwellings on the block.

1. It is common ground that the area of the consolidated block is 1519m², that the required POS area per dwelling is 101.9 m² and that the total required under R88 is 611.4 m². There is disagreement, however, between the parties whether certain parts of the block should be included in the calculation. It is agreed that the driveway, the parking areas in front of the units and the visitor parking spaces should be excluded. But it is not agreed that certain other areas should be included. These are the areas of land between units 1 and 6 and the front boundary; small areas of land in front of Units 1 and 6, and areas of land at the rear of the block between the visitor parking spaces and the rear fence. These disputed areas total an estimated 208 m².

1. Mr Streatfeild has calculated that, when the disputed areas are included, the total area of POS on the block is 725.14 m² and R88 is met. On the other hand, Mr Cohen has calculated that, if the disputed areas are excluded, the area of POS is 527.05 m² and R88 is not met. There are small discrepancies between the two calculations, but they are of no consequence.

1. Mr Walker submitted that the words 'per dwelling' in 'private open space per dwelling' in R88 are words of limitation and exclude non-private POS. He argued that this interpretation was consistent with C89, which, he submitted, is clearly limited to the private open space provided to each dwelling.

1. Mr Streatfeild commented that it is proposed that the six units will have individual titles issued under the Unit Titles Act 2001 and that the precise boundaries of the units have not yet been determined. He said that there was a discretion to allocate some of the disputed land to individual units. For example, some of the land adjacent to Units 1 and 6 could be allocated to those units and this would remove any doubt as to whether R88 is met. These comments were made very late in the case and provoked strong objections by Mr Walker. The tribunal took the view that it should undertake its assessment on the basis that the disputed areas would be common areas not allocated to individual units.

1. The issue of whether certain areas of 'common' land may be included within the definition of 'private open space' was considered by the Administrative Appeals Tribunal (AAT) in Brewer & Quinn & Ors and ACT Planning and Land Authority & Anor [2009] ACTAAT 1 (5 February 2009). The AAT's conclusion was that:

There is nothing in the definition of private open space to exclude areas that are available for the common use of all of the residents of the subject land. The reference in the definition to "an outdoor area within a block" (emphasis added) suggests the contrary.

1. The tribunal considers that the circumstances in this case are similar to those in Brewer and we adopt the reasoning in that case. On that basis we accept that the total area of POS on the block is as calculated by Mr Streatfeild and that R88 is met.

Except as provided for in Rule 92, at least one area of private open space is provided per dwelling to meet the following minimum area and dimension requirements:

1. 10% of the average block area per dwelling
2. 6m x 6m

Private open space is of dimensions to suit the projected requirements of the dwelling's occupants and to accommodate both outdoor recreation needs as well as providing space for service functions such as clothes drying and domestic storage.

1. R89(a) requires each block to have at least one area of POS which has a minimum area of 25.3 m² [(1519 m²/6) x 10%]. It is not disputed that all units meet this rule.

1. It is not disputed that Units 1, 3 and 5 meet R89(b). It is agreed that Units 2 and 6 do not have two dimensions of 6m x 6m as required by the rule, although both meet the minimum area requirement of 36 m² implied by R89 (b). As these units do not meet R89, it is necessary to consider whether they meet C89. The evidence whether unit 4 meets R89 is not unequivocal, so the tribunal has considered whether the unit meets C89.

1. The POS for Unit 2 is located at the rear of the unit facing north. The DA (T189) estimates that the total usable open space is approximately 52 m². ACTPLA had estimated by scaling off the drawings provided in the DA application, that the area was about 57 m². Part of the POS of unit 2 is located behind unit 1 below a bedroom, which raises interfacing issues which are considered further below. An electric easement, 1.5 metres wide, runs along the northern boundary of the block at an estimated height of 8-10 metres above the POS for Units 1-3.

1. The respondent contends that the unit 2 POS is ample for recreation and service functions.

1. Mr Cohen commented that the POS for all of the units, including unit 2, will be dominated by paved areas, clothes lines and a 4000 litre water tank. He also thought that presence of an 1800 mm fence is likely to accentuate the feeling of enclosure of the outdoor space. It was Mr Cohen's opinion that the unit 2 POS does not meet C89. Mr Cohen acknowledged that it is common in Canberra to have electric easements at the sides and backs of blocks, and he agreed that the ACTEW rules regarding such easements were met in the proposed development.

1. The tribunal notes that the area of POS proposed for Unit 2 is well in excess of the minimum required. The tribunal notes also that the POS is north facing, which is an advantage. No evidence was presented as to who the dwelling's occupants will be or what their projected requirements will be, but there is no evidence that suggests that the space will be unsuitable. The tribunal does not accept that the presence of the clothes line and the paved area would reduce the amenity of the area; indeed C89 makes it clear that the purpose of POS is to facilitate service functions such as clothes drying. Nor does the tribunal accept that the presence of an electric easement means that the space is unusable. Although it is not permissible to build permanent structures within an easement and plantings must not cause interference with the overhead wires, a range of recreational activities and service functions are possible. Rather than being a problem, the provision of a 1.8 metre fence could be seen as facilitating privacy between unit 2 and its neighbours, including the adjacent Block 7. The tribunal's conclusion is that the POS proposed for Unit 2 meets C89.

1. The POS for unit 4 is irregular in shape and is located to the south and east of the unit. The evidence indicates that it is some 95 m² in area. Mr Cilliers' witness statement states that the POS for unit 4 does not meet the R89 standard in terms of minimum dimensions, but is considered to meet the relevant criterion as it is well in excess of the minimum area required. Exhibit PJ6 indicates that the POS includes an area with dimensions 7.6 m x 6.6 m, thus complying with R89. No evidence was led suggesting that unit did not meet C89. In light of the evidence, the tribunal has concluded that the POS for unit 5 probably meets R89, but if it does not it meets C89.

1. The POS for Unit 6 is L-shaped and is located to the south and west of the unit. It does not meet the minimum dimensions specified in R89(b) but the DA states that the total usable open space is approximately 68 m². This is confirmed by exhibit PJ6. The respondent contends that the POS area is about double what is required, on two sides of the dwelling, and is therefore ample for recreation and service functions. No evidence was led to the contrary, and the tribunal finds that Unit 6 meets C89.

1. The tribunal has concluded that the POS for all units meets either R89 or C89.

Except as provided in Rule 92, an area of private open space with a minimum dimension of at least 6 metres is:

1. screened from public view
2. not forward of the building line except where permitted by, and illustrated in, an approved estate development plan

(i) not to the south, south-east or south-west of the dwelling, or

(ii) to maintain a minimum three hours sunlight onto 50% of the ground between the hours of 9.00am and 3.00pm on 21 June (winter solstice)

1. at ground level with direct ground level access from a main daytime living area of the dwelling.

1. Private open space is capable of enabling an extension of the function of the dwelling for relaxation, dining, entertainment and entertainment.
2. Private open space forward of the front building line ensures the amenity of the private open space and the dwelling is protected whilst maintaining opportunities for passive surveillance.

1. Private open space is to take account of outlook, natural features of the site and neighbouring buildings or open space and to provide for maximum year round use.

1. It is not disputed that units 2 and 3 meet R90.

1. Units 1 and 6 meet the minimum dimension requirements of R90 but part of the POS for these two units is forward of the building line. The POS for Unit 6 is located in large part to the south and south-west of the unit, which also contravenes R90. The POS for these units must therefore be assessed against C90.

1. The respondent contends that the POS for these two units has very good solar access and northern orientation, and is accessible from the main living area (unit 1) or the dining area (unit 6). The respondent notes that landscaping and a courtyard wall of 1.8 metres are proposed to screen the POS of the units from the public domain.

1. Mr Cilliers' evidence is that these POS areas have reasonable solar access and provide a degree of passive surveillance towards the street frontage. In his view the POS maintains the existing streetscape, considering that existing residences in the area have front fences and courtyard walls forward of the building line.

1. No evidence was presented that would suggest that the POS for units 1 and 6 does not meet C90. The tribunal is satisfied therefore that C90 is met for these two units.

1. The POS for unit 4 is screened from public view and is not forward of the building line. But it is located south, east and south-east of the unit and therefore does not meet R90(c)(i). It is necessary to consider whether it meets R9(c)(ii). The T-documents include shadow diagrams at T497-499, which, it is understood, purport to show solar access to unit at 9.00 am, 12 noon and 3.00p.m. Mr Streatfeild contended the direction of shadows indicates that 50% of the ground receives sun at 9.00 a.m. and still receives sun at 12 noon, and that therefore the 3 hour requirement in R90(c)(ii) is met.

1. Exhibit A5 comprises a set of site plans, site elevations, shadow diagrams and 3D perspectives prepared for the applicant by an independent architect, by extracting material from data made available by ACTPLA on a CD. The purpose is to indicate the effect of shadow on the proposed development during the winter solstice. There was no objection to the submission of these drawings, and as part of the totality of documentation available to the tribunal they, proved helpful in enabling the tribunal reach its decisions on questions of solar access.
2. Exhibit PJ6 was prepared by Mr Streatfeild during the course of the hearing and supplements the shadow diagrams at T496-499 and the drawings at Exhibit A5. It includes a partially-coloured circular area, with a dimension of 6 metres, to the rear of unit 4. Mr Streatfeild argued that the diagram confirms that there is an area of minimum dimension of 6 metres of which more than 50% is in sunlight at 12 noon at the winter solstice. Mr Streatfeild contended that, together with the information in the other shadow diagrams, this confirms that R90(c)(ii) is met.

1. Mr Cohen was of the opinion that R90(c)(ii) was not met and did not accept the shadow diagrams in the T-documents. His view was that the diagrams in exhibit A5 show that the unit 4 POS fails to get the necessary 3 hours of sunlight to comply with R90(c)(ii). The tribunal notes, however, that Mr Cohen gave his evidence before exhibit PJ4 was presented.

1. The statement of facts and contentions by the respondent and the witness statement by Mr Cilliers indicate that ACTPLA assessed the unit 4 POS by reference to C90 rather than R90, apparently because of uncertainty whether R90(c)(ii) was met. However, in the hearing Mr Cilliers was of the view that R90(c)(ii) was met, perhaps having regard to the evidence and documentation that became available during the hearing.

1. In light of the totality of evidence, the tribunal is satisfied that unit 4 meets R90(c)(ii).

1. R90(d) requires that the POS be located at ground level with direct access from a main daytime living area of the dwelling. The plans show access to the POS from the kitchen/ dining area is via a sliding door. The tribunal is satisfied therefore that R90(d) is met.

1. In light of the foregoing, the tribunal has concluded that unit 4 meets R90.

1. Unit 5 has two POS spaces, one to the front and one to the rear of the unit. The front area is approximately 38 m² and the rear area is approximately 41 m², the total area being approximately 79-80 m². It is not disputed that each space meets the requirement in R90 to have a minimum dimension of at least 6 metres.

1. It is not disputed that the rear space fails to meet R90. It is screened from public view and is not forward of the building line and therefore meets R90(a) and R90(b) respectively. But it is located to the south of the unit and fails to meet the minimum 3 hour sunlight alternative requirement, and therefore does not meet R90(c).

1. In relation to R90, the only issue concerning the front space is whether it is screened from public view. There is also the issue whether the space complies with R69/C69, which control overlooking of private open space from other dwellings, which we deal with below.

1. It is proposed that the front space will be screened by means of a 1.5 metre mesh fence on which a wisteria hedge will be grown. Mr Streatfeild said that the proposed fence was seen as providing greater visual amenity for the unit 5 POS and for the wider development compared with a solid 1.5 or 1.8 metre wall. A screened fence would also provide 'a bit more open space'. Mr Streatfeild described the proposed fence as 'semi-opaque', and said that it would not be fully opaque until the planting is fully grown.

1. Mr Streatfeild said that the front POS of unit 5 will not have any privacy in reality, because with a 1.5 metre fence it will be possible to see over the top from elsewhere within the block because the land slopes down towards unit 5. It will also be possible to look over the top of the fence from the lower floor levels of units 4 and 6. and from the upper floors of units 2 and 3. It was never the intention to provide a privacy screen to the front POS of unit 5; the privacy is in the back yard. The design objective was to provide a space that had good solar access and was usable 'so long as you don't mind being looked at'. Some degree of overlooking is desirable to provide passive surveillance and to meet the criteria in the Crime Prevention through Environmental Design General Code (CPTED Code).

1. It was Mr Streatfeild's view that 'screened from public view' refers to the view from the street rather than from within the development. Mr Streatfeild agreed that there is a 1.4 metre fall from the street to the unit 5 front POS and that it will be possible to see into the that space from the street. Nonetheless, he thought that the space would be 'screened from public view'. One would also need to take account of the distance from the street. Mr Streatfeild's view was that R90(a) does not require complete screening from public view, and that R90(a) is met. He contended that R90(a) is not concerned with overlooking from other units.

1. Mr Streatfeild said that, even if some people did not think the space was ideal, they might still be able to make use of the space. His expectation was that people would make use of the front and rear spaces at different times and for different purposes. They could use the front space during the cooler months to take advantage of the solar access, and in the warmer months they could make use of the rear space to avoid the sun. They could also use the two spaces at different times of the day. Those who preferred a greater degree of privacy would use the rear space. It would also be possible to increase the privacy of the front space by construction of a pergola or some other screening device.

1. Mr Cohen said there was an expectation by people that what they do in their POS will not be visible outside that space. However, he thought that it was only in extreme circumstances that it would be possible to screen POS from viewing by people in the same complex. He thought that people in such a complex are part of a community and he did not regard being seen by people in the same complex as being subject to public view.

1. Mr Cohen thought that people in POS to the front of unit 5 would be exposed to public view when people from outside the complex were passing in the vicinity of the POS. He agreed that viewing from the street was not particularly relevant to unit 5.

1. Mr Cohen thought that the proposed fence would not screen the POS from public view. He agreed that screening could be enhanced by planting advanced specimens. However, the assumption behind his evidence was that there would be a dense visual screen in front of the fence. Mr Cohen thought that the choice of a wisteria screen was odd and that there was a risk that the wisteria would damage the fence within a few years unless it was of sufficiently strong construction to prevent that happening. Mr Cohen was reluctant to accept Dr Jarvis's suggestion that POS can never be completely screened off from public view even in backyards with a 1.8 metre wall.

1. Mr Cohen's position was that, even with a dense screen, a 1.5 metre fence would not provide sufficient privacy. But, he thought, if you raised the wall to 1.8 m you would get overshadowing and would reduce the amount of sunlight to the space. Mr Cohen agreed that a brick wall similar to those proposed for the front of the development would be a better solution than a wire mesh fence with a wisteria hedge. But in his view it would not overcome the problem of overlooking from units 2 and 3.

1. Mr Cilliers said that ACTPLA assessed the POS for unit 5 against C90 rather than R90, and had considered the front and rear spaces together.

1. The expression 'screened from public view' is not defined in the Code and requires interpretation. Dr Jarvis submitted that there are two issues--the meaning of 'screened' and 'public view'.

1. Dr Jarvis submitted that the term 'screened' cannot be taken literally and R90(a) should not be interpreted as requiring complete screening from public view. Rather, having regard to the definition of POS in the Territory Plan, R90(a) only requires such screening as would enable an outdoor area to function as 'useable for outdoor activities'. The respondent accepts, however, that an outdoor area requires some measure of privacy, while maintaining opportunities for passive surveillance. The screening must, however, be something more than a mere token screen, and must assist the POS to function as a useable area for outdoor activities.

1. Dr Jarvis submitted that the screening currently proposed - a 1.5 metre fence to be overgrown with a wisteria vine--is more than token screening. From any vantage point more than about 2 metres away, on the same level, the screen would largely restrict overlooking. From higher points the screening effect would be reduced. The street level is about 1.4 metres higher than the unit 5 POS, but as a result of the angle created by the nearest distance to the footpath (about 22 metres), the 1.5 metre fence would still largely restrict the view into unit 5's POS.

1. It was Dr Jarvis's submission that 'public view' refers to the view from the public domain. He drew the tribunal's attention to Arnold Frank [2001] ACTAAT 19, in which the former AAT took the view that the phrase 'suitably screened' in relation to business parking referred to the view from the street. This approach made sense, he proposed, for interpreting R90(a). In support of this approach, Dr Jarvis submitted that C90(b) also suggests that the view from the public domain was the intended meaning, because POS forward of the building line will be likely to be visible from the public domain.

1. Dr Jarvis further submitted that the existence of a separate set of rules (R68-9) dealing with overlooking and separation of dwellings internal to a development also suggests that R90(a) is not concerned with such matters but with the view from the public domain. Under this interpretation the vantage points in the driveway and access aisle inside the property boundary do not form part of the 'public view', and are on private property.

1. The tribunal does not accept, in the circumstances of this case, that the assessment of whether the space is screened from public view should be restricted to the view from the street. Some regard should be had to viewing by members of the public who enter the complex, and viewing by other residents within the complex should not be ignored. The tribunal is not persuaded that the proposed screened mesh fence is adequate to provide sufficient privacy, and has concluded that a wall similar to the courtyard walls at the front of the development would be a substantial improvement, and would enable the development to meet R90. We are satisfied from the evidence (exhibit R2) that there would be no loss of solar access, and that the presence of infill slats to the wall would help maintain some degree of passive surveillance.

1. The tribunal has concluded that, subject to the requirement to construct a 1.8 metre wall around the unit 5 POS, all units meet R90.

Outlook from windows, balconies stairs, landings and decks or other private, communal or public areas within a development are designed, screened or obscure to prevent overlooking of more than 50% of the minimum private open space of another dwelling on the same block (refer figure C1A).

Direct overlooking of private open spaces of other dwellings is limited by building layout, location and design of windows and balconies, screening devices and landscape, or remoteness.

1. Issues concerning the interface between units have been raised in relation to units 1 and 2 and units 2 and 5

1. The POS for unit 2 is partially located behind the blank garage wall of unit 1 and below bedroom 2 of unit 1, which is on the upper floor. The upper floor of unit 1 is set back from the ground floor, but it appears that it will be possible to overlook the unit 2 POS from bedroom 2, although the extent of the overlooking is unclear.

1. The approval by ACTPLA of the proposed development includes a condition (A1(a)(ii)) intended to overcome the perceived interfacing problems between units 1 and 2. It requires the proponent to provide revised architectural drawings showing the northern upper floor level window to bedroom 2 of unit 1 to be provided with further measures to prevent overlooking and enhance the privacy of the POS for unit 2. The measures could include double glazing and louvres.

1. Mr Cohen had concerns that as some of the unit 2 POS is located below one of the bedrooms in unit 2 this would cause interfacing problems--the use of the POS could generate noise that would drift up to the bedroom of unit 1, with detrimental effect on the amenity of unit 1. He also thought that this could have an inhibiting or sterilising effect on the use of the western end of the unit 2 POS. Mr Cohen had concerns that the proposed condition, as it was illustrated in Attachment A/3 to Mr Streatfeild's witness statement, would be insufficient to deal with the noise issue. Mr Cohen agreed that once the proposed louvred screen was in place it would not be possible to look into the unit 2 POS from unit 1. Mr Cohen agreed that there is no provision in the Code that regulates the transmission of noise from the POS of one unit to the windows of another unit.

1. Mr Streatfeild acknowledged that the diagram at Attachment A/3 to his witness statement was incorrect. The diagram does not correctly show that the ground floor projects a further 2.5 m to the north. Exhibit PJ5, presented by Mr Streatfeild, shows the correct relationship between the ground and upper floors of unit 1. Mr Streatfeild contended that the drawing shows that there will be some obscuring of the line of sight from the upper floor of unit 1 into the unit 2 POS. In his view the obscuring is sufficient to enable R69 to be met, i.e. that this would prevent overlooking of more than 50% of the minimum private open space of unit 2.

1. In cross examination by Mr Walker, Mr Streatfeild agreed there could be conflict over the use of POS. But, in his view, it is common for there to be POS under or near neighbours' windows. He agreed there was an issue, but thought that the proposed development complies with the Code. He contended that there is no provision in the Code concerning noise impacts from another unit's POS. Potential purchasers could, he suggested, take these matters into account when deciding whether to purchase a unit. He did not agree that the amenity of unit 1 is compromised by the requirement to install a sight screen.

1. Mr Cilliers saw merit in moving the water tank and clothes line from the eastern end of the unit 2 POS to the western end and for the proposed plantings to be moved to the east. The clothes line could be attached to the blank wall behind the garage of unit 1. This would concentrate the service functions at the western end, thus lessening the movement of people at that end and reducing any noise impact on unit 1. He also thought that this would provide a better relationship between the family room and the POS of unit 2.

1. Mr Cilliers proposed that an alternative solution to the noise issue would be to convert bedroom 2 in unit 1 into a study, with a fixed desk and shelves. This could include a reallocation of space from bedroom 2 to the adjoining bedroom 3.

1. Responding to Mr Streatfeild, Mr Cilliers said that condition A1(a)(ii) had been imposed to protect privacy. He agreed that the Code did not include any rule or criterion in relation to the noise aspect of privacy.

1. In his final submissions on behalf of the fourth party joined, Mr Streatfeild argued that R69 was met and that there are no sound reduction requirements in the Code. He contended that there was therefore no justification for the imposition of condition A1(a)(ii), and that the imposition was in conflict with section 165(2) of the Act. This provides that an approval under section 162(1)(b) 'must not include a condition inconsistent with a condition required to be included by the territory plan'. Nonetheless, the fourth party joined would accept a condition requiring a screen similar to that proposed in the attachments to exhibit PJ1.

1. The final submissions on behalf of the respondent contend that exhibit PJ5 demonstrates that overlooking from unit 1 is either largely restricted or eliminated by the ground floor roof structure of unit 1, compliant with R69,

1. The evidence and plans available to the tribunal do not give the tribunal sufficient confidence that R69 would be met without the requirement for a screen on the window of the overlooking bedroom in unit 1. A screen with specifications as identified in the attachments to exhibit PJ2 would be appropriate, and does not include any requirement for double glazing or other noise attenuation.

1. The tribunal accepts that there would be merit moving the water tank and clothes line from the eastern end of the unit 2 POS to the western end and for the proposed plantings to be moved to the east. This would enable better us to be made of the space and would reduce any noise impact on unit 1.

1. Mr Streatfeild argued that R69 is met because, although the POS at the rear of unit 5 does not meet the minimum dimension requirements at R89, it does have an area of space equal to more than 50% of the minimum POS referred to in R69, which is not overlooked. The tribunal accepts that this space meets R69. However, we do not accept that this removes the requirement to demonstrate that the front space, also meets the rule.

1. Mr Cilliers said that ACTPLA had deemed that the rear space of unit 5 met R69, and in his view the front space did not need to meet R69. It was his view that the bedrooms in units 2 and 3 are secondary bedrooms and do not face north, so are likely to get less use than bedrooms to the north, reducing the potential for overlooking of unit 5. However, he thought that if you applied R69 to the front space it would meet the rule.

1. Mr Cohen was of the opinion that the front POS of unit 5 fails to meet R69/C69. He presented exhibit A3, which in his view demonstrates that there will be overlooking from bedroom 3 on the first floor of unit 2 of more than 50% of the front POS of unit 5, in contravention of R69. The exhibit shows a line of sight from unit 2 (1.6 metres above the upper floor level) projected across the top of the fence at the front of the unit 5 POS. The line meets the ground within the POS at a point 2.8 metres from the fence, which is less than 50% of the distance from the fence and the front of the unit, estimated to be 6.42 metres.

1. The second part of exhibit A3 illustrates Mr Cohen's contention that, even for that part of the POS which is not nominally overlooked, there would nonetheless be some overlooking. The diagram shows that at a distance of 1 metre from the fence, everything above 990 mm would be visible. At a distance of 2 metres from the fence, everything above 440 mm would be visible.

1. Mr Streatfeild objected to exhibit A3 on the basis of the assumed base level of the fence and the failure to take into account the downward slope of the land from unit 2 to unit 5. Mr Cohen and Mr Streatfeild therefore prepared an agreed, revised drawing taking Mr Streatfeild's objections into account (exhibit A4). The revised drawing shows that the sight line meets the ground within the unit 5 POS at a point which is more than 50% of the distance from the fence and the front of the unit. That part of Mr Cohen's argument no longer has force and on the face of it R69 is met. The construction of a 1.8 metre wall, as the tribunal proposes, would reduce the extent of overlooking and further reduce the force of Mr Cohen's concern.

1. It is necessary, however, to consider the second part of Mr Cohen's argument, i.e. that there would be overlooking of that part of the POS which is nominally not overlooked. R69 is to be interpreted by reference to figure C1A, which illustrates, by means of several diagrams, the various situations that may give rise to overlooking between dwellings within a development, including overlooking between an upper floor room and an area of POS belonging to another dwelling. One diagram corresponds to the situation in the present case. The tribunal's view is that when one considers the text of R69 in conjunction with figure C1A there appears to be no discretion to consider the objections raised by Mr Cohen.

1. The tribunal has noted Mr Cohen's comment that the rule should not be applied in a mechanical fashion. However, as the tribunal sees it, the objections raised by Mr Cohen are not specific to the present case; they appear be objections to the rule itself.

1. R69 falls within Element 3: Built Form of Part C of the Code and the tribunal has considered whether the Intent of Element 3 might provide some additional insight into the interpretation of R69. But there is nothing in the Intent that suggests that R69 should not be applied on its own terms having regard to figure C1A.

1. The tribunal notes that the Introduction to the Code states that the rules are generally definitive, and on that basis we find that R69 is met.

1. Each unit has an enclosed garage and a tandem parking space in front. There are, in addition, two visitor car spaces at the rear of the block that are set back 1.5 metres from the rear fence. Concerns were raised by objectors that the provision of parking for the development is inadequate and that this will lead to overflow parking on verges and in the street, causing loss of amenity and increased risk of accidents.

1. The Parking and Vehicular Access Code ('PVA Code') requires the provision of 2 parking spaces for units with 2 or more bedrooms and 0.25 spaces for every unit where a complex comprises 4 or more units. The development meets these requirements. R81 permits tandem parking where the car spaces belong to the same dwelling.

1. It is accepted that the turning area for the visitor parking at the rear of the block does not meet R81, which requires a 1.5 metre setback from any external block boundary. The area abuts a 1.8 metre fence and is proposed to be screened by landscaping. There was no evidence that would suggest that this aspect of the parking arrangements would not be compliant with C81 and we find that C81 is met.

1. R81 requires that car-parking spaces are set back a minimum distance of 1.5 metres from a window to a habitable room of a dwelling with which it is not associated. The evidence indicates that the setback is not met by: (i) the parking space in front of unit 3 in relation to the window in the living room of unit 2; and (ii) the parking space in front of unit 4 in relation to the window in the living room of unit 5. The witnesses agreed that this was of little consequence and that C81 was met, an assessment with which the tribunal concurs.

1. The PVA code sets down the dimensions for residential car parking in order to be able to execute a 3-point turn, based on Australian/New Zealand Standard 2890.1: Off-street car parking. For residential car parking with 90 degree parking bays, this requires the parking bays to have a width of 2. 4 metres for a driveway with a width of 5.8 metres. However, R77 allows the width of the driveway to be reduced if the width of the parking bays are increased--for a driveway width of 5.2 metres, the parking bays must be at least 3 metres wide. The evidence confirms that the driveway in the proposed development is 5.2 metres wide and that the parking bays are 3 metres wide, so they comply with R77, and should be adequate to enable drivers to execute 3-point turns.

1. Mr Cilliers said that he had assessed the adequacy of the dimensions by overlaying a template from AS2890.1 onto the plan (T203), using a B25 vehicle (Ford Falcon), in accordance with standard practice, as the test case. He found that it would be possible to make 3-point turns out of all of the parking bays.

1. In light of the evidence the tribunal is a satisfied that R77 is met.

Excavation and finished floor levels (R72(h))

1. It became apparent prior to the hearing that there were errors in the plans for the proposed site cuts, which need to be corrected. The corrections are necessary to ensure that the cross fall from north to south complies with R72(h) and Australian/New Zealand Standard 28901.1: Off-street car parking. Mr Streatfield provided an amended plan at Attachment D to exhibit PJ1, which the tribunal understands complies with R72(h).

1. The tribunal is satisfied that, subject to correction of the plans to comply with R72(h), the proposed development complies with the PVA Code and with the relevant rules and criteria in the MUHD Code concerning parking and site access.

1. Concern has been raised that the arrangement for waste disposal in the proposed development will causes problems for the residents of the development and their neighbours, with consequential loss of amenity within and outside the development. This includes concern that there will at times be 12 waste collection bins on the verge. Another issue is the arrangements within individual units for storage of the bins

1. The original and reconsideration proposals were referred to the Department of Territory and Municipal Services (TAMS). TAMS supported the DA, subject to standard conditions.

1. TAMS policy, the tribunal was told, requires developments with more than 10 dwellings to have centralised waste management facilities. The proposed development falls below this threshold. Subject to any policies established by the body corporate, householders will make their own arrangements for storage of their waste and recycling bins. Some will have the option to store their bins in their POS areas, but the plans seem to indicate that most of the units will not have gates providing direct access to those areas. It appears therefore that most units will store their bins in their garages. Mr Cilliers' evidence was that the garages are large enough to permit storage of the bins in addition to a car. Mr Cohen thought that this would create amenity issues where a garage was below a bedroom or separated from a living area by a partition wall, as appears to be the case with some of the units.

1. There was no evidence before the tribunal indicating that the waste management arrangements are not compliant with relevant regulatory conditions, and there is therefore no basis to refuse approval on such grounds or to impose conditions on the approval.

1. Mr Walker submitted that there was uncertainty as to the status of the various plans that had been submitted with the DA and subsequently, and that the tribunal should have before it a list of all the plans for which approval is sought. Mr Streatfeild provided a list following completion of the hearing, which the tribunal considered in its assessment of the proposal.

1. There is on the southern boundary of the block a tree that is a regulated tree under the Tree Protection Act 2005 that is proposed for removal. An application for removal of the tree will need to be lodged with the Conservator of Flora and Fauna, if that has not already happened. The Tree Protection Unit supports its removal.

1. Section 120 of the Act requires the decision-maker--in this case the tribunal--when deciding a development application for a development proposal in the merit track, to consider a range of specified matters. The tribunal has done so as part of its assessment of the proposed development. The matters include:

(a) the objectives for the zone in which the development is proposed to take place.

1. The applicant contends that the proposed development is inconsistent with the RZ2 zone objectives and should not be approved.

1. The objectives of the RZ2 zone are:
   • (a) Create a wide range of affordable and sustainable housing choices to accommodate population growth and meet changing household and community needs.
   • (b) Ensure that development addresses the street and the existing neighbourhood characteristics in scale, form and site development.
   • (c) Facilitate efficient use of existing social and physical infrastructure and service in residential area close to commercial centres.
   • (d) Provide opportunities for home based employment consistent with residential amenity.
   • (e) Provide for a limited range of small-scale facilities to meet local needs consistent with residential amenity.
   • (f) Promote energy efficiency and conservation and sustainable water use.

1. The respondent submitted that compliance with the relevant code should be taken to establish that a proposal is consistent with the zone objectives, except perhaps in some exceptional circumstance. This flows from the statutory framework provided by ss 53(1) and 55(2) of the Act. Section 53 states:

The objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable development tables and code to the zone.

1. Section 55(2) states:

A code must be consistent with each objective for the zone to which the code relates.

1. The respondent also notes the terms of the Introduction to the MUHD Code, which state:

Codes provide additional planning, design and environmental controls to support the zone objectives and assessable use in the development tables.

1. The respondent submitted that, in the case of s120(a), because of the statutory scheme in ss 53 and 55 of the Code, compliance can be expected to satisfy the zone objectives. Thus, if a proposal complied with the rules relating to scale and form (plot ratio, building envelope, number of storeys, setbacks etc), there would need to be a special reason for the tribunal to decide that the proposal did not meet RZ2 zone objective (b) relating to the 'existing neighbourhood characteristics in scale, form and site development'. The respondent acknowledged that there may be something about a neighbourhood that made a compliant proposal unacceptable; but given that the RZ2 zone permits an increased scale of development throughout the zone that, it was submitted, would be an unusual case. The respondent also acknowledged that different considerations apply to the other items in s 120, i.e. all except s 120(a). Compliance with the code could not be expected to make any difference to these matters, and they could possibly lead to refusal of a compliant proposal.

1. The respondent submitted that ACTPLA's approach does not mean that s120(a) is emptied of significance, the zone objectives must be borne in mind when applying the Code and also when interpreting codes. Section 120 also provides relevant considerations for development applications such as lease variations that do not involve the codes or construction of buildings.

1. The tribunal accepts the argument that a proposal that meets the Code will ordinarily be consistent with the zone objectives. The issue for the tribunal in the present case is whether, having found that the proposal complies with the Code, there are any circumstances that would suggest that the proposed development should not be approved.

1. Mr Cohen thought that the two buildings which make up the development are going to be completely different from the remainder of the street, although they have some elements in common with the existing houses. It was his view that the development would involve a substantial change in the streetscape from what is there at present. But he recognised that the development is in an RZ2 zone and that one redevelopment has to be the first in the street and will not replicate what is already there.

1. Mr Streatfeild said that the development is one of the first RZ2 redevelopments in Kaleen. In his view the development addresses the street, the existing and future scale, form and site development of the neighbourhood. He identified several points of commonality, including external brickwork, pitched tile roofs, two storey buildings, consistent spatial separation between buildings, verges integrating with landscaping, courtyard walls, consistent landscaping and low site density.

1. It has been argued that the proposed increase from 2 to 6 dwellings on the consolidated block is too intensive and out of keeping with the neighbourhood. In the tribunal's view the level of intensification is not excessive in the RZ2 zone, which is intended to allow multi-unit development of the scale proposed.

1. The tribunal accepts that the proposed development will not replicate the existing development in the immediate area, most, if not all of which, dates from the 1970s and 1980s. But the differences are not so substantial as to justify refusal of approval to a development that is fully compliant with the Code.

1. The tribunal is satisfied that, subject to appropriate conditions, the proposed development will not be inconsistent with the Territory Plan and that there is no basis to refuse approval.

DATE/S OF HEARING: 27 April 2011 PLACE: CANBERRA

DATE/S OF DECISION: 30 May 2011 PLACE: CANBERRA

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