GOFFMAN AND ORS & ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2012] ACAT 7

1.     The Respondent’s decision is set aside and in its place is substituted the decision that the development application is not approved.

2.     The General President’s order of 26 September 2011 is amended by removing Martha Anne Kinsman from the list of persons joined as parties to these proceedings.

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1.          This review concerns a decision of the ACT Planning and Land Authority (“ACTPLA” or “the Respondent”) to approve with conditions –

·            the consolidation of blocks 7 and 8 Section 21 Dickson (“the land”)

·            the demolition of 2 houses thereon

·            lease variations to permit the construction of 10 residential units and associated works upon the land.

2.          The decision was made on 12^th August 2011 and is contained in Development Application approval 201018196. From this decision three Applicants have sought review by way of separate review applications. Since the applications are to all intents and purposes identical and rely upon the same contentions by way of objections, it was ordered that the three applications as set out in the heading to these Reasons should be heard together.

3.          The Respondent to the three applications is in each case ACTPLA, and also in each case there are nine parties joined. The First Party Joined is David Miljenko Milin (“the Developer”). The other eight parties object to the decision under review on much the same grounds as the three Applicants. The Seventh Party Joined, Martha Anne Kingsman, has withdrawn.

4.          The bases of the objections to the approval of the development application were many and varied. They are canvassed in detail later in these Reasons. Suffice to say briefly that they all involved allegations that the relevant planning legislation has been breached by the decision to approve the development application.

5.          The two blocks concerned are presently known as 55 and 57 Marsden St Dickson. This is a street lined by mature deciduous trees which, at least in summer, almost entirely shade the street. Marsden Street runs approximately east – west and the proposed development is on the southern side, facing north. At present the land contains two ageing ex-government single dwellings.

6.          The proposed development comprises 10 units of brick construction which are built as three separate blocks. Five of the units are in an east – west configuration at the rear of the land and comprise two 1 bedroom units and three 2 bedroom units. The other five units facing Marsden Street comprise three 3 bedroom units and two 2 bedroom units. Most of the units are two storey. The units facing onto Marsden Street are configured as two separate blocks separated by a central driveway – two on one side of the driveway and three on the other. The driveway leads from the street onto the land where parking areas and garages are located.

7.          The hearing was conducted over four days commencing 19th December 2011. On the first day of the hearing, the Tribunal visited the site in the company of the Parties and their representatives, and observed the physical characteristics of the site and the location of Blocks 7 and 8 in relation to neighbouring properties. The Tribunal took note of the existing streetscape of Marsden Street and nearby surrounding streets, including examples of redevelopment in recent years.

8.          The Applicants and the third party objectors were represented by Mr Wayne Sharwood. ACTPLA was represented by Mr Phillip Walker; the First Party Joined was represented by Mr David Mossop. All these were of Counsel.

9.          Revised plans (Revision F) were submitted before the hearing and form the basis on which the hearing was conducted.

10.       Apart from the T-Documents, which were voluminous, all parties tendered witness statements. Many of these were not confined to matters of fact but were more in the nature of submissions concerning the meaning of the Rules and/or Criteria.

11.        Of particular concern was the evidence of the First Applicant Ms Jane Goffman. As a party to the proceedings she tendered a witness statement and was cross examined. She has qualifications in town planning. In her statement and in her oral evidence it was apparent that she was setting herself up as an expert, and indeed she had the qualifications to be so considered. However, she could not be considered independent and it was apparent from various answers that she gave in cross examination that she was not an independent and unbiased witness. Some of her answers were vague and nonresponsive to questions asked. In the Tribunal’s opinion this diminished considerably the weight and probative value of such of her evidence as was not confined to factual matters of which she as a lay person had first-hand knowledge.

12.       Apart from the evidence of Ms Goffman, several of the objectors to the development, including Parties Joined, submitted statements which were admitted into evidence, although none were called to be examined at the hearing.

13.       Various expert witnesses were called by the parties. Mr Graeme Shoobridge, Mr Anthony Adams, Mr Tomi Milin and Mr Paul Scholtens gave evidence for the First Party Joined. Mr Shoobridge is a civil engineer employed by an engineering consulting company. He has worked as a civil engineer and traffic engineer for more than 35 years in private practice and for government agencies in the ACT and NSW; is a Chartered Professional Engineer; and has other relevant qualifications. Mr Adams is a director and senior town planner for a company providing property agency and professional advisory services. He has worked as a town planner for 35 years in private practice and for government agencies in several states and in the ACT; is a Fellow of the Planning Institute of Australia; and is a Certified Practising Planner. Mr Scholtens has professional qualifications in arboriculture and horticulture and works for a firm of landscape architects. He has 44 years experience in landscape or amenity horticulture, tree surveys and tree assessment. Mr Tomi Milin is the designer for the development and has a degree in architecture. Because of his status as the designer, the Tribunal has viewed his evidence as being more in the nature of information to assist the Tribunal rather than as that of an independent, expert witness.

14.       Mr George Cilliers gave evidence for the Respondent. Mr Cilliers is a senior officer employed by ACTPLA, with qualifications in geography, town planning and environmental law. He is a Member of the Planning Institute of Australia and has several years experience in development assessment work in the ACT and elsewhere

15.       Development applications are subject to the Act, The Territory Plan and the relevant codes within the Territory Plan. Under 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.

16.       Section 53 of the Act states:

17.       Section 55(2) States:

18.       The relationship between these two sections is discussed further below.

19.       Section 119 identifies circumstances im which approval must not be given to a proposal in the merit track:

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

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

22.       The land is within the RZ2 –Suburban Core Zone. As a multi-unit residential development, the proposal is subject to the Residential Zones–Multi Unit Housing Development Code (‘the Code’ or MUHD Code’) and is to be assessed in the merit track. Three other codes are also relevant: the Parking and Vehicular Access Code, the Crime Prevention through Environmental Design General Code and the Residential Boundaries Fences General Code. Approval may not be given if the proposal is inconsistent with these codes. There is an issue whether the proposal is also subject to the Access and Mobility General Code, which is discussed further below.

23.       The Territory Plan states that the codes provide:

24.       The codes’ controls:

25.       Proposals in the merit track:

26.       In his final submissions, Mr Sharwood identified the following rules and criteria as no longer in issue

(a)            R28 (Consolidation)

(b)            C38 (Parking–car and bicycle parking)

(c)            R40/C40 (Trees re protected tree allegedly illegally removed from site)

(d)            R46/C46, R47/C47 & R49/C49 (water sensitive urban design mains and stormwater)

(e)            R56/C56 (Rear setbacks)

(f)             R75/C75 (Vehicle access from common driveway)

(g)            R77/C77 (Vehicle access–driveway minimum width for angle parking)

(h)            R81/C81 (parking–spaces and setbacks)

27.       In light of the decision by the Applicants not to pursue these issues, it is not necessary for the Tribunal to review the evidence and make findings in relation to these issues. We turn now to the matters that remained in contention.

28.       The Applicants contended that the Plot Ratio for the development was greater than permitted on the Revision F plans and was 51.4% (ex. A3). Their ‘digital’ calculation using CAD software resulted in a GFA of 1069.3 m². They referred to rule 15 (R15) which is a mandatory requirement, there being no applicable criterion:

29.       The term Plot Ratio is defined in the Territory Plan as:

30.       The term Gross Floor Areais defined in the Territory Plan as:

31.       Mr Cilliers altered some of the opinions set out in his witness statement (ex. 2). He calculated that the Revision F plans give a plot ratio of 49.577% and that therefore, the development complies with R15.

32.       The First Party Joined relied on a calculation by the building designer Mr Tomi Milin which showed a GFA of 1037.91 m², giving a Plot Ratio of 49.87% (ex. PJ5, paragraph 40 and annexure B page 1).

33.       The Tribunal notes the area of the site is 2080.86 m² and therefore the maximum GFA allowed is 1040.43 m² as the development is for more than three residences.

34.       The differences in the methods of calculation appear to be that the First Party Joined included external areas under the soffit to the north of Units 2 and 3 (ex. PJ7), while the Applicants included the area of the stairs at the upper level.

35.       Mr Milin included the external area which he measured to be a total of 5 m². The Tribunal notes that this calculation included areas bounded by external walls and as such should not be included in the area to be deducted from the calculation. These adjustments would result in a reduction of approximately 4m² to Mr Milin’s calculation and give a GFA of 1034 m² (Site Plan drawing number A01 Revision F). This realizes a Plot Ratio of 49.7%.

36.       The second issue is whether the Territory Plan requires the ‘area’ of internal stairs to be included at all levels. All parties appeared to agree that the entire ground floor level area should be included in the calculation of the GFA, inclusive of the area under a stair whether it could be walked on, or was usable, or not. The Applicants contended that the area to be included in the GFA on the upper level should also include the stair area, that is, the area where the stair is located above the ground floor level at the upper level.

37.       The Tribunal agrees with the Respondent and the First Party Joined that the Territory Plan does not require the ‘stair area’ on the upper level to be included in the calculation of the GFA.

38.       While the Tribunal has not attempted to calculate the overall GFA it has, as a check, attempted to determine the approximate area of the upper floor level that the Applicants have included over and above the area included by the other parties. This has been done using the A3 drawings which are not to a recognised scale and therefore have a margin for error. The Tribunal has calculated the additional upper level stair area to be approximately 32 m². When deducted from the Applicants’ stated figure of 1069.3 m², this results in a GFA of 1037.3 m² and a Plot Ratio of less than 50%.

39.       The Tribunal finds that R15 has been met.

40.       The Applicants contended that the Private Open Space (POS) for the majority of the units was inadequate on the Revision F plans (ex. A1 Table 2 and paragraphs 42 to 46 inclusive). They referred to R88–90 inclusive and Criteria 88–90 inclusive, which read:

41.       The Applicants contended that with respect to R88, the POS was inadequate in area, dimension, solar access and placement. With respect to R89, eight units lack the minimum individual POS and the total is over 100 m² under the minimum required. With respect to R90, the POS for the five front units does not comply with privacy requirements.

42.       The Respondent relied on the amended witness statement of Mr George Cilliers (ex.R2, paragraphs 67–72). Mr Cilliers contended that the total POS required was 748m and that the development had a total of only 651m² of POS. He therefore determined that the development did not comply with R88. Mr Cilliers determined, however, that the development complied with C88 as the POS for each unit is of dimensions to suit the future occupants.

43.       Mr Cilliers determined that the POS for Unit 10 complied with R89 and that the POS for the other units did not. Mr Cilliers determined, however, that the development complied with C89 as the POS areas are of dimensions to suit the needs of future occupants. He exampled the POS of Units 7, 8 and 9 to the rear to support this.

44.       Mr Cilliers determined that the POS for Units 1 – 5 did not comply with R90, being forward of the building line. However, he determined that the development complied with C90 as the POS areas are accessible from the living areas, have appropriate solar access, provide a degree of passive surveillance towards the street frontage and maintain the existing streetscape.

45.       Mr Cilliers thought that the POS areas of all other units comply with C90, in that they allow access to the dining areas and, due to their configuration, year round use. Solar access was constrained to some POS areas (e.g. Unit 6), although it was at an acceptable level.

46.       The First Party Joined relied on the evidence of Mr Adams and Mr Milin. At paragraph 76 of his witness statement, Mr Adams states that the development does not comply with R88. He then considers the area north of the courtyard walls up to the front boundary in paragraph 77 as open space providing amenity and proposes that with the inclusion of this space, the required POS of 748.5 m² would be achieved. He concludes that “non compliance with the rule should not be regarded as relevant or problematic”.

47.       Mr Adams determined at paragraphs 78–94 that the development complies with R89 (a) as the required 10% of the average block area per dwelling is 20.8 m² and all units meet this requirement. In respect of R89(b) he thought that ‘it is unclear from the code as to whether or not this refers to a square with sides of 6m, or a circle with a diameter of 6m’. Mr Adams then adopts the circle as ‘a reasonable interpretation’ for assessing compliance with R89 (b). Using the 6m circle he determined that the development complied ‘with this rule for all units except Units 6 & 8’. Mr Adams determined that the development complied with C89 as ‘All of the units have an open space area that is either of a minimum dimension of 6m or is only marginally less than this dimension. Where these marginal dimensions occur the reduction is not such as to unacceptably diminish the utility of the space’. Mr Adams considers that C90 has been met for all units though he considers Unit 4 may have issues with visibility for passive surveillance.

48.       The Tribunal has carefully considered the plans, shadow diagrams, the contentions of the parties and the evidence of the witnesses. We have also noted the requirements of R97(b) which states that clothes drying facilities are exclusive of POS requirements.

49.       The Tribunal agrees with all parties that R88 has not been met. The average area is determined from 2080.86 m² /10, which is 208 m²x 0.6, which is 124.8 m² less 50 m², i.e. 74.8 m². The total required area of POS is 748 m². The total POS of this development is stated by the First Party Joined to be 656.52 m² (refer Site Plan Revision F). The Tribunal does not agree with Mr Adam’s evidence proposing that the area in front of the courtyard walls up to the front boundary be included. We will refer to C88 later.

50.       The Tribunal considers that R89(a) has been met by the development. Part (b) is addressed in the next paragraph. The Tribunal has determined that the ‘dimensional requirement’ of part (b) 6m x 6m refers to a square and not a circle.

51.       The Tribunal will first consider the POS of Units 1–5, which are predominantly in front of the building line and behind courtyard walls. These courtyard walls also have design requirements that must be considered in conjunction with the rules and criteria and that are under Element 3 Built Form ‘Interface’, including the requirements for ‘articulation’ of courtyard walls. This is discussed below.

52.       Unit 1 has minor dimensional encroachments at the gate and engages rectangular pier adjacent to Unit 2 of the required 6m x 6m square and therefore does not meet part (b) of the rule. Units 2 and 3, with the square dimensioned from the front of the engaged rectangular piers and extending just under half a metre beyond the 3m front set back of the courtyard walls, do not meet part (b) of the rule. Units 4 and 5 have dimensional encroachments at the gate and areas of articulation of the required 6m x 6m square, and as such do not meet part (b) of the rule. The Tribunal notes that R66 requires articulation every 15m. The courtyard enclosing structures that extend across the front of the units have a length of about 14m and 18m and as such, the extent of articulation could be amended to possibly allow the POS of some of the units to comply with part (b) and C66.

53.       The POS of Units 6–10 are behind the building line and behind courtyard walls and fences. Unit 6 has dimensional encroachments at the gate and also at the living room of at least 1m x 2.8m into the required 6m x 6m square and as such does not meet part (b) of the rule. Unit 7 has dimensional encroachments extending into the POS of Unit 8 to the southeast at least 1.2m in the north-south direction and 2m in the east-west direction into the required 6m x 6m square, and as such does not meet part (b) of the rule. Unit 8 has dimensional encroachments extending into the POS of Unit 7 to the northwest at least 1.2m in the north-south direction and 2m in the east-west direction and also at the garage of at least 1.5m x 1.8m into the required 6m x 6m square and as such does not meet part (b) of the rule. Unit 9 has dimensional encroachments at the garage of at least 0. 3m x 2.2m into the required 6m x 6m square and as such does not meet part (b) of the rule. Unit 10 has very small dimensional encroachments at the garage of about 0.3 m x 0.3m into the required 6m x 6m square and as such does not meet part (b) of the rule. We will refer to C89 below.

54.       The Tribunal now addresses R90. Units 1–5 do not comply with part ( b) as their POS areas are forward of the building line. Those areas of POS that are behind the building line each have a minimum dimension of less than 6m. Unit 6 does not comply as the POS allocated has a minimum dimension of approximately 4.5m. Units 7, 9 and 10 comply with the Rule. Unit 8 does not comply as the POS allocated has a minimum dimension of approximately 5m.

55.       The Tribunal now focuses on each unit that did not comply with one or more rules and will determine if it satisfies the criteria and therefore the intent of the element. The Tribunal notes that C88 and C89 have the same wording. C88 is considered later.

56.       Unit 1 does not comply with R89 or R90; however, the Tribunal finds that it does satisfy C89 and C90 as it is a 3 bedroom unit that opens out to the north off the living space providing for maximum year round use, the clothes drying has a northerly aspect and the courtyard wall provides privacy.

57.       Unit 2 does not comply with R89 and R90. It is a 3 bedroom unit with a small combined entry/dining/living room on the ground level 5.2m wide by approximately 3.4m deep. As such the POS can be projected to be an area that will be even more important than usual as an outdoor recreational space and as an extension of the function of the dwelling. The Tribunal considers that the projected requirements of the dwelling’s occupants should cater for at least a family of 4 and up to 6, or 3 or more adults. The area of POS provided is noted as 34.8 m² which, in the opinion of the Tribunal is insufficient for a 3 bedroom residence in an RZ2 Suburban Core Zone. The Tribunal notes the evidence of Mr Adams with respect to local parks and facilities, but is not persuaded that the availability of these facilities is sufficient to offset the deficiencies of this unit.

58.       The Tribunal finds that Unit 2 does not satisfy either C89 or C90.

59.       The First Party Joined also relied on the evidence of Mr Adams with respect to amending the development by deleting the courtyard walls and replacing them with hedges. The way in which this would affect the POS of the front units will be addressed later.

60.       Unit 3 does not comply with R89 and R90. It is a 2 bedroom unit with a small combined entry/dining/living room on the ground floor similar in size to Unit 2. The Tribunal finds that it does satisfy, though only just, C89 and C90 as it opens out to the north off the living space providing for maximum year round use and the courtyard walls provide privacy.

61.       Unit 4 does not comply with R89 and R90. It is a 3 bedroom unit with a combined entry/dining/living room on the ground floor about 0.5m wider and deeper than Unit 2 and as such the POS can be projected to be an area that will be more important than usual as an outdoor recreational space and as an extension of the function of the dwelling. The Tribunal considers that the projected requirements of the dwelling’s occupants should cater for at least a family of 4 and up to 6, or 3 or more adults. The area of POS provided is noted as 35.03 m² which, in the opinion of the Tribunal is insufficient for a 3 bedroom residence in an RZ2 Suburban Core Zone. Refer to additional comments on Unit 2 above. The Tribunal finds that Unit 4 does not satisfy either C89 or C90.

62.       Unit 5 does not comply with R 89 and R90; however, the Tribunal finds that it does satisfy C89 and C90 as it is a 2 bedroom unit that has nearly 62 metres of POS, opens out to the north off the living space providing for maximum year round use, the clothes drying has a northerly aspect and the courtyard wall provides privacy. The dimensions of the POS would be improved if the courtyard wall was not articulated.

63.       Unit 6 does not comply with R 89 and R90. The minimum dimension of at least 6m required by R90 is not met and not to an insignificant extent. The Tribunal notes the Revision F plans show a revised location of the required visitor parking space to the north of Unit 6 from the south of Unit 1 as shown on the Revision D plans (refer T121). This would appear to be as a result of the suggestion from the delegate of ACTPLA dated 21.09.2011 (refer T50). As a result the POS requirements and the visitor parking space overlap. If the parking space is deleted to allow the POS to meet R89 and R90 the development must be refused as C38 would not be satisfied. However, the Tribunal finds that as it is a 1 bedroom unit with a total POS of 74.75 m² it does satisfy C89 and C90. The POS opens out to the north off the living space and there is a 3m wide area that extends along the western side with a northerly aspect. The clothes drying, while shown located to the south could, however, be relocated allowing it to have a northerly set up.

64.       Unit 7 does not comply with R89. It is a 2 bedroom unit with a combined POS area of nearly 70 m², including 39.3 m² in the northern courtyard. The Tribunal finds that it does satisfy C89 as it opens out to the north off the living space providing for maximum year round use and the courtyard walls and fencing provide privacy.

65.       Unit 8 does not comply with R 89 and R90. The present configuration would allow a square with the shortest side measuring about 4.5m and while the total area of the POS is 71 m² this is inclusive of a residual space to the north 2.2m wide of about 10 m² and an area of 25.2 m² directly to the south averaging just over 3m in depth. Unlike Unit 7, the minimum dimension of 6m required by R90 is not met and not to an insignificant extent. It is a 2 bedroom unit with a combined living/dining area slightly greater than that of Unit 6 and the POS opens out to the north off the living space. However, as shown by the shadow diagrams (ex. PJ3), this area to the north is for the most part in shade on 21 June as shown on all but the diagram for 12 noon. The POS of Unit 8 differs from Unit 6 in that the garage is located to the north of a reasonable area of the POS designated by the 6m diameter circle, which results in shading the POS for a lengthier period of the day and the residual area of about 10 m² to the north, which includes the garbage bins and entry path, is narrower than the residual area of Unit 6. The Tribunal finds that Unit 8 does not satisfy either C89 or C90.

66.       Unit 9 does not comply with R89. It is a 2 bedroom unit with a combined POS area of 72.4 m² including 44 m² in the northern courtyard. The northern courtyard has a width of 7.3m and a slightly narrower depth for just under half of the courtyard and has a rectangular form with no residual space. The Tribunal finds that it does satisfy C89.

67.       Unit 10 does not comply with R89 but only to a minor extent. It is a 1 bedroom unit with a combined POS area of 122.5 m² and the Tribunal finds that it does satisfy C89.

68.       The Tribunal now considers C88 to determine whether the development satisfies the criterion and therefore the intent of the element, because the development does not comply with R88. The Tribunal has determined that the POS for Units 2, 4 and 8 are each not dimensioned to suit the projected requirements of the occupants and also notes that the total POS for Unit 3 of 38.6 m², including the southern service court is just over half of the average area calculation. The development does not meet C88.

69.       A number of the units fail to meet either the rules or the criteria in relation to private open space. The deficiencies are significant and cannot be overcome by the imposition of conditions.

70.       The Applicants contend that the courtyard wall at the front of Units 1–5 blocks the sightlines from the driveway and extends to 80% of frontage, diminishing the streetscape. They referred to Rule 64/Criterion 64 and Criterion 65, which read:

71.       The Respondent relied on the amended witness statement of Mr George Cilliers (ex. R2, paragraph 52) in which he concludes that the length of the courtyard walls totals 13m which is 33% of the width of the block. He considered that the remainder of the courtyard will be enclosed by fences with gates and hedge planting in front. He then states that the courtyard walls will not obstruct sight lines and that the development complies with R64. As to C65 he considered that the crimson bottlebrush planting will present as ‘interspersed’ hedge in keeping with existing street character and therefore the proposal will comply with C65.

72.       Mr Walker submitted that the courtyard walls could be built not only of masonry and that hedges were also acceptable. He considered the extent of courtyard wall was not offensive and does not detract from the established character of the street.

73.       The First Party Joined relied on evidence from Mr Shoobridge, Mr Adams Mr Milin.

74.       Mr Shoobridge states at paragraph 38 of his witness statement that the site’s sight lines comply with Figure 3.3 of AS 2890.1 because the standard requires a distance of 2.5m from the property boundary and the courtyard walls are 3m from the boundary; a margin of 0.5m.

75.       At paragraph 59 of Mr Adam’s statement he describes the courtyards as being partially surrounded by brick walls and horizontal timber slatted fencing and refers to the perspective drawing at T114 which he considers to be a good representation of the plan at T171, the landscape plan Revision C. At paragraph 60 he describes the fence elements as distinct from the wall elements and that they are not panels set within a continuous masonry wall. At paragraph 61 he states ‘the code does not impose any specific limitations on the fencing’ which he restated in his oral evidence. At paragraph 62 he sets out R64 and states that there will be shrub planting at the front of the walls which occupy approximately 33% of the block width. In paragraph 68 he refers to the merit track assessment by Mr Garrett of the authority where at T76 the total length of the courtyard walls was assessed as 28.07m which is greater than 50% of the width of the block. Mr Adams then sets out reasons why, in his assessment, C64 is met: his reasoning is similar, though more detailed, to Mr Garrett’s assessment, and he concludes that the development is compliant with R64. At paragraph 71 Mr Adams addresses the alternative of enclosing the POS areas with hedging.

76.       In his submission for the First Party Joined, Mr Mossop considered that the courtyard walls could include both timber and masonry and said that the First Party Joined was not calling for hedges to replace the courtyard enclosing structure.

77.       The Tribunal has carefully considered the issues associated with the enclosing of the five front units POS which are forward of the building line. In doing so, the Tribunal has also taken into consideration R63, C63, R66 and C66.

78.       The Tribunal does not agree with Mr Adams that the MUHDC does not impose any specific limitation on the fencing associated with the enclosing of the POS forward of the building line (ex. PJ7, paragraph 61). The Tribunal notes the requirements of R63 and C63 which read:

79.       The Tribunal considers that only R63 parts (c) and (d) are relevant as there is no estate development plan or precinct code applicable to this site.

80.       The Tribunal notes the requirements of the Residential Boundaries Fences General Code R1, which is a mandatory rule, and R12 and C12 which read:

81.       The Tribunal determines that the enclosing structure for the POS forward of the building line as set out on the Revision F drawings consists of both courtyard walls and fencing. The Tribunal agrees with Mr Adams’ description of the timber element as horizontal timber slatted fencing. We do not consider that the timber element is a part of the courtyard wall as set out in R64 part (d) as it is not detailed as a ‘feature panel’ as set out in R64 part (d) but extends down to the ground and extends for a greater length, approximately 22.5m, than does the masonry wall.

82.       Furthermore we consider that R63(c) and associated rules applicable to hedges in the Residential Boundaries Fences General Code are not satisfied. The Respondent and First Party Joined have requested that the Tribunal consider the Revision F plans only and not the approved plans. The landscape plan LA 01F does not include hedge on the street side of the front fence but shows it on the southern side of the fence. The fence will be partially obscured by some low level planting; however, the fence will not be concealed by the hedge from the street side. The streetscape image perspective shows the timber fencing is noticeable and not hidden by an established, vigorous hedge. The Tribunal notes that no supporting evidence was submitted with respect to R12 of the Residential Boundaries Fences General Code and therefore has considered the development against C12. It would appear that no written justification of the requested material was provided with the application and the visual mitigation necessary is not provided with planting grown as a hedge as discussed above.

83.       The Tribunal notes that the approved landscape plan at T119 is not clear as to whether hedges are placed in front of the fencing; however, Revision C does show hedge in front of the fence. The Tribunal considers that the approval was consistent with C63; however the Revision F plans do not comply with C63. The Tribunal determines that the development complies with R64 and C66. The Tribunal could make a condition of approval that the fencing meets the requirements of the Residential Boundaries Fences General Code.

84.       The Tribunal now addresses the proposal put by Mr Adams to locate the hedge closer to the front boundary to enhance POS. The two units that have been determined by the Tribunal not to meet the requirements of POS are Units 2 and 4. We note that no drawings were provided by the First Party Joined to show how this would be done; however, we consider that Unit 4 would most probably meet the criterion if this were made a condition of approval.

85.       Unit 2 is more problematic. Two issues need to be considered in combination; the requirements of the Residential Boundaries Fences General Code and the sight lines required by AS2890.1. The POS of Unit 2 could be extended beyond the 3m front setback; however, the fence within the hedge cannot extend at a 45 degree angle to conform with the required sight lines, as proposed in oral evidence from Mr Adams. Rule 1 of the Residential Boundaries Fences General Code, which is a mandatory rule, requires that fences are constructed so that the front fence faces Territory land. In addition, a hedge placed forward of the location of the existing corner of the courtyard wall adjacent to the entry driveway would have a depth, when it is established and vigorous, most likely of more than 0.5m (refer Mr Shoobridge evidence above), and would therefore contravene AS2890.1 even if it were to extend at an angle. The Tribunal finds that the POS of Unit 2 would not be adequately enhanced even if the hedge was extended towards the front boundary and complied with the above requirements.

86.       The development meets the provisions of the MUHDC concerning courtyard walls, but it should be a condition of approval that the fence is concealed by a hedge in accordance with the Residential Boundaries Fences General Code.

87.       The Applicants contended that the side setbacks for the upper levels were exceeded and that this intruded on the amenity of the neighbouring Block 9. In addition, the owners of the neighbouring properties to the east and west each provided statements as follows: Mr Gino Moliterno of 19 Bates Street owns the corner block adjoining the development to the front side east; Ms Louise Sampson of 17 Bates Street owns the adjoining block to the development at the rear side east, and Mrs Yvonne Hoskins of 59 Marsden Street owns the property to the west side.

88.       Mr Moliterno’s residence faces to the northeast and has a rear patio and garden to the southwest which adjoins the development site. Two bedrooms also face the southwest. Mr Moliterno believes the bulk of the new building will affect the open vista and overshadow his garden.

89.       Ms Sampson’s residence faces east and has a rear garden to the southwest which adjoins the development site. This garden has a northerly aspect and the garage at the rear has been adapted to provide a single residence. Ms Sampson believes that the new development will overlook and overshadow her back garden and that there will be a lack of screening of her property from within the new development.

90.       Ms Hoskins’ residence faces north and her property extends along the full depth of the development. Ms Hoskins believes that her privacy and amenity will be compromised as her front and back entry doors, and bedrooms all look towards the new development; though her main concern was with noise generated from the new development once constructed.

91.        The Respondent relied on the amended witness statement of Mr George Cilliers (ex. R2), where at paragraphs 48 and 49, Mr Cilliers stated that the encroachments are relatively minor and that C55 was satisfied.

92.       The First Party Joined relied on the witness statement of Mr Anthony Adams (ex.  PJ4), and the witness statement of the building designer Mr Tomi Milin (ex. PJ5).

93.       Mr Adams at paragraph 48 states that the Revision F plans are compliant with the criterion but does not state that the development does not meet R55. The Tribunal assumes that he has determined that R55 has not been met. He states that the encroachment will have very little impact on solar access to the adjoining blocks. Mr Adams states at paragraph 43 that the setbacks in the MUHDC “provide a yardstick for assessing setback distances” and that the built form with an articulated design, with some building beyond the setback and some behind the setback, is superior to a continuous wall at the setback. He demonstrated this with reference to Attachment B of his witness statement. He stated that this response is anticipated by the Territory Plan. At paragraph 46 he states that the bulk and scale are not incompatible with single residential development.

94.       Mr Milin at paragraphs 37 and 38 of his witness statement states that the encroachment on the western side is approximately 525mm x 2.14m and on the eastern side 3m x 210mm and states that both will have a minimal effect on the neighbour’s solar access. Mr Milin did not address the sufficiency of the spatial separation between adjoining developments in C55 Part (a) (i).

95.       The Tribunal raised with both the Applicants and the First Party Joined during oral evidence its concern that the correct dimensions were not being applied to determine where the Primary building zone and the Rear zone occurred considering that both, in the opinion of the Tribunal, had not correctly identified the Building line.

96.       All three are defined terms in The Territory Plan:

97.       In his oral evidence, Mr Cilliers agreed with the Tribunal’s suggestion that the building line was at the front face of the entry porch columns to Units 1 and 4.

98.       The Tribunal notes the requirements of R55 and C55 which read:

99.       Table 4 refers to the side setback for Upper Floors and requires the setback from a side boundary within the Rear Zone to be 6m where the design incorporates blank walls. The components of western and eastern wall that extend beyond the side setbacks are blank. The upper level windows are in the southern facade and have privacy screens on the side closest to the boundaries.

100.    The Tribunal has considered carefully the plans, shadow diagrams and these contentions. As shown on drawing A03 Revision F, the development extends beyond the upper level setback along the western and eastern façades in the Rear Zone. The extent that the development encroaches beyond the side setback on the western side at Bedroom 3 to Unit 1 is approximately 0.6m for a length of approximately 3.2m. The extent that the development encroaches beyond the side setback at the south-eastern corner at Bedroom 2 of Unit 5 is approximately 1.6m for a length of 1.2m.

101.    The Tribunal does not agree with Mr Adam’s interpretation of R55 as a yardstick for assessing setback distances, nor his interpretation of C55 that articulation of the side façade is looked-for and aligned with greater setbacks in the primary zone compensated for by consent to lesser setback in the Rear zone. His interpretation is seen as counter to the Intentset out for Element 2.

102.    The Tribunal visited the site at the commencement of the hearing and took account of each of the three neighbour’s properties.

103.    The majority of the building that extends beyond the upper level setback along the western side is of only a minor nature and is considered by the Tribunal not to greatly affect the spatial separation between the development and the adjoining dwelling, nor does it increase the affect of any overlooking. While the extent of overshadowing is marginally increased in the early morning (ex. PJ3), the Tribunal notes that the neighbour’s driveway and garage are adjacent to this area.

104.    The part of the building that extends beyond the upper level setback along the eastern side is of a shorter length, though it is closer to the side boundary than is the western encroachment. It appears that it will be located adjacent to the western corner of Mr Moliterno’s residence. Mr Moliterno believes that the bulk of the new building will overshadow his garden and affect the open vista he presently retains. The part of the building that extends beyond the upper level setback along the eastern side is not as minor as the western encroachment. The Tribunal, however, considers that the spatial separation between the development and the adjoining dwelling is mitigated by the angled siting of the neighbour’s house. The encroachment will not increase the affect of any overlooking and the extent of overshadowing is marginally increased in the afternoon (ex. PJ3). The Tribunal observed that Mr Moliterno’s garden and patio are adjacent to this encroachment. However, it also notes that they are located to the south-west of the dwelling with a northern orientation as well.

105.    The encroachment does not increase the effect of any overlooking or overshadowing to any extent on Ms Sampson’s property.

106.    The Tribunal concludes that the development meets the setback provisions of the Code.

107.    Criterion 35 of the MUHDC provides:

108.    The Crime Prevention Through Environmental Design General Code (“CPTED Code”) comprises several elements, most of which are not directly relevant to the proposed development. The following are relevant.

109.    This element specifies that multi-unit housing is required to meet the CPTED Code

110.    Being concerned with the public realm and shared community spaces, this element does not apply directly to the proposed development. This element does, however, include a criterion concerning lighting and references to relevant Australian standards: AS 1158 and AS 4282, which are referred to by the First party joined in the development application and the site plan. The Revision F site plan includes the following annotation:

The Tribunal notes that there are four unroofed parking areas adjacent to the side boundaries. If these recessed sections, that are potentially entrapment spots/hiding places as defined, are to be adequately lit in compliance with the codes, there is a reasonable assumption that the lighting may result in nuisance to adjoining properties. This nuisance is more probable to the eastern neighbours where there are rear facing bedrooms, but may still be a problem to the western neighbour with respect to the car space for Unit 1. The Tribunal accepts, however, that the potential for nuisance to neighbours from security lighting, should be minimised provided the development complies with AS 1158 and AS 4282.

111.    As relevant to the proposed development, this element provides as follows:

112.    The Applicants contended that the development breached these criteria as there were opportunities for intruders; there was a lack of natural surveillance; and potential for concealment from view.

113.    Mr Cilliers’ comments dealt mainly with the lighting issue. However, he also considered that the access to Unit 10 raised concerns.

114.    Mr Adams provided a favourable assessment of the development against criteria C18–C22. At the hearing he did not agree that there was a concern in relation to the CPTED Code, and saw the need for a balance between security and other concerns. Mr Adams understood that the authority’s assessment in the first instance was based on T164 and thought that the site plan at T121 was an improvement with regard to crime prevention, and combined with slatted fences instead of masonry courtyard walls, as shown on the Revision F plans, would improve surveillance. The Tribunal notes, however, that the Revision F site plan is more similar to T164 than to T121 in that the entry gates to Units 6 and 10 are placed adjacent to the southern walls of the garages.

115.    The Tribunal considers that Units 1–5 and Units 7 and 8 are consistent with C17, C19 and C21.

116.    The location of the entry gates to Units 6, 9 and 10 are set back from the street and placed so that they are not easily visible from the central vehicle circulation area; each being located in recessed sections that have the potential to create hiding spots or entrapment spots.

117.    The spaces in front of Units 6 and 9 are more problematic as the designated width of the adjacent parking spaces are each less than that stated in R81 (d) (iii) of the MUHDC, i.e. of 3m, and therefore technically encroach into the entry path widths forward of each gate. In the case of both units the path width is reduced to 700mm.

118.    There is one driveway to the development. This, to some degree, addresses one of the principles in the code which is described as Target hardening. It potentially makes fleeing by an invader or assailant more difficult without being observed either on entering or leaving the rear area of the complex.

119.    The Tribunal agrees with Mr Walker that natural surveillance can be provided from upper level windows with respect to the open spaces and parking areas in this development, since there are large windows that face on to the vehicle circulation area from all three blocks. This potential surveillance is less evident with respect to the recessed areas forward of Units 6 and 10 and behind Units 1 and 5.

120.    There are large windows to the north façade of the front two blocks that look out towards the street which may assist with surveillance however, they also overlook the POS of the neighbouring units.

121.    The Tribunal has significant reservations concerning the performance of the proposed development in relation to the CPTED Code, but these reservations are not so great that by themselves, they warrant refusal of the proposal.

122.    The Tribunal will address these together.

123.    The Applicants contend that the development failed several accessibility requirements with respect to Unit 10, the designated dwelling designed to meet the Australian Standard for Adaptable Housing and the Access and Mobility General Code (“AMGC”). These requirements relate to the location of the unit, car parking, footpath to the street and letter box, and waste arrangements. They referred to C36 and R70, a mandatory rule, which read:

124.    The Respondent relied on the amended witness statement of Mr George Cilliers (ex. R2), where at paragraph 27, Mr Cilliers contended that the AMGC was not applicable to this development and that the Australia Standard for Adaptable Housing was. Mr Cilliers relied on Table 1: Development required to meet the Access and Mobility General Code in the AMGC, which states that the code applies to multi-unit housing (if greater than 10 units). This development is for 10 units. Mr Adams, at paragraph 29, agreed with Mr Cilliers’ contention.

125.    The Tribunal considers that there is an inconsistency between the mandatory Rule 70 in the MUHDC and Table1 of the AMGC. R70 requires a development of 10 or more dwellings to meet the AMGC while the AMGC states that it is to be applied if there are more than 10 units. The Tribunal notes that the Development Code takes precedence over the General Code when there is an inconsistency. The Tribunal agrees with the original assessing officer’s decision that a development with 10 dwellings should include any relevant considerations in the Access and Mobility General Code. The Tribunal agrees with the Applicants that R70 is applicable to this development.

126.    The First Party Joined relied on the evidence of Mr Shoobridge (ex. PJ1) and the building designer Mr Milin (ex. PJ 5). Mr Shoobridge at paragraph 17 contended that the proposal for adapting the garage of Unit 10 to a carport combined with the adjacent spaces to the east, as shown on the Revision F drawings, complies with the relevant standard for Adaptable Housing AS4299 section 3.7.2. and with AS 2890.6 2.2.1.

127.    Mr Milin at paragraphs 41–52 contended that the Revision F plans provided an accessible path of travel from Unit 10 to the street and to the parking area that is at least 1 m wide, and that the courtyard gate width and manoeuvring areas along this path comply with the above standards as well as AS 1428.1.

128.    The width of the garage for Unit 10 that is nominated to be adaptable to a carport is 3.13 m. Directly adjacent to this on the eastern side is a required 1 m wide unobstructed path of travel for a person with a disability. If and when the side wall of the garage were removed to provide a carport, there would still be a structural column in the north east corner of the carport. The Tribunal has identified elsewhere the width of the visitor car parking space to the north of Unit 10 as being 600mm less than that which is required by R81.

129.    Mr Shoobridge, in his oral evidence, described to the Tribunal the provision in the relevant standard of three 2.4m wide spaces that provide two compliant parking spaces for people with disabilities as shown on A02 F. Mr Shoobridge also described the requirement for bollards along the centre line of the middle shared 2.4 m wide space to prevent a vehicle parking in the central shared space. While there does not appear to be a requirement for the visitor parking space to be designed as a space for parking by a person with a disability, the Tribunal was unclear from the evidence given as to whether the central line of bollards are a requirement in this development.

130.    The Tribunal has concluded that there will be a conflict with the location of central bollards and the 1m wide access path, both of which are required under the standard. If the bollards are not required, and there appears to be a requirement for one parking space only for a person with a disability, the Tribunal considers there will need to be some barrier element located to enable the required unobstructed 1 m wide path of travel because the visitor parking space width is undersized.

131.    The distance of travel from Unit 10 to the street via the driveway path is the longest of all the units, approximately 55m. The Tribunal considers that this will cause inconvenience to an occupant with a disability.

132.    The Tribunal notes that the plan A02F shows that the width of the footpath next to the hardstand area for Unit 2 is 1m wide, which complies with the relevant standard. However, the hardstand area for Unit 2 is only 2.9 m wide, less than the 3m required by R81(d)(iii). There is conflict therefore between the two provisions, and any attempt to widen the hardstand area would be at the expense of the footpath and would reduce it below the 1m minimum.

133.    The Tribunal notes that the proposed ground floor level for Block C on the approved plans was 579.35 (refer T164), and this was revised to 579.1 on the Revision F plans. We also note that the ground level in front of the garage to Unit 10 is 579.25 on both plans and the ground level in front of Unit 10 is just under 579.0. The Tribunal concludes that the provision of access from the garage and the path into Unit 10 for a person with a disability can be designed to conform to the standard.

134.    The Tribunal notes that the ground level at the south east corner of the site is 578.76 (refer T115), which is 340 mm lower than the proposed floor level. The ground line is shown on the East Elevation drawing A05 F. Unit 10 has a rear sliding door off the bedroom and a service courtyard with the clothes line to the south. The access and landscape treatment to the south of Unit 10 would appear not to be appropriate for a person with a disability, as there is a difference in level of at least two steps from the inside to the outside ground level.

135.    The Tribunal makes the observation that the interior of a dwelling is in general of limited concern with respect to the MUHD Code; however, the mandatory R10 of the AMGC reads:

136.    Mr Milin contended that the interior of Unit 10 was altered in the Revision F plans to meet the requirements of the standard in so far as the door leaves are 920mm wide and the bathroom is designed to comply with the relevant standards.

137.    The Tribunal would, if it were to approve the development, make it a condition of approval that drawings and documents be submitted by the developer to ACTPLA showing that the required access path to Unit 10 and the car parking for people with a disability is compliant with all the relevant standards and codes, specifically the applicable rules and criteria of Element 2: External Access to Entrances, including but not limited to R3/C3; the mandatory rules R5, R6 & R10; C11 and R12 /C12.

138.    The Tribunal would also make it a condition of approval that the landscape treatment to the south of Unit 10 is to be designed to provide acceptable access from the bedroom to all of the POS for a person with a disability.

139.    The Applicants originally contended that the proposed parking and site access arrangements failed to comply with the Code in several respects. In light of the Revision F plans and discussions between the parties and their expert witnesses, the Tribunal understood from the final submissions of Mr Sharwood that the only issue still in contention was whether the proposal meets R76/C76 and C79, which are discussed below.

140.    The Tribunal is however, of the view that R81/C81 have not been complied with. The hardstand areas for Units 2, 3&5 and 8&9 and the visitor space in front of Unit 6 are all less than 3m and therefore do not meet R81(d)(iii). The Tribunal has noted Mr Shoobridge’s evidence (ex. PJ1, paragraphs 45–46) that there is an inconsistency between C38 and R81(d)(iii) and that compliance with AS 2890.1: Australian Standard for Off-Street Parking, which is required by C38, is sufficient to establish compliance with C81. The Tribunal disagrees and does not accept that C81 is met.

141.    R76/C76 and C79 vehicle access R76 and C76 provide:

142.    Mr Shoobridge has calculated that the ends of the internal access road are separated from the western boundary by 1.39 metres and from the eastern boundary by 501mm. However, he is satisfied that these separations do not detract from safe and efficient vehicle movement, the connection to the street network or the pedestrian-priority environment. On this basis he is satisfied that the access road is compliant with C76. In light of Mr Shoobridge’s evidence, the Tribunal finds that C76 is met.

143.    C79 provides:

144.    The Applicants contended that impervious surfaces occupy over 69% of the site leaving at most 31% potentially available for planting or stormwater infiltration. Mr Cilliers disagreed with this contention; he argued that C79is concerned with stormwater originating from the driveways, access/internal roads and car parking areas and does not provide for ‘total impervious surfaces on the site’. He added that if the permeability of driveways and compliance with C79 remains of concern it can be dealt with by means of a condition. This matter was not pursued with any vigour at the hearing, and there was no evidence before the Tribunal that would enable it to determine whether C89 is met. The Tribunal is satisfied that it could be dealt with by way of a condition were the Tribunal to approve the development.

145.    An expert horticulturist and arborist, Mr Paul Scholtens provided a report as to the impact of the development on two established trees on the nature strip or verge. These are located on either side of the two existing driveways which run side by side. The development proposes to use the same location as the existing driveways but skewed slightly as it crosses the nature strip. Mr Scholtens’ report discussed any possible impact upon the existing trees and made the following recommendations –

146.    During his oral examination it was put to Mr Scholtens that construction of the footings for the courtyard walls might adversely affect these two trees. His evidence was that provided similar precautions were taken during construction there was unlikely to be any adverse impact. Mr Scholtens was not seriously challenged and the Tribunal accepts his evidence. The precautions recommended by him are capable of being made conditions of any approval of the proposed development.

147.    As noted above, Section 120 of the Act sets down a range of matters that the decision-maker, and therefore this Tribunal, must consider when making a decision on a development proposal in the merit track. The only matter in significant contention is:

148.    Within the zone objectives, the only matter in dispute is RZ2 zone objective (b):

149.    The Applicants contend that the development breaches the spirit and intention of the planning legislation by placing in a Suburban Core Zone (RZ2) a development that is of medium density, and indeed at the upper end of medium density, as permitted in an Urban residential Zone (RZ3). The Applicants also contend that, while such a development was not prohibited in RZ2, it is clearly the intention of the plan to limit the density of housing in RZ2. The numerous alleged breaches of specific rules and criteria are seen by the Applicants as reflecting an inconsistency between the development and the intended development density for RZ2.

150.    The Applicants contend also that the proposed courtyards wall will have a deleterious effect on the streetscape. As they see it, the courtyard wall will dominate this section of the streetscape and ruin the open flow of generous unfenced front gardens lining the street that is a vital design principle embedded in garden city philosophy.

151.    The term ‘density’ is not defined in the Territory Plan, and the Plan does not at present set down numerical limits on the number of dwellings that are permissible in the RZ2 zone. (Draft Variation 306 currently before the Legislative Assembly would, if adopted, place a limit of 5 dwellings on a block with area of 2080 hectares, as would arise from the consolidation of Blocks 7 & 8).

152.    The issue of density has been considered by the Tribunal in several other cases. In Raphael and Ors v ACTPLA (Administrative Review) [2010] ACAT 89, the Tribunal accepted evidence that ‘what the Code required was an assessment of different elements of a proposal, including plot ratio, height, building envelopes, boundary setbacks, open space, car parking provision etc’ and that ‘the combination of the application of these controls determined what density might be achieved but more importantly controlled the impact on the existing adjoining development’. The Tribunal accepted that the task before it was ‘to determine whether the proposal meets either the Rules of the Criteria listed in the Code rather than some other measure of density’. It found the number of dwellings per hectare to be unhelpful for an assessment as to compliance with either the objectives of the RZ2 zone or the Intent of Element 1 of the Zone Specific Controls. This Tribunal finds the reasoning in Raphael persuasive and adopts it in this case.

153.    It is also relevant to note the interrelationship between sections 53 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 table and code to the zone.

154.    And section 55(2) states:

155.    Taking these two sections together, the Tribunal accepts that a proposal that meets the Code will ordinarily be consistent with zone objectives. In this case, however, the Tribunal has found that the proposed development does not meet all of the relevant provisions of the Code.

156.    The Tribunal has noted the evidence from the First Party Joined and the Respondent that the streetscape of Marsden Street is dominated by the existing street trees and this will not change. The Tribunal also notes the evidence that that Marsden Street and the adjoining area have already experienced significant redevelopment, resulting in a significant diversity of scale, form and site development, including several with courtyard walls. The proposed development will not duplicate the existing development in the area, most of which dates from the 1960s or thereabouts. But the differences are not so great that in themselves they would justify refusal to the development. Nor does the Tribunal agree that the built form or ‘bulk’ of the development when seen from the street is outside what is permissible in an RZ2 area.

157.    The proposed development is inconsistent with the Territory Plan and therefore cannot be approved. The deficiencies are significant and are not capable of being remedied by the imposition of conditions.

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