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ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IBBOTSON v ACT PLANNING AND LAND AUTHORITY & ANOR
(Administrative Review) [2015] ACAT 57
AT 17 of 2015
Catchwords: ADMINISTRATIVE REVIEW – planning and development –
development application - Lease and Development Conditions –
CZ5 zone – compliance with codes
Legislation cited: ACT Civil and Administrative Appeals Tribunal Act 2008 s 68
Legislation Act 2001 s 150
Planning and Development Act 2007 ss 46, 50, 53, 55, 113,
115, 119, 120, 162, 407
Cases cited: Amarso v ACTPLA [2012] ACAT 9
AMC Projects v ACTPLA [2006] ACTAAT 13
Cvetanoski v Commissioner for Land and Planning [1999]
ACTAAT 42
Scherl & ACT Planning and Land Authority [2011] ACAT 37
List of
Texts/Papers cited: Building an Integrated Transport Network: Parking dated June
2015
Gungahlin Precinct Code
Commercial Zones Development Code
Multi Unit Housing Development Code
Residential Zones Development Code
Parking and Vehicular Access General Code Justice and Community Safety Directorate: ACT Road Hierarchy
Tribunal: Ms E. Symons – Presidential Member
Mr R. Pegrum – Senior Member
Date of Orders: 24 August 2015
Date of Reasons for Decision: 24 August 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL AT 15/17
BETWEEN:
KATHLEEN IBBOTSON
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
NATIONAL CAPITAL INVESTMENTS PTY LTD
Party Joined
TRIBUNAL: Ms E. Symons – Presidential Member
Mr R. Pegrum – Senior Member
DATE: 24 August 2015
ORDER
The Tribunal Orders that:
1. The decision under review is varied by imposing an additional condition of
approval as follows:
(a) Within 28 days from the date of this decision, or within such further time
as may be approved by the ACT Planning and Land Authority, the party
joined/lessee shall lodge for approval a plan of landscape prepared by a
qualified landscape architect for the area between the building and the
property line on Donnelly Lane showing new plantings of shrubs and
suitable advanced trees with types and sizes to screen the service zone and
meet the intent of the Development Intentions Plan and Planning Control
Plan 07/13 and 07/14.
………………………………..
Ms E. Symons – Presidential Member
for and on behalf of the Tribunal
2
REASONS FOR DECISION
1. Dr Kathleen Ibbotson (Dr Ibbotson or the applicant) has sought review of a
decision by the ACT Planning and Land Authority (the respondent) under
section 162 of the Planning and Development Act 2007 (the Planning Act) to
approve, subject to conditions, a development application (DA 201324439)
made by Heyward Lance Architecture (Heyward) on behalf of National Capital
Investments Pty Ltd (the party joined) for the construction of “a four storey
mixed use development comprising commercial use at ground level and 45
dwellings at upper levels; a basement car park and associated works” at Block 1
Section 68 Gungahlin (Anthony Rolfe Avenue) (the subject site).1
Summary of Tribunal decision
2. In summary, the Tribunal’s reasons for decision are as follows. On the
application of Heyward for the approval of DA 201324439 the respondent
sought and obtained further information in relation to parking and then
considered and approved the DA subject to conditions (the decision).
3. The applicant challenges the decision made by the respondent and opposes the
Tribunal confirming that decision. The applicant’s challenge at the hearing was
limited to traffic and parking.
4. The Tribunal notes the traffic and parking issues raised by the applicant,
however, considering sections 119 and 120 of the Planning Act, the Tribunal
does not think that there is a basis for refusing the DA or setting it aside in
whole or in part. The approval should however be subject to the further
condition set out in these orders.
5. The Tribunal varies the decision of the respondent by adding the further
condition set out in these orders. In the following paragraphs, the Tribunal has
dealt only with the major issues that arose during the hearings and on which the
Tribunal has based its decision.
The Decision of the Authority
6. The development application was lodged with the respondent on 25 June 2014.
1 T-Documents page 105
3
It was considered in the merit track under sections 119 to 122 of the Planning
Act and no issue about this was raised before the Tribunal. The respondent
sought and obtained entity advice from Emergency Services ACT, ActewAGL
Water Division, ActewAGL Electrical Division and ActewAGL Gas Networks.
By letter dated 26 February 2014, the party joined had given notice of the
proposed development to about 25 nearby properties. The site plan and
elevations of the building were delivered by letter drop to residents on
Gungahlin Place north of the subject site, along Anthony Rolfe Avenue to the
east and in Huyer Street immediately behind Donnelly Lane. Residents were
invited to contact the developer within ten days with any comments but there is
no record of any response to the invitation.2
7. Public notification by the respondent of the development application
commenced on 2 July 2014 and ended on 23 July 2014.
8. On 4 July 2014 the respondent requested further information pursuant to section
141 of the Planning Act from Heyward in order to address issues which are not
relevant for this review.
9. On 25 September 2014, Heyward lodged the further information together with
an addendum dated August 2014 to the original parking report from Northrop
Consulting Engineers (Northrop) in response to a request from the Major
Projects and Transport (MPAT) and further surveys of the site (parking for
site).
10. More than 40 written representations were received by the respondent during
the public notification period. The majority of these were brief with repeated
references to existing “severe parking issues” and a “shortfall of parking
spaces” in the proposed development.3
11. Two detailed and illustrated challenges to the proposed development were
submitted by Dr Kathleen Ibbotson and Mr Peter Ibbotson, who lived nearby,
and by Mr Peter Weatherstone. The principal concern of Dr and Mr Ibbotson
was the impact of the development, with a predicted 81 car shortfall in car
2 T-Documents pages 615-617 3 T-Documents pages 111-113
4
parking spaces4, on road safety and parking for residents in their
neighbourhood. Other matters raised related to a ‘deeply flawed’ parking study;
shadowing caused by the proposed building; noise and other potential impacts
from ground floor restaurants and shops; effects on the amenity of the
surrounding community during the construction phase; and concerns as to the
communication of information about the proposed development.
12. In response to the public notifications and to the further information provided
by Heyward, on 1 October 2014 the DA was referred to MPAT in the
Environment Protection Directorate (EPD). On 16 October 2014 the
respondent’s Development Assessment Branch requested further information
from Heyward in relation to the proposed 75 off-site parking spaces and the
inconsistencies between what was shown in the drawings and what was stated in
the Northrop reports in relation to parking.
13. In response, in December 2014 Heyward lodged further information including a
revised parking report from Northrop dated November 2014 (addendum 2.1)
addressing the issues raised in the request together with a revised basement plan
adding one additional parking space making a total of 65 parking spaces
accommodated on site5. (The development application and the further
information and addendum 2.1 are referred to in this decision as ‘the DA’.)
14. On 4 December 2014, EPD - MPAT sought written advice in relation to the DA
from EPD Transport. On 23 December 2014 EPD - MPAT emailed EPD
Customer Services in relation to concerns about the Margrie Lane car park
spaces relied on by the applicant being “not within 200 metres walking distance
to the proposed development…the distance to the car park is 201 metres away
from the boundary of the development”.
15. On 9 January 2015, EPD - MPAT emailed EPD Customer Services and stated -
“Major Projects and Transport have reviewed the further information supplied
for this DA in Gungahlin. This advice supersedes the advice sent on 23
December 2014. The DA is supported in principal (sic) provided that additional
4 Dr and Mr Ibbotson’s Statement submitted in Rejection of Current proposal for DA
201324439 Part G, Summary page 27 5 T-Documents pages 265-285
5
information is supplied specifying how the applicant will ensure that the
visitor/commercial spaces in the basement will be available to the public…”
16. The DA was referred to the Major Project Review Group (MPRG) within EPD
because “the proposal has received 44 representations.”6 The accompanying
referral brief stated under Issues identified for discussion - “The proposal is
generally consistent with the applicable development codes especially with the
Lease and Development Conditions for the block”.7 The referral also stated that
“the proposal can be approved with conditions. No other options are
recommended…it is recommended that the MPRG support the conditional
approval of the proposal”8
17. On 30 January 2015, pursuant to section 162 of the Planning Act, the delegate
of the respondent approved the proposed development subject to conditions.9
Relevantly, the decision included the following statement- “The proponent
submitted the results of further car parking studies along with revised car
parking provision for MPAT approval. The revised details propose to provide
65 car parking spaces on site and 74 car parking spaces off-site (within 200 m
from the block).10
The Tribunal Proceedings
18. On 18 February 2015 the applicant applied to the ACT Civil and Administrative
Tribunal (the Tribunal) for review of the decision (the reviewable decision).
The application stated that “the main issue with this build is the 74 car parking
spaces that are estimated to be required off-site”.11
19. On 13 March 2015 the Tribunal ordered that National Capital Investments Pty
Ltd be joined as a party to the proceedings, made Directions in relation to each
of the parties filing Statements of Facts and Contentions, Witness Statements
and Authorities and set the matter down for hearing on 3, 4 and 5 June 2015.
6 T-Documents [page 254 7 T-Documents page 255 8 T-Documents page 257 9 T-Documents pages 105-107 10 T-Documents page 109 11 T-Documents page 13
6
The Hearing
20. Immediately prior to the hearing commencing on 3 June 2015 the Tribunal, the
parties, the party joined and their representatives inspected the subject site and
adjacent properties and part of the Gungahlin Town Centre.
21. The applicant represented herself at the hearing. Dr Jarvis of Counsel appeared
for the respondent and was instructed by the ACT Government Solicitor. Mr
Rick Farzan, sole Director of National Capital Investments Pty Ltd, appeared
for the party joined.
22. The Tribunal had before it the documents provided by the Authority relevant to
the decision under review (the T Documents) together with Statements of Facts
and Contentions submitted by the parties and Witness Statements and other
documents tendered in evidence during the hearing.
23. Evidence for the applicant was given by Dr Kathleen Ibbotson. Dr Ibbotson told
the Tribunal that her:
technical qualifications are a PhD in engineering, first class honours degree
in mechanical engineering and a degree in applied mathematics. My
professional career has mainly focused on scientific management and
analysis, although I did work for two years as a forensic engineer for the
AFP. I do not actually believe that my technical qualifications give me any
additional skills in urban planning than that of a lay person, but I do think
that my experience in analysis of data combined with living in the area
surrounding this proposed development have placed me in a good position
to comment on it,…….12
24. The respondent called evidence from three officers of the Environment and
Planning Directorate, all of whom had filed Witness Statements - Mr Ajith
Buddhadasa who is a technical coordinator in the Planning Delivery Branch of the
Planning and Land Authority and was the assessing officer of the DA; Ms Imogen
Markus who is a planning policy officer in the Major Projects and Transport
Branch; and Mr Timothy Wyatt who is a transport specialist within the Major
Projects and Transport Branch.
25. Mr Rick Farzan gave evidence for National Capital Investments Pty Ltd (the party
joined) and called evidence from Mr David Field, who is a civil engineer and a
12 Transcript of Proceedings page 7, lines 39-44
7
director of Northrop Consulting Engineers and who was co-author of the parking
and traffic reports for the proposed development.
26. All witnesses were cross examined.
27. After hearing submissions from the parties the Tribunal reserved the decision.
Applicable law
28. Section 68 of the ACT Civil and Administrative Appeals Tribunal Act 2008 (the
ACAT Act) provides that the Tribunal may exercise any function given by an
Act to the entity for making the decision. The Tribunal has all the powers of the
Authority in reviewing the decision to the extent that those powers are related to
the making of the decision under review.
29. Section 50 of the Planning Act provides that a territory authority must not do
any act, or approve the doing of an act, that is inconsistent with the Territory
Plan. The Territory Plan is provided for under section 46 of the Planning Act.
30. Section 53 of the Act relevantly states:
(1) 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.
(2) ….
31. Section 55 states:
(1) A code (other than a general code or precinct code that is a concept
plan) in the territory plan must contain either or both of the following:
(a) the detailed rules that apply to development proposals the code applies
to;
(b) the criteria that apply to development proposals the code applies to,
other than proposals in the code track.
(2) A code must be consistent with each objective for the zone to which the
code relates.
8
(3) A code that sets out the requirements that apply to stated areas, or places,
or states that it is a precinct code, is a precinct code.
(4) A code that sets out the requirements for types of development, or states
that it is a development code, is a development code.
(5) A code that sets out requirements applicable to the Territory, the
Executive, a Minister or a Territory authority is a general code.
(6) To remove any doubt, a general code may also contain—
(a) policies to be complied with; and
(b) rules and criteria applicable to development proposals the code
applies to.
32. Division 7.2.3 Merit Track, specifically sections 119 and 120, set out the
considerations applicable when deciding development approval in the merit
track.
33. The decision before the Tribunal is a reviewable decision in accordance with
section 407 of the Planning Act.
The Facts
34. The Tribunal adopts the facts in the respondent’s Statement of Facts and
Contentions which are not in dispute, namely:
i. On 13 December 2007, the respondent approved Lease and Development
Conditions (L&DCs) for block 1 section 68 Gungahlin in the ACT (the
subject site)13
.
ii. In March 2008, the L&DCs formed part of the “Auction Documentation”
that comprised part of a sale agreement, under which the party joined
purchased the subject block.
iii. On 25 June 2014, the party joined lodged Development Application (DA)
201324439 with the respondent.
13 T-Documents pages 218-240
9
iv. The development proposal in the DA was for a four storey mixed-use
development on the subject site, comprising commercial use at the ground
level, residential use at upper levels and a basement car park14
.
v. The subject site is located in a CZ5 mixed use zone. The CZ5
development table prescribes the merit track for residential use and
commercial uses such as shops and restaurants.
vi. On 3 December 2014, further information was lodged in support of the
DA15
.
vii. On 30 January 2015 the DA was approved subject to conditions by the
respondent16
.
viii. All information relating to DAs is routinely stored on a database
maintained by the respondent, known as “Objective”. Referral entities
such as EPD and RAMSD can access this database when considering
referrals.
ix. The parking provision in the development proposal is as follows17
-
a) 65 spaces are provided on site – 60 in basement, 5 at grade.
b) car parking for residential units (50 spaces) is provided in basement.
c) Visitors (12 spaces) - on site or within 200 m.
d) for commercial uses (77 spaces) – on site or within 200m.
e) Total off-site parking – 74 spaces.
f) The Gungahlin Precinct Map and Code (2014) reserves four sites for
public parking, sections 226, 228, 229 and 232 Gungahlin.
g) Section 229, currently vacant, is about 170m from its nearest point
to the nearest point on the boundary of the subject site.
14 T-Documents pages 550-701 15 T-Documents pages 265-285 16 T-Documents pages 105-128 17 T-Documents pages 271, 284-5
10
h) There are existing free public car parks on section 228, 232 and 226.
i) The applicant disagrees with the respondent and the party joined on
the calculation of the distance from section 228 to the subject site.
j) Public parking in Gungahlin Town Centre and adjacent areas is
currently free.
k) When blocks reserved by the Plan for public parking are developed,
ACTPLA policy is to require the same number of public spaces to
be retained on the developed site, in addition to the parking required
by the Parking and Vehicular Access General Code.
The applicant’s contentions
35. In her application for review, Dr Ibbotson advised that her family had bought
their house in 2008 in Sarre Street, one of the streets bordering the proposed
development. In that application she said “we appreciate that we live in a mixed
use area and that these regions have the potential ability for sharing of public
car parks” and that mixed use areas “have some potential for reducing
provision through shared and consolidated parking”. However, in her opinion:
there have already been too many development applications approved
without sufficient parking, with each development pointing to the same
public car parks for their overflow needs…an additional 74 legal car
parks are not going to be found in this region of Gungahlin. This
development will affect the amenity, safety, efficiency, access and equity18
of the residents and business owners in the area. This is contrary to the
objectives for mixed use zones.19
36. In her application, Dr Ibbotson re-stated her earlier concerns that there was
“inadequate description of the shadowing caused by the proposed building” and
that there was no information provided as to the impact of the proposed
restaurants and shops on the surrounding community including noise
generation, hours of operation and venue sizes. There were additional concerns
during the construction phase as to hours of site operation, parking for
tradesmen, requirements for closing of local streets and the effects of vibration
18 The CZ5 zone objectives 19 T-Documents page 36
11
from heavy machinery on existing buildings close to the subject site.20
37. The applicant provided the Tribunal with an extensive dossier of material
relating to the decision under review. The Tribunal recognises the considerable
effort of the applicant in presenting her objections to approval of the DA. In her
opening statement, the applicant said it was not her intention to stop the
development but she did not want “70-odd extra cars in my neighbourhood”.
The Tribunal reminded the applicant of her other concerns “for example
shadowing et cetera”. The applicant then advised the Tribunal “I formally
withdraw all of those other concerns”.21
38. In addition to the contentions referred to in the previous paragraph the applicant
also contended that:
a. The Margrie Lane carpark (section 228) should not be counted (in
the required offsite car parking spaces) because it is over a 200
metre walk away and it should be reserved for the town centre
usage and not for a proportionately tiny development that is located
outside the town centre boundary…22
and
b. The proposed development does not meet the Territory Plan in terms
of its proposed on-site car parking provisions and it does not meet
the intent of the lease and development conditions on the block,
namely that “all residential and commercial carparking provisions,
as calculated using the Parking and Vehicular Access General
Code, are to be accommodated in a single or double underground
carpark on-site.”23
The respondent’s contentions.
39. Dr Jarvis contended that the decision under review should be affirmed and the
40. application dismissed.24
20 T-Documents pages 78-79 21 Transcript of Proceedings 3 June 2015 page 13 line 27 22 Transcript of Proceedings 3 June 2015 page 11 lines 22-25 23 Transcript of Proceedings 3 June 2015 page 11 lines 41-44 24 Respondent’s Statement of Facts and Contentions at [19]
12
41. He told the Tribunal that “the parking in this proposed development meets the
intent of the lease and development conditions”25
and that, other than for
resident parking, the Parking and Vehicular Access General Code “permits a
development of this kind to rely upon publicly available off-site parking” for
commercial visitors. “The Parking and Vehicular Access General Code does
however require that that parking be within 200 metres, and there is a dispute
between the parties as to how that should be calculated”.26
The party joined’s contentions
42. The party joined contended in its Statement of Facts and Contentions that the
building was designed “to completely comply with the relevant Lease and
Development Conditions (L&DCs), the building footprint as set out in the
specific L&DCs, the Multi-Unit Housing Code and the Territory Plan, as well
as the ACT Parking and Vehicular General Access Code”.27
43. Before deciding on the specific uses for the commercial tenancies, the party
joined had arranged for a parking study to be carried out and further car parking
studies were undertaken during the assessment of the development application.
Since the application for review was made, the party joined has made further
changes which have increased the number of on-site car park spaces from the
original 65 to 76, thereby reducing reliance on off-site car parks. The new
proposed basement and ground floor car parking design was annexure B to the
party joined’s Statement of Facts and Contentions.
Issues
44. The issues before the Tribunal therefore relate to compliance with relevant
legislation, the Codes and the adequacy and location of car parking. They are:
a) Issue 1: Does the proposed development comply with the Gungahlin
Precinct Map and Code?
b) Issue 2: Does the proposed development comply with the relevant
development codes – the Commercial Zones Development Code; the
25 Transcript of Proceedings 3 June 2015 page 19 line 30 26 Transcript of Proceedings 3 June 2015 page 13 lines 32-44 27 Party Joined Statement of Facts and Contentions at [2]
13
Residential Zones Development Code and the Multi Unit Housing
Development Code?
c) Issue 3: Does the proposed development comply with the Parking and
Vehicular Access General Code?
d) Issue 4: Does the proposed development comply with the approved Lease
and Development Conditions including the Planning Control Plan and
Development Intentions Plan?28
e) Issue 5: Would development approval be consistent with sections 119 and
120 of the Planning Act?
Consideration of the issues
Issue 1 – The Gungahlin Precinct Map and Code
45. Under section 115 of the Planning Act, where more than one type of code
applies to a development and there is inconsistency between provisions, the
order of precedence is Precinct Code, Development Code, and General Code.
46. The Gungahlin Precinct Map covers a large area bounded on the south by
Gungahlin Drive and on the north by Horse Park Drive. The Gungahlin Town
Centre is at the centre of the Precinct. The subject site is within a CZ5 mixed
use commercial zone immediately to the north of the Town Centre across
Anthony Rolfe Avenue. The CZ5 zone is some 1000 metres long and 70 metres
deep and separates the Town Centre from the RZ3 urban residential zone in the
northern part of Gungahlin.
47. Figure 3 in the Gungahlin Precinct Code describes Anthony Rolfe Avenue as a
‘major collector road’ with an on-road cycle lane and off-road shared paths. The
Tribunal notes that the document ACT Road Hierarchy issued by the Justice and
Community Safety Directorate states that the ‘classification of roads in the ACT
is based on a formal road hierarchy’. ‘Major collector roads’ are described as
roads that “collect and distribute traffic within residential, industrial and
commercial areas. They form the link between the primary network and the
roads within local areas and should carry only traffic originating or
28 T-Documents pages 239-240
14
terminating in the area. The volume of traffic carried is constrained by
environmental objectives - safety and traffic noise - rather than road geometry
and reflects the limited area that they serve. Direct property access is still
permissible but the level of traffic may dictate that access and egress
arrangements should be such that vehicles can exit properties in a forward
direction”.29
48. The Tribunal notes that the role of Anthony Rolfe Avenue is to “carry only
traffic originating or terminating in the area”. The Tribunal notes also the
environmental objectives for a major collector road in relation to safety and
traffic noise. The Tribunal notes the concerns of the applicant with regard to
haphazard parking and incomplete pathways, pedestrian crossings and lighting
along Anthony Rolfe Avenue, but such matters are urban infrastructure issues to
be addressed by the appropriate authorities as the district and town centre
develop.
49. Only three planning criteria in the Gungahlin Precinct Code apply to this mixed
use commercial development area - C66 (noise generating uses); C67 (activities
ancillary to residential use); and C68 (maximum 4 storeys subject to
compatibility with desired character; reasonable solar access to dwellings on
adjoining residential blocks). A noise management plan was submitted with the
development application. The proposed development satisfies both of the other
criteria.
50. For the reasons set out above, the Tribunal concludes that the proposed
development is consistent with the Gungahlin Precinct Map and Code.
Issue 2 – Does the proposed development comply with the relevant development
codes: the Commercial Zones Development Code; the Residential Zones
Development Code and the Multi Unit Housing Development Code?
51. The Commercial Zones Development Code provides additional planning, design
and environmental controls to support the objectives of the CZ5 mixed use
zone. The Commercial Zones Development Code states that the Residential
Zones Development Code and the Multi Unit Housing Development Code are
29 Justice and Community Safety Directorate: ACT Road Hierarchy
http://www.justice.act.gov.au/page/view/3063/title/act-road-hierarchy
15
also applicable to development in commercial zones.
52. Criterion C1 in the Commercial Zones Development Code requires that the
development “meets the intent of any current relevant lease and development
conditions”. The Multi Unit Housing Development Code contains a similar
requirement at C4 - “the development meets the intent of any approved lease
and development conditions”. The Tribunal will consider the interpretation of
“intent…of lease and development conditions” as a separate issue.
53. Figure 9 in the Gungahlin Precinct Code shows four sites in the Town Centre
reserved for public car parking, two of which, Section 228 (known as Margrie
Lane) and Section 229 are on the south side of Anthony Rolfe Avenue and are
visible from the subject site. The applicant has contended that parking by
visitors in the car parks at Margrie Lane or Section 229 will not meet criterion
C82 in the Multi Unit Housing Development Code and does not permit “safe
and direct visitor entry” to the proposed development because it requires a
visitor “to cross a busy street in Gungahlin without traffic lights and navigate
this passage without a paved footpath”.30
The respondent contends, and the
Tribunal noted on the view, that Anthony Rolfe Avenue is a divided
carriageway with a generous landscaped median strip and that there are several
existing walkways across Anthony Rolfe Avenue, near the subject site and
providing safe and easy access to the carparking on Section 228 and future 229.
54. The Tribunal has reviewed building and site plans and has considered the
requirements of the Multi Unit Housing Development Code for visitor parking.
55. The applicant did not call any expert evidence to support her contention that
visitors parking in Margrie Lane will not have “safe and direct visitor entry” to
the development. Mr David Field said in evidence “the Margrie Lane carpark is
an open carpark which has a clear link from one side of the road to the other.
For me there are (sic) good access, there is a good site distance and it is visible.”
31 The Tribunal accepts the evidence of Mr Field.
56. The Tribunal finds, having considered the available evidence, that the proposed
30 Fact #17 in the applicant’s Statement of Contentions 31 Transcript of Proceedings 4 June 2015 at page 94, lines 35-37
16
development satisfies criteria C82 and C8332
for accessibility for visitors.
Likewise the proposed development meets criterion C8433
that car parking
spaces on site and not in the basement do not dominate site landscaping.
Criterion C85 provides that “reasonable provision is made for short stay
parking for delivery trucks” and is also met.
57. The Multi Unit Housing Development Code contains no other requirements
relevant to the proposed development. The Residential Zones Development
Code contains no requirements relevant to the proposed development.
58. The Tribunal concludes that the proposed development is consistent with the
Commercial Zones Development Code; the Residential Zones Development
Code and the Multi Unit Housing Development Code.
Issue 3 Does the proposed development comply with the Parking and
Vehicular Access General Code.
59. Sections 1.3 and 1.4 of the Parking and Vehicular Access General Code state:
The code adopts a performance based approach and section 3 sets out, for
each of the zones, objectives relating to the provision of parking which
development proposals are required to meet. The relevant schedule in
section 3 defines the minimum parking provision requirements for
permitted development for each of the zones.
The scale of parking provision required is derived from a set of criteria
relating to safety, economic efficiency, accessibility, commercial viability
and social and environmental objectives. The parking provision rates take
account of factors such as the availability of public parking and the
potential for shared parking with neighbouring developments,
accessibility of the location to public transport, and relevant transport,
economic, social and environmental policies, such as travel demand
management measures.
…
Parking generated by a development is generally required to be
accommodated on site or in a location consistent with the criteria in
section 2.
32 C83: Visitor parking is accessible to all visitors 33 C84: Car parking spaces on the site (including garages but excluding basement car parking)
achieves all of the following (a) do not dominate site landscaping (b) are consistent with the desired character
17
…
However the performance approach adopted in these codes provides the
flexibility to enable a proposal to be supported where the proponent can
demonstrate to the satisfaction of the Territory that the objectives can be
met either by provision of a lesser on-site rate or by utilising spare
capacity in publicly available on-street or off-site parking...
The utilisation of spare capacity in on-street or off-site parking areas is at
the discretion of the Authority, having regard to, inter alia, the potential
demand which may be generated by a particular proposal as well as the
potential for nearby lessees to seek to expand their activities and lay claim
to a proportion of the available capacity in publicly available on-street
and off-street car parking areas.
60. Section 3.3.1 of the Code gives the following objectives for parking and
vehicular access in the CZ5 mixed use zone:
a) Amenity
i) no regular overspill of parking occurs in neighbouring residential
areas which detracts from the amenity of these areas
ii) the provision of parking does not detract from creating vibrant,
interesting and lively centres
b) Safety
i) no traffic hazards are created by the provision of access and
parking facilities for a development
ii) the safety of all users, especially pedestrians and cyclists, is
considered
iii) the creation of community surveillance of car parking areas by
people using neighbouring areas
c) Efficiency
i) the efficient use of existing and future public parking provision by
the consideration of sharing of facilities, wherever possible
ii) commercial vehicles delivering or collecting goods are
accommodated
d) Access
i) safe and efficient access to mixed use areas by all users including
business, workers, residents, shoppers and visitors as well as by
operational and commercial vehicles
e) Equity
i) the maintenance of an adequate supply of public parking for the
level of development and activity approved in a mixed use area
f) Non-commercial use
i) the successful operation of non-commercial uses in mixed use areas,
especially community uses which will require adequate set-down
18
and pick-up facilities.
61. The applicant has argued that the safety of drivers and pedestrians is a critical
issue in the context of parking and access. The applicant acknowledges that she
lives in a mixed use area and that her house is in a CZ5 zone but she reminded
the Tribunal that houses on the other side of her street are in a RZ3 residential
zone and that “the proposed development is bordered by a RZ3 residential
area”34
. Further objectives for residential zones are given in Section 3.1.1 of the
Parking and Vehicular Access General Code.
62. Dr Jarvis reminded the Tribunal that parking for residents of the proposed
development was all contained within the site and that the theoretical number of
visits to the ground floor businesses will not all occur at the same time.35
63. It is accepted by all parties that the proposed development meets the
requirements for resident parking within the basement level.
64. The applicant nevertheless contends that the majority of the objectives in the
Parking and Vehicular Access General Code for the CZ5 mixed use zone and
the RZ3 residential area are not presently being met and that this situation will
worsen if the proposed development proceeds. The applicant provided
photographs of private cars parked in residential streets in the immediate
vicinity of the subject site. The Tribunal walked along these streets and
observed that many cars were parked carelessly and there appeared to be few
vacant parking spots outside private houses.
65. At the centre of the objection to the proposed development is the vexing
question of the ‘ownership’ of kerbside parking in residential areas and the need
to allow access for service vehicles and garbage collection. Cross examined by
Dr Jarvis, the applicant stated that one of the reasons she was there was
“because my husband has trouble finding a car park”.36
66. In his opening statement, Mr Farzan reminded the Tribunal that “Dr Ibbotson
34 Fact 122 in the applicant’s Statement of Facts 35 Transcript of Proceedings 3 June 2015 at page 16 line 8 36 Transcript of Proceedings 4 June 2015 at page 121 line 15
19
has chosen to live in a CZ5 zone”.37
67. The applicant contends that parking spaces outside her own house “are often
taken by employees of the businesses nearby on Anthony Rolfe”.38
The applicant
asks whether existing residents have a right “to park their cars somewhere in
the vicinity of their homes”.39
It is human nature, she says, to park “where it is
convenient and generally where it is legal if possible”.40
At the same time, the
applicant asks if it is reasonable “to expect only two cars ever being used, or
that garages aren’t used for any other purpose than car storage”. However,
when cross examined by Mr Farzan, the applicant admitted that her house has a
generous garage with room for three cars but that the space is used as a
workshop and they park only one car in the garage and their other car in the
street.41
68. Mr Timothy Wyatt gave evidence as to the targets, objectives and strategies of
the ACT Government for transport and planning in Canberra. He referred to the
document ACT Planning Strategy: Planning for a Sustainable City dated July
2012 which states at page 44 that:
parking in our town and group centres must be aimed at supporting
businesses and be limited to shorter stays of up to three hours. In
suburban residential areas, developments must provide sufficient parking
to keep the amenity of residential areas. However, less parking will be
needed in town and group centres and along rapid inter-town transit ways
where there is good access to public transport.
69. The Tribunal was also referred to the most recent ACT Government policy
document related to planning and transport Building an Integrated Transport
Network: Parking dated June 2015. This document notes that the government:
…will pursue opportunities for more efficient use of parking assets across
the week and different times of day (for example supporting retail during
the day, restaurants at night and recreational activities on the weekend)42
…Ultimately it is up to the prospective residents to satisfy themselves that
37 Transcript of Proceedings 3 June 2015 at page 23 line 2 38 T-Documents page 52 39 T-Documents page 58 40 T-Documents page 97 41 Transcript of Proceedings 4 June 2015 at page 132 line 20 42 Page 7
20
their housing provides the on-site parking they require.43
70. The Parking and Vehicular Access General Code has precise definitions44
for
short stay parking (“generally up to 4 (four) hours duration”) and long stay
parking (“generally longer than 4 (four) hours duration”). Section 3.3.4 of the
Parking and Vehicular Access General Code gives specific requirements for the
location of long stay, short stay and operational parking in a commercial CZ5
mixed use zone elsewhere than in the city centre as follows - long stay parking:
on-site or within 400m except for residential use where parking is to be on-site;
short stay parking: on-site or within 200m; and visitor parking: on-site or within
200m.
71. A significant amount of time was taken up at the hearing in relation to how the
distance of 200m is to be measured and whether, if one of the Margrie Lane
carpark boundaries was within the 200m limit, the whole of the car park spaces
in that car park should be counted.
72. When considering the measurement of distance the Tribunal noted that section
150 of the Legislation Act 2001 provides:
150. Measurement of distance
In applying an Act or statutory instrument, distance is to be measured in a
straight line on a horizontal plane.
73. The applicant variously contended that distance should be measured by the
walking distance from the development; that there was more than one
convention according to Mr Wyatt’s evidence and according to the different
expert opinions in the decision of Amarso v ACTPLA45
(Amarso); and that, if
defined as a straight line, it should be measured from the front door of a
property and transcribe a circle from that point such that any carparks within
that circle are deemed to be able to be considered and those outside would not
be included.
43 Page 11 44 Section 1.5 45 [2012] ACAT 9
21
74. In his Witness Statement46
Mr Wyatt stated at paragraph 48 that: “.... in
determining the application of the 200 metre provision. Conventional practice is
that these distances to off-site car spaces has been measured block to block,
straight line or concentrically from the site rather than strict walking distance.”
75. In relation to the applicant’s contention that distance should be measured by
‘walking distance’ the Tribunal noted that section 3.3.4 of the PVAGC, which
referred to ‘locational requirements’, under City Centre long stay parking states
“On-site or in publicly available carparks up to 1km distant” (Tribunal’s
emphasis). Otherwise the section states ‘within 200m or 400m’. There is no
reference to walking distance.
76. In Amarso, in which Dr Jarvis also appeared for the respondent Authority, a
differently constituted tribunal considered the application of the 200m
measurement. That tribunal noted this was an issue on which the expert
opinions differed and did not decide the issue. In that case, Dr Jarvis had
referred to the evidence of Mr Paul Isaks, a transport specialist in the Transport
Planning and Strategy Section of the City Planning Division in the Environment
and Sustainability Directorate of the ACT Government, that “there was a long
standing convention or practice in the ACT to take account of the available
spare capacity as long as the “crow flies” distance between the nearest
boundary of the development and the car park boundary was less than the 200m
specified in the Parking Code. In his view, weight should be given to the
convention in the interests of administrative consistency.”47
The Tribunal noted
Mr Wyatt’s evidence that he “succeeded the responsibilities on behalf of the
department and subsequently ACTPLA that were held by Mr Isaks.’48
77. Dr Jarvis told the Tribunal, as in Amarso, that weight should be given to the
convention in the interests of administrative consistency.
78. Notwithstanding the definition of ‘measurement of distance’ in the Legislation
Act, the applicant was critical of the lack of definition of where the straight line
starts. The applicant was also critical of the respondent failing to take
46 exhibit R5 47 Amarso at [122] 48 Transcript of Proceedings page 220 lines 4-5
22
appropriate action since Amarso was decided in 2012 to define this
measurement in the Parking and Vehicular Access General Code or in the
Territory Plan, given that the definition was crucial to some developments.
79. The Tribunal concurs with Dr Jarvis that, in the interests of administrative
consistency, the measurement of distance, in this case 200m, should adopt the
convention referred to by Mr Wyatt above. Notwithstanding the applicant’s
criticism, the applicant did not call any expert evidence which might have
assisted the Tribunal to determine this issue.
80. The Tribunal finds, in applying the convention, measuring either in a straight
line or concentrically, that a part of the Margrie Lane carpark is within the 200m
distance and that, therefore, the car parking spaces in that carpark are able to be
included by the respondent as available off site carparking.
81. The Tribunal notes that the Margrie Lane car park is currently being
reconfigured and extended north towards Anthony Rolfe Avenue with an
increase in capacity of approximately 74 car spaces. Northrop Consulting
Engineers has advised that none of the additional car parking associated with
the adjacent commercial development is relying on the Margrie Lane car park.
Northrop has reported that extension of the car park will include pram ramps on
Anthony Rolfe Avenue and that there will be footpaths on the north verge of
Anthony Rolfe Avenue. Northrop also noted “restaurant peak demand will be
outside of the peak shop demand thus assisting with efficient use of parking”49
.
82. The Tribunal has previously noted that resident demand for car parking in the
proposed development has been met within the boundaries of the subject site
and the several parking studies undertaken on behalf of the party joined have
determined that there are adequate numbers of parking spaces available for short
stay and long stay parking for visitors to the site. The Tribunal concludes that
the proposed development complies with the Parking and Vehicular Access
General Code.
49
Parking Study: Block 1 Section 68 Gungahlin ACT May 2015 pages 7 and 9
23
Issue 4 – Does the proposed development comply with the approved Lease and
Development Conditions including the Planning Control Plan and Development
Intentions Plan?50
83. The issue of compliance with the L&DCs was at the heart of the applicant’s
case. The lease and development conditions for the subject site are a relevant
consideration because they are referred to in the Commercial Zones
Development Code and the Multi Unit Housing Development Code.
84. The applicant contends that “the lease and development conditions, even the
intent of the lease and development conditions, should take precedence over the
Parking and Vehicular Access General Code”.51
She further contends that the
lease and development conditions were a higher imperative than meeting the
provisions of any of the precinct, development or general codes.52
85. The respondent contended53
that in the “site specific” L&DCs for the subject
site, the object and intent is expressed in specific provisions at the beginning of
that part of the L&DCs, namely “Development Intentions Plan” and “Planning
Objectives.” The development intentions plan54
shows that the intent of the
L&DCs was not necessarily to have all car parking in basements, because it
depicts some car parking at ground level.
86. The respondent referred the Tribunal to the decision of the predecessor of this
tribunal, the ACT Administrative Appeals Tribunal, in Cvetanoski v
Commissioner for Land and Planning55
in which that tribunal stated at [9]:
The applicant’s argument relies on applying rules of statutory interpretation to
the words of Appendix II.1 as if it were subordinate legislation. This poses a
difficulty in that the Plan has not been drafted as a statutory instrument. It has
been drafted by planners. The Plan’s introduction states that its structure has
been devised to meet a number of objectives which include “to be readily
available to the ACT Community” and “to be as simple to use as possible.” The
rules of statutory interpretation cannot readily be applied to it.
87. The ‘Lease and Development Conditions’ in the present matter is also a
50 Approved Lease and Development conditions dated 5 March 2007 are at T- Documents 217 –
240 51 Transcript of Proceedings 3 June 2015 at page 29 line 1 52 Contentions 8 and 9 in the applicant’s Statement of Contentions 53 Respondent’s Statement of Facts and Contentions at [29], [34] 54 Tribunal documents page 240 55 [1999] ACTAAT 42 [9-10]
24
planning instrument and it is not to be construed in a legalistic manner. The
Tribunal’s approach is to have regard to the planning policy it reflects. The
Tribunal refers to and adopts an observation by a differently constituted tribunal
in AMC Projects v ACTPLA56
: “We observe, however that many of the features
of the proposed development which give rise to the objections raised by the
objectors are the natural consequence of the policies introduced to permit more
intensive development in residential core areas.”
88. Mr Ajith Buddhadasa did not accept the applicant’s contentions as to the
interpretation of the lease and development conditions. In his statement57
,
Mr Buddhadasa said that - “meeting the intent of the lease and development
conditions and the requirements of the Territory Plan including the Parking and
Vehicular Access General Code was both important and necessary”.58
In his
opinion, the intent of the lease and development conditions for the subject site
in relation to car parking was given under the heading ‘Planning Objectives’ as
to “minimise the impact of car accommodation when viewed from [the] public
and private domain”.
89. He further stated that the - “Section under the heading ‘Planning principles’
and subsequent sections in the L&Ds outline some qualitative and quantitative
measures to be used to realise the intents mentioned under the planning
objectives. In that L&Ds suggest providing underground car parking so that the
visual impacts from car parking areas can be minimised therefore the above
intent can be met.”59
90. It was Mr Buddhadasa’s contention that this interpretation is supported by the
Development Intentions Plan which formed part of the lease and development
conditions and shows a possible built-form outcome with basement parking for
residents and a small number of cars parked behind the building and screened
by landscaping.60
He opined - “Therefore it is evident from the L&Ds that the
L&Ds does not require or to provide all the carparking generated by this
56 [2006] ACTAAT 13, [26] 57 Exhibit R3 58 Exhibit R3 paragraph 24 59 Exhibit R3 Paragraph 24 60 Exhibit R3 paragraph 24
25
development (as per PVAGC parking provision rates) in an underground
carpark.”61
91. Mr Buddhadasa also did not accept contention 18 in the applicant’s Statement
of Facts and Contentions that “cars being accommodated on the street will be
visible all the time…will not create an attractive urban precinct…will not
contribute to making the area a desirable place to live”. In Mr Buddhadasa’s
opinion, on-street car parking is “a part of urban streetscape character” and it
was not the intention of the lease and development conditions to forbid visitor
parking on the street.62
92. In relation to the applicant’s contention 20 Mr Buddhadasa said -
“26. Site specific contentions in the L&Ds are the measures mentioned in
L&Ds to meet the objectives of the L&Ds. However these measures are
not the only measures which are capable of meeting the objectives in the
L&Ds. That is the reason for the applicable development codes to have
provisions enabling a development to depart from the L&Ds provided the
development meets the intent of the L&Ds."
93. Mr Buddhadasa had formed the view that63
“the fundamental difference in the
applicant’s understanding of the proposal and the planning and land
authority’s determination lies in how the proposal is consistent with the intent
of the lease and development conditions”. The applicant’s view is that as
mentioned in the L&Ds the development must accommodate all the parking
numbers required for the development in an underground car park within the
block. Contrary to the applicant’s view, the planning and land authority
adopted a view that the intent of the lease and development conditions is to
minimise visual impacts from parking located at grade. To minimize the visual
impacts from at grade parking, the L&Ds suggest having an underground car
park but the L&Ds does (sic) not mandate all the parking required for the
development to be accommodated within the block or in the basement car park.
The development complies with the lease and development conditions by
61 Exhibit R3 paragraph 24 62 Exhibit R3 paragraph 30 63 Exhibit R3 paragraph 40
26
providing a basement car park.”
94. The Tribunal has considered the contentions and submissions of all parties as to
the lease and development conditions and the ‘intent’ of the lease and
development conditions and has concluded that the Commercial Zones
Development Code and the Multi Unit Housing Development Code allow for
departure from the lease and development conditions provided that the
development meets the intent of the lease and development conditions.
95. The Tribunal accepted Mr Buddhadasa’s evidence. It was not successfully
challenged. It was both credible and compelling. The Tribunal is satisfied that
this development complies with the L&DCs by providing a basement car park.
96. The Tribunal is not satisfied that the L&DCs mandate that all parking required
for the development be within the block or in the basement. The Tribunal finds
that the site specific L&DCs are measures to meet the objectives in the L&DCs
but, are not the only objectives. It is necessary to consider also the Planning
Objectives, Planning Principles and the Development Intentions Plan.
97. The subject site is located in a CZ5 mixed use zone. The CZ5 development table
prescribes the merit track for assessment of a development application. For a
development application in the merit track, the applicant has the option to
comply with either the rules or the criteria in the relevant development codes,
except where a rule is mandatory. The relevant codes in this instance are the
Commercial Zones Development Code and the Multi Unit Housing
Development Code. As noted above, both the Commercial Zones Development
Code (at Criterion 1) and the Multi Unit Housing Development Code (at
Criterion 4) provide for a development to depart from the L&DCs where the
development meets the intent of the L&DCs. In order to meet the intent of the
L&DCs, the development is not required to comply with the other detailed
clauses in the L&DCs that refer to car parking and accommodation.64
If that
were not so, these other clauses would be mandatory in effect and would
operate in the same way as R1 and R4. This would defeat the purpose of C1 and
64 Respondent’s Statement of Facts and Contentions [35]
27
C4.65
98. As Mr Buddhadasa opined in his Witness Statement66
: “Otherwise the whole
L&Ds will become mandatory and there will not be any relevance of Criterion 1
of the CZDC or Criterion 4 of the MUHDC.”
99. The Tribunal finds that the development proposal for parking meets the
objective for car accommodation because almost all car accommodation
provided on the site is located in a basement car park where its visual impact is
minimal. In this regard the Tribunal notes that the planning objectives refer to
car accommodation and not car parking numbers.
100. For these reasons the Tribunal finds that the proposed development meets the
intent of the lease and development conditions and is not inconsistent with the
relevant codes and objectives of the Territory Plan.
101. The Tribunal is satisfied that the “requirements” are of the PVAGC and the “use
and area of commercial tenancies” refers to the PVAGC which requires only
residential parking to be on-site and in the basement; it does not require all
commercial parking to be on site. The Tribunal is also satisfied that the
“Development Intentions Plan”67
contemplates some visitor parking that is not
in the basement.
Issue 5 – Would development approval be consistent with section 119 and section
120 of the Planning Act?
102. Sections 119 and 120 of the Planning Act provide for the assessment of
development applications in the merit track:
119 Merit track—when development approval must not be given
(1) Development approval must not be given for a development proposal in the
merit track unless the proposal is consistent with—
(a) the relevant code; and
(b) if the proposed development relates to land comprised in a rural
lease—any land management agreement for the land; and
65 Respondent’s Statement of Facts and Contentions [36] 66 Ajith Buddhadasa’s Witness Statement at [26] 67 T documents at page 240
28
(c) if the proposed development will affect a registered tree or declared
site—the advice of the conservator of flora and fauna in relation to
the proposal.
Note 1 An application cannot be approved if it is inconsistent with the territory plan (see s 50)
or the National Capital Plan (see Australian Capital Territory (Planning and Land
Management) Act 1988 (Cwlth), s 11).
Note 2 Relevant code—see the dictionary.
(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 section 148 (Some
development applications to be referred) unless the person deciding the
application is satisfied that—
(a) the following have been considered:
(i) any applicable guidelines;
(ii) any realistic alternative to the proposed development, or
relevant aspects of it; and
(b) the decision is consistent with the objects of the territory plan.
(3) To remove any doubt, if a proposed development will affect a registered
tree or declared site—
(a) the person deciding the development application for the proposed
development must not approve the application unless the approval is
consistent with the advice of the conservator of flora and fauna in
relation to the proposal; and
(b) subsection (2) does not apply in relation to the conservator’s advice.
120 Merit track—considerations when deciding development approval
In deciding a development application for a development proposal in the
merit track, the decision-maker must consider the following:
(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) if an environmental significance opinion is in force for the
development proposal—the environmental significance opinion;
Note Environmental significance opinion—see s 138AA. Environmental
significance opinions expire 18 months after they are notified (see s 138AD).
(d) each representation received by the authority in relation to the
application that has not been withdrawn;
(e) 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;
Note Advice on an application is given in accordance with section 149 if the
advice is given by an entity not later than 15 working days (or shorter prescribed period)
29
after the day the application is given to the entity. If the entity gives no response, the
entity is taken to have given advice that supported the application (see s 150).
(f) if the proposed development relates to land that is public land—the
public land management plan for the land;
(g) the probable impact of the proposed development, including the
nature, extent and significance of probable environmental impacts.
103. The Tribunal has considered whether the proposed development complies with
the requirements of section 119 of the Planning Act.
s 119 (1)(a) – consistent with the relevant code - as noted above68
, the
Tribunal considers that the proposed development is consistent with
the Gungahlin Precinct Map and Code, the Commercial Zones
Development Code, the Residential Zones Development Code and the
Multi Unit Housing Development Code. The proposed development
also complies with the requirements of the Parking and Vehicular
Access General Code.
s 119 (1)(b) – land management agreement – not applicable.
s 119 (1)(c) – advice of the Conservator of Flora and Fauna – the proposed
development will not affect a registered tree or a declared site.
s 119 (2) – advice given by an entity - The Authority sought and obtained
entity advice from Emergency Services ACT (ESA), ActewAGL
Water Division, ActewAGL Electrical Division and ActewAGL Gas
Networks. Emergency Services ACT advised they had no objections
to the proposal. The Authority also sought entity advice from the
Territory and Municipal Services Directorate (TAMSD), and the
Environment Protection Authority (EPA). Neither TAMSD nor the
Environment Protection Agency provided advice within the time
prescribed in section 149(2) of the Planning Act and it was therefore
considered that they each supported the proposal in principle under
section 150 of the Planning Act.
s 119 (2)(a) (i) - (applicable guidelines) – there are no applicable guidelines.
68 At [47], [55] and [79]
30
s 119 (2)(a) (ii) – (any realistic alternative) – not applicable.
s 119 (2)(b) – (objects of the territory plan) - The object of the Territory Plan
is broadly stated in section 48 of the Planning Act as to ensure that, in
a manner not inconsistent with the National Capital Plan, “the
planning and development of the ACT provide the people of the ACT
with an attractive, safe and efficient environment in which to live,
work and have their recreation”. The Tribunal is satisfied that the
proposed development is not inconsistent with this object.
104. Section 120 of the Planning Act requires the decision maker to consider the
zone objectives, the suitability of the land, representations, entity advice, plan of
management and probable environment impacts. This section does not impose
any obligation to make a decision that is consistent with the listed matters;
rather this section is intended to assist the decision maker in reaching a balance
between sometimes competing objectives. The Tribunal has considered whether
the proposed development complies with the matters in section 120 of the
Planning Act as follows:
s 120 (a) - (zone objectives) - The subject site is in the CZ5 Mixed Use
Zone. The objectives for the CZ5 zone are as follows (with the
Tribunal’s underlining):
a) Encourage higher density residential development in locations
with convenient access to transport corridors, and commercial and
employment centres
b) Create an efficient and sustainable urban environment and
provide for a diversity of living, working and recreation
opportunities
c) Maintain and enhance environmental amenity and undertake
development using best practice environmentally sustainable
development principles
d) Encourage a standard of urban design that is consistent with
selected major avenues, approach routes and other strategically
located areas
e) Encourage activities particularly at street frontage level that
31
contribute to an active public realm.
105. In Scherl & ACT Planning and Land Authority69
Dr Jarvis appeared before a
differently constituted tribunal for the respondent authority and submitted:
118. …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
zone.
119. Section 55(2) states:
A code must be consistent with each objective for the zone to which
the code relates.
120. The respondent also notes the terms of the Introduction to the MUHD
Code which states:
Codes provide additional planning, design and environmental controls
to support zone objectives and assessable use in the development
tables.
106. That tribunal accepted the argument that a proposal that meets the code will
ordinarily be consistent with zone objectives.
107. The Tribunal has already found that the DA complies with the relevant codes.
The Tribunal has considered these objectives in the present matter and is
satisfied that the proposed development is not inconsistent with the objectives
for the CZ5 zone.
s 120 (b) – suitability of the land - the Tribunal is satisfied that the land is
suitable for the proposed development.
s 120 (c) – representations – the Tribunal has considered the representations
received by the respondent in relation to the development application.
The issues raised by the applicant before the Tribunal are found in
69 [2011] ACAT 37 [116-123]
32
some of these representations. The Tribunal has considered these
representations in relation to the requirements in section 119 of the
Planning Act, and more generally under section 120, and is not
satisfied that they provide a basis for refusing the development
application.
s 120 (d) – entity advice - as noted previously, the proposed development is
not inconsistent with advice given by an entity to which the
application was referred in accordance with the Planning Act.
s 120 (e) – plan of management - not applicable.
s 120 (f) – probable impact – the Tribunal considers that there are no
probable environmental impacts from the proposed development.
Landscape Plan
108. It was apparent to the Tribunal that the Landscape Plan70
approved in the DA
would need changing in view of the redesign of the carpark spaces. The
Tribunal noted that the area of the proposed development was reasonably
sterile. The following exchange took place 71
:
Tribunal: ...believe that some of the success of this scheme from a larger public
point of view might depend upon the appearance of the building and the
appearance of the health, size, scale type, whatever of the trees, and
there’s no reference to that, whereas a plan of landscape prepared by let’s
say a landscape architect would allay some of my fears.
....
Mr Farzan: I understand.
....
Dr Jarvis: Can I make an observation. It would be open to the Tribunal having raised
the matter and heard Mr Farzan to add into the list of things that are
required as ---
Mr Farzan: As conditions
Dr Jarvis further drawings to be required as a condition so the tribunal could in the
list on page 16 add a requirement to provide a revised landscape plan.
70 T documents page 267 71 Transcript of Proceedings 5 June 2015 page 268
33
....
Mr Farzan: I would be very open to that.....
109. Accordingly, the Tribunal will include, as a condition, the requirement that the
party joined provide a revised plan of landscape prepared by a qualified
landscape architect.
Other matters
110. Although not relevant to the determination of the DA under the Planning Act
and the Tribunal’s review, the Tribunal has noted the various issues raised by
the applicant concerning the respondent’s internal processes. In particular, the
applicant cross examined Mr Buddhadasa72
about the respondent’s process of
assessing the L&DCs in the following exchange:
Applicant: So was it you who was required to make the decision as to whether
the proposal met the intent of the lease and development conditions
on the block?
Mr Buddhadasa: Yes
Applicant: You just by yourself?
Mr Buddhadasa: No, with the advice from other – my managers and the (indistinct) .
Applicant: So I understood that I got, via objective, all the documents that were
relevant in the case, but I didn’t get any documents that discussed the
various aspects of the lease and development conditions and how they
were assessed?
Mr Buddhadasa: These are normally – we discuss all the form by face to face
conversations. That is how it’s happening all the time.
111. In response to questions from the Tribunal Mr Buddhadasa confirmed that when
he had not heard back from TAMS when entity advice had been sought from
them he had telephoned someone in TAMS to progress the application but was
unable to recall if he had recorded or made a note of the date, the details of the
discussion, the outcome and the name of the person with whom he had spoken.
In fact, Mr Buddhadasa said73
‘most of the time you don’t (make a record of the
72 Transcript of Proceedings 5 June 2015 page 191 73 Transcript of Proceedings 5 June 2016, page 201
34
conversation). We just (discuss) these issues over the phone.’
112. The applicant also cross examined Mr Wyatt74
about the lack of any detail in the
documentation provided to her which identified what documents had been considered
by the respondent’s Environment and Planning Directorate’s Major Projects and
Transport Branch when it considered the original proposal and when it
considered and supported the revised DA proposal.
113. In the following exchange between the applicant and Mr Wyatt, he
acknowledged the MTAT failure to set out administratively the relevant
documentation:
Mr Wyatt: I don’t assess people’s objections, if you like to development, but I
do assess the parking code, and my team does assess the objectives
and whether the objectives are being met as part of that assessment,
and I would acknowledge perhaps administratively that you haven’t
seen transparent acknowledgement of that probably in the material
that has been provided, but certainly that judgment has been
applied to the decisions that have been made75
.
The applicant: I haven’t seen evidence of that, and Ms Markus said she hadn’t
been to the site. She acknowledged, and yourself has acknowledged,
you haven’t read any of the representations against the
development, but my understanding is that it is your area of
responsibility to have it assessed it against the Parking and
Vehicular Access General Code, and as well as the rules in the code
there are a reference to assessing it against future lessees’ demand
on the car parking, and also a reference to assessing the objectives,
and I don’t see that all three of those things have been done?
Mr Wyatt: Well, we apply judgment collectively when we assess those things. I
can accept that administratively you may not see that all
documented, but certainly that forms part of the judgment that
we’re actually making, and I guess I would add to that is that
neither Ms Markus nor myself have any approving authority. We
provide technical advice to the development assessment teams,
hence why we are not then called upon to actually make a judgment
on representations or objections from the community.
114. The Tribunal is concerned about the lack of rigour applied to record keeping by
the assessor and by the MPAT. The Tribunal also endorses the applicant’s
comments about the perfunctory references to the Lease and Development
74 Transcript of Proceedings 5 June 2015 page 227, 228, 75 Transcript of Proceedings 5 June 2015, page 228, lines 12-18, 27-33
35
Conditions and to the Codes in the decision. The 44 people who made
representations were entitled to receive a decision which transparently set out
the documents and evidence the respondent had considered in assessing the DA
and in reaching a decision.
Conclusion
115. For the reasons set out above, the Tribunal therefore varies the decision under
review by imposing an additional condition of approval requiring the party
joined to lodge a landscape plan prepared by a qualified landscape architect.
116. Other matters raised by the respondent administratively with the party joined,
namely improvements to the parking layout for visitors or tenants behind the
building and keyed access to basement parking for tenants of the ground floor
commercial units as well as the party joined’s latest parking proposal76
increasing the onsite parking to 76 spaces and his discussions with TAMS77
in
relation to indented parallel parking along Gungahlin Place between Anthony
Rolfe Avenue and Sarre Street will need to be pursued administratively by the
party joined.
………………………………..
Ms E.Symons – Presidential Member
for and on behalf of the Tribunal
76 At Annexure B to the Party Joined’s Statement of Facts and Contentions 77 At Annexure C to the Party Joined’s Statement of Facts and Contentions
36
HEARING DETAILS
FILE NUMBER: AT 15/17
PARTIES, APPLICANT: DR KATHLEEN IBBOTSON
PARTIES, RESPONDENT:
PARTY JOINED:
ACT PLANNING AND LAND
AUTHORITY
NATIONAL CAPITAL
INVESTMENTS PTY LD
COUNSEL APPEARING, APPLICANT SELF-RESPRESENTED
COUNSEL APPEARING, RESPONDENT
COUNSEL APPEARING, PARTY
JOINED
DR D JARVIS
SELF-REPRESENTED
SOLICITORS FOR APPLICANT SELF-REPRESENTED
SOLICITORS FOR RESPONDENT
SOLICITORS FOR PARTY JOINED
ACT GOVERNMENT SOLICITOR
SELF-REPRESENTED
TRIBUNAL MEMBERS: MS E SYMONS
MR R PEGRUM
DATES OF HEARING: 3, 4, 5 JUNE 2015