ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MAURER & ELLIS v ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2016] ACAT 83

AT 2/2016

Catchwords: ADMINISTRATIVE REVIEW – planning – multi-unit housing development – whether development meets applicable codes

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 11, 22A, 27, 57, 68, 69Planning and Development Act 2007 ss 50 119, 120, 121, 407, 408A,

Subordinate Legislation: Multi Unit Housing Development Code

Parking and Vehicular Access General CodeResidential Boundaries Fences General Code

Cases cited: Deakin Residents Association v ACT Planning and Land Authority [2015] ACAT 37Fielding, John v Commissioner for Land and Planning [2000] ACTAAT 26Griffith/Narrabundah Community Association Inc & Ors v ACT Planning and Land Authority & Ors [2005] ACTAAT 34Mason & ACT Planning & Land Authority & Ors [2009] ACAT 7Rudder v ACT Planning and Land Authority [2010] ACAT 24The Proprietors of Units Plan 259 v Minister for Urban Services [1999] ACTAAT 33 Thomson v ACT Planning and Land Authority [2009] ACAT 38

Tribunal: Senior Member W Corby (Presiding)Senior Member G Trickett

Date of Orders: 22 July 2016Date of Reasons for Decision: 22 July 2016

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 2 of 2016

BETWEEN:

LOUISE MAURERJEFF ELLIS

Applicants

AND:

ACT PLANNING AND LAND AUTHORITY Respondent

AND:SUSAN SPEARITT

First Party Joined

AND:STEWART ARCHITECTURE

PTY LTDSecond Party Joined

TRIBUNAL: Senior Member W Corby (Presiding)Senior Member G Trickett

DATE: 22 July 2016

ORDERThe Tribunal Orders that:

1. Pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008 the

reviewable decision to approve the DA with conditions is set aside. The Tribunal

substitutes its decision that the DA is not approved.

………………………………..Senior Member W Corby

For and on behalf of the Tribunal

REASONS FOR DECISION

1. Louise Maurer and Jeff Ellis (the ‘applicants’) and Susan Spearitt (the ‘first party

joined’) have applied to the ACT Civil and Administrative Tribunal (‘ACAT’) for

review of the ACT Planning and Land Authority’s (‘ACTPLA’ or the ‘respondent’)

decision to approve, with conditions, a Development Application (‘DA’) for a

suburban block (Block 18 Section 12) in Weetangera, ACT (the ‘subject site’).

2. The subject site is within an RZ2 residential zone. The DA proposes that an existing

residence on the block will be demolished and four townhouses will be constructed.

3. Stewart Architecture Pty Ltd (the ‘second party joined’) lodged the DA with the

respondent. The applicants and Ms Spearitt live in the area where the development is

proposed.

4. The applicants and Ms Spearitt assert that the DA does not comply with some of the

rules or it does not satisfy some of the relevant criteria of the applicable code/s. They

submit that in response to their application to ACAT, ACTPLA’s decision to approve

the DA should be set aside and DA should not be approved.

5. ACTPLA and the second party joined assert that the DA meets all applicable rules or

satisfies, subject to some amended or additional conditions, all relevant criteria, and

should be approved with conditions.

6. The applicants and the first party joined (Ms Spearitt) made joint submissions, relied

on the same evidence and in effect have made a joint application for review by ACAT.

For ease of reference, when the term ‘applicants’ is used in these reasons for decision,

it refers to both the applicants and the first party joined.

7. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and

Administrative Tribunal generally or a previous tribunal, whereas ‘Tribunal’ refers to

the members who heard the application.

The hearing

8. The hearing was conducted over four days on 20, 21 and 22 April and 17 May 2016.

At the end of the fourth day of hearing the Tribunal reserved its decision.

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9. At the hearing the applicants and Ms Spearitt were self-represented. Each of the

applicants and Ms Spearitt asked questions and made submissions at various times.

The applicants and Ms Spearitt did not call any witnesses, they relied on submissions

made and the documentary information filed in ACAT and/or tendered at the hearing.

10. Mr Clynes of Counsel instructed by Ms Gasser from the ACT Government Solicitor’s

Office appeared for the respondent at the hearing. Ms Jamaly from the respondent’s

office attended for all days of the hearing and Ms Sheikh Lana from the respondent’s

office gave evidence.

11. Ms Lana is a development assessment officer in the respondent’s office. She holds a

Bachelor Degree in Architecture. She has had about 5.5 years experience working for

the respondent.

12. Mr Hatch is the authorised representative of the second party joined. Mr Hatch gave

evidence on behalf of the second party joined. In order to assist in the presentation of

Mr Hatch’s evidence, Mr Clynes asked questions to guide Mr Hatch when he gave his

evidence. Mr Hatch works for the second party joined and was responsible for

submitting the DA to ACTPLA for approval. Mr Hatch is a graduate architect.

13. The respondent and the second party joined relied on the evidence of Mr Hatch and

Ms Lana and the documents filed in ACAT and tendered as evidence during the

hearing.

14. The respondent, in its statement of facts and contentions dated 6 April 20161, submits

that the decision under review including conditions should be confirmed although

varied to include the following amendment and additional condition: 2

(a) the original condition C6 about fences with adjoining lease properties should be

amended so that:

(i) the fences would only be upgraded to “1.8m high timber lapped and

capped fence, or to another standard acceptable to [the respondent] if

required”; and

1 Exhibit R2 on pages 3 and 4 under the headings ‘Additional Conditions’, ‘Changes to Condition C6’ and ‘Orders sought’

2 Tribunal documents 12-15

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(ii) that the respondent should not be the ‘dispute’ resolution body if there is

a dispute about the need to replace fencing, and this part of condition C6

should be deleted; and

(b) a further condition requiring that the development comply with Criterion 42(g) of

the MUHDC by providing a variety of materials in the courtyard walls. The

respondent notes that this is not a matter that was raised by the applicants or the

first party joined, but should be addressed so that the DA complies with C42 of

the MUHDC. Currently the proposed courtyard wall is of a single material and

colour.

View of site by parties and Tribunal – 22 April 2016

15. On the second day of the hearing a view of the subject site and some other locations

was undertaken. The Tribunal and all parties or their representatives attended. The

respondent had provided to the Tribunal and other parties a bundle of documents.3

These documents identified the matters that the parties wanted to point out to the

Tribunal during the view.

16. Gibbes Place is a cul-de-sac that runs east/west. At its western end Gibbes Place

meets Bambridge Street at a 900 ‘T’ intersection. The subject site is on the north of this

‘T’ intersection. Another residential block, also planned for development, is on the

southern side of the ‘T’ intersection. There is a multi-unit housing development of four

units at the eastern end of the ‘key hole’ of the cul-de-sac. This development is built

on the block that is adjacent to and south of a public open space which runs east/west

from the top of the ‘key hole’ at the eastern end of the Gibbes Place cul-de-sac through

to Coulter Drive, a major roadway.

17. At the view those present walked onto and around the subject site, walked to the end

of Gibbes Place and then walked through the open public space at the eastern end (at

the top of the cul-de-sac) through to Coulter Drive, then walked north on Coulter

Drive until Belconnen Way, a major road. Then west on Belconnen Way until it meets

the northern end of the public open space on the western side of the subject site. The

parties or their representative asked the Tribunal to observe various features of the

subject site and other properties and the surrounding area.

3 Exhibit R3

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18. The subject site is adjacent to the south-eastern corner of a public open space. The

public open space is bound by Bambridge Street on the south, by Belconnen Way on

the north, on the east by the subject site and another residential block and by other

residential blocks on the west.

19. At the applicants’ request, the participants at the view also went to the site of a

completed multi-unit development of three units at a block in another suburb a short

drive from the subject block.

Information considered by the Tribunal

20. The Tribunal took into account, and has in these reasons for decision where relevant

made specific reference to:

(a) The documents filed by the parties in ACAT prior to the hearing that were not

tendered as exhibits.

(b) The oral and written evidence of witnesses, specifically Ms Sheikh Lana on

behalf of the respondent, and Mr Michael Hatch on behalf of the second party

joined.

(c) Ms Lana also relied on a written statement and other documents which were

tendered as exhibits when she gave evidence.

(d) Mr Hatch did not prepare a written statement or file a statement of facts and

contentions, but he did tender as exhibits and rely on documents including

drawings that he prepared and documents prepared by other people.

(e) Ms Lana and Mr Hatch each gave evidence in chief in response to questions

asked by the respondent’s counsel. The applicants, Ms Spearitt and the Tribunal

also asked both witnesses questions.

(f) The following documents were tendered as exhibits by the applicant:

(i) Exhibit A1: joint statement of facts and contentions by the applicants and

[first] party joined

(ii) Exhibit A2: joint response to the respondent’s statement of facts and

contentions and the witness statement of Ms Sheikh Lana by the applicants

and first party joined dated 13 April 2016; and

(iii) Exhibit A3: statutory declarations of Mr McInnery and Mr Bayliss dated

20 April 2016;

(g) The following documents were tendered as exhibits by the respondent:

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(i) Exhibit R1: the Tribunal Documents – these will be identified in these

reasons for decision by reference to their page number/s (e.g. T 1-3);

(ii) Exhibit R2: respondent’s statement of facts and contentions dated 6 April

2016;

(iii) Exhibit R3: bundle of documents provided by the respondent in relation to

the view conducted on 21 April 2016;

(iv) Exhibit R4: witness statement of Sheikh Lana dated 6 April 2016.

Ms Lana, prior to this document being tendered, advised that the word

‘maximum’ in paragraph 38 should be changed to the word ‘approximate’.

She otherwise confirmed that the information in the statement was true and

correct;

(v) Exhibit R5: Ms Lana’s redrawn version of T233 and T235;

(vi) Exhibit R6: MUHDC as at 8 December 2012 re Rule 8;

(vii) Exhibit R7: MUHDC as at 5 July 2013 re Rule 8;

(viii) Exhibit R8: letter from Cia Landscapes + Colour dated 19 April 2016 re

Block 18 Section 12 Weetangera, Landscape Architectural Consulting; and

(ix) Exhibit R9: witness Statement of Luka Kovacevic dated 10 May 2016

with Annexures A-D (incl)

(h) The following documents were tendered as exhibits by the second party joined:

(i) Exhibit PJ2A: redraw by Mr Hatch of T427;

(ii) Exhibit PJ2B : redraw by Mr Hatch of T410;

(iii) Exhibit PJ2C : redraw by Mr Hatch of T236;

(iv) Exhibit PJ2D: redraw by Mr Hatch of T235;

(v) Exhibit PJ2E : new drawing of building envelope dated 20 April 2016;

(vi) Exhibit PJ2F: bundle of four solar access drawings dated 13 May 2016;

(vii) Exhibit PJ2G: ‘marked up’ version of PJ2D re Rule/Criterion 60.

(i) The oral and written submissions made by or on behalf of the parties during the

hearing.

(j) The observations made by the Tribunal during the view.

(k) The further documents filed by Mr Hatch on behalf of the second party joined on

24 May 2016 in relation to solar access in response to the Tribunal order made

on 17 May 2016.

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The reviewable decision and application to ACAT – section 121(2) of the PD Act

21. On 8 October 2015 the respondent approved, with conditions, the DA4 (the

‘reviewable decision’) pursuant to section 162(1)(b) of the Planning and Development

Act 2007 (‘PD Act’).

22. The DA proposes demolition of an existing residence and construction of four, four

bedroom, partly two storey townhouses with double garages. Each townhouse has a

living area that is single storey but, because of a void, the roof is almost double height,

although the roof is slightly lower than the roof of the two storey part of the

townhouses. The voided area allows for large areas of glass to this living area on the

eastern side of all units, and on the north and south side of the townhouses 1 and 4

which are at the southern and northern end of the development respectively. The other

part of each of the four townhouses is two storey, with living areas and one

bedroom/ensuite downstairs, and three bedrooms and bathrooms upstairs.

23. The subject site is zoned ‘RZ2 – Suburban Core Zone’.5 The Zone objectives for RZ2

are in Part 3.1 of the Territory Plan. The RZ2 development table requires that

application for approval of a multi-unit DA in the RZ2 zone is assessable in the merit

track.

24. With the exception of the adjacent public open space on the western side of the

subject site, all of the nearby blocks on the same side of Bambridge Street and

between Bambridge Street and Belconnen Way and Coulter Drive are zoned RZ2.

Blocks on the other side of the Bambridge Street are zoned RZ1.6

25. A DA in a residential zone must comply with the Residential Zones Development

Code (the ‘Residential Code’). The Residential Code requires that multi-unit

developments comply with the Multi Unit Housing Development Code (‘MUHDC’).

Other codes7 also apply, these will be discussed below. A DA assessable in the merit

track must not be approved unless it is consistent with the relevant code/s.8

4 T12-285 Territory Plan, Territory Plan Map6 Exhibit R37 Parking and Vehicular Access General Code, Residential Boundary

Fences General Code8 Section 119(a) of the PD Act

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26. The original DA was lodged on 13 February 2015 and was duly notified. Entity

advice was provided and written representations were received from the public.9

27. In response to issues raised by the respondent during the initial assessment process, a

revised DA was submitted on 30 July 2015. No statutory entity raised objection to the

amended DA. The revised DA was assessed. On 8 October 2015 the reviewable

decision to approve the DA was made, subject to conditions that required: 10

(a) approval at the Land Titles Office of a variation to the purpose clause in the

Crown lease to permit a maximum of four dwellings on the block;11 and

(b) certain specified actions were to be undertaken or requirements met prior to and

during construction/demolition.12

28. In making the reviewable decision the respondent’s delegate confirmed that the DA

either met the rules or satisfied the criteria of the relevant code/s and was assessed as

meeting the legislative requirements for approval.

29. The respondent concedes that due to an administrative oversight those people who

had made representations in relation to the original DA were not advised of the

reviewable decision until 9 December 2015.13 On 5 January 2016 the applicants lodged

an application for review of the reviewable decision in ACAT. On 27 January 2016 at

the directions hearing, the Tribunal ordered that Ms Spearitt be joined as a party (the

first party joined).

Scope of ACAT review – section 121 of the PD Act

30. Pursuant to section 408A and Schedule 1 Item 4 Column 3 of the PD Act and subject

to section 121(2) of the PD Act, the applicants and the first party joined are ‘eligible

entities’ who are entitled to apply to ACAT for review of the reviewable decision

because they made representations about the DA and, because they live in close

proximity to the subject site, are potentially negatively impacted by the approval of the

development.

9 T243-34810 The specific details of the conditions is set out in full at T13-15 as part of

Notice of the Decision (the reviewable decision) dated 8 October 2015 at T12

11 T34 at A112 T34 at B1-B5 and T35 at C1-C713 T110

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31. The right of review available to the applicants and the first party joined is limited by

section 121(2) of the PD Act to the reviewable decision, or part of the decision, to the

extent that the development proposal is subject to a rule and is not met, or no rule

applies.

32. The reviewable decision before the Tribunal is the respondent’s decision pursuant to

section 162(1)(b) of the PD Act to approve the revised DA subject to conditions.14

Pursuant to section 68(2) of the ACT Civil and Administrative Tribunal Act 2008

(ACAT Act), in relation to those matters which fall within the operation of

section 121(2), the Tribunal may exercise any function given to the original decision

maker by the PD Act.15

33. Although the PD Act does not impose any specific limitation on ACAT’s powers in

relation to the current application, the limitation on the applicants’ and the first party

joined’s right to apply to ACAT for review as set out in section 121(2) and as noted in

Schedule 1, Column 1, Item 4 of the PD Act, necessarily limits the permissible scope

of an application to the Tribunal in such an application. That limitation does not

alleviate the need for ACAT when conducting the review to comply with the

requirements of the PD Act which apply to the original decision maker, for example

the prohibition against approval of merit track applications in the circumstances

described in section 119 of the PD Act.

34. Within those limits, the Tribunal ‘stands in the shoes’ of the original decision maker

and should respond to the application as a de novo merits review pursuant to the

relevant provisions of the PD Act.16

35. In the current application,17 the constraints on the applicants’ right of review imposed

by section 121(2) limits the extent of the ACAT enquiry. However sections 50, 119

and 120 of the PD Act still operate and must be applied by the Tribunal when making 14 Section 67(a) of the ACAT Act15 ‘decision maker’ is defined in section 22A of the ACAT Act and section

407(c) of the PD Act to be, in this case, the respondent’s delegate who made the reviewable decision

16 Pursuant to section 69 of the ACAT Act the decision that ACAT then makes pursuant to section 68(3) is ‘taken to be’ a decision by the reviewable decision maker

17 The applicants in the current matter are ‘eligible entities’ pursuant to Schedule 1 Item 4 and thus the decision, if confirmed, is necessarily a decision to ‘approve’ the DA and sections 119 and 120 are relevant to that decision

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its decision in relation to the ACAT application. The Tribunal can only make a

decision that has the effect of approving the DA, if in doing so it does not act in breach

of section 50 or section 119 of the PD Act.

36. The ACAT decisions in Thomson v ACT Planning and Land Authority [2009] ACAT

38 (‘Thomson’), which was referred to and followed in Rudder v ACT Planning and

Land Authority [2010] ACAT 24 (‘Rudder’),18 state the limitation imposed by section

121(2) of the PD Act on the nature and extent of applications to and review by ACAT.

37. In Rudder the appeal tribunal confirmed that, although the extent of the ACAT review

is limited to the matters that can be validly agitated under section 121, to the extent

that the review is undertaken, section 120 of the PD Act still operates.

Summary of conclusion

38. In the current matter the Tribunal has concluded that, in response to matters raised by

the applicants, some of the criteria of the MUHDC are not satisfied. In-so-far as the

DA fails to satisfy these criteria the Tribunal has further concluded that it is not able to

address the DA deficiencies identified by varying the reviewable decision to include

additional or amended conditions. Therefore the Tribunal has concluded that the DA

does not comply with the relevant code and cannot be approved.19 Accordingly the

decision under review is set aside.

The subject site

39. The subject block has an area of 1448m2. It has a south facing street frontage to

Gibbes Place of approximately 24m. The eastern boundary separates the subject block

from another residential block at 3 Gibbes Place. There is a single dwelling on the

block at 3 Gibbes Place and there is an established hedge for most of the length of the

eastern boundary between these blocks. The western boundary abuts a public open

space and a public footpath runs the length of and immediately adjacent to the western

boundary within the public open space. There is an established hedge, with a variety of

plants, which runs from the south west corner until about 7m south of the north west

corner of the western boundary. The northern boundary runs between the subject site

and another residential block.

18 See in particular paragraphs 43, 44, 100 and 101 in Thomson; and paragraphs 12-14 and 21 in Rudder

19 Section 119 of the PD Act

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The Multi Unit Housing Development Code (MUHDC)

40. The MUHDC forms part of the Territory Plan. Development proposals in the merit

track must comply with each rule or satisfy the relevant criterion of the MUHDC.

41. The tribunal in Deakin Residents Association v ACT Planning and Land Authority20

provides21 a useful summary of the purpose of the MUHDC:

27 The purpose of the Multi Unit Code is to provide “additional planning,

design and environmental controls to support the objective of the relevant

zone”. The Introduction to the Multi Unit Code provides that each “element has

one or more rules, each having an associated criterion (unless the rule is

mandatory). Rules provide quantitative or definitive controls, while criteria are

chiefly qualitative in nature”. The Introduction goes on to state that proposals in

the merit track:

must comply with each rule or satisfy its associated criterion, unless the rule is mandatory…Where a rule is fully met, no reference to a related criterion needs to be made. Where there is a departure from a rule, or where a criterion only applies, the onus is on the applicant to demonstrate that the relevant criterion is satisfied, through supporting drawings and/or written documentation.

Issues raised by applicants and first party joined (a) Solar access – R57 MUHDC

42. Rule 57 is as follows:

6.1 Solar access –other than apartments

R57 This rule applies to multi unit housing other than apartments. The floor or internal wall of a daytime living area of a dwelling is exposed to not less than 3 hours of direct sunlight between the hours of 9am and 3pm on the winter solstice (21 June). Note: Where a development comprises a mixture of apartments and other multi unit housing, this rule will apply to the multi unit housing.

43. The applicants raised, in the context of ‘orientation’22 of the development, the issue of

solar access although no specific assertion was made about rule 57. In their closing

submission the applicants stated that they had not specifically raised R57 because they

lacked the necessary expertise to assess the information relied on by the respondent in

relation to this aspect of the DA. Rule 57 is mandatory.

20 [2015] ACAT 3721 at [27] 22 Exhibit A1 at [4]

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44. Based on the further information provided by the Mr Hatch on behalf of the second

party joined during the hearing23 and on 24 May 2016,24 which provided more detailed

information about solar access to the dwellings in the development, the Tribunal is

satisfied that the DA complies with R57.

(b) Plot Ratio – Rule 8 MUHDC

45. Rule 8 of the MUHDC provides as follows:

R8 This rule applies to large blocks that are single dwelling blocks in RZ2, RZ3 and RZ4. In RZ2 the maximum plot ratio is 50%. In RZ3 the maximum plot ratio is 65%. In RZ4 the maximum plot ratio is 80%. For the purpose of calculating plot ratio for this rule, the gross floor area includes 18m2 for each roofed car space provided to meet Territory requirements for resident car parking, but does not include basement car parking.

46. Rule 8 is a mandatory. Ms Lana on behalf of the respondent says that she has checked

and confirmed that the plot ratio for the development is 49.9%.25 This is less than the

maximum 50% in R8. The respondent submits that the DA is R8 compliant.

47. The applicants accept that if the upper level balconies are not included in the Gross

Floor Area (‘GFA’) calculation used by the DA proponent and the respondent to

calculate plot ratio then R8 is met.

48. The applicants assert that the upper floor balconies should be included within the

GFA calculation. There is no specific information provided as to the size of the upper

floor balconies. Therefore the exact calculation of the floor area of the upper floor

balconies cannot be calculated. However the parties agree that if the Tribunal were to

accept the applicants’ assertion then, due to the minimal degree of compliance with

R8, the addition of the area of the upper floor balconies would increase the plot ratio

beyond the 50% limit in R8.

49. The following terms are defined: 26

Gross floor area (GFA) means the sum of the areas of all floors of the building measured from the external faces of the exterior walls, or from the centre lines of walls separating the building from any other building excluding any area used solely for rooftop fixed mechanical plant and/or basement car parking.

23 Exhibit PJ2F24 In response to an order made by the Tribunal at the conclusion of the

final day of hearing25 Exhibit R4 at [32]26 Part 13 of the Territory Plan

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Balcony means a small outdoor area, raised above the ground, directly accessible from within the building and open except for a balustrade on at least one side.

Plot ratio means the gross floor area in a building divided by the area of the site.

Building includes:a) an addition to a building;b) a structure attached to a building; andc) a part of a building.

Structure includes a fence, mast, antenna, aerial road, footpath, driveway, carpark, culvert or service conduit or cable.

External wall means an external wall that may also incorporate any of the following:a) windows with sill height at or above 1.7 m from the floorb) screened decksc) fixed pane windows with obscure glassd) awnings sashes with obscure glass and with an opening of not more than

30 cm to the horizontale) obscure glass bricks

50. The applicants submit that the upper floor balconies on the east and west of the

development are enclosed on three sides and are fully roofed. The applicants submit

that these balconies add to the overall size and bulk of the development both actually

and visually and should be included in the calculation of GFA and plot ratio.

51. The applicants submit that the walls that enclose the balconies on the north and south,

the balcony floors and the roofing are, respectively, a continuation of the building

walls, floors and roof. The applicants contend that the Tribunal should conclude that

the balustrade on the ‘open’ side of the balcony is in fact an ‘external face’ of the

building, as the balconies are an almost fully enclosed feature of the building.

Alternatively, the front edge of the walls that enclose the balconies on two sides and

which are a continuation of the building walls, are an ‘external face’ for the purpose of

calculation of GFA. The applicants say the Tribunal should include the balcony floor

space between these walls in the calculation of GFA because these walls are either

exterior walls or separate the building from other buildings (being the other units).

52. In making the assertion that the balconies should be included in the calculation of

GFA and plot ratio, the applicants rely on a decision of the, former, ACT

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Administrative Appeals Tribunal27 (‘Griffith/Narrabundah decision’). The respondent

says that this decision reflected a policy that required balconies to be included in this

calculation. This policy no longer applies. The applicants accept that although this

policy no longer explicitly applies, it has not been replaced or specifically addressed in

subsequent legislative and policy changes, so the Tribunal should nonetheless adopt

the same approach as was adopted when the policy explicitly operated,

notwithstanding that there is no other basis for the inclusion of the balconies in the

calculation of GFA.

53. The Tribunal is not persuaded by the applicants’ submission in relation to the

inclusion of the upper floor balconies in GFA and the calculation of plot ratio. The

definition of plot ratio refers to floors ‘in a building’. Balconies are defined as

‘outdoor’ areas. They can be enclosed on three sides and roofed.28

54. The term ‘exterior face’ is not defined. However, the Tribunal does not accept that the

term ‘external face of the exterior walls’ in the definition of GFA includes the outside

face of the balconies in this development. The outside face of the balconies is the

‘open side’ (with balustrade).29 Nor does the Tribunal consider that the ‘external face’,

being the width of the walls which enclose two sides of the balconies, meets the

description ‘external face of the exterior walls’ for the purpose of calculation of GFA.

Nor does the Tribunal consider that either the open face of the balconies or the

external face of the walls meet the definition of ‘external wall’, if that were applicable.

55. The Tribunal finds that the upper floor balconies should not be included in the

calculation of GFA. Rule 8 is met.

56. The applicants accept that the calculation of GFA, because it is restricted to floor

area, does not include the ‘voided’ space above the, almost double height, ground floor

living areas of all four units. The Tribunal can understand the applicants’ assertion

27 Griffith/Narrabundah Community Association Inc & Ors v ACT Planning and Land Authority & Ors [2005] ACTAAT 34 see in particular paragraph 62 which refers to a previous reference in Part B1 of the Territory Plan Residential Land Use Policies at section 3.8 which balconies which were ‘substantially enclosed by solid walls’ should be included in GFA when calculation plot ratio

28 The definition of ‘private open space’ specifically states that ‘a balcony may be entirely roofed over’

29 In the definition of setback a ‘building wall’ is separately identified from ‘the outside face of a balcony’’

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that, if the calculation of GFA excludes these voided areas and the balconies, that the

calculation of GFA and compliance with Rule 8 does not present an accurate

assessment of the visual impact and actual bulk and scale of the proposed

development. However plot ratio is only one of the factors in the MUHDC that is

relevant to the assessment of the size, bulk and scale of a development. Compliance

with R8 is not determinative of that aspect of the assessment except in relation to plot

ratio as a factor.

(c) Building envelope – Rule/Criterion 25

57. Rule/Criterion 25 provide as follows:

R25

This does not apply to one or more of the following:

i) buildings with more than 3 storeys in RZ5

ii) buildings with more than 3 storeys in commercial zones.

Buildings are sited wholly within the building envelope formed by projecting planes over the subject block comprising lines projected at 45o to the horizontal from an infinite number of points on a line of infinite length 3.5m above each side and rear boundary, except as required by the next rule.

Refer figure A1.

Note: To remove any doubt, the reference to a building with more than 3 storeys is a reference to the whole building, not just that part of the building over 3 storeys.

C25

Buildings achieve all of the following:

a) consistency with the desired character

b) reasonable levels of privacy for dwellings on adjoining residential blocks and their associated private open space.

58. The applicants initially asserted that the DA did not comply with R25 and contended

that the development does not, because of its bulk and scale, satisfy C25(a) of the

MUHDC as it is not consistent with the ‘desired character’.

59. Desired character is a defined term in the Territory Plan:

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Desired character means the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code

60. In their reply30 to the respondent’s statement of facts and contentions31 the applicants

say that they are unable to conclude, based on the information provided by the

respondent, whether or not the R25 has been met.32

61. Ms Lana in her signed statement says33 that the development is within the building

envelope therefore the DA complies with R25. During the hearing further drawings

were prepared34 to demonstrate compliance with R/C25. Drawing T233, which was

used to assess the DA, describes the envelope from the north-east corner of the site

and not perpendicular to the boundary at the building. The building is not parallel to

the boundary. The additional information35 showed that the roof at the north-east

corner of the building extended 40mm beyond the envelope. Based on this additional

information the Tribunal is satisfied that a very small part of the development is not

within the building envelope. The DA is not R25 compliant.

62. In relation to the minimal area that the building extends beyond the building envelope

the Tribunal considers that the DA satisfies C25(a) as the effect of the area outside the

envelope on bulk and scale is slight. There is no statement of ‘desired character’ in a

relevant zone precinct code.

C25 (a) – ‘desired character’ - consideration of RZ2 zone objectives

63. The Tribunal considers that in relation C25(a), the proposed development is

consistent with the RZ2 zone objectives in terms of bulk and scale.

RZ2 zone objective (a)

64. The Tribunal is satisfied that the development is consistent with RZ2 zone objective

(a). It is a multi-unit development that is low to medium density. Whilst there is

already a multi-unit development at the eastern end of Gibbes Place, and there is a

further multi-unit development of similar size planned opposite the subject site, the

30 Exhibit A231 Exhibit R232 Exhibit A2 paragraphs 29-3033 Exhibit R4 at [54]-[60]34 Exhibit R5 which is a ‘redraw’ of T233 and T235 which more accurately

responds to R25 and Diagram A1 in the MUHDC35 Exhibit R5

16

other blocks in Gibbes Place and in the immediate vicinity are predominately single

dwelling or, in a nearby street, single storey multi-unit development.

RZ2 zone objective (b)

65. Consistent with RZ2 zone objective (b) this development will operate to effect some

further change to the density of dwellings but maintains the original pattern of

subdivision in the area.

RZ2 zone objective (c)

66. The nature of the development is different from the predominantly ‘single dwelling’

options in the surrounding area and is therefore consistent with RZ2 zone objective (c)

because it contributes to an increase in the range of affordable and sustainable

household choices to meet changing household and community needs.

RZ2 zone objective (d)

67. The Tribunal considers that consistent with RZ2 zone objective (d) the proposed

development, by increasing residential density, will contribute to the support and

efficient use of social and physical infrastructure and services in the area.

RZ2 zone objective (e)

68. The extension beyond the building envelope is minimal and this does not impact on

the amenity of residents or have any unreasonable impact on neighbouring properties.

The RZ2 zone permits and anticipates some degree of change to neighbourhood

character, and that will be an inevitable outcome of this development if approved. The

Tribunal considers that, in terms of building envelope, the development would have a

positive impact on the neighbourhood and landscape character and is consistent with

RZ2 zone objective (e).

RZ2 zone objective (f),(g),(h),(i) and (j)

69. Although not the subject of any specific evidence, the Tribunal considers the

development would provide opportunities for home-based employment (RZ2 objective

(f)). It is not apparent to the Tribunal that RZ2 zone objective (g) is relevant to

consideration of this aspect of the DA. The Tribunal has considered and concludes that

the extension beyond the building envelope does not directly impact on solar access,

energy efficiency, conservation and sustainable water use (RZ2 zone objectives (h), (i)

and (j)).

17

C25(b) - privacy

70. The Tribunal is satisfied that the privacy on adjacent blocks will not be affected by

the slight extension beyond the building envelope.

71. In summary the Tribunal finds that C25 is satisfied.

(d) Site Open Space – Rule/Criterion 38 MUHDC

72. Rule and Criterion 38 provide as follows:

R38: This rule applies to RZ1 and RZ2. Not less than 40% of the total site area is allocated to one or more of the following:

a) communal open space with a minimum dimension of 2.5m

b) private open space that complies with all of the following –

i) a minimum dimension of 2.5m

ii) is associated with dwellings at the lower floor level. Not less than 20% of the total site area is planting area.

C38: Open space on the site achieves all of the following:

a) sufficient space for the recreation and relaxation of residents

b) sufficient space for planting, particularly trees with deep root systems

c) provision for on-site infiltration of stormwater run-off

d) provision of outdoor areas that are readily accessible by residents for a range of uses and activities.

One or more of the following matters may be considered when determining compliance with this criterion:

i) whether the total area of upper floor level private open space contributes to the function of other open space on the site

ii) ii) whether any adjoining or adjacent public open space is readily available for the use of residents.

73. The applicants observe36 that although the respondent states in the assessment of the

DA37 that R38 is not met, the respondent does not specify the basis for this conclusion.

Using the information in drawing T222 and based on the site area of 1448m2 the

applicants note that the DA meets the requirement of R38(b)(i) and (ii) so they assume

36 Exhibit A1 at [13, 55-56]37 T147 at 4.2

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that the DA either fails to meet the requirement that 40% of the site is communal or

private open space, and or that 20% of the site is available for planting.

C38(a) and (d)

74. The applicants accept that C38(a) and C38(d) are satisfied, but say the information

provided does not demonstrate that C38(b) and C38(c) are achieved. In relation to

C38(d), although the respondent in it assessment38 concludes that the upper level

balconies and the public open space on the west of the subject site are relevant to

satisfying C38, the respondent does not specify how this is achieved.

Rule/Criterion 64 – balcony balustrades relevance to C38

75. The upper level balcony balustrades do not comply with R64 as they do not limit the

visibility of these balconies from the public open space. R/C 64 provides:

R64 This rule applies to balconies with both of the following characteristics:

i) located on the third upper floor level or lower (ie the first four storeys)

ii) facing public streets or public open space. Balustrades are constructed of one or more of the following:

a) obscure glass panels;

b) solid panels with a total of all openings or clear glass panels not more than 25% of the surface area of the balustrade. For this rule obscure glass prevents printed text of 10mm high characters from being read through the glass when positioned 1m from the glass.

C64 Balustrades achieve reasonable privacy for residents and screen household items from adjoining public streets and public open space.

76. The respondent does not in its assessment of the DA39 provide any detail of how it

concluded that the DA is consistent with C64. Ms Lana on behalf of the respondent

and Mr Hatch on behalf of the second party joined gave evidence that C64 is satisfied

because the depth of the balconies provides the opportunity for residents to sit further

back towards the building and thus the balustrades provide sufficient privacy for

residents. The applicants did not raise R/C64 as an issue; however the respondent

considered that use of the balconies by residents is relevant to satisfying C38.

Therefore in the Tribunal’s view C64 is also relevant to C38.

38 T147-14839 T149

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77. The applicants point out that although the information appearing in T222 is a revised

version of T408 and that T222 includes a 13m2 visitor car space that was not included

in T408, the area of impervious surfaces and garden areas is unchanged.

78. The applicants submit that although C38 requires that the open space achieve all of

the listed requirements, in the assessment the respondent only addresses C38(d)40 and

that, in part, by reference to the upper level balconies and the public open space west

of the site.

79. The applicants assert that the respondent does not address C38(b), nor the applicants’

expressed concern that the limited area available for planting on the east of the

development. The applicants say this could, in part, be addressed by retention of the

established hedge on the eastern boundary. The respondent does not address the

applicants’ concerns about the impact on the established hedge on the western front

boundary of constructing of the 1.4 m mesh fence within a short distance from the

base of the hedge. Nor the composition of that hedge which the applicants describe as

being of mixed varieties of woody and some undesirable weeds. The applicants submit

that the area of decking associated with the units at ground level further reduces the

availability of planting area. The applicants say that although the respondent does not

specify which units, the respondent concludes that the ‘majority’ of units have

adequate planting, which suggests that one, or some, do not.

80. The applicants submit that the lack of available planting space means that the

provision of on-site infiltration (C38(c)) is not adequately achieved and the respondent

does not address this. The available evidence does not support the conclusion that

C38(c) is satisfied.

81. Relying on the assessment of Ms Lana41 the respondent contends that by taking into

account the upper level balconies; the public open space on the west of the site which

is readily accessible through the gates proposed to be constructed in the hedge along

western boundary; the area for planting deep rooted trees42 in the common area in the

front zone of the site; the areas for planting associated with the ‘majority’ of the units

40 Exhibit A2 at [40]-[48]41 Exhibit R4 at [67]-[76]42 Shown in T427

20

as well as on the east of the site and the hedge to be retained on the western boundary;

the Tribunal can be satisfied that C38 is ‘adequately dealt with’.

82. Updated landscape drawings and information43 were tendered at the hearing. The

respondent and Mr Hatch submit that the Tribunal can rely on this additional

information from the DA proponent’s landscape architect, Cia Landscapes and Colour,

to conclude that there is sufficient space for deep rooted plants/trees and C38(b) is

achieved.

83. The landscape architect did not give evidence. There was no specific evidence in

relation to C38(c).

C38(a) Open space achieves sufficient space for recreation and relaxation of residents; and

C38(d) provision of outdoor areas that are readily accessible by residents for a wide range of uses and activities

84. Without providing any specific explanation the respondent concludes that the DA

does not meet R38. The Tribunal takes into account the availability for use by

residents of the upper level balconies44 and adjacent public open space.45 These are

factors that may be considered in relation to C38 and would appear to be most relevant

to C38(a) and C38(d).

85. In relation to the use of the upper floor balconies, the respondent and Mr Hatch

agreed that the upper level balcony balustrades do not comply with R64. R/C64 is

within ‘Element 6: Amenity’ in the MUHDC and is clearly aimed at achieving privacy

for, and increasing the amenity of the dwellings to, residents when using the balconies.

Compliance with R/C64 will limit the view of the balconies on the west of the

development by people using the adjacent public open space or using Bambridge

Street. In the Tribunal’s view, the suggestion that residents can overcome the limited

privacy afforded by the balustrades by moving closer to the building would have the

effect of considerably restricting the amenity of the balconies.

86. At the view on 22 April 2016, the applicants pointed out that the adjacent public open

space (Block 16 Section 12 Weetangera), other than a public pedestrian pathway that

runs adjacent to the subject site, has no facilities and has limited lighting along the 43 Exhibit PJ2A and Exhibit R844 C38(i)45 C38(ii)

21

pathway. From the observations made by the Tribunal at the view, it appears that the

area is mowed but is not otherwise landscaped. Whilst it is not clear of how much

‘use’ this area would be to residents, the Tribunal accepts that this public space will be

readily available to the residents through gates that are proposed to be included for

each unit in the hedge on the western boundary.

87. The DA proposes four bedroom units, therefore it is not unreasonable to anticipate

that units will accommodate up to five people. The Tribunal considers that the

available open space, including the upper level balconies and public open space,

achieves the space and accessibility requirements of C38(a) and C38(d).

C38(b) Open space on the site achieves sufficient space for planting, particularly trees with deep root systems; and

C38(c) provision for on-site infiltration of stormwater run-off

88. R38 requires that at least 20% of the site area (here 289.6 m2) is available for

‘planting area’ which is a defined term:

Planting area means an area of land within a block that is not covered by building, vehicle parking and manoeuvring areas or any other form of impermeable surface and that is available for landscape planting

89. Adequate planting needs to be provided in order to achieve both C38(b) and C38(c).

The applicants assert that neither the respondent nor the DA proponent has

demonstrated that this is achieved. The applicants in relation to C38 and R/C73

(concerning internal driveways) assert there is inadequate space for planting on the

east of the site along either side of the internal driveway.

90. The Tribunal accepts that the number of deep rooted trees to be planted in the

common area on the south west corner of the site and other trees identified in the

landscaping plan46 are adequate to achieve C38(b).

91. However the Tribunal accepts the applicants’ submission that, based on the

information available and notwithstanding Exhibit PJ2A and T222, the Tribunal

cannot be satisfied that there is provision for on-site filtration of stormwater run-off (re

C38(c)). In the Tribunal’s view this is a matter that needs to be specifically addressed

by the DA proponent in relation to C38(c) in order for the Tribunal to be satisfied that

46 Exhibit PJ2A

22

it is achieved. All of the matters set out in C38 must be achieved. The Tribunal finds

that C38 is not satisfied.

(e) Front boundary setbacks – Rule/Criterion 29

92. Two boundaries on the block meet the definition of ‘front boundary’ in the Territory

Plan. One front boundary faces south and is adjacent to a public road, Gibbes Place.

The other front boundary faces west and is adjacent to a public open space (the

‘western front boundary’) that has a public pedestrian way that runs alongside the

western boundary.

93. R29 and C29 of the MUHDC address front boundary setback requirements. For the

subject block the minimum front boundary setback for all floor levels for the boundary

facing Gibbes Place is 6m and for the western front boundary is 4m.47 There is no

dispute, and the Tribunal accepts, that the DA meets Rule or Criterion 29 for the front

boundary facing Gibbes Place.

94. The parties agree that the DA does not meet Rule 29 for the western front boundary.

Criterion 29 provides:

Front setbacks achieve all of the following:

a) Consistency with the desired character

b) Reasonable amenity for residents

c) Sufficient space for street trees to grow to maturity.

95. The applicants assert that the setbacks48 for units 1, 2 and 349 do not comply with R29

on the western front boundary.50

96. The applicants contend that there are setback encroachments of:

(a) the ground level deck of unit 3;

(b) the ground level deck and the upper level balcony of unit 2; and

47 Table A5 MUHDC48 ‘Setback’ is defined in the Territory Plan to include the distance between

the relevant boundary and “a building wall or the outside face of a balcony, deck”’

49 The applicants refer to T236 to support these assertions50 Joint statement of facts and contentions by applicants and party joined;

Exhibit A1 and in the joint reply to the respondent’s statement of facts and contentions and to the witness statement of Sheikh Lana by the applicants and the first party joined’ dated 13 April 2016

23

(c) the ground level deck, the lower level and the upper level balconies of unit 1.

97. The applicants submit that some of the encroachments are major. The applicants

assert that when assessed against C29(a), because of the encroachments, the DA is not

consistent with ‘desired character’.51 Specifically that it does not reflect the RZ2 zone

objectives for bulk and scale. In relation to C29(b) the amenity for residents of units 1

and 2 is compromised due to their private open space being so close to the public

walkway. The applicants say this is a factor ignored by the respondent in its

assessment of the DA. In relation to C29(c) there is limited space for trees to be

planted. In short, say the applicants, the DA fails to achieve any of the requirements

of C29 notwithstanding that C29 requires the DA to ‘achieve all’ aspects of C29.

98. The respondent contends in the respondent’s statement of facts and contentions52 that

C29 is satisfied. The respondent adopts the evidence of Ms Sheikh Lana in her witness

statement of 6 April 2016.53 Ms Lana concludes that the angular encroachment of

unit 1 of approximately 1m ‘appears to be minor’; that the neighbouring blocks on the

western side of the public open space are located a reasonable distance away; and that

the encroachment on the western front boundary does not have any significant adverse

impact on the streetscape.

99. The respondent contends, and the Tribunal accepts, that there are no street trees on

the western boundary and C29(c) is not relevant.

100. Mr Hatch as the designer of the DA gave evidence that he considers C29 is satisfied.

Mr Hatch relied on Exhibits PJ2C and PJ2D54 these include the dimensions of and

notes about the encroachments of the western front boundary at the ground floor and

the upper floor level respectively.

101. Mr Hatch, referring to Exhibit PJ2C, said the encroachment of the building at ground

level of unit 1 was 990mm at the corner of the kitchen, this reduced to approximately

350mm at the corner of the bedroom. There was an additional, approximately, 300mm

51 ‘Desired character’ is defined in the Territory Plan as “means the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives…”

52 Exhibit R2 - At [1]-[3] on page 353 Exhibit R4 - At [35]-[47]54 Exhibits PJ2C re T236 (the ground floor) and PJ2D re T235 (re the upper

floor)

24

encroachment at the corner of the dining room, and there was no encroachment by the

building of the other units although there were encroachments of the decks.

102. Mr Hatch, referring to Exhibit PJ2D, said that the encroachment of the building at the

upper floor level of unit 1 was 1390mm on one corner of the balcony reducing to a

780mm encroachment at the other corner. At unit 2 the encroachment was 380mm at

the corner of the balcony reducing to 0 mm at the centre of the balcony.

C29(a) Front boundary setbacks achieve consistency with desired character; andC29(b) reasonable amenity for residents

103. In considering C29(a), as for C25(a) discussed above, the Tribunal must assess

whether this aspect of the development, as it impacts on the ‘form’ of the development

– including bulk and scale and streetscape55 - is consistent with the RZ2 zone

objectives. In relation to the RZ2 zone objectives (a) - (d) [paragraphs 64-67 above]

and (f) – (g) [paragraph 69 above] the Tribunal repeats the conclusions made in

relation to C25 for C29(a) and is satisfied that the development is consistent those RZ2

zone objectives notwithstanding the front boundary setback encroachments.

104. However, the Tribunal considers that the front boundary setback encroachments have

the effect that the development is not consistent with RZ2 zone objective (e), and does

not achieve reasonable amenity for residents as required by C29(b).

105. Setback requirements are one of the building and site controls within Element 3 of the

MUHDC. Whilst C29 accommodates approval of developments notwithstanding

encroachments, it must be demonstrated that all of the requirements of the C29 are

achieved.

106. The Tribunal finds that the setback into the front boundary on the west does not

satisfy C29 for the upper level balcony for unit 1. The encroachment of 1390 mm of

the unscreened balcony that faces the west front boundary and is adjacent to a public

path is 35% of the minimum 4m setback required for rule compliance.

55 Streetscape is defined as “includes the visible component within a street (or part of a street) including the private land between facing buildings, treatment of setbacks, fencing, existing trees, landscapeing, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters”

25

107. The Tribunal does not agree with Ms Lana and the respondent that C29(b) is only

relevant to neighbouring blocks. The Tribunal agrees with the applicants that the upper

level balcony being so close to the public path compromises the reasonable amenity of

the residents of unit 1.

108. The definition of setback makes specific reference to decks. The decks of all four

units encroach into the setback. Although for units 1 and 4 this might be considered as

minor and C29 could be satisfied, the decks to units 2 and 3 extend well into the 4m

setback. The deck to unit 2 is approximately 1.5m from the boundary at its closest

point and the deck to unit 3 is approximately 2.5m from the boundary at its closest

point. In the Tribunal’s view, for the reasons set out in relation to the upper floor

balcony of unit 1, the Tribunal does not consider that C29(b) is satisfied.

109. The Tribunal accepts that when considering criterion the impact and design are

relevant and the standard set out in the rule, although it may be useful, is not

definitive.56 However the Tribunal agrees with the applicants that the encroachment

into the western front boundary for most of the units at either the upper floor or ground

level is neither minor nor innocuous. The proximity of the decks and balconies to the

boundary necessarily impacts on use of the open space by and amenity for future

residents.

110. The Tribunal accepts that the encroachment of the upper floor balconies increases the

bulk and scale of the development. Whilst this may not, of itself, have been relevant

given that the western boundary is adjacent to a public open space, the combination of

this encroachment with other features of the development is relevant to considering the

‘contribution’ that the development makes to the ‘neighbourhood and landscape

character’.57 Whilst the Tribunal accepts Mr Hatch’s assertion that the upper level

balconies do provide the opportunity for surveillance of public open space58 this is not

a factor that, alone, demonstrates that the requirements of C29 are satisfied.

111. The balcony balustrades do not comply with R64 [discussed at paragraph 85 above].

The respondent submits that C64 is achieved because privacy can be achieved if the

56 Thomson v ACT Planning and Land Authority [2009] ACAT 38 at paragraph 44(v) referring to the decision in Mason v ACT Planning & Land Authority & Ors [2009] ACAT 7

57 RZ2 zone objective (e)58 R/C47

26

residents, when using the balconies, position themselves back from the balustrade and

nearer to the building. The Tribunal considers this is relevant to the privacy and

amenity of the balconies and is relevant to C29(b). If changes to the balustrades were

made to increase the privacy and thereby the amenity of the balconies, this would

exacerbate the impact on the ‘bulk and scale’ of the development in relation to C29(a).

112. The Tribunal finds that because of the encroachments into the front western

boundary, the development does not achieve consistency with the desired character

and does not provide reasonable amenity for residents. The DA does not achieve all of

the requirements of C29 of the MUHDC.

(f) Fences – Rule/Criterion 41 MUHDC

113. The front fencing for unit 1 of the proposed development sits forward of the building

line facing Gibbes Place. The front fencing to all units on the western frontage is

forward of the building line facing the public open space and the path with the

exception of small sections. The Tribunal considers that the building line is

determined by the encroachment of the upper level balcony to unit 1 and is not the

required setback of 4m. (Refer below).

114. R41 and C41 of the MUHDC determine the requirements as to boundary fences.

115. Rule and Criterion 41 provide as follows:

R41 Fences are permitted forward in the front zone or on the front boundary only where they comply with any of the following:

a) it is a gate to a maximum height of 1.8m and 1m width in an established hedge

b) exempt under the Planning and Development Act 2007

c) permitted under the Common Boundaries Act 1981.

C41 Fences may be permitted where the proposal meets the requirements contained in the Residential Boundaries Fences General Code.

116. R41 permits fences forward of the building line on the front boundary only where,

relevantly, it is a gate to a maximum height of 1.8 metres and 1 metre width in an

established hedge.59 C41 permits fences where the proposal meets the requirements of

the Residential Boundary Fences General Code (the ‘RBFG Code’).

59 R41(a)

27

117. The applicants contend60 that the front fencing which encloses the private open space

(‘POS’) forward of the building line for unit 1 is a timber paling fence which does not

comply with R41. The applicants contend that it does not satisfy C41 because R1 of

the RBFG Code, which is mandatory, only permits fencing forward of the building

line where the structure is a courtyard wall and that is not relevant.

118. Rule 1 provides as follows:

R1 Front boundary walls or fencing are not permitted forward of the building line except as provided for in:

a) Accordance with the Residential Zone Development Code in the case of a courtyard wall;

b) A previous approval as part of an Estate Development Plan (EDP);

c) An approved fencing plan;

d) Development conditions released prior to the issue of the lease

e) Items 2.2 – 2.7 of this Code. AND

f) fences are constructed so that the front fence faces Territory land

119. The applicants further contend that the proposed 1.4m chain mesh fence that runs

parallel to and inside the western front boundary should be considered against C8 of

the RBFG Code, and not C4 as stated by the respondent’s approving officer at T148.

Also that the established hedge which grows along the western boundary is comprised

of plant material considered as woody weeds and the hedge does not go the full length

of the western boundary.

120. Criteria 8 provides as follows:

C8 Where a residence has a frontage to open space or is a battle-axe block, a fence forward of the building line can be considered subject to the fence being:

a) Constructed of visually harmonious materials, colours and finishes with the surrounding area

b) Transparent type

c) A maximum height of 1.8m above natural ground level

d) Visually mitigated with planting grown as a hedge that is located wholly within the property boundary when grown

60 Exhibit A1 at 62-70

28

121. The respondent relies on the evidence of Ms Lana.61 The respondent contends that

C41 is met and agrees that C8 of the RBFB Code applies to the western chain mesh

fence. The respondent asserts that the proposed ‘transparent type’, chain wire, fence is

mitigated by the existing hedge on the western boundary and complies with the

relevant codes.62

122. The respondent submits63 that the paling fences for all units, being the fence to the

south of unit 1 and west of units 2, 3 and 4 should be treated as courtyard walls. The

respondent submits these can satisfy C42 provided approval of the DA by the Tribunal

includes a condition that these courtyards walls are constructed with a variety of

materials consistent with C42(g) of the MUHDC.

123. Criteria 42 provides as follows:

C42 Courtyard walls achieve all of the following:

a) consistency with the desired character

b) visual softening though associated planting

c) reduced traffic noise, where necessary

d) reasonable privacy to lower floor level windows

e) opportunities for natural surveillance of public areas and the street

f) the articulation of elements

g) a variety of materials

h) reasonable solar access to principal private open space

124. The respondent and second party joined agree that the established hedge on the

western boundary does not extend for the full length of the western boundary. This

was pointed out to the Tribunal at the view. There is no hedge for approximately 7m

south from where the western and northern boundaries meet. This ‘exposes’ an area of

the proposed POS of unit 4 to the public open area and pathway to the west of the DA

and proposed chain wire fence.

Conclusion re Rule/Criterion 41

61 Exhibit R4 at 86-8862 C41 MUHDC, R1(e)&(f) and C8 of the RBFGC 63 Relying on the evidence of Ms Lana - Exhibit R4 at 83-85

29

125. The decisions of The Proprietors of UP 25964 and Fielding65 provide some guidance

as to the categorisation of a structure as a fence or as the wall of a courtyard.

Principally, courtyard walls serve a particular purpose of enclosing and “surrounding

the open living space of units located on the subject land.”66 Relevantly, the walls in

Fielding were held to lack this function of surrounding outdoor living space and so

were not accepted as courtyard walls.67

126. Here, the proposed structures enclose the private open space of unit 1 and separate the

principle private open space (‘PPOS’68) of each unit. The Tribunal finds that these are

courtyard walls and not fences. R/C42 applies to courtyard walls.

127. If the DA is approved, then in order to satisfy C8(d) of the RBFGC (and C41 of the

MUHDC) it would be necessary to include a condition that a hedge be planted along

the approximately 7m on the western front boundary where there is no established

hedge.

128. This condition would also be needed to address the current situation whereby the

transparent chain wire fence proposed along the western frontage encloses the PPOS

of unit 4 for the 7m where there is no hedge. It does not provide adequate screening or

privacy to satisfy R61(c) or C61(e) of the MUHDC (discussed below).

(f) Courtyard walls Rule/Criterion 42

129. The Tribunal has found (see paragraph 126 above) that each of the units in the

proposed development has a courtyard wall and, except for unit 4 (see paragraph 128

above), has an area of hedge forward of the building line which encloses private open

space (POS).

130. The following are defined terms:

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

64 The Proprietors of Units Plan 259 v Minister for Urban Services [1999] ACTAAT 33

65 Fielding, John v Commissioner for Land and Planning [2000] ACTAAT 2666 Proprietors of UP 259 at [12]67 At [34]68 PPOS is a defined term in the Territory Plan it means private open space

that is directly accessible from a habitable room other than a bedroom

30

of any part of private open space may be roofed over, except that a balcony may be entirely roofed over.

Building line means a line drawn parallel to any front boundary along the front face of the building or through the point on a building closest to the front boundary. Where a terrace, landing, porch, balcony or verandah is more than 1.5 metres above the adjoining finished ground level or is covered by a roof, it shall be deemed to be part of the building.

131. R42 and C42 of the MUHDC determine the requirements of courtyard walls.

R42 Courtyard walls are permitted forward of the building line where they

comply with all [emphasis added] of the following:

a) maximum height of 1.8m above datum ground level

b) a minimum setback to the front boundary complying with the following:

i) where the wall encloses the principal private open space of a ground floor

dwellings [sic] that is located to the west, north-west, north, north-east or

east of the dwelling – 0.7m

ii) in all other cases - half the front boundary setback nominated elsewhere in

this code

c) trees and/or shrubs between the wall and the front boundary, in accordance

with an approved landscape plan

d) a variety of materials or indentations not less than 15m apart where the

indents are not less than 1m in depth and 4m in length

e) constructed of brick, block or stonework, any of which may be combined with

timber or metal panels that include openings not less than 25% of the surface

area of the panel

f) maintain clear sightlines between vehicles on driveways and pedestrians on

public paths in accordance with A2890.1- The Australian Standard for Off-

Street Parking.

132. C42 permits courtyard walls, without specifying location, if:

Courtyard walls achieve all [emphasis added] of the following:

a) consistency with the desired character

b) visual softening though [sic] associated planting

c) reduced traffic noise, where necessary

d) reasonable privacy to lower floor level windows

e) opportunities for natural surveillance of public areas and the street

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f) the articulation of elements

g) a variety of materials

h) reasonable solar access to principal private open space

133. The assessing officer69 considered that R42 was not relevant to the DA and that the

DA was “not inconsistent” with R61 and C61.70 The applicants agree71 that if the DA

is approved, then it should include the additional condition, proposed by the

respondent, that the DA comply with C42(g). However the applicants say that the

Tribunal will need to clarify whether this condition should apply only to the courtyard

wall of unit 1 or to all of the ‘courtyard walls’ on the western side of the DA.

134. The Tribunal is satisfied that the walls to both of the courtyards of unit 1 and the

walls that separate the units on the west of the building are courtyard walls that will

need to meet R42 or satisfy C42.

(g) Principal private open space – Rule/Criterion 61

135. R/C 61 deal with the requirements of PPOS. PPOS is also relevant to consideration of

R/C 42. Mr Hatch, on behalf of the DA proponent (second party joined), gave

evidence that the area of PPOS for each unit was identified in Exhibit PJ2C, a

document filed during the hearing. Mr Hatch advised that PPOS for each unit is

depicted in green and the dimension referred to in R61 (b) (and Table A972) by a

6 metre square. Only units 1 and 4 have these squares. The square to unit 1 is located

south of the unit and the square to unit 4 is located north of the unit.

136. Rule and Criteria 61 provide as follows:

R61 Each dwelling has at least one area of principal private open space that

complies with all of the following:

a) located on the site

b) has minimum area and dimensions specified in table A9

c) is screened from adjoining public streets and public open space

69 at T14870 at T15071 Exhibit A2 at 4972 R61(b) refers to Table A9 which sets out the PPOS area and dimension

requirements for a four bedroom dwelling partially at lower floor level, in RZ2 - minimum area 45m2 and dimension 6m

32

d) is directly accessible from, and adjacent to, a habitable room other than a

bedroom

e) is not located to the south, south-east or south-west of the dwelling, unless

it achieves one or more of the following -

i) not less than 3 hours of direct sunlight onto 50% of the minimum required

area between the hours of 9am and 3pm on the winter solstice (21 June)

ii) located at an upper floor level and overlooks a public street or public open

space.

C61 Principal private open space for each dwelling achieves all [emphasis added]

of the following:

a) an area proportionate to the size of the dwelling

b) an extension of the function of the dwelling for relaxation, dining,

entertainment, recreation

c) directly accessible from the dwelling

d) service functions such as clothes drying and mechanical services

e) reasonable privacy

f) reasonable solar access.

137. The applicants contend73 that the residential amenity of units 1 and 2 in particular is

severely compromised as their private open space is forced so close to the public

walkway and that this is relevant to C61. The applicants contend74 that Ms Lana in her

statement, and therefore the respondent, does not address all of the matters relevant to

C61. Specifically whether the PPOS provided for each unit is proportionate to the size

of the dwellings; and that it affords reasonable privacy.

138. The respondent adopts the evidence of Ms Sheikh Lana.75 Ms Lana concludes that the

DA does not comply with R61 but it does satisfy C61.

139. Ms Lana uses the terms ‘private open space’ and ‘principal private open space’ when

assessing R61 and C61.76 Both are defined terms. PPOS is a sub-set of POS. The

definition of PPOS and R61(d) requires direct access to the PPOS from a habitable

73 Exhibit A1 at 4874 Exhibit A2 at 58-5975 Exhibit R4 at 61-6676 Exhibit R4 at 61-66

33

room other than a bedroom. C61(c) does not refer to ‘habitable room’ or exclude

‘bedroom’ as an access point.

140. Ms Lana considers that the ground level space combined with the upper level

balconies and the proximity to the public open space are adequate to ensure

consistency with the C61, notwithstanding that units 2 and 3 have minor

encroachments into the minimum 6x6 m dimension set out in Table A9.

141. Mr Hatch (on behalf of the second party joined) and the respondent further contend

that units 1, 2, & 3 have additional private open space to the eastern side and that these

spaces can be added to meet the area requirements of C61 if necessary.

Conclusion re PPOS – Rule/Criterion 61

142. It is necessary to consider C61 in order to identify which POS is considered

compliant PPOS.

143. The Tribunal finds that the PPOS for unit 1 as depicted on Exhibit PJ2C does not

provide reasonable solar access. The shadow diagrams at T238 depict shade at 9am,

12pm and 3pm on 22nd June. The area to the east of unit 1 which is approximately

4.5m wide is predominantly in shade at 9am and is totally shaded at 12 and 3pm. The

area to the south of the unit 1 is predominantly in shade at 9am and is nearly totally

shaded at 12. There is direct sunlight on more than 50% of the area at 3pm. The area to

the west of the unit 1 is totally shaded at 9am, is more than 50% in shade at 12 and is

not shaded at 3pm. This area has a minimum dimension of approximately 3m.

144. Where a rule is not mandatory the DA proponent can provide supporting evidence

and documents to demonstrate that the proposed development satisfies the applicable

criterion. When terms such as ‘proportionate’ and ‘reasonable’ are used in criterion, it

is relevant and useful to consider the ‘minimum ideal’ set out in the applicable rule.

Whilst clearly ‘something less’ than the rule requirements may be approved, the

degree of divergence from the rule requirement is a matter that will help guide the

Tribunal in its consideration of the evidence provided in support of satisfying

criterion. All of the requirements of C61 must be satisfied.

145. The Tribunal finds that the evidence does not support the conclusion that all of the

requirements of C61 are satisfied for unit 1. The Tribunal has considered the

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dimension and area of the PPOS proposed for unit 1 (as set out in Exhibit PJ2C)

comparing the area and dimensions set out in Table A9; and the solar access to those

area/s as demonstrated in Exhibit T238 and as compared with the requirements in

R61(e)(i). The Tribunal is not satisfied that the PPOS proposed for unit 1 is an area

proportionate to the size of the dwelling.77 Taking into account that the minimum

dimension of the PPOS for unit 1 that has reasonable solar access is half of that which

would be required to meet R61(e)(i), the Tribunal is not satisfied that it has reasonable

solar access.78 The Tribunal considers that the DA fails to achieve C61(a) and C61(f)

for the PPOS for unit 1 and therefore does not provide an effective extension of the

function of the dwelling for relaxation, dining, entertainment and recreation.79

146. The Tribunal finds that the PPOS for unit 2 as depicted on Exhibit PJ2C does not

provide reasonable solar access to the eastern area. The area to the east of unit 2 which

is approximately 4.5 m wide is predominantly in shade at 9am and is totally shaded at

12 and 3pm. The area to the west of the unit 2 is totally in shade at 9am and is partially

shaded at 12. There is direct sunlight on most of the area at 3pm. This area has a

minimum dimension of approximately 3.3m from the corner window of the kitchen,

which is shown as being located on the 4m setback dashed red line, to the proposed

wire fence inside the line of the existing hedge. The area of PPOS to the west is stated

to be 44.3m2. The unit is designed to accommodate at least five people. The minimum

dimension of the PPOS for unit 2 is 55% of that which would be required to comply

with R61. The Tribunal is not satisfied based on the evidence that the PPOS for unit 2

is an area proportionate to the size of the dwelling;80 or that, given its dimensions and

the probable number of residents, it can provide an effective extension of the function

of the dwelling for relaxation, dining, entertainment, recreation.81

147. The Tribunal finds that the PPOS for units 3 and 4 as depicted in Exhibit PJ2C do not

provide reasonable privacy (C61(e)). There is no established hedge along the western

boundary between the public open and the PPOS of unit 4 (from the northwest corner

of the site) for 7m being approximately 50% of the PPOS. Although this deficiency

could be addressed by a condition to plant a hedge, in addition, the western deck to

77 C61(a)78 C61(f)79 C61(b)80 C61(a)81 C61(b)

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unit 3 has a floor level that is 800 mm above the finished ground level where it is

adjacent to the courtyard wall that divides the PPOS of unit 3 from the PPOS of unit 4.

The deck extends beyond the building line. Forward of the building line the courtyard

wall must not to be higher than 1.8m.82 The courtyard wall height, from the deck, will

therefore be 1m. A person standing on the deck of unit 3 would be able to look over a

courtyard wall into the PPOS of unit 4. The deck to unit 4 is 600 m above finished

ground level. The elevated height of both decks means that the, approximate, 1.8m

high hedge along the western front boundary will only have an effective height of 1 –

1.2 m above these decks. In the Tribunal’s view this does not provide reasonable

privacy from the adjacent public pathway. Based on the available evidence the

Tribunal is not satisfied that the DA achieves reasonable privacy for PPOS for unit 3

and unit 4 (C61(e)).

Conclusion re Courtyard wall – Rule/Criterion 42

148. The requirement of R61 and C61 for privacy of PPOS is supported by the

requirements in relation to the construction of and materials to be used in courtyard

walls. If the Tribunal approves the DA, then the approval would need to include the

additional condition proposed, and agreed to by the applicants, in relation to courtyard

wall for unit 1 and R/C42.

149. R42/C42 also applies to the proposed courtyard walls that enclose POS83 and separate

the units on the western side of the building. R42(e) requires courtyard walls to be

“constructed in brick, block or stonework.” The dominant material in a courtyard wall

is masonry, not timber or metalwork. If metal or timber is combined with masonry

then these elements must be in panels surrounded by masonry to at least three sides. If

the DA is approved, then the further condition proposed by the respondent in relation

to R42(e)/C42(g) also need to address the courtyard walls between each of the units on

the west of the building.

(h) Internal driveways - Rule/Criterion 73 MUHDC and the Parking &Vehicular

Access General Code

82 R42 (a)83 POS is a more general term than PPOS. PPOS is restricted to POS directly

accessible from a habitable room other than a bedroom. R/C61 deals with PPOS. R/C42 refers to, but is not only concerned with PPOS

36

150. R/C73 of the MUHDC deals with the requirements of internal driveways. R73 sets

conditions for internal driveways that are used by residents of more than one dwelling.

The Parking and Vehicular Access General Code (the PVAG Code) also applies. The

PVAG Code clause 2.3.1 (a) states that the layout of the car park should meet the

requirements of AS 2891.1.

R73 This rule applies to internal driveways that are used by residents of more than one dwelling. Internal driveways comply with all of the following:

a) are set back from external block boundaries by not less than 1mb) are set back from the external walls of buildings on the site by not less than 1mc) the setbacks referred to in items a) and b) are planted to a width of not less than 1md) windows to habitable rooms and exterior doors within 1.5 of an internal driveway have at least one of the following -

i) an intervening fence or wall not less than 1.5m highii) for windows, a sill height not less than 1.5m above the driveway

e) the relevant requirements in Australian Standard AS2890.1 - Off Street Parking for sightlines and gradientsf) provide internal radius of at least 4m at changes in direction and intersectionsg) have a surface treatment that is distinct from car parking spaces.

C73 Internal driveways achieve all of the following:

a) sufficient space for planting along property boundariesb) sufficient space for planting between internal driveways and buildingsc) reasonable residential amenity, particularly in relation to the intrusion of light and noise into habitable roomsd) clear differentiation between the driveway and parking spaces.

151. The applicants contend that R73 (a) and (c) are not met at the eastern boundary as the

area of driveway abutting the eastern boundary is set back less than 1m for at least

60% of its length.84 They contend that the existing 3.5m high planting along this

boundary on the subject site provides privacy to the neighbour on the adjoining block

to the east. If the 1 m set back was provided the existing planting could be retained as

compared with the proposed planting which will provides ‘scant’ screening for the

residents of the neighbouring property on the east.

152. The applicants assert that as a result of the failure to meet the set back requirements

of R73(a) and therefore the need to remove the existing planting and because of the

nature and location of the proposed planting, C73 is not satisfied, in particular C73(a)

and (c).

84 Exhibit A1 at [71]-[78]

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153. The applicants assert that the respondent has not adequately considered issues about

vehicle movement and the requirements of the PVAGC. The applicants assert that the

information provided by the DA proponent is not sufficient, given the issues raised by

the applicants in relation to setback and planting, to support a conclusion that the

MUHDC or PVAG Code are satisfied.

154. The respondent contends that C73 is satisfied and adopts the evidence of Ms Lana.85

Ms Lana considered that the proposal meets C73. She contends that the width of the

driveway is adequate and safe and there is planting at the front and at some intervals

along the eastern boundary and that other boundaries of the block will have substantial

planting. She gave evidence that the side setback of 6.3m was adequate for the

driveway and planting along the property boundary on the east.

155. Mr Hatch for the second party joined (and DA proponent) relied on the ‘Vehicle

Turning Plan’86 prepared by Kova Engineering and Design Pty Ltd (the second party

joined’s consultant engineer) which depicts a car entering and exiting the northern

most garage space on the site and the visitor parking space inside the front zone. The

drawing is based on a vehicle size - B99 - which Mr Hatch said reflects the

manoeuvring capacity and dimension of 99% of all cars.87

156. The consultant’s drawing shows that a ‘B99’ vehicle exiting the garage space needs to

manoeuvre up to the boundary when reversing. This manoeuvre was shown for only

one garage space but the Tribunal assumes that this depicts what would happen for all

eight parking spaces in the four double garages.

157. On the fourth day of the hearing Mr Hatch tendered a written statement by Mr Luka

Kovacevic of Kova Engineering and Design Pty Ltd dated 10 May 2016.88 Annexed to

the statement were revised Vehicle Turning Plans.89

158. The respondent’s counsel informed the Tribunal that Mr Kovacevic was not able to

attend the hearing or give telephone evidence, consequently he was not available to

give evidence or answer questions which may have been put to him by the applicants

85 Exhibit R4 at [89]-[93]86 T22187 This evidence is confirmed by the description of B99 vehicle in Exhibit R9,

Annexure C being AS2890.1, appendix A, at A4 on page 5388 Exhibit R989 Exhibit R9 Annexure D

38

or the Tribunal. Mr Kovacevic holds a Bachelor of Engineering Technology (Civil)

and Diploma level qualifications in engineering, design and drafting.

159. In his statement Mr Kovacevic explains why in his revised drawings he has used a

B85, rather than B99, vehicle to demonstrate parking manoeuvres to enter and exit the

garage spaces.90 He notes that a B99 vehicle is 5.2 m long while a B85 is 4.91 m. He

relies on notes B2.2 and B2.3 of AS2890.1, Appendix B and says that, as the traffic

volumes would be relatively low at the development, use of a B85 vehicle is

permitted.91

160. By reference to T236 and Fig 2.2 in AS2890.1 (Exhibit R9 Annexure A)

Mr Kovacevic in his 10 May 2016 statement, as compared with T221 (dated 2 April

2015), adopts an aisle width of 5.8m for the driveway. His revised drawings (Exhibit

R9 Annexure D) show that a B85 vehicle could manoeuvre within a distance of 0.5 m

from the side boundary in and out of both spaces within each garage. Mr Kovacevic

refers to note B4.8 of AS2890.1 which explains why there is a concession where space

is limited to tolerate a reduction in aisle width from 6.2 m to 5.8 m. A narrower aisle

may result in vehicles larger than B85 needing to make a 3-point turn and some a 5-

point turn.

161. The Tribunal notes that other than for unit 1 each exiting manoeuvre for a B85

vehicle depicted (in Exhibit R9 Annexure D) showed that reversing out of the garage

required a three point turn. The manoeuvre for unit 1 showed that a four or five point

turn was required.

Conclusion re driveway - Rule/Criterion 73162. The Tribunal finds that the requirements of C73(a) are not met for most of the

driveway. The 0.5m setback from the eastern boundary is 50% of the set back stated in

the R73(a) and is not sufficient space to allow adequate planting along the east

boundary adjacent to the driveway. Mr Kovacevic’s revised drawing92 has two plans

but does not depict manoeuvrability relating to all eight garage spaces. The plan on the

left side depicts two cars each of which is accommodated on the northern side of the

garages to units 2 and 4. The plan on the right side depicts two cars one each

90 Exhibit R9 at [19]-[21] and annexure D91 Exhibit R9 Annexure B at page 5792 Exhibit R9 Annexure D

39

accommodated on the southern side of the garages to units 1 and 3. The driveway is

not 5.8 m wide for its full length as there is landscaping 93 at intervals on both sides of

the driveway in front of the entries to units 1, 2 and 3. This landscaping extends

approximately 1m out from the eastern side boundary and 1.8m from the courtyard

walls on the western side of the driveway. The manoeuvrability of the four cars

depicted, out of the total of eight available spaces, does not appear to be affected by

the proposed landscaping. However, if the manoeuvrability of the car depicted for unit

3 is overlaid at units 2 and 4 then, in the view of the Tribunal, they would conflict with

the proposed landscaping both entering and exiting the garage spaces. The

manoeuvrability of the car depicted for unit 1, including the 4 or 5-point turn, conflicts

with the landscaping on the western side when exiting the garage.

163. The units in the development are designed to accommodate at least five residents. It is

likely that the garages for these four bedroom units may need to accommodate family

vehicles. AS 2890.1 sets out at clause A394 that a B85 vehicle does not include the

turning circle for a Ford Falcon. Note B2.2 of Appendix B to AS2890.1 states that the

B99 vehicle should be used to demonstrate movement for access driveways “unless

there are special circumstances of severe space limitation coupled with relatively low

traffic volume.”95

164. There was no evidence provided about space limitation and Mr Kovacevic only refers

to traffic volume.96 The Tribunal considers that any space limitation is created by the

size of the subject development. The normal requirement is to use a B99 car.

Mr Kovacevic explained97 that when he drew T221 his:

… use of B99 was a mistake and not necessary for the development. B99 is used

for areas where there is high turnover of traffic flow / parking such as shopping

centres.

93 The landscaping plans prepared by the second party joined’s landscaper Cia Landscapes + Colour Exhibit PJ2A, which Mr Hatch advised at the hearing replaces T427

94 Exhibit R9 Annexure B at page 5395 Exhibit R9 Annexure B at page 5796 Exhibit R9 at paragraph 2097 Exhibit R9 at paragraph 19

40

165. The Tribunal considers that this statement does not adequately explain why he used a

B85 vehicle in his later manoeuvrability drawings nor does it reflect the requirement

that a B99 vehicle should normally be used.

166. In the ‘Note’ about the class of parking space (here Class 1A)98 it states that:

… many drivers may have difficulty driving into and out of such spaces,

especially those with vehicles larger than the B85 vehicle.

167. It seems that Mr Kovacevic was not aware of the requirement for landscaping along

the east and for the planned landscaping on the west side of the driveway when he

prepared the drawings demonstrating movement of vehicles. Mr Kovacevic makes no

reference to this in his conclusion.99 He says that after allowing for 0.1m for the width

of the eastern boundary fence, the width of the driveway would be 6.1m which is more

that the 5.8m required by AS 2890.1.100

168. The Tribunal considers that it would be more appropriate to demonstrate the

manoeuvring of a B99 vehicle for this development. The Tribunal is not satisfied on

the evidence provided that the requirements of AS2890.1 are met. The drawings

provided by the Mr Kovacevic suggest that even a B85 vehicle would need to

undertake a 3-point turn to enter and or exit most (if not all) of the garage spaces. A

larger vehicle, if it could be accommodated, would presumably require more turns.

169. The additional manoeuvring of a larger vehicle would impact on the amenity of the

residents of the development in using the driveway and garages. The added time and

manoeuvring requirement for entry into and out of the garages by larger vehicles may

also, as suggested by the applicants, impact on the neighbours to the east, particularly

when combined with the limited facility for planting on the eastern boundary.

170. The Tribunal is not satisfied that there is sufficient space for planting along the

eastern boundary. The area for planting is limited to less than half of the width

required by R73(b) for much of its length and the nature of the planting is necessarily

98 Exhibit R9 Annexure B, Note 1 for Table 1.1 which designates the 1A user class which is then used in Table 2.2 to describe the required length of parking space and associated aisles – in this case the driveway

99 Exhibit 9 at [17]100 Exhibit R9 [10]

41

restricted to accommodate the reduced aisle width and need for considerable

manoeuvring of vehicles to enter and exit the garages.

171. Whilst the Tribunal does not consider that, if the development were approved, it

would be appropriate to require the DA proponent to retain the existing hedge on the

eastern boundary, the Tribunal considers that it is necessary for there to be sufficient

space for adequate planting along the driveway adjacent to the eastern boundary for

much of its length.

172. Based on the available evidence the Tribunal finds that C73, and specifically C73(a)

and C73(c) are not satisfied.

(i) Visitor car parking - Rule/Criterion 82 MUHDC and PVAG Code

173. The DA provides for 2 parking spaces per unit and 1 visitor car space. This complies

with the requirement of the PVAG Code.101 R82 and C82 of the MUHDC set out the

requirements of visitor parking space.

174. Rule and Criteria 82 provide the following:

R82 Visitor car-parking spaces on the site comply with all of the following:

a) located behind the front zone (except for apartment car parking)

b) do not encroach any property boundaries

c) are separated by not less than 1.5m from windows and doors to habitable rooms of dwellings

d) are not more than 50m walking distance from any common building entry

e) clearly identified and visible from driveways.

C82 Visitor parking achieves all of the following:

a) accessible for all visitors

b) safe and direct visitor entry to common building entries.

175. The applicants contend that because of site specific factors an additional visitor

parking space should be provided to conform to the performance requirements of the

PVAG Code.102 The development is to be built near a walkway and on a street corner. 101 Paragraph 3.1.5 – Schedule 1 of the PVAG Code102 Exhibit A1 at 79-84

42

A further multi-unit development for three dwellings has been approved on the site

opposite the subject site in Gibbes Place.103 That development has no on-site visitor

parking and this will further contribute to on-street parking issues for the subject site.

176. The respondent contends that C82 is met and adopts the evidence of Ms Lana.104

Ms Lana states that the visitor parking space does not comply with R82(a) as it is

located in the front zone but considers that the proposal meets C82. Ms Lana considers

that the space is accessible and safe, and that it allows direct visitor entry to common

building entries.

177. Mr Hatch for the second party joined contends that C82 is satisfied. He relies on

Exhibit PJ2C which shows the visitor parking space located half-way into the front

zone, and approximately 3.5m from unit 1 and the wall to the eastern entry courtyard

of unit 1.

Conclusion – Rule/Criterion 82 visitor parking

178. The Tribunal finds that the visitor car space meets the requirements of the PVAG

Code and that no additional on-site visitor parking space is required.

179. The Tribunal finds that R82 is not met as the visitor parking space is partially located

into the front zone.105 The space is accessible to all visitors. Each unit has its own

entry, and so there is no common building entry. The Tribunal finds that C82(a) is

satisfied and C82(b) does not apply.

180. During the hearing the respondent informed the Tribunal that Australia Post has

requested that the mailbox structure be moved further forward towards the street.

181. By way of comment the Tribunal notes that there is enough space to relocate the

visitor parking a further 2m approximately into the site so that it is 1.5m from unit 1

and would then comply with R82 (c), although the courtyard wall would restrict

sightlines. If the visitor parking space were repositioned, this would facilitate the

relocation of the mailbox structure.

103 Exhibit A2 at 56-57104 Exhibit R4 at 94-96105 R82(a)

43

182. There is no common building entry. The only path for visitors to access the front

entry to each unit is along the driveway. The visitor space is approximately 50 m from

the front door of unit 4, and then progressively less for units 3, 2 and 1.

183. At the hearing Mr Hatch, on behalf of the second party joined, suggested that an

alternative to accessing units from the driveway would be for visitors to enter the units

via the public path on the western boundary where it is proposed to put gates to each

unit into the existing hedge. The Tribunal does not consider that this would be a

suitable, or convenient, alternative.

184. The Tribunal finds that the current location and provision of one on-site visitor

parking space satisfies C82 and meets the requirements of the PVAG Code. If the

visitor car space were to be relocated as suggested by the Tribunal in paragraph 175

above and notwithstanding the ‘sightline’ issue, the Tribunal considers the visitor car

space would nonetheless satisfy C82.

Section 119 – not code compliant

185. The Tribunal has concluded that the development proposal does not satisfy criteria

29, 38, 42, 61 and 73 of the MUHDC. The parties have agreed and the Tribunal

accepts that a condition requiring that materials be used that comply with the

requirements of R42(e) or C42(g) in the construction of the courtyard walls could

overcome the DA deficiency in relation to the courtyard walls.

186. The Tribunal has considered the option of making a decision pursuant to section 68 of

the ACAT Act to vary the reviewable decision to include additional conditions that

might address other deficits in the DA which have been identified by the Tribunal in

relation to C29, C38, C61 and C73. However the Tribunal considers that it either does

not have sufficient information to formulate conditions to address the deficiencies

identified or that to impose conditions that amend the DA would, or could, impact on

other features of the DA and perhaps other aspects of code compliance.

187. By way of comment, had the Tribunal decided that C29, C38, C61 and C73 were

satisfied, and subject to the need for further information in relation to the R/C64,106 the

Tribunal would have been satisfied that the DA was otherwise code compliant, subject

106 R/C64 re balustrades is discussed at paragraphs 75-76 and 85 above

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to the conditions in the reviewable decision and the additional/amended conditions

that:

(a) the fencing condition in the reviewable decision (Condition C6) be amended as

proposed by the respondent (Exhibit R2 paragraph 10(a) under the heading

‘Orders Sought’);

(b) a hedge be planted for the 7m along the western front boundary where there is

currently no established hedge; and

(c) the approval include a condition in relation to R42(e) and C42(g) for the

courtyard walls to all units as proposed by the respondent (Exhibit R2 paragraph

10(b) under the heading ‘Orders Sought’).

188. The Tribunal has concluded that the DA is not consistent with the applicable codes.

Section 119 operates so that the Tribunal must therefore set aside the approval of the

DA.

Conclusion

189. Pursuant to section 68 of the ACAT Act the reviewable decision to approve the DA

with conditions is set aside. The Tribunal substitutes its decision that the DA is not

approved.

………………………………..Senior Member W Corby

for and on behalf of the Tribunal

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HEARING DETAILS

FILE NUMBER: AT 2 of 2016

PARTIES, APPLICANT: Louise Maurer

Jeff Ellis

PARTIES, RESPONDENT: ACT Planning and Land Authority

FIRST PARTY JOINED: Susan Spearitt

SECOND PARTY JOINED: Stewart Architecture Pty Ltd

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT Robert Clynes

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT ACT Government Solicitor

TRIBUNAL MEMBERS: Senior Member W Corby

Senior Member G Trickett

DATES OF HEARING: 20,21,22 April and 17 May 2016

46