ACT CIVIL & ADMINISTRATIVE TRIBUNAL

OLD NARRABUNDAH COMMUNITY COUNCIL INC v ACT PLANNING AND LAND AUTHORITY & ORS

(Administrative Review) [2016] ACAT 32

AT 34/2015

Catchwords: ADMINISTRATIVE REVIEW- planning and development – development application – Multi Unit Development in RZ2 Suburban Core Zone - Multi Unit Housing Development Code – setbacks, fences, courtyards walls, principal private open space, external facilities, driveways, parking, tree protection

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 22P, 68Heritage Act 2004 ss 29, 32, 41, 60Planning and Development Act 2007 ss 120, 156, 162, 407, 408ATree Protection Act 2005

Subordinate Legislation: Territory Plan 2008

Multi Unit Housing Development Code Parking and Vehicular Access General CodeResidential Boundary Fences General Code

Cases cited: Deakin Residents Association Inc v ACT Planning and Land Authority & Anor [2015] ACAT 37Scherl v ACT Planning and Land Authority & Ors [2011] ACAT 37The Proprietors of Units Plan 259 v Minister for Urban Services [1999] ACTAAT 33Fielding, John v Commissioner for Land and Planning [2000] ACTAAT 26Goffman & Ors v ACT Planning and Land Authority [2012] ACAT 7 Griffith Narrabundah Community Association v ACT Planning and Land Authority & Anor [2011] ACAT 61

Texts/Papers: Australian Standard AS2890.1 – Off Street Parking

Tribunal: Senior Member A Foley (Presiding)Senior Member G Trickett

Date of Orders: 18 April 2016Date of Reasons for Decision: 18 April 2016

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AT34/2015

BETWEEN:

OLD NARRABUNDAH COMMUNITY COUNCIL INCApplicant

AND: ACT PLANNING AND LAND AUTHORITY

RespondentAND:

COMMISSIONER FOR SOCIAL HOUSINGFirst Party Joined

AND:PHILIP LEESON ARCHITECTS PTY LTD

Second Party Joined

Tribunal: Senior Member A Foley (Presiding)Senior Member G Trickett

DATE: 18 April 2016

ORDERThe Tribunal Orders that:

1. The decision under review is varied by imposing the following additional or varied conditions on the approval:

Additional Conditions

1. By adding additional subparagraph A1(b) to the Notice of Decision as follows:

a revised site plan (based on Drawing T137) showing a six metre front

building setback for the Lumeah Street frontage and consequent

relocation of verandah, store and water for unit 9 to meet the

requirements of the Multi Unit Housing Development Code R29.

2. By adding additional subparagraph A1(c) to the Notice of Decision as follows:

revised architectural drawings (based on revised Drawing tendered into

evidence by the respondent as Exhibit R10) showing revised setback of

three metres for courtyard walls of unit 9 facing Lumeah Street; showing

revised setback of two metres for courtyard walls of unit 2 facing

Mindarie Street to meet the requirements of the Multi Unit Housing

Development Code R42 & R61.

3. By adding additional subparagraph A1(d) to the Notice of Decision as follows:

revised architectural drawings (taking account of the Design

Recommendation tendered into evidence by the applicant as Exhibit A3)

showing revised screening and material/construction elements to unit 2-9

courtyard walls providing for dominant materials of brick, block or

stonework to meet the requirements of the Multi Unit Housing

Development Code R42 & R61.

4. By adding additional subparagraph A1(e) to the Notice of Decision as follows:

revised drawings (based on Drawing 138 and T164 internal floorplan)

showing the modifications to the north facing wall of unit 1 to move it

south by 1.2m metres, together with corresponding adjustment to the

south facing walls of unit 1 to meet the requirements of the Multi Unit

Housing Development Code R61.

5. By adding additional subparagraph A1(f) to the Notice of Decision as follows:

revised site plan and architectural drawings (based on revised Drawing

tendered into evidence by the respondent as Exhibit R11) showing

removal of blade walls in units 5, 7 & 8 to meet the requirements of the

Multi Unit Housing Development Code R61.

6. By adding additional subparagraph A1(g) to the Notice of Decision as follows:

revised architectural drawings (based on Drawing T137) showing

screening of water tanks for units 1 and 9 to meet the requirements of the

Multi Unit Housing Development Code C43.

7. By adding additional subparagraph A1(h) to the Notice of Decision as follows:

revised site plan, landscape plan and architectural drawings (based on

Drawing T137) showing the relocation of the garage of unit 3 one metre

to the east to provide adequate setback of the internal driveway from the

western wall of unit 3 garage and to provide an area for plantings on the

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western side of unit 3 to meet the requirements of the Multi Unit Housing

Development Code R73.

8. By adding additional subparagraph A1(i) to the Notice of Decision as follows:

revised site plan and landscape plan showing the siting of a pedestrian

pathway connecting the internal driveway serving units 1-5 and the

internal driveway serving units 6-9 so as to provide ready pedestrian

access to all 3 visitor parking spaces from both sides of the development

to meet the requirements of the Multi Unit Housing Development Code

R85.

Varied Conditions

9. By varying words of paragraph D1. TREE PROTECTION as follows:

D1. TREE PROTECTION

The applicant/lessee shall protect and maintain all existing trees and

shrubs located on the subject site, on adjoining blocks overhanging the

subject site, on the verge and on unleased Territory land immediately

adjacent, except those specifically identified for removal in the approved

drawings and shall prepare and submit for approval by the Conservator of

Flora and Fauna a revised Tree Assessment and Tree Protection Plan

showing in addition the retention of tree 26 and its protection during

construction site work in the driveway area adjacent to units 6-7 and shall

protect and maintain the protected trees that will remain on the site in

accordance with the Management Plan.

………………………………..Senior Member A Foley

for and on behalf of the Tribunal

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REASONS FOR DECISION

1. Old Narrabundah Community Council Inc (the applicant) has sought review of a

decision of the ACT Planning and Land Authority (the respondent) made on

11 April 2015 under section 162 of the Planning and Development Act 2007

(the Planning Act) to approve with conditions Development Application DA

201426052 (the DA) seeking:

(a) consolidation of blocks 20, 22, 23, 24 and 25 Section 39 Narrabundah;

(b) alterations to sewer and electricity easements;

(c) demolition of four existing dwellings and various outbuildings;

(d) construction of nine dwellings;

(e) removal of one regulated tree; and

(f) construction in two stages.

2. The applicant is an incorporated association which made a representation under

section 156 of the Planning Act about the decision and as such is an eligible

entity which can apply for review of the decision under section 408A of the

Act.

3. The Commissioner for Social Housing (first) and Philip Leeson Architects Pty

Ltd (second) were joined as parties.

Jurisdiction of the Tribunal

4. The review is an application for review by the ACT Civil and Administrative

Tribunal pursuant to section 68 of the ACT Civil and Administrative Tribunal

Act 2008 (the ACAT Act). A decision under section 162 of the Planning Act is

reviewable by the Tribunal under sections 407, 408A and Schedule 1, item 4 of

the Planning Act.

The Hearing

5. The matter was heard on 9, 10 and 11 November and 14 and 15 December 2015.

The Tribunal had before it the documents provided by the respondent on which

its decision was based (the T Documents), the submissions and statements of

facts and contentions of the parties, witness statements and other exhibits

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tendered in evidence. The applicant was self represented by Ms A Forrest and

the respondent was represented by Dr D Jarvis of counsel.

6. The applicant called evidence from Stan Bevanda. Evidence for the respondent

was given by Bryn Challis, Bernie Cusack and Phab Vetsaavong. The Tribunal

conducted a view of the subject site on 14 December 2015 in the presence of

the parties and their representatives and witnesses.

Background

7. On 11 September 2014 a development application was lodged for approval for

consolidation of blocks 20, 22, 23, 24 and 25 Section 39 Narrabundah (the

subject land), demolition of existing dwellings and construction of a multi-unit

social housing development. The respondent assessed DA 201426052 as

modified and amended, and on 1 April 2015 approved the development with

conditions. On 5 May 2015 the applicant made an application for review of that

decision.

The relevant law

8. Approval of the DA is subject to relevant provisions of the Planning Act and

cannot be given if the proposed development is inconsistent with the Territory

Plan 2008 (the Territory Plan). The site is within a RZ2 Zone under the

Territory Plan and the proposed development is subject to the Multi Unit

Housing Development Code (the Multi Unit Code). The development is

assessable in the merit track under the Territory Plan.

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Evidence called

9. Evidence was given on behalf of the applicant by Mr Stan Bevanda, who is a

registered architect and has over 25 years’ experience working as an architect

and being involved in the building industry in the ACT and NSW. Evidence for

the respondent was given by Mr Bryn Challis who is a graduate architect

employed by the second party joined. He has over 30 years’ experience

working as a graduate architect; by Mr Bernie Cusack who is a civil engineer

employed by Sellick Consultants engaged by the second party joined to provide

vehicular access assessments for the proposed development; and by Mr Phab

Vetsavong who is a senior planning officer of the respondent’s Merit

Assessment South team and who assessed the DA on behalf of the respondent.

A preliminary legal issue

10. A preliminary issue raised by the applicant was whether the Tribunal had

jurisdiction to review entity advice received from the ACT Heritage Council

(the Heritage Council) and should await the determination of the Council as to

whether the subject land has heritage significance.

11. On 22 July 2015 the applicant lodged an urgent application for nomination of

certain places (the Narrabundah Duplexes) which included the subject land

and the buildings on it, as heritage places under the Heritage Act 2004 (the

Heritage Act).

12. On 31 July the respondent sought entity advice from the Heritage Council

pursuant to section 60 of the Heritage Act. Section 60(1)(b) provides that the

Heritage Council may give such advice if it is satisfied on reasonable grounds

that a development would affect “a nominated place or object that, in the

opinion of the council, is likely to have heritage significance”.

13. On 19 August the Heritage Council Chair prepared a preliminary assessment of

the heritage significance of the nominated place in response to the respondent’s

request. This preliminary assessment was to the effect that “the Narrabundah

Duplexes do not appear to have heritage significance.”

14. On 20 August the Council advised the respondent that “in accordance with

section 60(1)(b) of the Heritage Act 2004 the Council will not be providing

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advice on the application at this time.” Nonetheless, at the same time it

provided to the respondent a copy of the preliminary assessment prepared by its

Chair.

15. Consent orders were made in the Tribunal on 27 July 2015 to extend the period

for hearing this application pursuant to section 22P of the ACAT Act so as to

await the outcome of the Heritage Council’s decision as to whether it would

accept the nomination application.

16. On 30 July 2015 the Heritage Council accepted the nomination application under

section 29(1)(b). This gave rise to the exercise of the Heritage Council’s

functions to subsequently decide whether or not to provisionally register the

nominated place in accordance with section 32 of the Heritage Act.

17. Up to and including the time of the hearing the Heritage Council had not made a

decision with respect to provisional registration of the nominated place.

18. The applicant contended the hearing of this matter should be further delayed until

a decision is made by the Heritage Council. The respondent and the parties

joined opposed this application.

19. The Tribunal’s function under section 68 of the ACAT Act is to review the

respondent’s decision with respect to the DA. That decision is subject to the

relevant provisions of the Planning Act, the RZ2 Zone requirements of the

Territory Plan and the requirements of the Multi Unit Code. Section 60 of the

Heritage Act requires the respondent to seek advice from the Heritage Council

in certain circumstances. Additionally, Rule 90 of the Multi Unit Code requires

the respondent to refer a development application to the Heritage Council in the

case of “land containing places or objects registered or provisionally

registered under section 41 of the Heritage Act 2004.”

20. The requirements of both section 60 of the Heritage Act and R90 of the Multi

Unit Code have been met by the respondent. The respondent is then required to

consider any advice received from the Heritage Council before determining the

application.

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21. The Tribunal finds the respondent has considered such advice as was given.

Though told by the Council that no advice would be produced, nonetheless it

received and considered the advice given by the Council Chair. As such, there

is no basis on which to further delay the hearing of the matter.

Matters at issue

22. The main matter at issue is the DA’s compliance with various provisions of the

Multi Unit Code. These can best be considered under a number of sub-

headings:

(a) Front boundary setbacks.

(b) Fencing.

(c) Courtyard walls/Principal private open space.

(d) Placement/Location of external facilities.

(e) Internal driveways.

(f) Residents’ and visitors’ car parking.

(g) Tree protection.

The Multi Unit Housing Development Code

23. The Multi Unit Code forms part of the Territory Plan. Development proposals in

the merit track must comply with each rule of the Code or, if not, satisfy the

associated criterion.

24. The Tribunal in Deakin Residents Association1 provided at [27] a useful

summation of the purpose of the Multi Unit Code:

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

1 Deakin Residents Association Inc v ACT Planning and Land Authority & Anor [2015] ACAT 37, [27, 35] footnotes omitted

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on the applicant to demonstrate that the relevant criterion is satisfied, through supporting drawings and/or written documentation.

25. It also provides at [35] some assistance in interpreting the interplay of one

particular rule/criterion combination (R36 and C36):

There was some consideration in the hearing as to the relationship between R 36 and C 36. Mr Thwaites in his statement for Deakin Residents suggested that the rules and criteria are intended to be associated in their application, and that for elements where both a rule and criterion apply, the rule is the point of departure for assessment, with a requirement for any departure from that rule to be justified by reference to the criterion. The Tribunal thinks there is some merit in this approach. Context is an important tool in statutory interpretation and the requirements in C 36 should be informed by the terms of R 36. In effect C 36 allows a lesser separation than 4 metres but requires this to be justified. Both R 36 and C 36 implement a particular purpose and policy, and this purpose and policy should inform the interpretation of C 36. [emphasis added]

26. The applicant submitted the Tribunal should have regard to Goffman v ACT

Planning and Land Authority2 in its interpretation though no reference was

made to specific parts of this decision.

Front boundary setbacks

27. The DA seeks approval for the consolidation of blocks 20, 22, 23, 24, and 25

Section 39 Narrabundah to create a three sided block fronting Mindarie Street,

Boolimba Crescent and Lumeah Street Narrabundah. The respondent contends

in its DA that Boolimba Crescent is the main street frontage of the consolidated

block. The respondent nominates both Mindarie and Lumeah Streets as

secondary street frontages. The applicant contends that on the corner block

newly created by the consolidation only one secondary street frontage is

permissible.

28. R29 and C29 of the Multi Unit Code determine the requirements as to front

boundary setbacks. In the case of the blocks subject to the DA minimum front

boundary setbacks are set at six metres, except for corner blocks where the

secondary street frontage has a minimum setback reduced to four metres (Table

A5). R29 provides:

2 Goffman v ACT Planning and Land Authority [2012] ACAT 70

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Minimum boundary setbacks for corner blocks apply only to the street frontage nominated as a secondary street frontage. If street frontages on corner blocks are of equal length, the minimum setbacks apply only to one secondary street frontage. Chamfers may be included in the secondary street frontage.

29. The applicant contends3 that the development does not comply with R29 in that it

nominates both Mindarie and Lumeah Streets as secondary street frontages with

reduced four metre setbacks. The applicant considers secondary street frontage

with a four metre setback as more appropriate for the verandah elements of the

development fronting Mindarie Street. Assessed against C29 the applicant

contends that a four metre setback in Lumeah Street is inappropriate as it would

be inconsistent with established front boundary setbacks and would not make a

positive contribution to the neighbourhood desired character.

30. The respondent contends4 that both Mindarie and Lumeah Streets are secondary

frontages and as such the minimum front boundary setback for these streets can

be reduced to four metres. In the alterative, if R29 is not met the respondent

contends the proposed setbacks meet the requirements of C29.

31. C29 provides:

Front boundary 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.

Conclusion

32. The Tribunal finds that R29 is to be interpreted such that the reduced minimum

setback of four metres applies to only one secondary street frontage of the

consolidated block. The Tribunal bases its reasoning on an interpretation of the

wording of the rule, the first sentence of which uses the singular rather than

plural, and the second sentence of which reinforces that a minimum setback is

appropriate for one side only. Further, when assessed against C29 the Tribunal

finds reduced setbacks of four metres on both Mindarie and Lumeah Streets are

3 Applicant’s facts and contentions dated 24 September 2015 at [19]-[20]

4 Respondent’s facts and contentions at 15 October 2015 at [28]

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inconsistent with the desired character of the neighbourhood. In particular a

reduced setback in Lumeah Street is inconsistent with the desired character of that

street which has a suburban setback of six metres. Desired character is a defined

term, ‘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’.

33. The setback for Lumeah Street should be six metres. The setback for Mindarie

Street may remain at four metres as provided for in the DA.

34. Consequential variations to the decision under review to require relocation of

certain structures and outbuildings currently sited forward of the six metre

setback fronting Lumeah Street are detailed in the attached orders.

Fences

35. The front fencing for units 2-9 of the proposed development all sit forward, to

varying degrees, of the building line facing Boolimba Crescent.

36. R41 and C41 of the Multi Unit Development Code determine the requirements as

to boundary fences. R41 permits fences forward of the building line on the front

boundary only where they comply with [relevantly] the following:

a) it is a gate to a maximum height of 1.8 metres and 1 metre width in

an established hedge.

37. C41 permits fences where the proposal meets the requirements of the Residential

Boundary Fences General Code (the RBFG Code).

38. The applicant contends5 that the front fencing which encloses the private open

space forward of the building line for units 2-9 is not compliant with R41 as no

established hedge is proposed. As to the alternative of C41, the applicant

contends that the requirements of R1 of the RBFG Code which permit fencing

forward of the building line where the structure is a courtyard wall are not

applicable.

5 Applicant’s facts and contentions dated 24 September 2015 at [21]

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39. The respondent contends6 that the structures enclosing the private open space of

units 2-9 are courtyard walls, and not fences. As such the respondent contends

R41 and C41 are not applicable and the relevant rule and criterion are R42 and

C42.

40. The Proprietors of UP 2597 and Fielding8 provide some guidance as to the

categorisation of a wall as a fence or as the wall of a courtyard. Principally,

courtyard walls serve a particular purpose, namely enclosing and “surrounding

the open living space of units located on the subject land.”9 Relevantly, the

walls in Fielding were held to lack this function of surrounding outdoor living

space and so were not accepted as courtyard walls.10

Conclusion

41. The Tribunal finds that the proposed structures enclosing the private open space

of units 2-9 serve this function and so are courtyard walls and not fences and as

such the requirements of R41 and C41 are not relevant.

Courtyard walls/Principal private open space

42. Each of the units 2-9 in the proposed development have courtyard walls (and

other structures) forward of the building line which enclosed private open

space. Unit 1 has courtyard walls which enclose private open space.

43. R42 and C42 of the Multi Unit Code determine the requirements as to location

and structure of courtyard walls.

44. R42 provides:

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:6 Respondent’s facts and contentions dated 15 October 2015 at [25]7 The Proprietors of Units Plan 259 v Minister for Urban Services

[1999] ACTAAT 338 Fielding, John v Commissioner for Land and Planning [2000] ACTAAT

269 Proprietors of UP 258 at [12]10 Fielding at [34]

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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.

45. C42 permit courtyard walls regardless of location if:

[They] achieve all [emphasis added] 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

46. The applicant contends11 that the side courtyard walls facing Mindarie Street

(proposed for unit 2) and fronting Lumeah Street (proposed for unit 9) do not

comply with all of the requirements of R42. Specifically, the applicant says the

requirement as to a minimum setback to the boundary in either of the

11 Applicant’s statement of facts and contentions dated 24 September 2015 at [27]

13

alternatives in R42 (b) is not met. R42 (b)(i) is not met because the walls are

not enclosing the principal private open space of the respective dwellings but

rather enclosing a side garden. Further the applicant contends R42 (b)(ii) is not

met because the relevant boundary setback requirement of two metres (that is,

half the front boundary setback of four metres) is not satisfied.

47. The applicant further contends12 that the front courtyard walls facing Boolimba

Crescent (proposed for units 2-9) do not comply with all of the requirements of

R42. Specifically, the applicant says the requirement of R42(e) that the walls be

constructed for the most part of brick, block or stonework are not met as the

walls are constructed predominately of powder coated metal panels.

48. As to C42, the applicant contends13 that the predominately powder metal slatted

structures proposed for each street frontage courtyard walls is inconsistent with

the established highly desirable neighbourhood and landscape character.

49. The respondent contends14 that the courtyard walls facing Mindarie and Lumeah

Streets, and also those facing Boolimba Crescent are each compliant with R42

in that they meet all of its requirements:

(a) being of a height less than 1.8 metres;

(b) having a minimum setback of more than .7 metre (in compliance with

R42 (b)(i));

(c) screened by plantings;

(d) constructed with indents and a variety of materials, including but not

predominately panelling; and

(e) providing no interference with any sightlines to driveways.

50. R61 and C61of the Multi Unit Code determine the requirements as to principal

private open space (PPOS) contained by courtyard walls. The respondent has

identified the private open space on various drawings including at T162. The

Tribunal was informed that the PPOS for each unit was depicted by a six metre

12 Applicant’s statement of facts and contentions dated 24 September at [30]

13 Applicant’s statement of facts and contentions dated 24 September at [35]

14 Respondent’s facts and contentions dated 15 October 2015 at [26]

14

square, each of which is located north of the unit it is accessible from. Those

compliant with R42 were depicted in black outline while those relying on C42

where depicted in red outline. The PPOS for unit 1 adjoins the shared internal

driveway and the PPOSs for all other units adjoin the public street.

51. Rule 61 provides:

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

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.

52. Criterion 61 provides:

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.

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53. The main contentions between the parties relate to the size of the PPOS for each

unit in the proposed development. The PPOS requirement of minimum area of

36m2 with minimum dimension of 6m is met for units 2, 3, 4 and 9 of the

proposed development. The minimum dimension requirements are not met for

unit 1. The minimum area and dimension requirements are not met for units 5,

7 & 8 if the verandah blade wall intruding into the private open space in each

unit is seen as reducing its area.

54. The applicant contends15 that the principal private open space of unit 1 does not

comply with all of the requirements of R61(a)-(e). Specifically, as regards

R61(b) that it does not satisfy the minimum dimension requirements having a

north-south boundary which is less than 6 metres; as regards R61(c), that it is

inadequately screened by the proposed courtyard wall so as to afford reduced

privacy and amenity; and as regards R61(e), is substantially overshadowed and

subject to extensive mid-winter shadow.

55. The applicant further contends that the PPOS of units 5, 7 & 8 do not comply

with the requirements of R61(a)-(e) in that they do not satisfy the minimum

area and dimension requirements as each has a verandah blade wall intruding

into the space. The applicant contends this intrusion excludes the dimensions of

the verandah from being included in the calculation of the PPOS dimensions.

56. The applicant further contends that the PPOS of these units remain non-compliant

when assessed against C61 in that they are not suitably proportionate to the size

of the dwellings; do not serve as an extension of the function of the dwelling

for relaxation etc; and do not afford reasonably privacy given that the space is

also the public entrance way into the dwelling. In addition, the applicant

contends with respect to C61 the principal private open space of unit 1 does not

provide reasonable solar access.

57. The respondent contends16 that the principal private open spaces of units 5, 7 and

8 comply with the requirements of R61(a)-(e) in that they have a minimum

15 Applicant’s statement of facts and contentions dated 24 September 2015 at [37]–[40]

16 Respondent’s statement of facts and contentions dated 15 October 2015 at [28]-[29]

16

dimension of 6m x 6m, are screened, are directly accessible from lounge areas,

and are north facing. Specifically, as regards R61(b) that the PPOS satisfies the

minimum area and dimension requirements because the blade wall intrusions

should be ignored. Alternatively, the respondent contends that the PPOS of

units 5, 7 and 8 comply when assessed against the C61 criteria in that they are

each approximately 35m2 and so proportionate with the size of the dwellings,

directly accessible from lounge areas, screened, and north facing.

58. The respondent further contends17 that the PPOS of unit 1 complies with the

requirements of C61(a)-(f). Specifically, the area of PPOS (approximately

41m2) is proportionate to the size of the three bedroom unit; that the PPOS is

afforded reasonable privacy given the courtyard wall has less panelling; and

that it has reasonable solar access with the midday winter solstice sun falling on

at least half of the floor space of the PPOS.

59. The respondent further contends that unit 1, and units 5, 7 & 8 have additional

private open space to the side or rear and that these spaces can be added to meet

the area requirements of C61 if necessary.

60. It is convenient to consider together the Tribunal’s findings as regards the DA’s

compliance with the Multi Unit Code with respect to the siting and construction

of the courtyard walls, and the provision of PPOS against each rule and

criterion in turn.

Conclusion

61. The Tribunal finds as regards R42:

(a) The requirements of R42 are not fully met for the courtyard walls that

enclose private open space, which are outdoor enclosed spaces additional

to the principal private open spaces covered by R61. For these spaces the

minimum setback requirements provided in R42(b) are not met. The

provision of R42(b)(i) is not applicable as it is confined to courtyard

walls for principal private open spaces.18 The alternative provision of

17 Respondent’s statement of contentions dated 15 October 2015 at [30]18 The interpretation of R42(b)(i) which regulates “the principal private

open space of a ground floor dwellings” is obscure. It is unclear whether the statutory intention is to refer only to a single storey

17

R42(b)(ii) is also not met because the relevant boundary setback

requirement of two metres is not complied with for unit 2, and the three

metre requirement is not complied with for unit 9.

(b) Further, the requirement of R42(e) is not met for the walls both enclosing

principal private open space and enclosing private open space. The

requirement of R42(e) that that walls be ‘constructed in brick, block or

stonework’ means that the dominant material in the courtyard walls is to

be the brickwork which is rendered, and not the metalwork. The further

requirement is that if metal or timber is combined with the rendered

brickwork that these elements must be in panels surrounded by the

rendered brickwork to at least three sides. The respondent has adopted

rendered brickwork (the material) in the construction of the walls. The

extent of this material along the street frontage of Boolimba Crescent is

minor. Each unit is typically 6.3 metres wide. Unit 5 has none of the

material included in its ‘courtyard wall’ other than 230mm width of a wall

end. Units 3, 4, 6, 7 and 8 each has an additional panel of the material less

than one metre wide which provides approximately 15% of masonry in the

construction of their ‘courtyard walls’. The area of unit 2 is wider and this

additional width includes the material. Unit 9 also has some additional

material where the wall is angled to the crescent.

(c) The requirement of R42(f) to maintain clear sightlines between vehicles

on driveways and pedestrians on public paths is not met adjacent to unit 2.

However, satisfying the required setback of two metres for that courtyard

wall will mitigate this.

(d) The defects of the proposed courtyard walls means that the rule

requirements as to siting cannot be satisfied. The courtyard walls

addressing Mindarie Street are set back one metre from the boundary

which is 50% of the nominated setback of two metres. The courtyard

walls addressing Lumeah Street are setback one metre and 0.967 metres

from the boundary which is 33% of the nominated setback of three metres.

dwelling or to the ground floor of a multi-storey development

18

(e) The courtyard walls do not meet the requirements of R42. The respondent

bears the onus of demonstrating that the alternative criteria provided for in

C42 can instead be satisfied.

62. The Tribunal finds as regards C42:

(a) Interpretation of the criteria should be “informed by the terms of the rule”

[see paragraph 43 above].

(b) Interpretation of C42 is also guided by the RZ2 Zone objectives. The

requirement of section 120 of the Planning Act is to ‘consider’ a range of

matters which include the Zone objectives. The Tribunal accepts the view

in Griffith Narrabundah Community Association v ACT Planning and

Land Authority19 that this does “not impose any obligation to make a

decision that [is] ‘consistent’ with them”. The Tribunal is guided by the

approach used in Scherl v ACT Planning and Land Authority20 in that

regard that the zone objectives “must be borne in mind when applying the

Code and also when interpreting codes”. Zone objective e) provides:

Ensure redevelopment is carefully managed so that it achieves a high standard of residential amenity, makes a positive contribution to the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties.

(c) Bearing in mind this objective and being informed by the terms of the

rule, the Tribunal finds that the setbacks proposed by the respondent for

the courtyard walls along Mindarie and Lumeah Streets lack “consistency

with the desired character”, and as such the alternative provisions of C42

are also not satisfied.

63. The Tribunal finds as regards R61:

(a) The requirements of R61 for PPOS are not fully met for units 2-9 given

the construction and materials of the courtyard walls found to be

inadequate under R42/C42. Specifically, the requirement to screen the

space in R61(c) is not met. The Tribunal finds that the adoption of

19 Griffith Narrabundah Community Association v ACT Planning and Land Authority [2011] ACAT 61 at [38]-[39]

20 Scherl v ACT Planning and Land Authority [2011] ACAT 37 at [122]

19

1500mm high metal horizontal slats whether 50% or 70% solid as

documented does not screen the space from the adjoining public street.

The Tribunal noted the following in reaching this view. The built element

must by definition be a ‘wall’. One of the objectives is that the area must

be screened by this wall from ‘public open space’. Screening device and

screen wall are defined terms. A screening device must be opaque or

translucent glazing, solid panels, perforated panels or trellises with a

maximum of 25% openings. A screen wall must be 1.8m high and

visually opaque. 21

(b) The Tribunal finds that R61(b) is not satisfied as regards unit 1 because

the minimum dimension requirements for the PPOS are not met. The

Tribunal further finds that R61(b) is not satisfied as regards units 5, 7 and

8 as the minimum area and dimension requirements are not met because

of the verandah blade wall intrusions.

64. The requirements of R61 for PPOS are not fully met. The respondent bears the

onus of demonstrating that the alternative criteria in C61 are met.

65. The Tribunal finds as regards C61:

(a) The same considerations followed in paragraph 60 (a)-(b) above are

relevant.

(b) The defects of the proposed courtyard walls means that the criterion

requirement in C61(e) as to reasonable privacy are not adequately

addressed and the requirements in C61(f) as to reasonable solar access are

not met for unit 1.

(c) When assessed against C61 the Tribunal finds unit 1 does not provide an

area proportionate to the size of the dwelling due to the minimum

dimension being 4.8m which is a 20% reduction to the rule compliant 6m,

nor does it provide reasonable solar access due to overshadowing. When

21 The Tribunal is troubled by the apparent inconsistency of the separate R52/C52 requirements with this 1.8m high opaque wall standard given that R52 mandates (relevantly) that each dwelling must have a front door “facing the street” and C52 requires that the dwelling “address the street wherever practicable”

20

assessed against C61 units 5, 7 and 8 do not provide an area proportionate

to the size of the dwelling because of the verandah blade wall intrusion.

The requirements of C61 cannot be satisfied for these units by a

combination of more than one area of private open space. The Tribunal

has reached the view that adjustments need to be made to the courtyard

wall in unit 1 so as to allow an area proportionate to the size of the

dwelling and adequate solar penetration, and to the blade wall intrusion in

units 5, 7 and 8.

66. Consequential variations to the decision under review to provide for R42 and R61

compliance to address these defects are detailed in the attached orders.

Placement/Location of external facilities

67. Water tanks proposed to be erected adjacent to units 1 & 9 are visible from public

areas.

68. There is no applicable rule with respect to external facilities. C43 sets criteria for

adequately screening or separating external facilities or equipment from public

areas. Such facilities include water tanks.

69. The applicant contends22 that the water tank adjacent to unit 1 is not adequately

screened or separated from the main public/driveway area and the visitor

carpark space. The applicant further contends that the water tank adjacent to

unit 9 is not adequately screened or separated from public view.

70. The respondent contends23 that the water tank for unit 9 is adequately screened

by plantings. The respondent concedes that the water tank for unit 1 may

require additional plant screening.

Conclusion

71. The Tribunal finds that the requirements of C43 are not met as regards the water

tanks adjacent to units 1 & 9 as they are not adequately screened by plantings

or separated from public view.

22 Applicant’s statement of facts and contentions dated 24 September 2015 at [36]

23 Respondent’s statement of facts and contentions dated 15 October 2015 at [27]

21

72. Consequential variations to the decision under review to provide for C43

compliance to address these defects are detailed in the attached orders.

Internal driveways

73. R73 & R75 of the Multi Unit Code relevantly determine the requirements as to

internal driveways. R74 is not relevant. The Code permits for alternative

criteria assessment against C73 & C75.

74. R73 sets conditions for internal driveways that are used by residents of more than

one dwelling. Additionally, R75 applies to internal driveways serving more

than 10 car parking spaces and connecting to a public road. The Parking and

Vehicular Access General Code (the PVAG Code) also applies, relevantly

clause 2.3.2 (b) which provides that ingress and egress to and from a residential

site is to be in a forward direction for all vehicles having regular access to the

site.

75. R73 provides:

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 1m;

b) are set back from the external walls of buildings on the site by not

less than 1m;

c) the setbacks referred to in items a) and b) are planted to a width of

not less than 1m;

d) 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 high;

ii) 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 gradients;

f) provide internal radius of at least 4m at changes in direction and

intersections; and

g) have a surface treatment that is distinct from car parking spaces.

22

76. C73 provides:

This rule applies to internal driveways that are used by residents of more

than one dwelling.

Internal driveways achieve all of the following:

a) sufficient space for planting along property boundaries

b) sufficient space for planting between internal driveways and

buildings

c) reasonable residential amenity, particularly in relation to the

intrusion of light and noise into habitable rooms

d) clear differentiation between the driveway and parking

spaces.

77. R75 provides:

This rule applies to internal driveways with both of the following

characteristics:

a) serve more than 10 car parking spaces

b) connect to a public road.

The internal driveway is not less than 5m wide for not less than the first

7m of its length measured from the relevant block boundary.

78. C75 provides:

Internal driveways avoid unreasonable levels of queuing and congestion

at vehicular entrances.

79. The applicant contends24 that R73(b) is not met at the Mindarie Street driveway as

the area of driveway abutting the west wall of unit 3 is not adequately setback

so as to allow reversing space for vehicles exiting the east side of the carport to

unit 2. The applicant contends R73(c) is not met because the lack of adequate

setback does not allow plantings in this area. The applicant further contends25

that neither R75 or C75 are met at the driveway from Mindarie Street because 24 Applicant’s statement of facts and contentions dated 24 September

2015 at [41]25 Applicant’s statement of facts and contentions dated 24 September

2015 at [42]-[46]

23

the awkward dogleg arrangement of the entry/exit point onto that street does

not provide the necessary dimensions so as to allow adequate waiting or

queuing space adjacent to units 2/3 and impedes sightlines for vehicles exiting

the driveway onto Mindarie Street. The applicant further contends that neither

R75 nor C75 are met at the driveway into Lumeah Street as it provides only

minimum space for cars reversing from parking spaces to be able to perform a

three point turn so as to leave it a forward direction.

80. The respondent contends26 that R73 is not applicable as the portion of the

Mindarie Street driveway outside the unit 2 carport would only be used by that

resident and as such is not “used by residents of more than one dwelling”. The

respondent further contends the Mindarie Street driveway is compliant with

C75 because adequate waiting or queuing space is provided adjacent to units

2/3 so as to “void unreasonable levels of queuing and congestion” at that road

entrance. The respondent further contends27 that R75 is not applicable to the

driveway from Lumeah Street because it does not “serve more than 10 car

parking spaces”.

Conclusion

81. The Tribunal finds the residents’ covered parking spaces are garages not carports.

Garage is a defined term. The Territory Plan definition of terms provides

‘Garage means a car shelter wholly or partly enclosed on more than two sides

and includes an outbuilding as defined in the Building Code of Australia’. The

Tribunal finds that R73 is applicable to the portion of the Mindarie Street

driveway outside the unit 2 garage as it is likely residents other than the

resident of unit 2 will also use that space. The requirements of R73b) are not

met at that part of the driveway because adequate setback from the west wall of

unit 3 is not provided for in the DA. Additionally, R73c) is not met as there is

inadequate space to allow plantings along that setback. The Tribunal finds that

the requirements of R75 are met. The Tribunal finds no issue at the Mindarie

Street driveway with respect to safe traffic flow. This finding is based on a

collection of diagrams tendered as R4 which show satisfaction of minimum

sight line requirements for that driveway. The Tribunal finds no issue at the

26 Respondent’s facts and contentions dated 15 October 2015 at [32]27 Respondent’s facts and contentions dated 15 October 2015 at [35]

24

Lumeah Street driveway. The Tribunal is satisfied based on the evidence of

Bernie Cusack and the revised turning circle diagram provided by him tendered

as R6 that adequate room is provided for a three point turn to be made safely to

allow exit into that street in a forward direction in compliance with the PVAG

Code.

82. Consequential variations to the decision under review to provide for R73

compliance to address these defects are detailed in the attached orders.

Residents’ and visitors car parking

83. R77-81 and C77-81 of the Multi Unit Code determine the requirements as to

resident car parking. R82-85 and C82-85 determine the requirements as to

visitor parking. The PVAG Code specifies the requisite vehicular access and

parking requirements. Australian Standard AS2890.1 – Off Street Parking

details the required carpark space dimensions. The requirements for the DA are

two spaces per dwelling and three visitor spaces.

84. The applicant contends28 that as the development is to be built in two stages the

requirements of the PVAG Code are not met because its required number of

three on site visitor parking spaces will not be met until the completion of

Stage 2.

85. The respondent contends29 that the development satisfies the quantity and location

requirements of the PVAG Code in that two parking spaces are provided per

dwelling30 and three on site visitor spaces and kerbside visitor spaces are

provided within 100 metres of the development.31

86. Evidence was given on behalf of the respondent that if approved the development

will now not be built in stage 1 & 2 but will be constructed as a single entity.

Nonetheless there is currently no pedestrian access between the one visitor

space that sits in the driveway serving units 1-5 and the two visitor spaces that

sit in the driveway serving units 6-9. 28 Applicant’s statement of facts and contentions dated 24 September

2015 at [47]29 Respondent’s statement of facts and contentions dated 15 October

2015 at [37]30 Clause 3.1.531 Clause 3.1.4

25

Conclusion

87. The Tribunal finds that the requirements of R77-81 are met as regards residents’

parking. The Tribunal finds that the requirements of R82-85 are not met as

regards visitor parking. In total three visitor spaces are required. The single

visitor space serving units 1-5 and the two visitor spaces serving units 6-9 do

not currently satisfy this requirement as they are not connected by pedestrian

access. An internal pedestrian pathway is required to provide such connection.

88. Consequential variations to the decision under review to address the R85 defect

are detailed in the attached orders.

Tree protection

89. R91 of the Multi Unit Code determines mandatory requirements as to tree

protection. There is no applicable criterion.

90. R91 provides:

This rule applies to a development that has one or more of the following

characteristics:

a) requires groundwork within the tree protection zone of a protected

tree

b) is likely to cause damage to or removal of any protected trees.

The authority shall refer the development application to the Conservator

of Flora and Fauna.

Note: The authority will consider any advice from the Conservator or

Flora and Fauna before determining the application in accordance with

the Planning and Development Act 2007. Protected tree and declared site

are defined under the Tree Protection Act 2005.

91. One tree, a Japanese Pagoda tree (Sophora japonica) 12 metres high in good

condition was identified as a protected tree and referred to as tree 26 with its

position marked within the rear driveway space on the Tree Assessment & Tree

Protection Plan.32 Entity advice was provided by the Conservator of Flora and

Fauna as to the protection of tree 26.33 A decision was made to remove this tree.

32 T-document, 28633 T-document, 491

26

92. The applicant contends34 consistent with the entity advice that adequate steps can

be taken in the landscaping treatment and associated groundwork for the

driveway and sewer during construction to allow tree 26 to remain and survive.

93. The respondent contends35 that the decision to remove tree 26 is consistent with

the entity advice.

Conclusion

94. The Tribunal finds that the requirements of R91 are not met as the advice of the

Conservator of Flora and Fauna as to the retention of tree 2636 was not

adequately considered. Tree 26 should be retained and protected in the manner

advised by the Conservator.

95. A consequential variation to the decision under review is needed to provide for

the retention and protection of tree 26.

Decision

96. The Tribunal is satisfied that, subject to appropriate conditions, the proposed

development is not inconsistent with the Territory Plan and that there is no

basis on which to refuse approval.

97. The decision under review is varied by imposing additional and amending

conditions of approval as follows:

Additional Conditions

(a) [for R29 setback compliance] By adding additional subparagraph

A1(b) to the Notice of Decision as follows:

a revised site plan (based on Drawing T137) showing a six metre

front building setback for the Lumeah Street frontage and

consequent relocation of verandah, store and water for unit 9 to

meet the requirements of the Multi Unit Housing Development

Code R29.

34 Applicant’s facts and contentions dated 24 September 2015 at [50]-[52]

35 Respondent’s facts and contentions dated 15 October 2015 at [41]-[42]

36 T-document, 491

27

(b) [for R42 & R 61 courtyard wall/PPOS compliance – units 2&9] By

adding additional subparagraph A1(c) as follows:

revised architectural drawings (based on revised Drawing tendered

into evidence by the respondent as Exhibit R10) showing revised

setback of 3 metres for courtyard walls of unit 9 facing Lumeah

Street; showing revised setback of 2 metres for courtyard walls of

unit 2 facing Mindarie Street to meet the requirements of the Multi

Unit Housing Development Code R42 & R61.

(c) [for R42 & R 61 courtyard wall/PPOS compliance – units 2-9] By

adding additional subparagraph A1(d) as follows:

revised architectural drawings (taking account of the Design

Recommendation tendered into evidence by the applicant as Exhibit

A3) showing revised screening and material/construction elements

to unit 2-9 courtyard walls providing for dominant materials of

brick, block or stonework to meet the requirements of the Multi

Unit Housing Development Code R42 & R61.

(d) [for R61 PPOS compliance - unit 1] By adding additional

subparagraph A1(e) as follows:

revised drawings (based on Drawing 138 and T164 internal

floorplan) showing the modifications to the north facing wall of unit

1 to move it south by 1.2m metres, together with corresponding

adjustment to the south facing walls of unit 1 to meet the

requirements of the Multi Unit Housing Development Code R61.

(e) [for R61 PPOS compliance - unit 5/7/8] By adding additional

subparagraph A1(f) as follows:

revised site plan and architectural drawings (based on revised

Drawing tendered into evidence by the respondent as Exhibit R11)

showing removal of blade walls in units 5, 7 & 8 to meet the

requirements of the Multi Unit Housing Development Code R61.

(f) [for C43 external facilities compliance] By adding additional

Subparagraph A1(g) as follows:

28

revised architectural drawings (based on Drawing T137) showing

screening of water tanks for units 1 and 9 to meet the requirements

of the Multi Unit Housing Development Code C43.

(g) [For R73 internal driveway compliance] By adding additional

subparagraph A1(h) as follows:

revised site plan, landscape plan and architectural drawings (based

on Drawing T137) showing the relocation of the garage of unit 3

one metre to the east to provide adequate setback of the internal

driveway from the western wall of Unit 3 garage and to provide an

area for plantings on the western side of unit 3 to meet the

requirements of the Multi Unit Housing Development Code R73.

(h) [for R85 visitor parking compliance] By adding additional

subparagraph A1(i) as follows:

revised site plan and landscape plan showing the siting of a

pedestrian pathway connecting the internal driveway serving units

1-5 and the internal driveway serving units 6-9 so as to provide

ready pedestrian access to all 3 visitor parking spaces from both

sides of the development to meet the requirements of the Multi Unit

Housing Development Code R85.

Varied Conditions

(a) [for retention of tree 26] By varying words of paragraph D1. TREE

PROTECTION as follows:

D1. TREE PROTECTION

The applicant/lessee shall protect and maintain all existing trees and

shrubs located on the subject site, on adjoining blocks overhanging

the subject site, on the verge and on unleased Territory land

immediately adjacent, except those specifically identified for

removal in the approved drawings and shall prepare and submit for

approval by the Conservator of Flora and Fauna a revised Tree

Assessment and Tree Protection Plan showing in addition the

retention of tree 26 and its protection during construction site work

in the driveway area adjacent to units 6-7 and shall protect and

29

maintain the protected trees that will remain on the site in

accordance with the Management Plan.

………………………………..Senior Member A Foley

for and on behalf of the Tribunal

30

HEARING DETAILS

FILE NUMBER: AT 34/15

PARTIES, APPLICANT: Old Narrabundah Community Council

PARTIES, RESPONDENT: ACT Planning and Land Authority

FIRST PARTY JOINED Commissioner for Social Housing

SECOND PARTY JOINED Philip Leeson Architects

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT Dr D Jarvis

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT ACT Government Solicitor

TRIBUNAL MEMBERS: Senior Member T Foley (Presiding), Senior Member G Trickett

DATES OF HEARING: 9-11 November, 14, 15 December 2015

31