2
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, 69
Planning and Development Act 2007 ss 50 119, 120, 121, 407, 408A,
Subordinate
Legislation: Multi Unit Housing Development Code
Parking and Vehicular Access General Code
Residential Boundaries Fences General Code
Cases cited: Deakin Residents Association v ACT Planning and Land Authority [2015] ACAT 37
Fielding, John v Commissioner for Land and Planning [2000] ACTAAT 26
Griffith/Narrabundah Community Association Inc & Ors v ACT Planning and Land Authority & Ors [2005] ACTAAT 34
Mason & ACT Planning & Land Authority & Ors [2009] ACAT 7
Rudder v ACT Planning and Land Authority [2010] ACAT 24
The 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 2016
Date of Reasons for Decision: 22 July 2016
46
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 2 of 2016
BETWEEN:
LOUISE MAURER
JEFF ELLIS
Applicants
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
SUSAN SPEARITT
First Party Joined
AND:
STEWART ARCHITECTURE
PTY LTD
Second Party Joined
TRIBUNAL: Senior Member W Corby (Presiding)
Senior Member G Trickett
DATE: 22 July 2016
ORDER
The 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.
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 2016[1], 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
(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.
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:
(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 6April 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. MsLana, 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.
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 DA[4] (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.