ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IBBOTSON v ACT PLANNING AND LAND AUTHORITY & ANOR

(Administrative Review) [2015] ACAT 57

AT 17 of 2015

Catchwords: ADMINISTRATIVE REVIEW – planning and development –

development application - Lease and Development Conditions –

CZ5 zone – compliance with codes

Legislation cited: ACT Civil and Administrative Appeals Tribunal Act 2008 s 68

Legislation Act 2001 s 150

Planning and Development Act 2007 ss 46, 50, 53, 55, 113,

115, 119, 120, 162, 407

Cases cited: Amarso v ACTPLA [2012] ACAT 9

AMC Projects v ACTPLA [2006] ACTAAT 13

Cvetanoski v Commissioner for Land and Planning [1999]

ACTAAT 42

Scherl & ACT Planning and Land Authority [2011] ACAT 37

List of

Texts/Papers cited: Building an Integrated Transport Network: Parking dated June

2015

Gungahlin Precinct Code

Commercial Zones Development Code

Multi Unit Housing Development Code

Residential Zones Development Code

Parking and Vehicular Access General Code Justice and Community Safety Directorate: ACT Road Hierarchy

Tribunal: Ms E. Symons – Presidential Member

Mr R. Pegrum – Senior Member

Date of Orders: 24 August 2015

Date of Reasons for Decision: 24 August 2015

ACT CIVIL & ADMINISTRATIVE TRIBUNAL AT 15/17

BETWEEN:

KATHLEEN IBBOTSON

Applicant

AND:

ACT PLANNING AND LAND AUTHORITY

Respondent

AND:

NATIONAL CAPITAL INVESTMENTS PTY LTD

Party Joined

TRIBUNAL: Ms E. Symons – Presidential Member

Mr R. Pegrum – Senior Member

DATE: 24 August 2015

ORDER

The Tribunal Orders that:

1. The decision under review is varied by imposing an additional condition of

approval as follows:

(a) Within 28 days from the date of this decision, or within such further time

as may be approved by the ACT Planning and Land Authority, the party

joined/lessee shall lodge for approval a plan of landscape prepared by a

qualified landscape architect for the area between the building and the

property line on Donnelly Lane showing new plantings of shrubs and

suitable advanced trees with types and sizes to screen the service zone and

meet the intent of the Development Intentions Plan and Planning Control

Plan 07/13 and 07/14.

………………………………..

Ms E. Symons – Presidential Member

for and on behalf of the Tribunal

2

REASONS FOR DECISION

1. Dr Kathleen Ibbotson (Dr Ibbotson or the applicant) has sought review of a

decision by the ACT Planning and Land Authority (the respondent) under

section 162 of the Planning and Development Act 2007 (the Planning Act) to

approve, subject to conditions, a development application (DA 201324439)

made by Heyward Lance Architecture (Heyward) on behalf of National Capital

Investments Pty Ltd (the party joined) for the construction of “a four storey

mixed use development comprising commercial use at ground level and 45

dwellings at upper levels; a basement car park and associated works” at Block 1

Section 68 Gungahlin (Anthony Rolfe Avenue) (the subject site).1

Summary of Tribunal decision

2. In summary, the Tribunal’s reasons for decision are as follows. On the

application of Heyward for the approval of DA 201324439 the respondent

sought and obtained further information in relation to parking and then

considered and approved the DA subject to conditions (the decision).

3. The applicant challenges the decision made by the respondent and opposes the

Tribunal confirming that decision. The applicant’s challenge at the hearing was

limited to traffic and parking.

4. The Tribunal notes the traffic and parking issues raised by the applicant,

however, considering sections 119 and 120 of the Planning Act, the Tribunal

does not think that there is a basis for refusing the DA or setting it aside in

whole or in part. The approval should however be subject to the further

condition set out in these orders.

5. The Tribunal varies the decision of the respondent by adding the further

condition set out in these orders. In the following paragraphs, the Tribunal has

dealt only with the major issues that arose during the hearings and on which the

Tribunal has based its decision.

The Decision of the Authority

6. The development application was lodged with the respondent on 25 June 2014.

1 T-Documents page 105

3

It was considered in the merit track under sections 119 to 122 of the Planning

Act and no issue about this was raised before the Tribunal. The respondent

sought and obtained entity advice from Emergency Services ACT, ActewAGL

Water Division, ActewAGL Electrical Division and ActewAGL Gas Networks.

By letter dated 26 February 2014, the party joined had given notice of the

proposed development to about 25 nearby properties. The site plan and

elevations of the building were delivered by letter drop to residents on

Gungahlin Place north of the subject site, along Anthony Rolfe Avenue to the

east and in Huyer Street immediately behind Donnelly Lane. Residents were

invited to contact the developer within ten days with any comments but there is

no record of any response to the invitation.2

7. Public notification by the respondent of the development application

commenced on 2 July 2014 and ended on 23 July 2014.

8. On 4 July 2014 the respondent requested further information pursuant to section

141 of the Planning Act from Heyward in order to address issues which are not

relevant for this review.

9. On 25 September 2014, Heyward lodged the further information together with

an addendum dated August 2014 to the original parking report from Northrop

Consulting Engineers (Northrop) in response to a request from the Major

Projects and Transport (MPAT) and further surveys of the site (parking for

site).

10. More than 40 written representations were received by the respondent during

the public notification period. The majority of these were brief with repeated

references to existing “severe parking issues” and a “shortfall of parking

spaces” in the proposed development.3

11. Two detailed and illustrated challenges to the proposed development were

submitted by Dr Kathleen Ibbotson and Mr Peter Ibbotson, who lived nearby,

and by Mr Peter Weatherstone. The principal concern of Dr and Mr Ibbotson

was the impact of the development, with a predicted 81 car shortfall in car

2 T-Documents pages 615-617 3 T-Documents pages 111-113

4

parking spaces4, on road safety and parking for residents in their

neighbourhood. Other matters raised related to a ‘deeply flawed’ parking study;

shadowing caused by the proposed building; noise and other potential impacts

from ground floor restaurants and shops; effects on the amenity of the

surrounding community during the construction phase; and concerns as to the

communication of information about the proposed development.

12. In response to the public notifications and to the further information provided

by Heyward, on 1 October 2014 the DA was referred to MPAT in the

Environment Protection Directorate (EPD). On 16 October 2014 the

respondent’s Development Assessment Branch requested further information

from Heyward in relation to the proposed 75 off-site parking spaces and the

inconsistencies between what was shown in the drawings and what was stated in

the Northrop reports in relation to parking.

13. In response, in December 2014 Heyward lodged further information including a

revised parking report from Northrop dated November 2014 (addendum 2.1)

addressing the issues raised in the request together with a revised basement plan

adding one additional parking space making a total of 65 parking spaces

accommodated on site5. (The development application and the further

information and addendum 2.1 are referred to in this decision as ‘the DA’.)

14. On 4 December 2014, EPD - MPAT sought written advice in relation to the DA

from EPD Transport. On 23 December 2014 EPD - MPAT emailed EPD

Customer Services in relation to concerns about the Margrie Lane car park

spaces relied on by the applicant being “not within 200 metres walking distance

to the proposed development…the distance to the car park is 201 metres away

from the boundary of the development”.

15. On 9 January 2015, EPD - MPAT emailed EPD Customer Services and stated -

“Major Projects and Transport have reviewed the further information supplied

for this DA in Gungahlin. This advice supersedes the advice sent on 23

December 2014. The DA is supported in principal (sic) provided that additional

4 Dr and Mr Ibbotson’s Statement submitted in Rejection of Current proposal for DA

201324439 Part G, Summary page 27 5 T-Documents pages 265-285

5

information is supplied specifying how the applicant will ensure that the

visitor/commercial spaces in the basement will be available to the public…”

16. The DA was referred to the Major Project Review Group (MPRG) within EPD

because “the proposal has received 44 representations.”6 The accompanying

referral brief stated under Issues identified for discussion - “The proposal is

generally consistent with the applicable development codes especially with the

Lease and Development Conditions for the block”.7 The referral also stated that

“the proposal can be approved with conditions. No other options are

recommended…it is recommended that the MPRG support the conditional

approval of the proposal”8

17. On 30 January 2015, pursuant to section 162 of the Planning Act, the delegate

of the respondent approved the proposed development subject to conditions.9

Relevantly, the decision included the following statement- “The proponent

submitted the results of further car parking studies along with revised car

parking provision for MPAT approval. The revised details propose to provide

65 car parking spaces on site and 74 car parking spaces off-site (within 200 m

from the block).10

The Tribunal Proceedings

18. On 18 February 2015 the applicant applied to the ACT Civil and Administrative

Tribunal (the Tribunal) for review of the decision (the reviewable decision).

The application stated that “the main issue with this build is the 74 car parking

spaces that are estimated to be required off-site”.11

19. On 13 March 2015 the Tribunal ordered that National Capital Investments Pty

Ltd be joined as a party to the proceedings, made Directions in relation to each

of the parties filing Statements of Facts and Contentions, Witness Statements

and Authorities and set the matter down for hearing on 3, 4 and 5 June 2015.

6 T-Documents [page 254 7 T-Documents page 255 8 T-Documents page 257 9 T-Documents pages 105-107 10 T-Documents page 109 11 T-Documents page 13

6

The Hearing

20. Immediately prior to the hearing commencing on 3 June 2015 the Tribunal, the

parties, the party joined and their representatives inspected the subject site and

adjacent properties and part of the Gungahlin Town Centre.

21. The applicant represented herself at the hearing. Dr Jarvis of Counsel appeared

for the respondent and was instructed by the ACT Government Solicitor. Mr

Rick Farzan, sole Director of National Capital Investments Pty Ltd, appeared

for the party joined.

22. The Tribunal had before it the documents provided by the Authority relevant to

the decision under review (the T Documents) together with Statements of Facts

and Contentions submitted by the parties and Witness Statements and other

documents tendered in evidence during the hearing.

23. Evidence for the applicant was given by Dr Kathleen Ibbotson. Dr Ibbotson told

the Tribunal that her:

technical qualifications are a PhD in engineering, first class honours degree

in mechanical engineering and a degree in applied mathematics. My

professional career has mainly focused on scientific management and

analysis, although I did work for two years as a forensic engineer for the

AFP. I do not actually believe that my technical qualifications give me any

additional skills in urban planning than that of a lay person, but I do think

that my experience in analysis of data combined with living in the area

surrounding this proposed development have placed me in a good position

to comment on it,…….12

24. The respondent called evidence from three officers of the Environment and

Planning Directorate, all of whom had filed Witness Statements - Mr Ajith

Buddhadasa who is a technical coordinator in the Planning Delivery Branch of the

Planning and Land Authority and was the assessing officer of the DA; Ms Imogen

Markus who is a planning policy officer in the Major Projects and Transport

Branch; and Mr Timothy Wyatt who is a transport specialist within the Major

Projects and Transport Branch.

25. Mr Rick Farzan gave evidence for National Capital Investments Pty Ltd (the party

joined) and called evidence from Mr David Field, who is a civil engineer and a

12 Transcript of Proceedings page 7, lines 39-44

7

director of Northrop Consulting Engineers and who was co-author of the parking

and traffic reports for the proposed development.

26. All witnesses were cross examined.

27. After hearing submissions from the parties the Tribunal reserved the decision.

Applicable law

28. Section 68 of the ACT Civil and Administrative Appeals Tribunal Act 2008 (the

ACAT Act) provides that the Tribunal may exercise any function given by an

Act to the entity for making the decision. The Tribunal has all the powers of the

Authority in reviewing the decision to the extent that those powers are related to

the making of the decision under review.

29. Section 50 of the Planning Act provides that a territory authority must not do

any act, or approve the doing of an act, that is inconsistent with the Territory

Plan. The Territory Plan is provided for under section 46 of the Planning Act.

30. Section 53 of the Act relevantly states:

(1) The objectives for a zone set out the policy outcomes intended to be

achieved by applying the applicable development table and code to the zone.

(2) ….

31. Section 55 states:

(1) A code (other than a general code or precinct code that is a concept

plan) in the territory plan must contain either or both of the following:

(a) the detailed rules that apply to development proposals the code applies

to;

(b) the criteria that apply to development proposals the code applies to,

other than proposals in the code track.

(2) A code must be consistent with each objective for the zone to which the

code relates.

8

(3) A code that sets out the requirements that apply to stated areas, or places,

or states that it is a precinct code, is a precinct code.

(4) A code that sets out the requirements for types of development, or states

that it is a development code, is a development code.

(5) A code that sets out requirements applicable to the Territory, the

Executive, a Minister or a Territory authority is a general code.

(6) To remove any doubt, a general code may also contain—

(a) policies to be complied with; and

(b) rules and criteria applicable to development proposals the code

applies to.

32. Division 7.2.3 Merit Track, specifically sections 119 and 120, set out the

considerations applicable when deciding development approval in the merit

track.

33. The decision before the Tribunal is a reviewable decision in accordance with

section 407 of the Planning Act.

The Facts

34. The Tribunal adopts the facts in the respondent’s Statement of Facts and

Contentions which are not in dispute, namely:

i. On 13 December 2007, the respondent approved Lease and Development

Conditions (L&DCs) for block 1 section 68 Gungahlin in the ACT (the

subject site)13

.

ii. In March 2008, the L&DCs formed part of the “Auction Documentation”

that comprised part of a sale agreement, under which the party joined

purchased the subject block.

iii. On 25 June 2014, the party joined lodged Development Application (DA)

201324439 with the respondent.

13 T-Documents pages 218-240

9

iv. The development proposal in the DA was for a four storey mixed-use

development on the subject site, comprising commercial use at the ground

level, residential use at upper levels and a basement car park14

.

v. The subject site is located in a CZ5 mixed use zone. The CZ5

development table prescribes the merit track for residential use and

commercial uses such as shops and restaurants.

vi. On 3 December 2014, further information was lodged in support of the

DA15

.

vii. On 30 January 2015 the DA was approved subject to conditions by the

respondent16

.

viii. All information relating to DAs is routinely stored on a database

maintained by the respondent, known as “Objective”. Referral entities

such as EPD and RAMSD can access this database when considering

referrals.

ix. The parking provision in the development proposal is as follows17

-

a) 65 spaces are provided on site – 60 in basement, 5 at grade.

b) car parking for residential units (50 spaces) is provided in basement.

c) Visitors (12 spaces) - on site or within 200 m.

d) for commercial uses (77 spaces) – on site or within 200m.

e) Total off-site parking – 74 spaces.

f) The Gungahlin Precinct Map and Code (2014) reserves four sites for

public parking, sections 226, 228, 229 and 232 Gungahlin.

g) Section 229, currently vacant, is about 170m from its nearest point

to the nearest point on the boundary of the subject site.

14 T-Documents pages 550-701 15 T-Documents pages 265-285 16 T-Documents pages 105-128 17 T-Documents pages 271, 284-5

10

h) There are existing free public car parks on section 228, 232 and 226.

i) The applicant disagrees with the respondent and the party joined on

the calculation of the distance from section 228 to the subject site.

j) Public parking in Gungahlin Town Centre and adjacent areas is

currently free.

k) When blocks reserved by the Plan for public parking are developed,

ACTPLA policy is to require the same number of public spaces to

be retained on the developed site, in addition to the parking required

by the Parking and Vehicular Access General Code.

The applicant’s contentions

35. In her application for review, Dr Ibbotson advised that her family had bought

their house in 2008 in Sarre Street, one of the streets bordering the proposed

development. In that application she said “we appreciate that we live in a mixed

use area and that these regions have the potential ability for sharing of public

car parks” and that mixed use areas “have some potential for reducing

provision through shared and consolidated parking”. However, in her opinion:

there have already been too many development applications approved

without sufficient parking, with each development pointing to the same

public car parks for their overflow needs…an additional 74 legal car

parks are not going to be found in this region of Gungahlin. This

development will affect the amenity, safety, efficiency, access and equity18

of the residents and business owners in the area. This is contrary to the

objectives for mixed use zones.19

36. In her application, Dr Ibbotson re-stated her earlier concerns that there was

“inadequate description of the shadowing caused by the proposed building” and

that there was no information provided as to the impact of the proposed

restaurants and shops on the surrounding community including noise

generation, hours of operation and venue sizes. There were additional concerns

during the construction phase as to hours of site operation, parking for

tradesmen, requirements for closing of local streets and the effects of vibration

18 The CZ5 zone objectives 19 T-Documents page 36

11

from heavy machinery on existing buildings close to the subject site.20

37. The applicant provided the Tribunal with an extensive dossier of material

relating to the decision under review. The Tribunal recognises the considerable

effort of the applicant in presenting her objections to approval of the DA. In her

opening statement, the applicant said it was not her intention to stop the

development but she did not want “70-odd extra cars in my neighbourhood”.

The Tribunal reminded the applicant of her other concerns “for example

shadowing et cetera”. The applicant then advised the Tribunal “I formally

withdraw all of those other concerns”.21

38. In addition to the contentions referred to in the previous paragraph the applicant

also contended that:

a. The Margrie Lane carpark (section 228) should not be counted (in

the required offsite car parking spaces) because it is over a 200

metre walk away and it should be reserved for the town centre

usage and not for a proportionately tiny development that is located

outside the town centre boundary…22

and

b. The proposed development does not meet the Territory Plan in terms

of its proposed on-site car parking provisions and it does not meet

the intent of the lease and development conditions on the block,

namely that “all residential and commercial carparking provisions,

as calculated using the Parking and Vehicular Access General

Code, are to be accommodated in a single or double underground

carpark on-site.”23

The respondent’s contentions.

39. Dr Jarvis contended that the decision under review should be affirmed and the

40. application dismissed.24

20 T-Documents pages 78-79 21 Transcript of Proceedings 3 June 2015 page 13 line 27 22 Transcript of Proceedings 3 June 2015 page 11 lines 22-25 23 Transcript of Proceedings 3 June 2015 page 11 lines 41-44 24 Respondent’s Statement of Facts and Contentions at [19]

12

41. He told the Tribunal that “the parking in this proposed development meets the

intent of the lease and development conditions”25

and that, other than for

resident parking, the Parking and Vehicular Access General Code “permits a

development of this kind to rely upon publicly available off-site parking” for

commercial visitors. “The Parking and Vehicular Access General Code does

however require that that parking be within 200 metres, and there is a dispute

between the parties as to how that should be calculated”.26

The party joined’s contentions

42. The party joined contended in its Statement of Facts and Contentions that the

building was designed “to completely comply with the relevant Lease and

Development Conditions (L&DCs), the building footprint as set out in the

specific L&DCs, the Multi-Unit Housing Code and the Territory Plan, as well

as the ACT Parking and Vehicular General Access Code”.27

43. Before deciding on the specific uses for the commercial tenancies, the party

joined had arranged for a parking study to be carried out and further car parking

studies were undertaken during the assessment of the development application.

Since the application for review was made, the party joined has made further

changes which have increased the number of on-site car park spaces from the

original 65 to 76, thereby reducing reliance on off-site car parks. The new

proposed basement and ground floor car parking design was annexure B to the

party joined’s Statement of Facts and Contentions.

Issues

44. The issues before the Tribunal therefore relate to compliance with relevant

legislation, the Codes and the adequacy and location of car parking. They are:

a) Issue 1: Does the proposed development comply with the Gungahlin

Precinct Map and Code?

b) Issue 2: Does the proposed development comply with the relevant

development codes – the Commercial Zones Development Code; the

25 Transcript of Proceedings 3 June 2015 page 19 line 30 26 Transcript of Proceedings 3 June 2015 page 13 lines 32-44 27 Party Joined Statement of Facts and Contentions at [2]

13

Residential Zones Development Code and the Multi Unit Housing

Development Code?

c) Issue 3: Does the proposed development comply with the Parking and

Vehicular Access General Code?

d) Issue 4: Does the proposed development comply with the approved Lease

and Development Conditions including the Planning Control Plan and

Development Intentions Plan?28

e) Issue 5: Would development approval be consistent with sections 119 and

120 of the Planning Act?

Consideration of the issues

Issue 1 – The Gungahlin Precinct Map and Code

45. Under section 115 of the Planning Act, where more than one type of code

applies to a development and there is inconsistency between provisions, the

order of precedence is Precinct Code, Development Code, and General Code.

46. The Gungahlin Precinct Map covers a large area bounded on the south by

Gungahlin Drive and on the north by Horse Park Drive. The Gungahlin Town

Centre is at the centre of the Precinct. The subject site is within a CZ5 mixed

use commercial zone immediately to the north of the Town Centre across

Anthony Rolfe Avenue. The CZ5 zone is some 1000 metres long and 70 metres

deep and separates the Town Centre from the RZ3 urban residential zone in the

northern part of Gungahlin.

47. Figure 3 in the Gungahlin Precinct Code describes Anthony Rolfe Avenue as a

‘major collector road’ with an on-road cycle lane and off-road shared paths. The

Tribunal notes that the document ACT Road Hierarchy issued by the Justice and

Community Safety Directorate states that the ‘classification of roads in the ACT

is based on a formal road hierarchy’. ‘Major collector roads’ are described as

roads that “collect and distribute traffic within residential, industrial and

commercial areas. They form the link between the primary network and the

roads within local areas and should carry only traffic originating or

28 T-Documents pages 239-240

14

terminating in the area. The volume of traffic carried is constrained by

environmental objectives - safety and traffic noise - rather than road geometry

and reflects the limited area that they serve. Direct property access is still

permissible but the level of traffic may dictate that access and egress

arrangements should be such that vehicles can exit properties in a forward

direction”.29

48. The Tribunal notes that the role of Anthony Rolfe Avenue is to “carry only

traffic originating or terminating in the area”. The Tribunal notes also the

environmental objectives for a major collector road in relation to safety and

traffic noise. The Tribunal notes the concerns of the applicant with regard to

haphazard parking and incomplete pathways, pedestrian crossings and lighting

along Anthony Rolfe Avenue, but such matters are urban infrastructure issues to

be addressed by the appropriate authorities as the district and town centre

develop.

49. Only three planning criteria in the Gungahlin Precinct Code apply to this mixed

use commercial development area - C66 (noise generating uses); C67 (activities

ancillary to residential use); and C68 (maximum 4 storeys subject to

compatibility with desired character; reasonable solar access to dwellings on

adjoining residential blocks). A noise management plan was submitted with the

development application. The proposed development satisfies both of the other

criteria.

50. For the reasons set out above, the Tribunal concludes that the proposed

development is consistent with the Gungahlin Precinct Map and Code.

Issue 2 – Does the proposed development comply with the relevant development

codes: the Commercial Zones Development Code; the Residential Zones

Development Code and the Multi Unit Housing Development Code?

51. The Commercial Zones Development Code provides additional planning, design

and environmental controls to support the objectives of the CZ5 mixed use

zone. The Commercial Zones Development Code states that the Residential

Zones Development Code and the Multi Unit Housing Development Code are

29 Justice and Community Safety Directorate: ACT Road Hierarchy

http://www.justice.act.gov.au/page/view/3063/title/act-road-hierarchy

15

also applicable to development in commercial zones.

52. Criterion C1 in the Commercial Zones Development Code requires that the

development “meets the intent of any current relevant lease and development

conditions”. The Multi Unit Housing Development Code contains a similar

requirement at C4 - “the development meets the intent of any approved lease

and development conditions”. The Tribunal will consider the interpretation of

“intent…of lease and development conditions” as a separate issue.

53. Figure 9 in the Gungahlin Precinct Code shows four sites in the Town Centre

reserved for public car parking, two of which, Section 228 (known as Margrie

Lane) and Section 229 are on the south side of Anthony Rolfe Avenue and are

visible from the subject site. The applicant has contended that parking by

visitors in the car parks at Margrie Lane or Section 229 will not meet criterion

C82 in the Multi Unit Housing Development Code and does not permit “safe

and direct visitor entry” to the proposed development because it requires a

visitor “to cross a busy street in Gungahlin without traffic lights and navigate

this passage without a paved footpath”.30

The respondent contends, and the

Tribunal noted on the view, that Anthony Rolfe Avenue is a divided

carriageway with a generous landscaped median strip and that there are several

existing walkways across Anthony Rolfe Avenue, near the subject site and

providing safe and easy access to the carparking on Section 228 and future 229.

54. The Tribunal has reviewed building and site plans and has considered the

requirements of the Multi Unit Housing Development Code for visitor parking.

55. The applicant did not call any expert evidence to support her contention that

visitors parking in Margrie Lane will not have “safe and direct visitor entry” to

the development. Mr David Field said in evidence “the Margrie Lane carpark is

an open carpark which has a clear link from one side of the road to the other.

For me there are (sic) good access, there is a good site distance and it is visible.”

31 The Tribunal accepts the evidence of Mr Field.

56. The Tribunal finds, having considered the available evidence, that the proposed

30 Fact #17 in the applicant’s Statement of Contentions 31 Transcript of Proceedings 4 June 2015 at page 94, lines 35-37

16

development satisfies criteria C82 and C8332

for accessibility for visitors.

Likewise the proposed development meets criterion C8433

that car parking

spaces on site and not in the basement do not dominate site landscaping.

Criterion C85 provides that “reasonable provision is made for short stay

parking for delivery trucks” and is also met.

57. The Multi Unit Housing Development Code contains no other requirements

relevant to the proposed development. The Residential Zones Development

Code contains no requirements relevant to the proposed development.

58. The Tribunal concludes that the proposed development is consistent with the

Commercial Zones Development Code; the Residential Zones Development

Code and the Multi Unit Housing Development Code.

Issue 3 Does the proposed development comply with the Parking and

Vehicular Access General Code.

59. Sections 1.3 and 1.4 of the Parking and Vehicular Access General Code state:

The code adopts a performance based approach and section 3 sets out, for

each of the zones, objectives relating to the provision of parking which

development proposals are required to meet. The relevant schedule in

section 3 defines the minimum parking provision requirements for

permitted development for each of the zones.

The scale of parking provision required is derived from a set of criteria

relating to safety, economic efficiency, accessibility, commercial viability

and social and environmental objectives. The parking provision rates take

account of factors such as the availability of public parking and the

potential for shared parking with neighbouring developments,

accessibility of the location to public transport, and relevant transport,

economic, social and environmental policies, such as travel demand

management measures.

…

Parking generated by a development is generally required to be

accommodated on site or in a location consistent with the criteria in

section 2.

32 C83: Visitor parking is accessible to all visitors 33 C84: Car parking spaces on the site (including garages but excluding basement car parking)

achieves all of the following (a) do not dominate site landscaping (b) are consistent with the desired character

17

…

However the performance approach adopted in these codes provides the

flexibility to enable a proposal to be supported where the proponent can

demonstrate to the satisfaction of the Territory that the objectives can be

met either by provision of a lesser on-site rate or by utilising spare

capacity in publicly available on-street or off-site parking...

The utilisation of spare capacity in on-street or off-site parking areas is at

the discretion of the Authority, having regard to, inter alia, the potential

demand which may be generated by a particular proposal as well as the

potential for nearby lessees to seek to expand their activities and lay claim

to a proportion of the available capacity in publicly available on-street

and off-street car parking areas.

60. Section 3.3.1 of the Code gives the following objectives for parking and

vehicular access in the CZ5 mixed use zone:

a) Amenity

i) no regular overspill of parking occurs in neighbouring residential

areas which detracts from the amenity of these areas

ii) the provision of parking does not detract from creating vibrant,

interesting and lively centres

b) Safety

i) no traffic hazards are created by the provision of access and

parking facilities for a development

ii) the safety of all users, especially pedestrians and cyclists, is

considered

iii) the creation of community surveillance of car parking areas by

people using neighbouring areas

c) Efficiency

i) the efficient use of existing and future public parking provision by

the consideration of sharing of facilities, wherever possible

ii) commercial vehicles delivering or collecting goods are

accommodated

d) Access

i) safe and efficient access to mixed use areas by all users including

business, workers, residents, shoppers and visitors as well as by

operational and commercial vehicles

e) Equity

i) the maintenance of an adequate supply of public parking for the

level of development and activity approved in a mixed use area

f) Non-commercial use

i) the successful operation of non-commercial uses in mixed use areas,

especially community uses which will require adequate set-down

18

and pick-up facilities.

61. The applicant has argued that the safety of drivers and pedestrians is a critical

issue in the context of parking and access. The applicant acknowledges that she

lives in a mixed use area and that her house is in a CZ5 zone but she reminded

the Tribunal that houses on the other side of her street are in a RZ3 residential

zone and that “the proposed development is bordered by a RZ3 residential

area”34

. Further objectives for residential zones are given in Section 3.1.1 of the

Parking and Vehicular Access General Code.

62. Dr Jarvis reminded the Tribunal that parking for residents of the proposed

development was all contained within the site and that the theoretical number of

visits to the ground floor businesses will not all occur at the same time.35

63. It is accepted by all parties that the proposed development meets the

requirements for resident parking within the basement level.

64. The applicant nevertheless contends that the majority of the objectives in the

Parking and Vehicular Access General Code for the CZ5 mixed use zone and

the RZ3 residential area are not presently being met and that this situation will

worsen if the proposed development proceeds. The applicant provided

photographs of private cars parked in residential streets in the immediate

vicinity of the subject site. The Tribunal walked along these streets and

observed that many cars were parked carelessly and there appeared to be few

vacant parking spots outside private houses.

65. At the centre of the objection to the proposed development is the vexing

question of the ‘ownership’ of kerbside parking in residential areas and the need

to allow access for service vehicles and garbage collection. Cross examined by

Dr Jarvis, the applicant stated that one of the reasons she was there was

“because my husband has trouble finding a car park”.36

66. In his opening statement, Mr Farzan reminded the Tribunal that “Dr Ibbotson

34 Fact 122 in the applicant’s Statement of Facts 35 Transcript of Proceedings 3 June 2015 at page 16 line 8 36 Transcript of Proceedings 4 June 2015 at page 121 line 15

19

has chosen to live in a CZ5 zone”.37

67. The applicant contends that parking spaces outside her own house “are often

taken by employees of the businesses nearby on Anthony Rolfe”.38

The applicant

asks whether existing residents have a right “to park their cars somewhere in

the vicinity of their homes”.39

It is human nature, she says, to park “where it is

convenient and generally where it is legal if possible”.40

At the same time, the

applicant asks if it is reasonable “to expect only two cars ever being used, or

that garages aren’t used for any other purpose than car storage”. However,

when cross examined by Mr Farzan, the applicant admitted that her house has a

generous garage with room for three cars but that the space is used as a

workshop and they park only one car in the garage and their other car in the

street.41

68. Mr Timothy Wyatt gave evidence as to the targets, objectives and strategies of

the ACT Government for transport and planning in Canberra. He referred to the

document ACT Planning Strategy: Planning for a Sustainable City dated July

2012 which states at page 44 that:

parking in our town and group centres must be aimed at supporting

businesses and be limited to shorter stays of up to three hours. In

suburban residential areas, developments must provide sufficient parking

to keep the amenity of residential areas. However, less parking will be

needed in town and group centres and along rapid inter-town transit ways

where there is good access to public transport.

69. The Tribunal was also referred to the most recent ACT Government policy

document related to planning and transport Building an Integrated Transport

Network: Parking dated June 2015. This document notes that the government:

…will pursue opportunities for more efficient use of parking assets across

the week and different times of day (for example supporting retail during

the day, restaurants at night and recreational activities on the weekend)42

…Ultimately it is up to the prospective residents to satisfy themselves that

37 Transcript of Proceedings 3 June 2015 at page 23 line 2 38 T-Documents page 52 39 T-Documents page 58 40 T-Documents page 97 41 Transcript of Proceedings 4 June 2015 at page 132 line 20 42 Page 7

20

their housing provides the on-site parking they require.43

70. The Parking and Vehicular Access General Code has precise definitions44

for

short stay parking (“generally up to 4 (four) hours duration”) and long stay

parking (“generally longer than 4 (four) hours duration”). Section 3.3.4 of the

Parking and Vehicular Access General Code gives specific requirements for the

location of long stay, short stay and operational parking in a commercial CZ5

mixed use zone elsewhere than in the city centre as follows - long stay parking:

on-site or within 400m except for residential use where parking is to be on-site;

short stay parking: on-site or within 200m; and visitor parking: on-site or within

200m.

71. A significant amount of time was taken up at the hearing in relation to how the

distance of 200m is to be measured and whether, if one of the Margrie Lane

carpark boundaries was within the 200m limit, the whole of the car park spaces

in that car park should be counted.

72. When considering the measurement of distance the Tribunal noted that section

150 of the Legislation Act 2001 provides:

150. Measurement of distance

In applying an Act or statutory instrument, distance is to be measured in a

straight line on a horizontal plane.

73. The applicant variously contended that distance should be measured by the

walking distance from the development; that there was more than one

convention according to Mr Wyatt’s evidence and according to the different

expert opinions in the decision of Amarso v ACTPLA45

(Amarso); and that, if

defined as a straight line, it should be measured from the front door of a

property and transcribe a circle from that point such that any carparks within

that circle are deemed to be able to be considered and those outside would not

be included.

43 Page 11 44 Section 1.5 45 [2012] ACAT 9

21

74. In his Witness Statement46

Mr Wyatt stated at paragraph 48 that: “.... in

determining the application of the 200 metre provision. Conventional practice is

that these distances to off-site car spaces has been measured block to block,

straight line or concentrically from the site rather than strict walking distance.”

75. In relation to the applicant’s contention that distance should be measured by

‘walking distance’ the Tribunal noted that section 3.3.4 of the PVAGC, which

referred to ‘locational requirements’, under City Centre long stay parking states

“On-site or in publicly available carparks up to 1km distant” (Tribunal’s

emphasis). Otherwise the section states ‘within 200m or 400m’. There is no

reference to walking distance.

76. In Amarso, in which Dr Jarvis also appeared for the respondent Authority, a

differently constituted tribunal considered the application of the 200m

measurement. That tribunal noted this was an issue on which the expert

opinions differed and did not decide the issue. In that case, Dr Jarvis had

referred to the evidence of Mr Paul Isaks, a transport specialist in the Transport

Planning and Strategy Section of the City Planning Division in the Environment

and Sustainability Directorate of the ACT Government, that “there was a long

standing convention or practice in the ACT to take account of the available

spare capacity as long as the “crow flies” distance between the nearest

boundary of the development and the car park boundary was less than the 200m

specified in the Parking Code. In his view, weight should be given to the

convention in the interests of administrative consistency.”47

The Tribunal noted

Mr Wyatt’s evidence that he “succeeded the responsibilities on behalf of the

department and subsequently ACTPLA that were held by Mr Isaks.’48

77. Dr Jarvis told the Tribunal, as in Amarso, that weight should be given to the

convention in the interests of administrative consistency.

78. Notwithstanding the definition of ‘measurement of distance’ in the Legislation

Act, the applicant was critical of the lack of definition of where the straight line

starts. The applicant was also critical of the respondent failing to take

46 exhibit R5 47 Amarso at [122] 48 Transcript of Proceedings page 220 lines 4-5

22

appropriate action since Amarso was decided in 2012 to define this

measurement in the Parking and Vehicular Access General Code or in the

Territory Plan, given that the definition was crucial to some developments.

79. The Tribunal concurs with Dr Jarvis that, in the interests of administrative

consistency, the measurement of distance, in this case 200m, should adopt the

convention referred to by Mr Wyatt above. Notwithstanding the applicant’s

criticism, the applicant did not call any expert evidence which might have

assisted the Tribunal to determine this issue.

80. The Tribunal finds, in applying the convention, measuring either in a straight

line or concentrically, that a part of the Margrie Lane carpark is within the 200m

distance and that, therefore, the car parking spaces in that carpark are able to be

included by the respondent as available off site carparking.

81. The Tribunal notes that the Margrie Lane car park is currently being

reconfigured and extended north towards Anthony Rolfe Avenue with an

increase in capacity of approximately 74 car spaces. Northrop Consulting

Engineers has advised that none of the additional car parking associated with

the adjacent commercial development is relying on the Margrie Lane car park.

Northrop has reported that extension of the car park will include pram ramps on

Anthony Rolfe Avenue and that there will be footpaths on the north verge of

Anthony Rolfe Avenue. Northrop also noted “restaurant peak demand will be

outside of the peak shop demand thus assisting with efficient use of parking”49

.

82. The Tribunal has previously noted that resident demand for car parking in the

proposed development has been met within the boundaries of the subject site

and the several parking studies undertaken on behalf of the party joined have

determined that there are adequate numbers of parking spaces available for short

stay and long stay parking for visitors to the site. The Tribunal concludes that

the proposed development complies with the Parking and Vehicular Access

General Code.

49

Parking Study: Block 1 Section 68 Gungahlin ACT May 2015 pages 7 and 9

23

Issue 4 – Does the proposed development comply with the approved Lease and

Development Conditions including the Planning Control Plan and Development

Intentions Plan?50

83. The issue of compliance with the L&DCs was at the heart of the applicant’s

case. The lease and development conditions for the subject site are a relevant

consideration because they are referred to in the Commercial Zones

Development Code and the Multi Unit Housing Development Code.

84. The applicant contends that “the lease and development conditions, even the

intent of the lease and development conditions, should take precedence over the

Parking and Vehicular Access General Code”.51

She further contends that the

lease and development conditions were a higher imperative than meeting the

provisions of any of the precinct, development or general codes.52

85. The respondent contended53

that in the “site specific” L&DCs for the subject

site, the object and intent is expressed in specific provisions at the beginning of

that part of the L&DCs, namely “Development Intentions Plan” and “Planning

Objectives.” The development intentions plan54

shows that the intent of the

L&DCs was not necessarily to have all car parking in basements, because it

depicts some car parking at ground level.

86. The respondent referred the Tribunal to the decision of the predecessor of this

tribunal, the ACT Administrative Appeals Tribunal, in Cvetanoski v

Commissioner for Land and Planning55

in which that tribunal stated at [9]:

The applicant’s argument relies on applying rules of statutory interpretation to

the words of Appendix II.1 as if it were subordinate legislation. This poses a

difficulty in that the Plan has not been drafted as a statutory instrument. It has

been drafted by planners. The Plan’s introduction states that its structure has

been devised to meet a number of objectives which include “to be readily

available to the ACT Community” and “to be as simple to use as possible.” The

rules of statutory interpretation cannot readily be applied to it.

87. The ‘Lease and Development Conditions’ in the present matter is also a

50 Approved Lease and Development conditions dated 5 March 2007 are at T- Documents 217 –

240 51 Transcript of Proceedings 3 June 2015 at page 29 line 1 52 Contentions 8 and 9 in the applicant’s Statement of Contentions 53 Respondent’s Statement of Facts and Contentions at [29], [34] 54 Tribunal documents page 240 55 [1999] ACTAAT 42 [9-10]

24

planning instrument and it is not to be construed in a legalistic manner. The

Tribunal’s approach is to have regard to the planning policy it reflects. The

Tribunal refers to and adopts an observation by a differently constituted tribunal

in AMC Projects v ACTPLA56

: “We observe, however that many of the features

of the proposed development which give rise to the objections raised by the

objectors are the natural consequence of the policies introduced to permit more

intensive development in residential core areas.”

88. Mr Ajith Buddhadasa did not accept the applicant’s contentions as to the

interpretation of the lease and development conditions. In his statement57

,

Mr Buddhadasa said that - “meeting the intent of the lease and development

conditions and the requirements of the Territory Plan including the Parking and

Vehicular Access General Code was both important and necessary”.58

In his

opinion, the intent of the lease and development conditions for the subject site

in relation to car parking was given under the heading ‘Planning Objectives’ as

to “minimise the impact of car accommodation when viewed from [the] public

and private domain”.

89. He further stated that the - “Section under the heading ‘Planning principles’

and subsequent sections in the L&Ds outline some qualitative and quantitative

measures to be used to realise the intents mentioned under the planning

objectives. In that L&Ds suggest providing underground car parking so that the

visual impacts from car parking areas can be minimised therefore the above

intent can be met.”59

90. It was Mr Buddhadasa’s contention that this interpretation is supported by the

Development Intentions Plan which formed part of the lease and development

conditions and shows a possible built-form outcome with basement parking for

residents and a small number of cars parked behind the building and screened

by landscaping.60

He opined - “Therefore it is evident from the L&Ds that the

L&Ds does not require or to provide all the carparking generated by this

56 [2006] ACTAAT 13, [26] 57 Exhibit R3 58 Exhibit R3 paragraph 24 59 Exhibit R3 Paragraph 24 60 Exhibit R3 paragraph 24

25

development (as per PVAGC parking provision rates) in an underground

carpark.”61

91. Mr Buddhadasa also did not accept contention 18 in the applicant’s Statement

of Facts and Contentions that “cars being accommodated on the street will be

visible all the time…will not create an attractive urban precinct…will not

contribute to making the area a desirable place to live”. In Mr Buddhadasa’s

opinion, on-street car parking is “a part of urban streetscape character” and it

was not the intention of the lease and development conditions to forbid visitor

parking on the street.62

92. In relation to the applicant’s contention 20 Mr Buddhadasa said -

“26. Site specific contentions in the L&Ds are the measures mentioned in

L&Ds to meet the objectives of the L&Ds. However these measures are

not the only measures which are capable of meeting the objectives in the

L&Ds. That is the reason for the applicable development codes to have

provisions enabling a development to depart from the L&Ds provided the

development meets the intent of the L&Ds."

93. Mr Buddhadasa had formed the view that63

“the fundamental difference in the

applicant’s understanding of the proposal and the planning and land

authority’s determination lies in how the proposal is consistent with the intent

of the lease and development conditions”. The applicant’s view is that as

mentioned in the L&Ds the development must accommodate all the parking

numbers required for the development in an underground car park within the

block. Contrary to the applicant’s view, the planning and land authority

adopted a view that the intent of the lease and development conditions is to

minimise visual impacts from parking located at grade. To minimize the visual

impacts from at grade parking, the L&Ds suggest having an underground car

park but the L&Ds does (sic) not mandate all the parking required for the

development to be accommodated within the block or in the basement car park.

The development complies with the lease and development conditions by

61 Exhibit R3 paragraph 24 62 Exhibit R3 paragraph 30 63 Exhibit R3 paragraph 40

26

providing a basement car park.”

94. The Tribunal has considered the contentions and submissions of all parties as to

the lease and development conditions and the ‘intent’ of the lease and

development conditions and has concluded that the Commercial Zones

Development Code and the Multi Unit Housing Development Code allow for

departure from the lease and development conditions provided that the

development meets the intent of the lease and development conditions.

95. The Tribunal accepted Mr Buddhadasa’s evidence. It was not successfully

challenged. It was both credible and compelling. The Tribunal is satisfied that

this development complies with the L&DCs by providing a basement car park.

96. The Tribunal is not satisfied that the L&DCs mandate that all parking required

for the development be within the block or in the basement. The Tribunal finds

that the site specific L&DCs are measures to meet the objectives in the L&DCs

but, are not the only objectives. It is necessary to consider also the Planning

Objectives, Planning Principles and the Development Intentions Plan.

97. The subject site is located in a CZ5 mixed use zone. The CZ5 development table

prescribes the merit track for assessment of a development application. For a

development application in the merit track, the applicant has the option to

comply with either the rules or the criteria in the relevant development codes,

except where a rule is mandatory. The relevant codes in this instance are the

Commercial Zones Development Code and the Multi Unit Housing

Development Code. As noted above, both the Commercial Zones Development

Code (at Criterion 1) and the Multi Unit Housing Development Code (at

Criterion 4) provide for a development to depart from the L&DCs where the

development meets the intent of the L&DCs. In order to meet the intent of the

L&DCs, the development is not required to comply with the other detailed

clauses in the L&DCs that refer to car parking and accommodation.64

If that

were not so, these other clauses would be mandatory in effect and would

operate in the same way as R1 and R4. This would defeat the purpose of C1 and

64 Respondent’s Statement of Facts and Contentions [35]

27

C4.65

98. As Mr Buddhadasa opined in his Witness Statement66

: “Otherwise the whole

L&Ds will become mandatory and there will not be any relevance of Criterion 1

of the CZDC or Criterion 4 of the MUHDC.”

99. The Tribunal finds that the development proposal for parking meets the

objective for car accommodation because almost all car accommodation

provided on the site is located in a basement car park where its visual impact is

minimal. In this regard the Tribunal notes that the planning objectives refer to

car accommodation and not car parking numbers.

100. For these reasons the Tribunal finds that the proposed development meets the

intent of the lease and development conditions and is not inconsistent with the

relevant codes and objectives of the Territory Plan.

101. The Tribunal is satisfied that the “requirements” are of the PVAGC and the “use

and area of commercial tenancies” refers to the PVAGC which requires only

residential parking to be on-site and in the basement; it does not require all

commercial parking to be on site. The Tribunal is also satisfied that the

“Development Intentions Plan”67

contemplates some visitor parking that is not

in the basement.

Issue 5 – Would development approval be consistent with section 119 and section

120 of the Planning Act?

102. Sections 119 and 120 of the Planning Act provide for the assessment of

development applications in the merit track:

119 Merit track—when development approval must not be given

(1) Development approval must not be given for a development proposal in the

merit track unless the proposal is consistent with—

(a) the relevant code; and

(b) if the proposed development relates to land comprised in a rural

lease—any land management agreement for the land; and

65 Respondent’s Statement of Facts and Contentions [36] 66 Ajith Buddhadasa’s Witness Statement at [26] 67 T documents at page 240

28

(c) if the proposed development will affect a registered tree or declared

site—the advice of the conservator of flora and fauna in relation to

the proposal.

Note 1 An application cannot be approved if it is inconsistent with the territory plan (see s 50)

or the National Capital Plan (see Australian Capital Territory (Planning and Land

Management) Act 1988 (Cwlth), s 11).

Note 2 Relevant code—see the dictionary.

(2) Also, development approval must not be given for a development proposal

in the merit track if approval would be inconsistent with any advice given

by an entity to which the application was referred under section 148 (Some

development applications to be referred) unless the person deciding the

application is satisfied that—

(a) the following have been considered:

(i) any applicable guidelines;

(ii) any realistic alternative to the proposed development, or

relevant aspects of it; and

(b) the decision is consistent with the objects of the territory plan.

(3) To remove any doubt, if a proposed development will affect a registered

tree or declared site—

(a) the person deciding the development application for the proposed

development must not approve the application unless the approval is

consistent with the advice of the conservator of flora and fauna in

relation to the proposal; and

(b) subsection (2) does not apply in relation to the conservator’s advice.

120 Merit track—considerations when deciding development approval

In deciding a development application for a development proposal in the

merit track, the decision-maker must consider the following:

(a) the objectives for the zone in which the development is proposed to

take place;

(b) the suitability of the land where the development is proposed to take

place for a development of the kind proposed;

(c) if an environmental significance opinion is in force for the

development proposal—the environmental significance opinion;

Note Environmental significance opinion—see s 138AA. Environmental

significance opinions expire 18 months after they are notified (see s 138AD).

(d) each representation received by the authority in relation to the

application that has not been withdrawn;

(e) if an entity gave advice on the application in accordance with section

149 (Requirement to give advice in relation to development

applications)—the entity’s advice;

Note Advice on an application is given in accordance with section 149 if the

advice is given by an entity not later than 15 working days (or shorter prescribed period)

29

after the day the application is given to the entity. If the entity gives no response, the

entity is taken to have given advice that supported the application (see s 150).

(f) if the proposed development relates to land that is public land—the

public land management plan for the land;

(g) the probable impact of the proposed development, including the

nature, extent and significance of probable environmental impacts.

103. The Tribunal has considered whether the proposed development complies with

the requirements of section 119 of the Planning Act.

s 119 (1)(a) – consistent with the relevant code - as noted above68

, the

Tribunal considers that the proposed development is consistent with

the Gungahlin Precinct Map and Code, the Commercial Zones

Development Code, the Residential Zones Development Code and the

Multi Unit Housing Development Code. The proposed development

also complies with the requirements of the Parking and Vehicular

Access General Code.

s 119 (1)(b) – land management agreement – not applicable.

s 119 (1)(c) – advice of the Conservator of Flora and Fauna – the proposed

development will not affect a registered tree or a declared site.

s 119 (2) – advice given by an entity - The Authority sought and obtained

entity advice from Emergency Services ACT (ESA), ActewAGL

Water Division, ActewAGL Electrical Division and ActewAGL Gas

Networks. Emergency Services ACT advised they had no objections

to the proposal. The Authority also sought entity advice from the

Territory and Municipal Services Directorate (TAMSD), and the

Environment Protection Authority (EPA). Neither TAMSD nor the

Environment Protection Agency provided advice within the time

prescribed in section 149(2) of the Planning Act and it was therefore

considered that they each supported the proposal in principle under

section 150 of the Planning Act.

s 119 (2)(a) (i) - (applicable guidelines) – there are no applicable guidelines.

68 At [47], [55] and [79]

30

s 119 (2)(a) (ii) – (any realistic alternative) – not applicable.

s 119 (2)(b) – (objects of the territory plan) - The object of the Territory Plan

is broadly stated in section 48 of the Planning Act as to ensure that, in

a manner not inconsistent with the National Capital Plan, “the

planning and development of the ACT provide the people of the ACT

with an attractive, safe and efficient environment in which to live,

work and have their recreation”. The Tribunal is satisfied that the

proposed development is not inconsistent with this object.

104. Section 120 of the Planning Act requires the decision maker to consider the

zone objectives, the suitability of the land, representations, entity advice, plan of

management and probable environment impacts. This section does not impose

any obligation to make a decision that is consistent with the listed matters;

rather this section is intended to assist the decision maker in reaching a balance

between sometimes competing objectives. The Tribunal has considered whether

the proposed development complies with the matters in section 120 of the

Planning Act as follows:

s 120 (a) - (zone objectives) - The subject site is in the CZ5 Mixed Use

Zone. The objectives for the CZ5 zone are as follows (with the

Tribunal’s underlining):

a) Encourage higher density residential development in locations

with convenient access to transport corridors, and commercial and

employment centres

b) Create an efficient and sustainable urban environment and

provide for a diversity of living, working and recreation

opportunities

c) Maintain and enhance environmental amenity and undertake

development using best practice environmentally sustainable

development principles

d) Encourage a standard of urban design that is consistent with

selected major avenues, approach routes and other strategically

located areas

e) Encourage activities particularly at street frontage level that

31

contribute to an active public realm.

105. In Scherl & ACT Planning and Land Authority69

Dr Jarvis appeared before a

differently constituted tribunal for the respondent authority and submitted:

118. …that compliance with the relevant code should be taken to establish

that a proposal is consistent with the zone objectives, except perhaps in

some exceptional circumstance. This flows from the statutory

framework provided by ss 53(1) and 55(2) of the Act. Section 53 states:

The objectives for a zone set out the policy outcomes intended to be

achieved by applying the applicable development tables and code to

zone.

119. Section 55(2) states:

A code must be consistent with each objective for the zone to which

the code relates.

120. The respondent also notes the terms of the Introduction to the MUHD

Code which states:

Codes provide additional planning, design and environmental controls

to support zone objectives and assessable use in the development

tables.

106. That tribunal accepted the argument that a proposal that meets the code will

ordinarily be consistent with zone objectives.

107. The Tribunal has already found that the DA complies with the relevant codes.

The Tribunal has considered these objectives in the present matter and is

satisfied that the proposed development is not inconsistent with the objectives

for the CZ5 zone.

s 120 (b) – suitability of the land - the Tribunal is satisfied that the land is

suitable for the proposed development.

s 120 (c) – representations – the Tribunal has considered the representations

received by the respondent in relation to the development application.

The issues raised by the applicant before the Tribunal are found in

69 [2011] ACAT 37 [116-123]

32

some of these representations. The Tribunal has considered these

representations in relation to the requirements in section 119 of the

Planning Act, and more generally under section 120, and is not

satisfied that they provide a basis for refusing the development

application.

s 120 (d) – entity advice - as noted previously, the proposed development is

not inconsistent with advice given by an entity to which the

application was referred in accordance with the Planning Act.

s 120 (e) – plan of management - not applicable.

s 120 (f) – probable impact – the Tribunal considers that there are no

probable environmental impacts from the proposed development.

Landscape Plan

108. It was apparent to the Tribunal that the Landscape Plan70

approved in the DA

would need changing in view of the redesign of the carpark spaces. The

Tribunal noted that the area of the proposed development was reasonably

sterile. The following exchange took place 71

:

Tribunal: ...believe that some of the success of this scheme from a larger public

point of view might depend upon the appearance of the building and the

appearance of the health, size, scale type, whatever of the trees, and

there’s no reference to that, whereas a plan of landscape prepared by let’s

say a landscape architect would allay some of my fears.

....

Mr Farzan: I understand.

....

Dr Jarvis: Can I make an observation. It would be open to the Tribunal having raised

the matter and heard Mr Farzan to add into the list of things that are

required as ---

Mr Farzan: As conditions

Dr Jarvis further drawings to be required as a condition so the tribunal could in the

list on page 16 add a requirement to provide a revised landscape plan.

70 T documents page 267 71 Transcript of Proceedings 5 June 2015 page 268

33

....

Mr Farzan: I would be very open to that.....

109. Accordingly, the Tribunal will include, as a condition, the requirement that the

party joined provide a revised plan of landscape prepared by a qualified

landscape architect.

Other matters

110. Although not relevant to the determination of the DA under the Planning Act

and the Tribunal’s review, the Tribunal has noted the various issues raised by

the applicant concerning the respondent’s internal processes. In particular, the

applicant cross examined Mr Buddhadasa72

about the respondent’s process of

assessing the L&DCs in the following exchange:

Applicant: So was it you who was required to make the decision as to whether

the proposal met the intent of the lease and development conditions

on the block?

Mr Buddhadasa: Yes

Applicant: You just by yourself?

Mr Buddhadasa: No, with the advice from other – my managers and the (indistinct) .

Applicant: So I understood that I got, via objective, all the documents that were

relevant in the case, but I didn’t get any documents that discussed the

various aspects of the lease and development conditions and how they

were assessed?

Mr Buddhadasa: These are normally – we discuss all the form by face to face

conversations. That is how it’s happening all the time.

111. In response to questions from the Tribunal Mr Buddhadasa confirmed that when

he had not heard back from TAMS when entity advice had been sought from

them he had telephoned someone in TAMS to progress the application but was

unable to recall if he had recorded or made a note of the date, the details of the

discussion, the outcome and the name of the person with whom he had spoken.

In fact, Mr Buddhadasa said73

‘most of the time you don’t (make a record of the

72 Transcript of Proceedings 5 June 2015 page 191 73 Transcript of Proceedings 5 June 2016, page 201

34

conversation). We just (discuss) these issues over the phone.’

112. The applicant also cross examined Mr Wyatt74

about the lack of any detail in the

documentation provided to her which identified what documents had been considered

by the respondent’s Environment and Planning Directorate’s Major Projects and

Transport Branch when it considered the original proposal and when it

considered and supported the revised DA proposal.

113. In the following exchange between the applicant and Mr Wyatt, he

acknowledged the MTAT failure to set out administratively the relevant

documentation:

Mr Wyatt: I don’t assess people’s objections, if you like to development, but I

do assess the parking code, and my team does assess the objectives

and whether the objectives are being met as part of that assessment,

and I would acknowledge perhaps administratively that you haven’t

seen transparent acknowledgement of that probably in the material

that has been provided, but certainly that judgment has been

applied to the decisions that have been made75

.

The applicant: I haven’t seen evidence of that, and Ms Markus said she hadn’t

been to the site. She acknowledged, and yourself has acknowledged,

you haven’t read any of the representations against the

development, but my understanding is that it is your area of

responsibility to have it assessed it against the Parking and

Vehicular Access General Code, and as well as the rules in the code

there are a reference to assessing it against future lessees’ demand

on the car parking, and also a reference to assessing the objectives,

and I don’t see that all three of those things have been done?

Mr Wyatt: Well, we apply judgment collectively when we assess those things. I

can accept that administratively you may not see that all

documented, but certainly that forms part of the judgment that

we’re actually making, and I guess I would add to that is that

neither Ms Markus nor myself have any approving authority. We

provide technical advice to the development assessment teams,

hence why we are not then called upon to actually make a judgment

on representations or objections from the community.

114. The Tribunal is concerned about the lack of rigour applied to record keeping by

the assessor and by the MPAT. The Tribunal also endorses the applicant’s

comments about the perfunctory references to the Lease and Development

74 Transcript of Proceedings 5 June 2015 page 227, 228, 75 Transcript of Proceedings 5 June 2015, page 228, lines 12-18, 27-33

35

Conditions and to the Codes in the decision. The 44 people who made

representations were entitled to receive a decision which transparently set out

the documents and evidence the respondent had considered in assessing the DA

and in reaching a decision.

Conclusion

115. For the reasons set out above, the Tribunal therefore varies the decision under

review by imposing an additional condition of approval requiring the party

joined to lodge a landscape plan prepared by a qualified landscape architect.

116. Other matters raised by the respondent administratively with the party joined,

namely improvements to the parking layout for visitors or tenants behind the

building and keyed access to basement parking for tenants of the ground floor

commercial units as well as the party joined’s latest parking proposal76

increasing the onsite parking to 76 spaces and his discussions with TAMS77

in

relation to indented parallel parking along Gungahlin Place between Anthony

Rolfe Avenue and Sarre Street will need to be pursued administratively by the

party joined.

………………………………..

Ms E.Symons – Presidential Member

for and on behalf of the Tribunal

76 At Annexure B to the Party Joined’s Statement of Facts and Contentions 77 At Annexure C to the Party Joined’s Statement of Facts and Contentions

36

HEARING DETAILS

FILE NUMBER: AT 15/17

PARTIES, APPLICANT: DR KATHLEEN IBBOTSON

PARTIES, RESPONDENT:

PARTY JOINED:

ACT PLANNING AND LAND

AUTHORITY

NATIONAL CAPITAL

INVESTMENTS PTY LD

COUNSEL APPEARING, APPLICANT SELF-RESPRESENTED

COUNSEL APPEARING, RESPONDENT

COUNSEL APPEARING, PARTY

JOINED

DR D JARVIS

SELF-REPRESENTED

SOLICITORS FOR APPLICANT SELF-REPRESENTED

SOLICITORS FOR RESPONDENT

SOLICITORS FOR PARTY JOINED

ACT GOVERNMENT SOLICITOR

SELF-REPRESENTED

TRIBUNAL MEMBERS: MS E SYMONS

MR R PEGRUM

DATES OF HEARING: 3, 4, 5 JUNE 2015