ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GLASS v ACT PLANNING AND LAND AUTHORITY AND

ANOR (Administrative Review) [2016] ACAT 96

AT 94/2015

Catchwords: ADMINISTRATIVE REVIEW – planning and land

development – land in the community facility zone (CFZ) –

proposal to build 124 bed residential aged care facility and 154

independent living units in 5 further buildings – whether

development is consistent with the zone objectives for the CFZ –

whether development is consistent with rules and criteria under

CFZ Development Code – building height controls under the

CFZ Development Code – Tribunal review of earlier process –

Tribunal jurisdiction under section 121 of the Planning and

Development Act 2007 – whether Multi Unit Housing

Development Code applies – whether proposed development is a

multi unit dwelling – whether Residential Zone Development

Code – applies consideration of matters under section 120 of the

Planning and Development Act 2007 – suitability of the land –

probable impact – leave to file submissions after conclusion of

hearing

Legislation cited: Planning and Development Act 2007 (ACT) ss 52, 55, 119, 120,

121

Subordinate

Legislation Cited: Community Recreational Facilities Location Guidelines General

Code

Community Facility Zone Development Code

Multi Unit Housing Development Code

Planning and Development Regulation 2008 (ACT) ss 3, 5

Residential Zones Development Code

Territory Plan 2008

Cases cited: ACT Rural Landholders Association Inc & Ors v ACT Planning

and Land Authority [2014] ACAT 22

Baptist Community Services v ACT Planning and Land

Authority and Ors [2015] ACTCA 3

Catherine Rudder v ACT Planning and Land Authority and

Jopratz Pty Ltd & Galeotti Holdings Pty Ltd and Ors [2010]

ACAT 24

Downer Community Association v ACT Planning & Land

Authority [2007] ACTAAT 20

2

Eastman v Director of Public Prosecutions (ACT) (2003) 214

CLR 318

Eastman v Honourable Justice Besanko [2010] ACTCA 15

Glass v ACT Planning and Land Authority and Anor [2016]

ACAT 21

Griffith Narrabundah Community Association v ACT Planning

and Land Authority and Anors [2011] ACAT 61

Gupta v ACT (No 2) [2011] ACTSC 43

Ibbotson v ACT Planning and Land Authority [2015] ACAT 57

Mason and ACT Planning & Land Authority and Ors [2009]

ACAT 7

Maurer v Ellis v ACT Planning and Land Authority [2016]

ACAT 83

Notaras v Waverley Council [2007] NSWCA 333

Polleycutt and ACT Planning and Land Authority [2012]

ACAT 2

Raphael and Ors & ACT Planning & Land Authority [2010]

ACAT 89

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

Stryver Pty Ltd ACT Planning & Land Authority [2004]

ACTAAT 42

Tribunal: President G C McCarthy

Senior Member R Pegrum

Date of Orders: 19 August 2016

Date of Reasons for Decision: 19 August 2016

AUSTRALIAN CAPITAL TERRITORY )

CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 94/2015

BETWEEN:

ERIC GLASS

Applicant

AND:

ACT PLANNING AND LAND AUTHORITY

Respondent

AND:

GOODWIN AGED CARE SERVICES LTD

Party Joined

TRIBUNAL: President G C McCarthy

Senior Member R Pegrum

DATE: 19 August 2016

ORDER

The Tribunal Orders that:

1. The decision under review is set aside and remitted for reconsideration in

accordance with the Tribunal’s reasons for decision, having regard to any

proposed amendments to the development application.

..………………………..

President G C McCarthy

for and on behalf of the Tribunal

2

REASONS FOR DECISION

1. On 18 November 2015, the respondent, the ACT Planning and Land Authority

(the Planning Authority), approved subject to conditions a development

application for redevelopment of an aged care facility on Block 10 Section 7

Farrer ACT (Block 10).

2. By application to the Tribunal dated 14 December 2015, the applicant, Mr Eric

Glass (Mr Glass) applied for review of the decision.

3. By interim application dated 12 February 2016, Mr Glass sought an order that

the Planning Authority’s decision be set aside and that the applicant for

development approval be invited to submit an amended development

application, to be publicly notified, which (he said) correctly stated the numbers

and types of proposed dwellings. On 23 February 2016, the Tribunal dismissed

the interim application. On 21 March 2016, the Tribunal published its reasons

for doing so.1

4. The substantive application was heard on 30 and 31 March and 1 April 2016.

5. Mr Glass appeared for himself. Dr Jarvis of counsel appeared for the Planning

Authority, instructed by the ACT Government Solicitor. Mr Erskine SC and

Ms K Katavic of counsel, instructed by Meyer Vandenberg Lawyers, appeared

for the party joined, Goodwin Aged Care Services Limited (Goodwin Homes),

being the Crown lessee of Block 10.

6. The Tribunal took evidence from Ms Rumana Jamaly, an assessment officer

with the Planning Authority; Ms Susan Levy, the Executive Officer of Goodwin

Homes; Mr Alistair MacCallum, the architect for the proposed development;

and Mr Aaron Oshyer, a town planner with Knight Frank Town Planning. The

Tribunal has considered the statements provided by each witness and their oral

evidence, and has taken it into account in reaching its decision.

1 Glass v ACT Planning and Land Authority and Anor [2016] ACAT 21

3

Factual background

7. Goodwin Homes carries on a business of providing nursing and aged care

accommodation. It has three retirement villages in Canberra, located in Ainslie,

Monash and Farrer.2 It has for approximately 40 years owned and managed the

Farrer retirement village on Block 10.

8. Block 10 is zoned ‘community facility zone’ under the Territory Plan. This

zoning permits the use of Block 10 for ‘residential care accommodation’ and as

a ‘retirement village’.3

9. The existing buildings are primarily one or two storeys, built in the 1970’s, save

for a four storey independent living apartment building referred to in these

reasons as ‘Building ‘” that was built in 2004 in the north-west corner of Block

10. Building G addresses Marshall Street. It is a stepped design with two storeys

at the front facing Marshall Street and four storeys plus a basement to the rear.

10. By development application DA2015/27916 dated 2 July 2015 (the DA), the

applicant for development approval, on behalf of Goodwin Homes, sought

approval for demolition of most of the existing buildings on Block 10, save for

Building G, followed by construction of six buildings (denoted as Buildings A –

F) to occur in stages over five years. At page 3 of 17 of the DA, the proposed

works are described in summary as follows:

A new Clubhouse.

154 ILU’s [meaning independent living units] across the site located in 5

new buildings.

A new 124 bed Residential Aged Care Facility (RACF)

267 car parking spaces.

11. Buildings A, B, C, D and F are to contain independent living units. The new

clubhouse will be part of Building C.

12. The new RACF will be in Building E.

2 Statement of Ms Levy dated 15 March 2016 at [4] 3 Community Facility Zone Development Table

4

13. As an aid to its reasons for decision, the Tribunal reproduces a copy of the site

plan of the proposed development depicting the relevant streets and the

locations of Building G and proposed Buildings A - F.

14. Mr Glass raised, in substance, eight issues in his application for review. The

Tribunal deals with them in turn.

Contention 1 - approval process concerns

15. Mr Glass first contended that the ‘approval process’ was flawed. He contended

that “every comment provided by the developer … has been uncritically

accepted” by the Planning Authority. By contrast, he said, several issues raised

in individual representations “were not addressed at all”. He contended that the

5

Planning Authority did not comply with section 120(d) of the Planning and

Development Act 2007 (the P&D Act), which provides that when deciding a

development application for a development proposal in the merit track (as this

was) the Planning Authority:

must consider ... each representation received by the authority in relation

to the application that has not been withdrawn.

16. Mr Glass also contended that many of the applicable codes made under the

Territory Plan were not fully addressed or in some cases not addressed at all.

Mr Glass referred to the Tribunal’s decision in Ibbotson v ACTPLA,4 noting

[114] where the Tribunal said:

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 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.

17. The quoted passage must be put in context. The Tribunal’s comment in Ibbotson

v ACTPLA was prefaced at [110] with the words:

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.

18. The Tribunal has periodically explained that when reviewing an administrative

decision, it is not concerned with prior process but with determining the correct

or preferable decision on the evidence before it. In Downer Community

Association and ACT Planning & Land Authority5 the Tribunal said:

4. The applicant’s representative drew attention to a number of matters

which he contended showed that the respondent had been pressured by the

party joined to arrive at a decision favourable to it and had given

inadequate consideration to the matter.

5. We do not need to dwell on this contention. On the hearing of an

application for review of decision the Tribunal stands in the shoes of the

4 [2015] ACAT 57 at [110] – [114] 5 [2007] ACTAAT, cited with approval in Polleycutt and ACT Planning and Land Authority [2012]

ACAT 2 at [24]

6

original decision-maker. It is not necessarily the Tribunal’s concern to

determine whether the respondent was right or wrong or whether it

followed correct procedures or whether those procedures were flawed or

deficient. Its principal function is to determine what, on the evidence

before it, is the correct or preferable decision for it to make.

19. These observations were made with reference to the Land (Planning and

Environment) Act 1991, but have been adopted and applied in the Tribunal’s

review of decisions made under the P&D Act.6

Contention 2 - Block 10 is not suitable for development of the kind proposed

20. Mr Glass contended that Block 10 is “unsuitable for high density residential

development.” He referred to the plot ratio for the proposed development being

“appreciably greater than 100%”. By reference to other data, he submitted that

“the development clearly falls into the high-density housing RZ5 category”.

21. Mr Glass relied on sections 120(a) and (b) of the P&D Act, which state that the

decision-maker “must consider”:

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

take place; and

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

place for a development of the kind proposed.

22. In support of his submission that Block 10 is not suitable for the kind of

development proposed, Mr Glass relied on the Spatial Planning and Urban

Design Principles within the Statement of Strategic Directions regarding

“housing types ... in identified residential areas”; a related objective for

residential land zoned RZ5; and paragraph 3.1 of the Community Recreational

Facilities Location Guidelines General Code (CRFLG General Code) which

provides that “community recreation facilities which are directly used by the

public should be located on or near public transport routes which provides

services which are appropriate to the use of the facility.”

23. Mr Glass contended that the Planning Authority failed to consider these matters

as it was required to, and that the Tribunal must now do so when reviewing the

decision.

6 ACT Rural Landholders Association Inc and Ors v ACT Planning and Land Authority [2014] ACAT

22 at [43]

7

Section 121

24. A preliminary issue arose as to whether the Tribunal has jurisdiction to consider

the matters upon which Mr Glass relied.

25. Mr Erskine for Goodwin Homes and Dr Jarvis for the Planning Authority took

different positions.

26. Mr Erskine submitted, with reliance on section 121 of the P&D Act, that the

Tribunal does not have jurisdiction to consider these matters regardless of

whether the Planning Authority should have done so when making its primary

decision. He submitted:

Section 121 is most unusual, in fact I think it is unique in the range of

matters that comes to this tribunal, because it restricts the consideration

that the tribunal may give to decision making in almost every other case

that I am aware of in the jurisdiction of this tribunal

If a decision is one that can be reviewed by the tribunal, the tribunal is

clothed with all the powers of the decision maker and makes the whole of

the decision again without being fettered by anything. Section 121(2)

stands uniquely, probably uniquely, in the legislative jurisdiction of this

tribunal because it restricts what you may look at7

27. Mr Erskine relied on the Tribunal’s decision in Mason v ACT Planning and

Land Authority and Anor8 to submit:

But what is excluded from this is section 120. .... So, what the tribunal

said in (i) of paragraph 29 [in Mason] is while it is bound by the

prohibition set out in section 119 of the Act, that is you must not approve

unless it complies with the relevant code, it – that is the tribunal – is not

able to have regard to the matters set out in section 120 because they are

not within the ambit of a rule or a criterion

...

Having said that, to the extent that matters have arisen under section 120,

if you take the view that on the facts you would not make any kind of

judgement adverse to the application under that section, then it probably

is not necessary for the tribunal to delve into the mysteries of section 1219

7 Transcript of proceedings 1 April 2016, page 104, lines 19 - 29 8 [2009] ACAT 7 at [29] 9 Transcript of proceedings 1 April 2016, page 106, lines 3 – 19

8

28. Dr Jarvis submitted to the contrary:

I should say something about the zone objectives. A lot has been made of

those. We make a submission to the effect that they are not an instrument

which can be used directly to assess a particular development. They are

zone objectives. They indicate what is to be achieved across a zone, not in

each individual development and that is paragraph 31 of our contentions

and we refer to some cases there with the paragraph numbers ....

However, the tribunal is required to take these objectives into account

and where it was apparent that a development was not consistent with

an objective, it may well be a fatal consideration and that was affirmed in

the Baptist Community Services case in the ACT Court of Appeal.

Reference is given to that, subject to this: if the particular part of the

development which is said to be inconsistent with an objective happens to

be compliant with the rule, then this tribunal cannot review it on the basis

that it is inconsistent with an objective. That will be my submission.

(emphasis added)10

29. Dr Jarvis referred the Tribunal to its earlier decisions in Scherl v ACT Planning

and Land Authority11

and Griffith Narrabundah Community Association v ACT

Planning and Land Authority12

where the Tribunal noted that it must consider

the matters set out in section 120 of the P&D Act and then addressed them

where relevant.

30. Section 121 provides as follows:

Merit track—notification and right of review

(1) To remove any doubt, if a development proposal is in the merit

track, the application for development approval for the proposal must be

publicly notified under division 7.3.4.

(2) If there is a right of review under chapter 13 in relation to a

decision to approve an application for development approval for a

development proposal in the merit track, the right of review is only in

relation to the decision, or part of the decision, to the extent that—

(a) the development proposal is subject to a rule and does not comply

with the rule; or

(b) no rule applies to the development proposal.

10 Transcript of proceedings, 1 April 2016, page 71, lines 21 - 37 11 [2011] ACAT 37 at [116] – [123] 12 [2011] ACAT 61 at [38] – [39]

9

31. The Tribunal does not share Mr Erskine’s view that if it is not making a

judgement adverse to the development application, it can avoid the ‘mysteries’

of section 121.

32. It is common ground that when reviewing a development proposal the Tribunal

has jurisdiction to assess compliance with relevant rules and criteria in relevant

codes. Under section 119(1)(a) of the P&D Act approval:

must not be given for development proposal in the merit track unless the

proposal is consistent with ... the relevant code.

33. Accordingly, if the Tribunal finds a development proposal to be non-compliant

with an applicable rule or criterion, the Tribunal must set aside the approval or

vary it to achieve consistency. Where a development approval needs to be set

aside for inconsistency with a relevant code, there is no need then to go on and

consider the matters in section 120 regardless of whether the Tribunal has

jurisdiction to do so because the decision must be set aside at that point: Maurer

v Ellis v ACT Planning and Land Authority.13

34. Only if there is consistency with relevant rules and criteria does the question

arise whether the Tribunal has jurisdiction to go further. If the Tribunal has

jurisdiction to consider the issues set out in section 120 then (under that

section), as the “decision-maker” on review, it “must consider” them where

relevant. If section 121(2) denies that jurisdiction, then it cannot consider these

issues.

35. The Tribunal turns therefore to the question whether it has that jurisdiction.

36. In Mason upon which Mr Erskine relied, the Tribunal said:

The Tribunal has weighed up these submissions and has reached the

following conclusions in regard to them.

i) The Tribunal does not have the same responsibility as the original

decision maker in relation to approval or otherwise of the DA. While it is

bound by the prohibitions set out in s 119 of the Planning Act, it is not

able to have regard to the matters set out in s 120, including the Suburban

Core Zone general objectives set out in Section 3.1 of the Plan. Section

121(2) of the Planning Act makes it clear that any review is to be limited

13 [2016] ACAT 83

10

to the extent that the proposed development complies with the relevant

Rules and Criteria. If a Rule is complied with, then the DA cannot be

disapproved by the Tribunal on that aspect of the proposal, even if it

considers that the associated Criteria are not fully satisfied or that the

Zone’s general objectives have not been achieved.

ii) Nevertheless, the Tribunal is entitled to satisfy itself from the evidence

given whether or not a Rule has been complied with; it is not obliged to

accept the decision of the original decision maker.

iii) If it is established that a Rule has not been satisfied, or if there is no

Rule, then the Tribunal is free to consider the extent to which the proposal

satisfies the Criteria and, if it concludes that any of the Criteria are not

satisfied, then it may set aside an approval of the proposal or impose

conditions that will overcome the deficiencies identified.

iv) The Tribunal considers that the Rules of the Code are a set of

standards which apply broadly to all residential areas of Canberra in

part, but with some specific provisions for different zones such as RZ1,

RZ2, RZ3 etc. The Rules apply without regard to the characteristics of a

specific site or context. If a Rule is met then there is a presumption that

that aspect of the proposal has achieved a desired outcome and meets the

intent of the element.

v) Criteria are framed in a quite different way and enable proposals to be

assessed having regard to the specific site, its topography and context,

including the proximity and characteristics of adjoining buildings and

spaces. An assessment against Criteria may potentially be helped by

reference to the standard of the related Rule but clearly the Plan does not

require this. The assessment that is required under the Criteria is one

which more directly considers the impact and design quality of a

proposal. (emphasis added) 14

37. These statements were qualified on appeal.

38. In Catherine Rudder v ACT Planning and Land Authority and Ors,15

the Appeal

Tribunal determined that the above quoted statement of the Tribunal’s

jurisdiction was (in part) wrong. At [14] – [15], the Appeal Tribunal said:

14. When the original tribunal referred to the “responsibility” of the

Tribunal it was referring to the ACAT’s jurisdiction in these matters. That

issue and the interpretation of Section 121(2) of the Planning and

Development Act 2007 (Planning Act) was further considered in detail by

the ACAT in the decision of Thomson v ACT Planning and Land Authority

[2009] ACAT 38. We accept and adopt that decision.

14 [2009] ACAT 7 at [29] 15 [2010] ACAT 24

11

15. That decision confirms that the Tribunal’s jurisdiction to review

decisions about development proposals in the merit track is limited by

section 121(2) of the Planning Act and that the limiting factor is

compliance with a relevant rule. If a development proposal complies with

a relevant rule, the Tribunal cannot review the decision to approval (sic)

the proposal on that point. Compliance with relevant criteria does not

limit the Tribunal’s jurisdiction. The original tribunal’s statement was

incorrect in so far as it referred to compliance with relevant criteria as a

limitation on the Tribunal’s jurisdiction. While it is important that the

error is acknowledged and corrected so that readers of the decision are

not misled, it does not follow that the error should lead to the setting aside

of the decision of the original tribunal. (emphasis added)

39. The Appeal Tribunal in Rudder at [21] – [22] went on to explain that the

Tribunal in Mason at first instance had nevertheless not fallen into error because

it had considered the matters in section 120.

40. For three reasons, the Tribunal accepts the submission of the Planning

Authority.

41. First, the passage in Mason on which Mr Erskine relied was overruled on

appeal. The Appeal Tribunal in Rudder interpreted section 121 in a manner

consistent with the position taken by the Planning Authority.

42. Second, if the legislature intended to confine the Tribunal’s jurisdiction on

review to consideration of whether applicable criteria were met, it could have

easily said so. Instead, where no rule applies, the Tribunal’s jurisdiction is stated

in section 121(2)(b) at large.

43. Third, the Planning Authority’s submission about the operation of section

121(2) causes compliance with a rule concerning a point (i.e. the subject of the

rule) to be determinative of the point, but otherwise places the Tribunal in the

same position as the Planning Authority. That interpretation should be preferred

where the Tribunal’s overarching function is de novo review.

44. For these reasons, the Tribunal concludes that it has jurisdiction to consider the

objectives of the zone where the development is approved to occur, subject to

the constraint that where a development is subject to a rule concerning an issue

or point and is compliant with that rule the Tribunal cannot further consider the

issue or point.

12

45. In this case, it is common ground that none of the proposed buildings complies

with rule 7 of the Community Facility Zone Development Code (the CFZ

Development Code) concerning building height. The question then is whether

the buildings comply with corresponding criterion 7, as discussed below.

However, in that circumstance the Tribunal must also consider the issues in

section 120 where relevant. Under section 120(a), those issues include the zone

objectives for the Community Facility Zone, but within limits.

The objectives for the zone - section 120(a)

46. In Baptist Community Services v ACT Planning and Land Authority and Ors,16

the ACT Court of Appeal considered the scope and purpose of section 120(a).

In particular, it considered the interaction between zone objectives and code

compliance in circumstances where section 55(2) of the P&D Act provides:

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

code relates.

47. The Court rejected the proposition that code compliance guarantees approval of

a development application, and found that the zone objectives are additional and

independent considerations when deciding whether to approve a development

application in the merit track. At [21] – [26], the Court said:

Consideration – does code compliance guarantee approval?

Requirement to consider zone objectives

21. The zone objectives are considerations in deciding a development

application. This suggests that they are relevant in the making of the

decision, and not only to the extent that they feed into the interpretation of

the relevant code.

Comparison – code track and merit track

22. Furthermore, the need to consider the zone objectives is one of the

important distinctions between the processes laid down for approvals

under the code track and under the merit track. Under s 116, a

development application under the code track must be approved if the

proposal complies with the relevant rules, which are “the rules that apply

to the proposal in each relevant code” (Dictionary to the Planning Act). A

development application under the merit track must not be approved

unless the proposal is consistent with the relevant code (s 119(1)).

16 [2015] ACTCA 3 at [17] – [26]

13

23. That is, code compliance is:

(a) both a necessary and a sufficient condition for code track

approval; but

(b) only a necessary condition for merit track approval.

24. That distinction in itself suggests that merit track approval may

require more than simple code compliance. In the absence of any other

specified necessary condition for merit track approval, and any explicitly

specified sufficient condition, the provisions appear to confer a discretion

to approve a proposal once code compliance is established, with the

discretionary element provided by the s 120 requirement for the decision-

maker to “consider” the zone objectives “in deciding a development

application” in the merit track.

Comparison – s 119 and s 120

25. Furthermore, a comparison between s 119 and s 120 makes it clear

that s 120 of its own force does not mandate a refusal of a development

application if a proposal that complies with the code is found to be

inconsistent with a zone objective.

26. Thus, analysis of ss 119 and 120 suggests that:

(a) code compliance opens up the possibility of development

approval being given in the merit track, but does not guarantee it;

(b) approval is discretionary after consideration of all relevant

matters identified in s 120;

(c) inconsistency with zone objectives would be relevant to the

exercise of the discretion, but does not activate any express

obligation to refuse approval.

48. At [34], the Court said:

The fact that codes must be consistent with each relevant zone objective

or, to put it another way, that zone objectives may provide useful

information for the interpretation of codes, does not exclude the

possibility that zone objectives have other roles within the Territory Plan

and the Planning Act. In the current context, zone objectives also have the

roles identified in ss 120 and 129 and referred to in Part 2.2 of the

Territory Plan.

49. And at [36], the Court said:

Accordingly, we reject the appellant’s argument that if a development

proposal in the merit or impact track complies with the applicable code

14

(as interpreted by reference to the zone objectives), then it must be

approved.

50. The Tribunal has applied these principles in this case.

51. Mr Glass submitted that the proposed development does not meet the objectives

for the Community Facility Zone. The submission was difficult to follow

because Mr Glass did not identify in relation to Contention 2 the zone objectives

that, he said, were not met. Instead he relied on several ancillary issues.

The CRFLG General Code

52. Mr Glass contended that proposed development did not comply with the

CRFLG General Code, paragraph 3.1, which provides:

All community and recreation facilities which are directly used by the

public should be located on or near public transport routes which provide

services which are appropriate to the user group of the facility.

53. Paragraph 3.1 must be read in the context of the whole document. The CRFLG

General Code commences with section 1 headed ‘Introduction’, which includes

four relevant statements.

This Code is for use in making decisions about where to locate a broad

range of community recreational facilities, whether new facilities or the

re-use of existing ones.

The Detailed Location Guidelines provide criteria for specific facilities.

It may not be possible to achieve all the detailed location guidelines in

locating a new facility. In this case, the location of facilities should still

try to meet the general location guidelines and the objectives of the Code.

It should be noted that this Code is not retrospective - it applies only to

the location of new facilities, whether on new or existing sites. They also

apply in re-using existing buildings for new purposes.

54. Mr Erskine made three submissions in relation to the CRFLG General Code:

(a) it does not apply because it only relates to ‘new facilities’. The

development, he said, is new buildings for an existing facility. He relied

on Mr Oshyer’s expert opinion, as a town planner, that the CRFLG

General Code is therefore not applicable.17

Mr MacCallum stated that his

17 Witness statement dated 10 March 2016 at [19(a)]

15

office “made the assessment that the [CRFLG General] Code was

specifically for the siting of new facilities and so we did not believe it was

relevant”;18

(b) the development does not need to comply with the CRFLG General Code

because the Code is no more than a guideline. It is not a relevant code for

the purposes of section 119; and

(c) if the CRFLG General Code does apply, the proposed development

nevertheless “meets it in spades”.

55. Dr Jarvis made three corresponding submissions in relation to the CRFLG

General Code:

(a) it does apply because the new buildings would be ‘new facilities’.

Ms Jamaly gave evidence that the Code applied for this reason and

because “the General Code also lists ‘retirement village’ as a use to which

this should apply”;19

(b) it is a guide, and should be used as a guide. It is not a relevant

development code, and it does not contain any mandatory rules and/or

criteria. It is not a relevant code for the purposes of section 119;20

and

(c) the proposed development nevertheless complies with it.

56. On the first issue, the Tribunal accepts the Planning Authority’s submission that

the CRFLG General Code applies because proposed Buildings A – F would be

“new facilities” and because the proposed development is a retirement village.

57. On the second issue, the Tribunal accepts that the CRFLG General Code is not a

relevant code for the purposes of section 119 of the P&D Act. It does not

contain any mandatory rules or criteria. The Tribunal accepts Ms Jamaly’s

evidence that the Code is only a guide to be considered. However, that

statement begs the question of the purpose for which it is to be considered. That

depends on the facts and circumstances. In some cases, it might be relevant for

18 Transcript of proceedings 31 March 2016, page 129, lines 4-5 19 Transcript of proceedings 31 March 2016, page 24, line 39 20 Transcript of proceedings 31 March 2016, page 32, lines 6 – 15

16

determining whether a relevant criterion is met. It might also be relevant when

giving consideration to a matter in section 120. It is not, however, a document

that can, by itself, be determinative of anything. In this case, paragraph 3.1 upon

which Mr Glass relied might therefore be relevant to the Tribunal’s

consideration of the “suitability of the land” per section 120(b) of the P&D Act.

However, whatever view is formed about the suitability of the land, it remains

only a matter for the Tribunal to consider. The Tribunal’s conclusion (and that

of the Planning Authority at first instance) would not be determinative, one way

or another, of whether to confirm or refuse approval of the development.21

58. On the third issue, the Tribunal accepts that the proposed development complies

with paragraph 3.1 of the CRFLG General Code. Beasley Street is a public

transport route, with bus stops. Farrer shops are within 200m of the proposed

development.22

It is not to the point that the Woden Town Centre and the

Mawson shops are further away.

59. Mr Glass also relied on the provision in the detailed location guidelines within

the CRFLG General Code that nursing homes should be located “to maximise

views and overlook active streetscape in residential areas”, yet the proposed

RACF (nursing home) does so to the extent practicable. Indeed that is one of

Mr Glass’ many complaints.

60. In other words, the proposed development’s compliance with the applicable

provisions of the CRFLG General Code, and paragraph 3.1 in particular, is a

factor in favour of, rather than against, a conclusion that the land is suitable for

the proposed development.

Spatial Planning and Urban Design Principles

61. Mr Glass relied on the Spatial Planning and Urban Design Principles within the

Territory Plan which state broad principles regarding housing types close to

commercial centres and major transport routes, and the encouragement of high

density development within and near major centres. Mr Glass did not explain

how these principles have a bearing on the zone objectives for land zoned

21 Baptist Community Services at [36] 22 Transcript of proceedings 1 April 2016, page 115, lines 27-34

17

Community Facility Zone, nor is the Tribunal persuaded that they do. They are

simply broad statements of principle regarding urban design. The Tribunal

accepts (with reliance on the evidence of Ms Jamaly and Mr Oshyer) that the

proposed development is ‘high density’, and that it is not located within or near

a major centre, but is not persuaded that this is a proper basis for refusing the

development.

62. Whether it should be approved or not must be determined according to what is

permissible on Block 10 under the Territory Plan, not what the Spatial Planning

and Urban Design Principles encourage to be built elsewhere.

The December 2010 consultation report

63. Mr Glass relied upon a Planning Authority report dated December 2010 entitled

‘Report on Consultation. Draft Variation to the Territory Plan No. 302’

concerning amendments to the Territory Plan in relation to land zoned

Community Facility Zone. In particular, he relied upon a comment on page 19

concerning rule and criterion 22 in the Multi Unit Housing Development Code

(the MUHDC) which limits the number of permissible storeys in land zoned

RZ5, and that criterion 22 “recognises that the form of development and

potential impacts on neighbours of these uses can be similar”.

64. The submission seemed to be that because residential care accommodation or

supportive housing permitted on land zoned Community Facility Zone (and

Block 10 in this case) can be materially similar to high-density residential

development permitted on land zoned RZ5, the Tribunal should treat the

proposed development as a high-density residential development and then

determine that Block 10 is therefore not suitable.

65. The Tribunal rejects the submission. First, rule and criterion 22 concern the

number of storeys referenced to land zoned RZ5. It would be an error to apply

rule and criterion 22 to any other zoned land. Such is made clear by rules and

criteria 18 – 21 in the MUHDC, which state the number of storeys permissible

on land zoned RZ1 – RZ4, respectively. Second, building height is expressly

dealt with in rule and criterion 7 in the CFZ Development Code.

18

The ACT Auditor General Report

66. Mr Glass relied on comments in the Performance Audit Report from the ACT

Auditor-General dated June 2012 and entitled ‘Development Application and

Approval System for High Density Residential and Commercial Developments.’

In her report, the Auditor-General expressed concern that “in the absence of

integrated design principles in the development application process

developments may be approved that are technically compliant but that may not

necessarily achieve the goals of the Territory Plan.” Mr Glass contended that the

“high density residential development under review here does not achieve

Territory Plan goals with regard to site suitability and should not be approved in

its current form.”23

67. The Tribunal does not understand the Auditor-General to be suggesting that a

compliant development should be refused. Rather she was expressing a broad

statement of concern at a general overarching level about the effectiveness of

development codes generally. Those are matters of policy, and are not a

sufficient basis to reject a specific development or the development in issue in

this case.

The suitability of the land for development of the kind proposed - section 120(b)

68. Mr Glass contended that the proposed development is a “high density residential

development” and that Block 10 is not suitable for such use. He characterised it

as high-density residential development by reference to its plot ratio

“appreciably greater than 100%”, its height of five or more storeys, its

“dwelling density of 73 per hectare not counting RACF building” and its total

gross floor area exceeding 30,000 metres². These features, he said, were

consistent with the kind of development contemplated for “high-density housing

RZ5 category”, and - referring to section 120(b) - Block 10 is not suitable land

for a development of that kind.

69. In substance, Mr Glass relied on these features to submit that the Tribunal

should conclude, subjectively, that Block 10 is not suitable for the proposed

development. The Tribunal rejects the submission. ‘Suitability’ must be

assessed in the context of the Territory Plan, and the applicable rules and/or

23 Statement of facts and contentions at [22]

19

criteria in relevant development codes in particular. Land is, by definition,

suitable for a proposed development in relation to identified features, issues or

‘points’ if it complies with applicable rules and/or criteria concerning those

features, issues or points.

70. In this case, therefore, Block 10 is suitable for a development having a plot ratio

greater than 100%, a dwelling density of 73 per hectare and a total gross floor

area exceeding 30,000 metres² because each of those features is permissible

under the relevant development codes. Furthermore, pursuant to section

121(2)(a) of the P&D Act, the Tribunal does not have jurisdiction to consider

whether Block 10 is nevertheless not suitable for the proposed development by

reference to any of those points because the development complies with the

applicable rules.

71. Whether it is suitable for a development with the height, bulk and scale

proposed in this case is better determined according to the relevant rules and

criteria in Element 2 of the CFZ Development Code rather than the generic

statement in section 120(b). The Tribunal considers that if the proposed

development complies with the relevant rules and criteria on these issues, the

land is suitable for the development in relation to these issues and vice versa.

These questions are therefore dealt with in response to Mr Glass’ third

contention.

72. For completeness, the Tribunal rejects the proposition that Block 10 is not

suitable for a nursing and aged care home. It has been used for this purpose for

nearly 40 years.

73. The Tribunal has also considered the remaining provisions of section 120.

Environmental significance opinion - section 120(c)

74. This section is not relevant because an opinion was not provided pursuant to

section 138AA of the P&D Act.

Representations received - section 120(d)

75. The Tribunal considered the representations that the Planning Authority

received, as included with the T documents, both generally and in the context of

20

Mr Glass’ submissions. The obligation to consider representations is not at

large. It is to the extent that the representations address issues relevant to

whether a proposed development is consistent with the P&D Act and the

Territory Plan as raised in the course of the review. The Tribunal is not required

to review a development approval generally, and may confine its consideration

of compliance with the Territory Plan to the issues raised by the parties.

76. In Stryver Pty Ltd ACT & Planning and Land Authority,24

the President of the

(then) ACT Administrative Appeals Tribunal said:

The [Territory] Plan was not meant to operate in a way that requires an

applicant to show positive proof of consistency with all its elements.

Given its size and the wording, to do so would be administratively

impossible. Rather, attention should be focused on the issues that are

presented by the parties before the Tribunal. Such an approach, the

respondent submitted, is consistent with the objectives of the Plan. The

Tribunal favours that approach as being sensible and practical in this

case.

Entity advice - section 120(e)

77. The only entity advice relevant to the issues in this case was the advice from the

Conservator of Flora and Fauna regarding preservation of trees. This is dealt

with in response to Mr Glass’ contention 7.

Environmental significance opinion - section 120(f)

78. This section is not applicable because Block 10 is not public land.

Probable impact of the development - section 120(g)

79. The proposed development entails continued use of Block 10 as residential care

accommodation and as a retirement village. Although it contemplates a

significant increase in the number of occupants, the Tribunal does not consider

this will have any material impact on anyone in the context of noise, traffic or

parking. Mr Glass does not suggest otherwise.

80. The only real impacts will be in terms of the presence of the proposed buildings

(particularly in relation to their bulk, height and scale), loss of views from

residences on Marshall Street and possible overlooking of residences across the

floodway from proposed Building E. All of those issues are dealt with in the

24 [2004] ACTAAT 42 at [7]

21

context of applicable rules and criteria. For this reason, the Tribunal is of the

view that these issues must be assessed by reference to those rules and criteria,

as dealt with further in these reasons for decision. For the purposes of section

120(g), the probable impact of the proposed development has been considered

in that manner.

Contention 3 - development not consistent with the desired character in terms of

building height

Preliminary remarks

81. Mr Glass explained in his statement of facts and contentions that “the principal

concern here is the impact of building height upon visual amenity.” Mr Glass

took the Tribunal to paragraph 2.16 of the Statement of Strategic Directions

made under section 52 of the P&D Act. The Statement sets out general

principles concerning urban design and states “special attention will be given to

safeguarding visual amenity”. In this regard, Mr Glass also relied on objective

(f) of the zone objectives for the Community Facility Zone.

82. Mr Glass contended that the visual amenity of the surrounding single dwelling

residences is not safeguarded in the proposed development.25

83. The Tribunal rejects the proposition that it can or should make ‘stand alone’

qualitative judgements about whether the height of the proposed development

adequately safeguards visual amenity. The issue must be determined by

reference to the rules and/or criteria applicable to this development.

84. Rules and criteria concerning building heights in a Community Facility Zone

are set out in Element 2: Building and site control, rules and criteria R7/C7 and

R8/C8 of the CFZ Development Code

85. Rules and criteria R7/C7 and R8/C8 of the CFZ Development Code provide as

follows:

Rules Criteria

2.1 Building Height

R7

The maximum building height is:

C7

Buildings achieve all of the following:

25 Mr Glass, statement of facts and contentions at [26]

22

a) for that part of the building

within 30m of a residential block

– the greater of the following:

(i) 2 storeys

(ii) the maximum number of

storeys permitted on that

residential block

b) in all other cases – the lesser of

the following:

(i) 4 storeys

(ii) 15 metres height of

building.

For this rule:

Residential block means a block that

has at least one of the following

characteristics –

a) zoned residential

b) affected by a lease which

authorises residential use

but does not include any land

intended to remain as unleased

Territory land or public open

space.

a) consistency with the desired

character

b) a scale appropriate to the

proposed use

c) reasonable separation from

adjoining developments

d) reasonable privacy for

dwellings on adjoining

residential blocks

e) reasonable privacy for

principal private open space

on adjoining residential blocks

f) reasonable solar access to

dwellings on adjoining

residential blocks and their

associated principal private

open space.

2.2 Setbacks

R8

Minimum setback of buildings to

boundaries of blocks in a residential

zone is 6m.

C8

Buildings and other structures are

sited to achieve all of the following:

a) consistency with the desired

character

b) reasonable separation from

adjoining developments

c) reasonable privacy for dwellings

on adjoining residential blocks

d) reasonable privacy for principal

private open space on adjoining

residential blocks

e) reasonable solar access to

dwellings on adjoining

residential blocks and their

associated principal private open

space.

23

86. The Planning Authority and Goodwin Homes accepted that none of the

proposed buildings complies with rule 7 in the CFZ Development Code, but

contended that each of the proposed buildings complies with criterion 7.

87. Criterion 7(a) requires “consistency with the desired character”.

88. For the purposes of Element 2 of the CFZ Development Code, comprised of

rules and criteria 7, 8 and 9, 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.

89. Referring to the definition of desired character, the zone objectives for the

Community Facility Zone are as follows:

(a) To facilitate social sustainability and inclusion through providing

accessible sites for key government and non-government facilities

and services for individuals, families and communities.

(b) To provide accessible sites for civic life and allow community

organisations to meet the needs of the Territory’s various forms of

community.

(c) To protect these social and community uses from competition from

other uses.

(d) To enable the efficient use of land through facilitating the co-

location, and multi-use of community facilities, generally near

public transport routes and convenience services appropriate to the

use.

(e) To encourage adaptable and affordable housing for persons in need

of residential support or care.

(f) To safeguard the amenity of surrounding residential areas against

unacceptable adverse impacts including from traffic, parking, noise

or loss of privacy.

90. All parties referred to zone objective (f).

91. Mr Glass submitted that the ‘adverse impact’ of building heights upon visual

amenity was at the core of the residents’ concerns, together with “overbearing

24

bulk and scale and consequent adverse impact upon the amenity of adjoining

properties”.26

92. Dr Jarvis and Mr Erskine properly noted that objective (f) recognises that

development can have an adverse impact on surrounding residential areas;

objective (f) concerns ‘unacceptable’ impacts. Dr Jarvis pointed out that “this

tribunal has made it clear [in other cases that the] adverse impact has to be

something undue…something more than one would expect from a four storey

residential care facility on the site”.27

93. Mr Erskine argued that “there might be an adverse impact (that) does not excite

the attention of (clause) (f)…you will have to come up with a reasoned or

rational approach to what is unacceptable”.28

He contended also that perceptions

will vary depending on distance. Mr Erskine said by way of example that

“anybody looking at Building E would be doing so from a considerable distance

away, relatively speaking, [which] is a very important consideration…because it

has the effect of reducing the impact that there might be visually of Building

E.”29

94. In her statement, Ms Jamaly stated that “the proposed development will appear

as a predominantly 4-storey building when viewed from the street level of

Marshall Street”. With regard to Building E, she stated that “retention of

existing vegetation within the open space and the proposed landscaping will

further minimise any visual impact”.30

95. Mr Oshyer stated that in his opinion the proposed development will be

compliant with zone objective (f), and that protection of visual amenity is not a

matter that is raised in Territory Plan for consideration in merit track

assessment.31

26 Mr Glass, statement of facts and contentions at [38] 27 Planning Authority’s statement of facts and contentions at [26]; transcript of proceedings

1 April 2016, page 77, line 5 and page 75, line 5 28 Transcript of proceedings 1 April 2016, page 93, line 25 29 Transcript of Proceedings 1 April 2016, page 97, line 2 30 Witness statement of Ms Jamaly at [55] and [57] 31 Witness statement of Mr Oshyer at [28] and [29]

25

96. In the Tribunal’s view, consideration of whether a qualitative criterion is met

should be referenced to its corresponding rule where there is such a rule. In

other words, the extent of a departure from a rule is a relevant consideration. In

this case therefore, consideration of whether the height of the proposed

buildings would have an “unacceptable adverse impact” should have regard to

the maximum height of each building permissible under rule 7(b)(ii).

97. Height of building is defined in the Definitions to the Territory Plan as follows:

vertical distance between datum ground level to the highest point or points

of the building

98. In order to assess the impact of the development in terms of building height, it

was necessary for the Tribunal to determine the datum ground level for each

building.

99. Datum ground level is defined in the Definitions to the Territory Plan as

follows:

the level of the surface of the ground as defined in a field survey and

authorised by a qualified surveyor at the time of operational acceptance

for greenfield development or prior to any new earthworks having

occurred after that time.

100. The Tribunal was provided with two survey plans of the subject site. Drawing

number HIOB5 dated December 1975 forms part of the ACT contour series for

Woden 5. Contour lines added to this drawing in August 1975 show original

ground levels in imperial units above sea level. The Tribunal accepts that this is

the earliest known contour map of the site. The drawing shows that the highest

point of the site is near the centre of the frontage to Marshall Street and that the

site falls approximately 15 feet (about 4.5 metres) to the west and north to its

lowest point at the western end of its frontage to Beasley Street.32

101. Detail survey plan number 0315904DET dated January 2012 prepared by

consulting surveyors Mail McDonald Barnsley shows contours over the site in

metric dimensions to Australian Height Datum (AHD). Contour lines at 0.25

metre centres indicate various areas of cut and fill for existing buildings,

32 Drawing number HIOB5, at T documents, page 215

26

internal roads and landscape features. The contour lines also show where excess

soil from excavations has been used to mould finished ground levels around the

perimeter of the site, including an earth berm some 1.5 metres high for about

half of the length of the boundary to the Urban Open Space on Block 8 Section

7 Farrer.

102. To assist in the Tribunal’s consideration of the visual impact of the buildings,

Goodwin Homes provided detail measurements of separation distances between

each of the proposed buildings and the surrounding residential property

boundaries.33

The Tribunal relied on these separation distances in its

consideration of the visual impact of the development. These drawings also give

spot levels at a number of points around the perimeter of the site which the

Tribunal found useful in checking ground levels deduced from the survey plans.

103. The Tribunal used the information contained in the two survey plans referred to

above to arrive as closely as possible at the likely original ground levels at the

perimeter of the site. The Tribunal did not attempt to calculate original ground

levels within the boundaries of the site. It appears to the Tribunal that

community concern as to the visual impact of the proposed development should

sensibly be focused on consideration of the buildings and landscape as they

would appear from private and public viewpoints outside the boundaries of the

site.

104. The Tribunal adopted the levels of pedestrian footpaths shown in the 2012

survey by Mail McDonald Barnsley as approximating the original ground levels

along the boundaries of the site on Marshall Street and Beasley Street. These

footpath levels generally accord with spot levels on the marked-up plans

provided by Goodwin Homes.

105. The Tribunal has estimated original ground levels along the boundary of the site

with the adjacent Urban Open Space on Block 8 Section 7 Farrer using as

datums the footpath levels at Marshall Street and Beasley Street as surveyed in

33 This information was provided to the Tribunal on two plans of the site and surrounding

properties prepared by Mr MacCallum at a scale of 1:500 with the handwritten titles “drawing marked with separation distances across Marshall Street/floodway”

27

2012 and interpolating spot levels from the fairly even fall of the land shown on

the 1975 survey.

106. From the information noted above, the Tribunal determined approximate ground

levels on the perimeter of the subject site, being the relevant datum ground level

for each of the proposed buildings as follows:

(a) Marshall Street: footpath at north and south ends AHD 634.0; footpath at

Building A 634.5 AHD; footpath at Building B 635.0 AHD; footpath at

Building C 635.5 AHD; footpath at Building D 635.0 AHD.

(b) Beasley Street: footpath falls approximately four metres from north to

west (AHD 634.0 to 630.0); footpath at Building A 632.5 AHD; footpath

at mid-point of Building F 629.5 AHD.

(c) Boundary to Urban Open Space on Block 8 Section 7 Farrer: land falls

approximately 4.5 metres from south to north (AHD 634.0 to 629.5); 1975

ground levels (in metric units) at south end of RACF 632 AHD; at mid-

point of RACF 631.75 AHD; at north end of RACF 630.5 AHD.

Assessment of individual buildings

Assessment of Building A

107. Building A is in the north corner of the site. It has the smallest footprint of the

proposed new buildings and is the only building with a frontage to more than

one residential street. The principal frontage is to Beasley Street with a

comparatively narrow facade to Marshall Street. It is set back 13.196 metres

from the boundary on Beasley Street and is 5.629 metres from the boundary on

Marshall Street. There is a minimum separation of the building of 33.663 metres

from residential property across Marshall Street and 61.917 metres from

residential property across Beasley Street.

108. Residential accommodation in Building A is on the ground floor and on three

upper floors. A basement carpark is accessed from an internal roadway and is

not visible from Marshall Street or Beasley Street. Ground floor RL is 634.6

(100mm above footpath level at Marshall Street and 2.1 metres above footpath

level at Beasley Street). Top floor RL is 643.87. Roof level is not given but the

28

Tribunal has assumed it to be four metres above the topmost floor level at

648.97 AHD.

109. Basement is defined in the Definitions to the Territory Plan as a “space within a

building where the floor of the space is predominantly below datum ground

level and where the finished floor level of the level immediately above the space

is less than 1.0 metre above datum ground level”. ‘Storey’ is defined as a “space

within a building that is situated between one floor level and the floor level next

above, or if there is no floor level above, the ceiling or roof above but does not

include an attic or a basement.”

110. Buildings A, B, C, D and F have basement carparks at various levels below

datum ground level. The ground floor levels generally are more than one metre

above datum ground level. The carparks under Buildings A, B, C, D and F are

therefore not considered as basements and are counted as storeys. Building E

has a ground floor level less than one metre above datum ground level. The

basement carpark under Building E is therefore a basement level and is not

counted as a storey

111. Building A will be a five-storey building with a basement carpark and four

upper floors, but will present as a four storey building to Marshall Street and

Beasley Street. The height of the roof is about 12.4 metres above the footpath

on Marshall Street and about 15 metres above the footpath on Beasley Street.

112. The departure from sub-rule 7(b) is therefore not significant. But for the

basement constituting the first storey, Building A would have four storeys, be

less than 15 metres high and therefore would comply with sub-rule 7(b).

113. Concerning criterion 7(a), Mr Glass contended, as did residents along Marshall

Street in their representations, that Building A would have an unacceptable

adverse impact on their amenity, both in its obstruction of their existing views

to the hills beyond and in having to ‘look at’ the building.

114. Mr Oshyer from Knight Frank Town Planning gave evidence as an expert

witness in town planning. In his opinion, zone objective (f) is not concerned

with visual amenity, in the sense that it is not concerned with protecting the

29

visual amenity of surrounding residential areas against “unacceptable adverse

impact”. ‘Visual amenity’, he said, is not a matter that is raised in the Territory

Plan for consideration in merit track assessment.34

115. The architect, Mr MacCallum, took a similar attitude stating:

I do not believe I was required to design this development with respect to

adjoining neighbour’s views.35

116. There is, perhaps, some ambiguity as to whether Mr Oshyer and Mr MacCallum

were contending that the Territory Plan is not concerned with protecting

existing views that residents may currently enjoy, or not protecting them from

the adverse impact of looking at the proposed development. The Tribunal

presumes the former in circumstances where Dr Jarvis submitted that the

Tribunal should have regard for visual impact in terms of “how big it looks.”

117. The Tribunal agrees. The Tribunal has previously determined that there is no

inconsistency with any identifiable provision of the Territory Plan in relation to

the loss of views.36

However an important reason for restrictions on building

height is to limit the impact of nearby residents who will, forever after, have to

look at the building.

118. The Tribunal has considered zone objective (f) and concluded that Building A

will not have an ‘unacceptable adverse impact’ on those residential areas across

Marshall Street. The fall of the land will cause Building A to present as

compliant with sub-rules 7(b)(i) and (ii). The Tribunal also took into account

that the residents across Marshall Street are on the ‘high side’ of the street and

that the building is set back from Marshall Street considerably further than

existing Building G.

119. The Tribunal has also concluded that Building A will not have an ‘unacceptable

adverse impact’ on those across Beasley Street. As with Marshall Street,

Building A is set back from the roadway with a generous verge and will present

to Beasley Street as complying with sub-rule 7(b).

34 Witness statement of Mr Oshyer at [28]; Transcript of proceedings 1 April 2016, page 5, line

41 35 Witness statement of Mr MacCullum at [32(a)] 36 Raphael and Ors & ACT Planning & Land Authority [2010] ACAT 89 at [36] – [40]

30

120. Concerning criterion 7(b), Building A will comply with C7(b) because it will be

of “a scale appropriate to the proposed use”. The Tribunal accepts Ms Levy’s

evidence about the high demand for residential care accommodation in

Canberra and concludes that the scale of Building A is appropriate in meeting

that demand.

121. Concerning sub criteria 7(c) – (f), these criteria apply only in relation to

adjoining developments or adjoining residential blocks. ‘Adjoins’ is not defined

in the Territory Plan. Its ordinary dictionary definition therefore needs to be

applied, meaning relevantly “to be in connection or contact with; abut on.”37

It

follows that none of these sub criteria are applicable because Block 10 is

separated from the residential blocks by roads or the floodway and does not

adjoin any other development or residential block.

122. Mr Glass referred the Tribunal to section 153(7) of the P&D Act, which defines

‘adjoins’ as including the circumstance where a place is separated from another

place by a road, reserve, river, watercourse or similar division. The Tribunal

rejects the submission that this definition can be applied to the Territory Plan.

The definition is expressly stated as applying “in this section” and is in the

context of an obligation to provide public notice of a proposal to adjoining

premises, being an entirely different context to planning approval.

123. For these reasons, the Tribunal concludes that Building A complies with

criterion 7. Having considered the matters in section 120 of the P&D Act, the

Tribunal concludes that the decision to approve Building A with conditions

should be confirmed.

Assessment of Building B

124. Building B is on Marshall Street immediately south of Building A. It is set back

approximately 26 metres from the boundary of Block 10. The separation of

about 38 metres from residential properties on the other side of Marshall Street

is approximately eight metres greater than the separation required in order for a

four-storey building to comply with rule 7(b) of the CFZ Development Code.

37 Macquarie Dictionary, fifth edition, 2009

31

125. Residential accommodation is on the ground floor plus four upper floors.

Ground floor RL is 634.6 (400mm below footpath level on Marshall Street).

Top floor RL is 647.06. The roof level is not given but is assumed to be 4.5

metres above the topmost floor level at about RL 651.5.

126. As previously noted, the carparks under Buildings A, B, C and D are counted as

storeys. Building B therefore has six storeys but the basement level will not be

visible from outside the site. Building B will present to public view as a five-

storey building. The topmost floor is shown as set back from the floors below,

although the setback is not dimensioned. The top of the roof is approximately

16 metres above the footpath on Marshall Street.

127. For these reasons, Building B does not comply with rule 7(b) (i) or (ii). The

Tribunal has therefore considered whether the height of Building B complies

with criterion 7.

128. Concerning criterion 7(a), Building B will present to Marshall Street as a

substantial five-storey building approximately 16 metres high and more than 30

metres wide.

129. In her consideration of whether Building B is consistent with the desired

character, Ms Jamaly made no reference to the actual height of Building B but

nevertheless stated that the development contributes positively to the

streetscape:

by maintaining the existing landscaped verges, retention of street trees

and trees within the open space adjacent to the site, retention of mature

healthy trees within the site, providing generous front setbacks and spatial

separation between buildings both within the block and to adjacent

dwellings to allow for well landscaped areas, integrating landscape and

buildings to achieve good amenity for residents and adjoining dwellings.38

130. The Tribunal disagrees with this assessment and is of the opinion that, despite

the generous setback, the height and width of Building B would deliver an

unacceptable adverse impact on the streetscape and the amenity of surrounding

residential areas.

38 Witness statement of Ms Jamaly at [68]

32

131. Concerning criterion 7(b), the Tribunal accepts that, as with Building A,

Building B would be of “a scale appropriate to the proposed use” because of the

high demand for residential care accommodation. However, that demand is not

a sufficient reason to displace other factors necessary to meet criterion 7.

132. Concerning criteria 7(c) – (f), again the Tribunal accepts that these provisions

are not relevant because there are no residential blocks or developments which

adjoin the subject site.

133. The Tribunal therefore concludes that Building B does not comply with

criterion 7 in the CFZ Development Code because it does not achieve

consistency with the desired character in terms of siting, building bulk and scale

and the nature of the resulting streetscape, consistent with zone objective (f), to

safeguard the amenity of surrounding residential areas against unacceptable

adverse impacts.

134. For these reasons, the Tribunal concludes that Building B does not comply with

the CFZ Development Code. Pursuant to section 119 of the P&D Act, its

approval must therefore be set aside.

135. The Tribunal’s primary concern with Building B is its width and height. It is for

Goodwin Homes to redesign Building B to achieve compliance with criterion 7

of the Code.

Assessment of Building C

136. Building C is at the midpoint of the frontage to Marshall Street and is on the

highest point of the site. Building C is set back approximately 13.3 metres from

the property boundary and is separated by about 31 metres from residential

blocks across Marshall Street.

137. Building C has a basement and five upper storeys at the western end of the

building towards the centre of Block 10. The basement level will not be visible

from the public domain. At the eastern end facing Marshall Street part of the

building is reduced to four storeys plus a basement. Residential accommodation

is on the ground floor and the upper floors of the building. Ground floor RL is

634.8 (about 700mm below footpath level on Marshall Street). Top floor RL is

33

647.57. The roof level is not given but assumed to be a minimum of four metres

above the topmost floor level at approximately RL 651.5.

138. The plans show that the topmost floor level is set back about 15 metres behind

the main line of the building façade to Marshall Street. Because of this setback,

Building C will present as a predominantly four-storey building from Marshall

Street. The height of the roof at the west end of Building C away from Marshall

Street is about 16 metres above the footpath at Marshall Street but the visual

impact of this top storey from the public domain will be minimal.

139. In all material respects, Building C will present as a four-storey building less

than 15 metres in height. The departure from sub-rule 7(b) is therefore not

significant.

140. Concerning criterion 7(a), the Tribunal has concluded that Building C,

consistent with Building A and for the same reasons, will not have an

‘unacceptable adverse impact’ on surrounding residential areas including those

across Marshall Street.

141. Concerning criteria 7(b) – (f), the Tribunal’s conclusions regarding Building A

apply equally to Building C.

142. For these reasons, the Tribunal concludes that Building C complies with

criterion 7 in the CFZ Development Code. Having considered the matters in

section 120 of the P&D Act, the Tribunal concludes that the decision to approve

Building C on conditions should be confirmed.

Assessment of Building D

143. Building D is immediately south of Building C. It is set back approximately 38

metres from the property boundary and is about 45 metres from residential

blocks on the other side of Marshall Street. The separation is approximately

eight metres greater than the separation required to permit compliance with sub-

rule 7(b) of the CFZ Development Code.

144. In all material respects, Building D is identical with Building B. It is a six-

storey building because the basement carpark is the first storey. Residential

accommodation is on the ground floor and on the five upper floors. Basement

34

parking is accessed from the internal roadway and will not be visible from

outside the site. Ground floor RL is 634.6 (the same level as Building B) and

about 400mm below footpath level on Marshall Street. The top floor is shown

as a penthouse floor at RL 647.06. The roof level is not given but is assumed to

be a minimum of 4.5 metres above topmost floor level at RL 651.56.

145. Building D will present to Marshall Street as a five-storey building. The

topmost floor is shown as set back from the floors below, although the setback

is not dimensioned. The top of the roof is approximately 16.5 metres above the

footpath on Marshall Street.

146. For these reasons, Building D does not comply with sub-rule 7(b)(i) or (ii). The

Tribunal has therefore considered whether the height of Building D complies

with criterion 7.

147. For the reasons given in relation to Building B, the Tribunal concludes that

Building D does not comply with criterion 7. Pursuant to section 119 of the

P&D Act, its approval must therefore be set aside. The Tribunal’s comments as

to possible changes to Building B in order to achieve compliance with criterion

7 apply equally to Building D.

Assessment of Building E

148. Building E is the Residential Aged Care Facility (RACF). It is sited nominally

parallel to the boundary with Block 8 Section 7 Farrer (Urban Open Space) with

a setback of approximately 3.948 metres from this boundary at the mid-point of

the building. The entrance to the building is from an internal roadway and

garden area near the centre of the site.

149. Separation from the eight residential properties across the Urban Open Space is

a minimum of 33.663 metres and a maximum of 38.675 metres. The separation

from the detached residence of Mr Glass on Block 3 Section 5 Farrer is 47.944

metres. The eight residential blocks to the west are all in an RZ1 zone. The

Urban Open Space is reserved open public land primarily for the purpose of

providing a floodway.

35

150. Rule 8 in the CFZ Development Code states that “the minimum setback of

buildings to boundaries of blocks in a residential zone is 6 metres”. Building E

complies with rule 8 because it is separated from boundaries of the blocks in the

residential zone to the west by the intervening Urban Open Space. There is

therefore no need (nor power) for the Tribunal to consider compliance or

otherwise with criterion 8.

151. The proposed development retains the existing earth berm outside the boundary

of Block 10 with the Urban Open Space. The levels of this berm are above the

datum ground levels referred to previously. In the context of proposed Building

E, the Tribunal acknowledges that the raised ground line along this boundary

will to some extent reduce the apparent height of the building when viewed

from the residential properties on the other side of the floodway but it will not

reduce the actual height of the building nor its visual impact in the longer view.

As noted, Mr Glass is concerned with both the height and the length of Building

E.

152. Building E will present as a five-storey building from within the site. It will

present from outside the site as five occupied floors above the ground.

Accommodation will be on the ground floor and on four upper floors. A plant

room near the centre of the building will increase the height of the building by

approximately three metres above the roof. Basement parking is accessed from

an internal roadway and is not visible from the Urban Open Space or

surrounding streets. Ground floor RL is 630.90. This is 1.10 metres below the

1975 ground level at the southern end of the RACF; 0.85 metre below the 1975

ground level at the midpoint of the RACF; and 0.40 metre above the 1975

ground level at the northern end of the RACF. Top floor RL is 643.90. The roof

level is not given but is assumed to be four metres above the topmost floor level

at RL 648.969.

153. The roof is 18.47 metres above the 1975 ground line at the northern end of the

RACF and 16.97 metres above the 1975 ground line at the southern end of the

building.

36

154. For these reasons, Building E does not comply with Rule 7(b) (i) or (ii). The

Tribunal has therefore considered the height of Building E against criterion 7.

155. Concerning criterion 7(a), Mr Glass submitted that Building E is not consistent

with the desired character. He referred to its substantial bulk, height and scale,

in comparison to the single level dwelling residences to the west. The Tribunal

notes relevant features concerning the “siting, building bulk and scale” of

Building E as follows:

(a) Concerning siting, separation from the residential blocks is achieved

solely by the floodway.

(b) Concerning bulk and scale, the profile of Building E is not stepped in any

way nor is it articulated in plan as with Building G. Building E will

present as a five-storey building from all points outside the site. The

height of the roof is 18.47 metres above the 1975 ground line at the north

end of the RACF and 16.97 metres above the 1975 ground line at the

south end of the building.

(c) Concerning built form, Element 3 in the CFZ Development Code relates

to external materials and finishes and the interface of buildings with

public spaces. There are no applicable rules in these areas. However,

criteria 10 and 11 are relevant to a consideration of Building E. Criterion

10 provides: “where development presents a blank façade to an adjoining

block or public space, a visually interesting architectural treatment is

applied to that wall through the use of one or more elements such as

colour, articulation, materials and shadows”. Criterion 11 provides:

“buildings use high quality materials and have façade(s) with interesting

architectural treatments through the use of one or more elements such as

colour, materials, shadows or deep framing profiles”.

156. Mr MacCallum describes the proposed development as being “predominantly

masonry in character reiterating that of the surrounding Farrer buildings and the

retained Building G. There is an alternating rhythm of brickwork types and in

the use of rendered masonry and lightweight cladding.”

37

157. In her statement, Ms Jamaly says that the proposed buildings:

have well-articulated facades including balconies, shading devices,

glazing and visually interesting architectural elements. The development

proposes high quality building materials and a balanced palette of

materials including brick, rendered masonry, metal cladding and timber-

look soffits…The design, detailing and finish of the roof forms of all

buildings provide an appropriate scale and add visual interest to the

proposed development.39

158. As noted elsewhere, Ms Jamaly also contends that the proposed development:

contributes positively to the streetscape by maintaining the existing

landscaped verges…generous front setbacks and spatial separation

between the buildings both within the block and to adjacent dwellings to

allow for well landscaped areas, integrating landscape and buildings to

achieve good amenity for residents and adjoining dwellings.40

159. Sample panels have been prepared showing that Building E will have a wide

range of external materials and finishes. However, the Tribunal notes that the

use of these materials may not achieve the ‘interesting architectural treatments’

suggested in criteria 10 and 11 of the CFZ Development Code. The Tribunal

considers that other factors may be helpful in the delivery of the required

‘interesting architectural treatments’, including creative articulation of the plan,

elevations and silhouette of Building E which might also reduce its apparent

bulk, height and scale when viewed from the residential areas to the west of the

site.

160. Mr Erskine submitted:

Building E is the exception in a number of respects…first because it is a

bit longer than some of the other ones and second because unlike the

other boundaries it doesn’t necessarily have anything immediately in front

of it by way of additional buildings that will soften the impact.41

161. Mr Erskine submitted that “the question of building height is not an

unacceptable impact in the setting of this particular proposal”.42

39 Witness statement of Ms Jamaly at [19] and [20] 40 Witness statement of Ms Jamaly at [68] 41 Transcript of proceedings 1 April 2016, page 96, line 22 42 Transcript of proceedings 1 April 2016, page 97, line 16

38

162. Mr Erskine and Dr Jarvis both submitted that Building E is consistent with the

desired character, and referred to aspects of the definition in support of their

submission.

163. First, they contended that questions of siting, building bulk and scale must be

referenced to the “resulting streetscape”.43

The word streetscape is defined in

the Definitions to the Territory Plan. It concerns issues concerning visible

components “within a street (or part of a street). In this case, they said,

questions of siting, bulk and scale are irrelevant when considering desired

character because there is no street: Building E addresses a floodway.

164. The Tribunal rejects that construction. To accept this interpretation would cause

issues of siting, building bulk and scale to become irrelevant whenever a

development did not affect a streetscape or part of a street. The preferable

construction, and a fair reading of the definition, is that (i) siting; (ii) building

bulk and scale; and (iii) the nature of the resulting streetscape are independent

factors, each to be taken into account when deciding whether “the form of

development ... is consistent with the relevant zone objectives”. All that can be

said in the case of Building E is that the third of these factors is not relevant.

165. Second, they contended that the substantial separation of Block 10 and Building

E from the residential blocks to the west will ameliorate the adverse impact of

Building E to such an extent that the impact could not be regarded as

“unacceptable”. For this reason, they submitted, Building E will achieve

consistency with the desired character.

166. The Tribunal agrees that the separation would ameliorate the impact of Building

E on the residents to the west, but not to the point that the impact is acceptable.

Having regard to the scale of the departure from rule 7 and the absence of any

other ameliorating features, especially in terms of angulation or articulation, the

Tribunal has concluded that Building E with its present siting, design and shape

does not comply with criterion 7(a) because it is not consistent with zone

objective (f). In particular, the Tribunal is of the opinion that the height and

length of Building E and its location directly on the boundary of the subject site

43 Transcript of proceedings 1 April 2016, page 23, line 35

39

would deliver an unacceptable adverse impact on the amenity of the residential

areas to the west.

167. An additional storey on any building is a material factor when considering

appropriate building heights. A building of four storeys would itself be

significantly different in height from any of the buildings on the surrounding

blocks. The issue is compounded by its length of approximately 93 metres.

168. In this case, Goodwin Homes seeks a further storey in addition to the maximum

permissible under rule 7. Departure from the four-storey limit in sub-rule 7(b)

may be appropriate in some circumstances, for example if the departure was

minimal or if the additional height was demonstrably sympathetic to the

surrounding buildings or if it were angled away from the boundary or stepped in

silhouette, but no such scenarios have been presented. Regardless of the

proposed architectural treatments and landscapes that are comparatively minor

detail, Building E remains, in substance, a rectangular five-storey box between

some 17 metres and 18 metres high and 93 metres wide directly facing single

storey residential dwellings.

169. Concerning criterion 7(b), the Tribunal accepts that there is a high demand for

aged care accommodation in Canberra and is conscious of Goodwin Homes’

wish to accommodate as many persons as practicable in the RACF. The

Tribunal understands Goodwin Homes’ wishes to provide this accommodation,

but it needs to be in accordance with the Territory Plan.

170. The Tribunal concludes therefore that the preferable course is to set aside the

decision under review to provide Goodwin Homes with a full opportunity to

redesign Building E in a manner that would be compliant with criterion 7,

having regard to these reasons, rather than impose a variation to require

compliance with rule 7. As presently sited, compliance with rule 7 would

require removal of the top floor. That is not a necessary outcome.

171. Concerning criterion 7(c) – (f), Mr Glass contended that Building E does not

provide reasonable separation between it and the residential developments to the

west nor secure reasonable privacy for the dwellings or the principal private

open spaces on those residential blocks. He contended:

40

the occupants of Building E upper floors in particular will be able to

easily overlook the boundary fences and privacy rules of these residential

properties he also noted that unlike regular residential developments is

occupants are often away working during weekdays “there will be no

respite for us”; Building E is expected to be fully occupied at all times

with residents and staff.44

172. Goodwin Homes challenge this viewpoint on two grounds.

173. First, sub-criteria 7(c) – (f) concern separation and privacy from adjoining

developments or blocks. That is not applicable in this case, they say, because

Block 10 does not adjoin any other block: it is separated by the floodway from

the blocks to the west.

174. Second, even if these paragraphs were applicable, the development complies

with them because Block 10 (including its upper floors) is at least 36 metres

from the residential blocks to the west. At that distance, they said, the substance

of any overlooking would be minimal.

175. The Tribunal accepts both of those submissions. As discussed above, Block 10

does not adjoin any of the residential blocks to the west. In any event, the word

adjoining in sub-criteria 7(c) – (f) informs the nature and degree of separation

and privacy between developments on adjoining blocks. The floodway creates a

distance of between 33 and 38 metres between Block 10 and the residential

blocks to the west.

176. Concerning criterion 7(f), the Tribunal also notes that where Block 10 is to the

east of the residential blocks, there can be no suggestion that Block 10 will

impede solar access to the dwellings or the private open spaces on those blocks.

177. For these reasons, the Tribunal has concluded that Building E does not comply

with criterion 7(a) of the CFZ Development Code. Pursuant to section 119, its

approval must therefore be set aside. It is for Goodwin Homes to redesign

Building E to achieve compliance with criterion 7 of the Code.

44 Statement of facts and contentions at [47]

41

Assessment of Building F

178. Building F is the same width as Building A, save that it is about twice as long

and is set further back from Beasley Street. The building presents a

comparatively narrow face to the west across the Urban Open Space on Block 8

Section 7 Farrer. Building F has a minimum separation of 62.210 metres from

residential blocks on the north side of Beasley Street.

179. As noted previously, the basement level is regarded as the first storey. Although

Building F is technically a six-storey building, it will present as a five-storey

building from all points outside the site. Residential accommodation is on the

ground floor and on the four upper floors. Basement parking is accessed from

the internal roadway and is not visible from Beasley Street. Ground floor RL is

631.65 (1150mm above footpath level at the midpoint of Building F). Top floor

RL is 643.66. The roof level is not given but is assumed to be four metres above

the topmost floor level at RL 647.66. The height of the roof is therefore

approximately 18.16 metres above the footpath on Beasley Street.

180. For these reasons, Building F does not comply with sub-rule 7 (b)(i) or (ii). The

Tribunal has therefore considered the height of Building F against criterion 7.

181. Concerning criterion 7(a), Building F presents to Beasley Street to the north and

to residences to the west across the floodway. Nevertheless, the Tribunal

considers the proposed height is acceptable in its presentation to Beasley Street.

The separation of more than 60 metres from properties on the other side of

Beasley Street is more than twice the separation within which a four-storey

building is permissible. Also, Beasley Street is a collector road, and several of

the properties across Beasley Street have non-residential uses. The Tribunal is

of the view that it is compliant with criterion 7 for materially the same reasons

that Building A complies with criterion 7 in its presentation to Beasley Street.

182. The Tribunal considers the proposed height is also acceptable in its presentation

to residences to the west across the floodway. Building F has a comparatively

narrow façade of about 22 metres to the west and is separated from the

properties across the floodway by a minimum of 40 metres.

42

183. Concerning criterion 7(b), the Tribunal accepts that Building F will be of “a

scale appropriate to the proposed use” for the same reasons that Buildings A –

D are consistent with that criterion.

184. As discussed above, criteria 7(c) – (f) are not applicable.

185. For these reasons, the Tribunal concludes that Building F complies with

criterion 7. Having considered the matters in section 120 of the P&D Act, the

Tribunal concludes that the decision to approve Building F with conditions

should be confirmed.

Contention 4 - development not consistent with the desired character in terms of

building bulk and scale

186. Mr Glass relied on several matters in support of his fourth contention. The

Tribunal deals with them in turn.

The CRFLG General Code

187. Mr Glass contended that the development is not compliant with paragraph 3.10

in the CRFLG General Code, which requires that “all community facilities

located in residential zones should comply with the Residential Zones

Development Code where applicable”.

188. For the reasons set out above, the Tribunal accepts the submission of the

Planning Authority that the CRFLG General Code applies in this case but

concludes that paragraph 3.10 does not apply because Block 10 is not in a

residential zone.

The Multi Unit Housing Development Code

189. Mr Glass contends that the MUHDC is applicable to Building E, and that the

proposed development is non-compliant with rules or criteria 22, 25, 49, 50, and

58 of the MUHDC.

190. The Planning Authority and Goodwin Homes accepted that the MUHDC is

applicable to Building A, B, C, D and F because they contain independent living

units that constitute multi unit housing, but submitted that those buildings are

compliant with those rules and criteria. The Tribunal accepts that submission.

43

191. In issue was whether the MUHDC applies also to Building E and, if so, to what

extent.

192. Mr Glass contended that the RACF is a “multi-unit dwelling” because each of

the designated areas of accommodation for each person residing in the RACF is

a ‘dwelling’. This is because, he said, the separate rooms each have a bathroom,

kitchen facility and separate living area. For this reason, he said, the MUHDC

applies to Building E in the same way that it applies to the other buildings.

193. A ‘dwelling’ is defined in the Definitions to the Territory Plan as having the

same meaning as in the P&D Regulation. A ‘dwelling’ is defined in section 5 of

the P&D Regulation as follows:

"dwelling"—

(a) means a class 1 building, or a self-contained part of a

class 2 building, that—

(i) includes the following that are accessible from within the

building, or the self-contained part of the building:

(A) at least 1 but not more than 2 kitchens;

(B) at least 1 bath or shower;

(C) at least 1 toilet pan; and

(ii) does not have access from another building that is either a class

1 building or the self-contained part of a class 2 building; and

(b) includes any ancillary parts of the building and any

class 10a buildings associated with the building.

(2) In this section:

"kitchen" does not include—

(a) outdoor cooking facilities; or

(b) a barbeque in an enclosed garden room.

194. Ms Levy gave evidence that the individual living areas will not be lockable and

will have what she described as a kitchenette comprised of a microwave, a sink

with hot and cold water, a bar fridge, a kettle and power points, but not a stove.

44

195. The absence of a kitchen in any of the rooms is consistent with the design plans

for the RACF, which provide for a large commercial kitchen and a central

dining room.

196. The Tribunal also received evidence that the occupants will be checked hourly,

that a nursing station will be close to each of the rooms (staffed on a 24 hour

basis) and that none of the residents will be living independently. Ms Jamaly

also explained, and the Tribunal accepts, that the accommodation areas in the

RACF will not be self-contained living areas because the occupants are

necessarily assessed as persons in need of supervision at all times and are

unable to live independently.45

197. The Tribunal concludes that none of the personal or private living areas in the

RACF will be a ‘dwelling’ because they will be neither ‘self-contained’ within

Building E nor will they have a kitchen, with the result that the RACF is not a

multi-unit dwelling.46

198. Mr Glass raised the possibility that despite present intentions regarding use of

Building E, this use might be easily changed to independent living units. The

Tribunal sees no reasonable basis upon which Goodwin Homes would wish to

make such a change and does not consider it needs to be addressed. Where

Building E is not proposed as multi-unit dwelling accommodation, and - if

reconfigured to comply with criterion 7 of the CFZ Development Code - would

receive approval on that basis, the Tribunal sees no reason to impose a condition

prohibiting its use as a multi-unit dwelling. If a change of use were to be sought,

it would require planning approval. If it is not used as approved, the non-

compliance can be dealt with as a matter of enforcement.

199. That the RACF will not provide multi-unit dwelling accommodation does not

necessarily exclude the application of the MUHDC altogether.

200. Table A1 of the CFZ Development Code lists the land uses permissible in a

community facility zone. These uses include ‘residential care accommodation’.

45 Transcript of proceedings 30 March 2016, page 35, lines 14 - 25 46 this accords with the reasoning in Griffith Narrabundah Community Association v ACT Planning

and Land Authority and Anors [2011] ACAT 61 at [20]

45

Table A1 provides that when land zoned community facility zone is used for

residential care accommodation, the Single Dwelling Housing Development

Code or the MUHDC applies depending on whether a proposed development is

single dwelling housing or multi unit housing. There is no suggestion, in this

case, of any single dwelling housing.

201. Residential care accommodation is defined in the Dictionary to the Territory

Plan as follows:

the use of land by an agency or organisation that exists for the purpose of

providing accommodation and services such as the provision of meals,

domestic services and personal care for persons requiring support.

Although services must be delivered on site, management and preparation

may be carried out on site or elsewhere.

202. The RACF will constitute residential care accommodation.

203. The Introduction to the MUHDC provides:

[The MUHDC] does not apply to ... residential care accommodation

except for the provisions of this code specified as applicable to residential

care accommodation in the Residential Zones Development Code (RZ

Development Code).

204. In the RZ Development Code, the only provisions of the MUHDC “specified as

applicable to residential care accommodation in the Residential Zones

Development Code” are those stated in rule 20 of the RZ Development Code,

which provides:

Residential care accommodation comprising 2 or more dwellings

complies with Element 3 of the Multi Unit Housing Development Code,

except provisions applying to plot ratio.

205. Criterion 20 provides that compliance with rule 20 is a mandatory requirement.

206. However rule 20 is not applicable because the RACF will not be comprised of

“2 or more dwellings”. If rule 20 were applicable, Element 3 of the MUHDC

concerns building and site controls. It is comprised of rules and criteria 5 – 36.

It follows that rules 49, 50, and 58 of the MUHDC upon which Mr Glass relied

are, for that reason also, not applicable to Building E.

46

207. However, in deference to the submissions that were put, the Tribunal addresses

rules 22, 25 and 58 upon which Mr Glass focused.

208. Rule 22 of the MUHDC concerns the number of storeys for buildings in an RZ5

zone. Goodwin Homes contended rule 22 is not applicable because it is not in

an RZ5 zone. Mr Glass contended that the Tribunal should nevertheless treat

Block 10 as if it were on land zoned RZ5, and then constrain the development

accordingly because rule 22 contains “relevant and reasonable reference points

for determining desired character in terms of acceptable bulk and scale for an

RZ5-type development notwithstanding that this is a CF Zone.” The Tribunal

rejects the submission. There is no proper basis for disregarding the

unambiguous language in rule 22, which confines its application to

developments “in RZ5”.

209. Rule 25 of the MUHDC concerns the building envelope for “all blocks except

buildings over 3 storeys in RZ5 and commercial zones”. Compliance with rule

25 requires buildings to be sited wholly within the building envelope formed by

planes projected over the subject block in a manner referenced to each side and

rear boundary.

210. The Planning Authority submitted that R25 is not applicable because Block 10

is not in land zoned RZ5 or a commercial zone. The Tribunal rejects that

interpretation: Rule 25 applies to “all blocks” except those so described. None

of the described exceptions applies.

211. Goodwin Homes and the Planning Authority submitted that rule 25 is not

applicable for a second reason, namely that Block 10 has three front boundaries

but no side or rear boundaries.

212. Mr Glass relied on the definitions of rear boundary and side boundary in the

Planning and Development Regulation 2008 (P&D Regulation) to submit that

a front boundary meeting another front boundary (as occurs in each case Block

10) can be a side boundary. Side boundary is defined in the P&D Regulation to

mean “a boundary that meets a front boundary”. The Tribunal accepts Mr Glass’

submission. The words ‘a boundary’ without limitation, save for it meeting a

front boundary, meets the definition of side boundary.

47

213. However, this analysis of these definitions in the P&D Regulation does not

cause rule 25 of the MUHDC to be applicable in this case. As Mr Erskine noted,

referring to section 3, the definitions in the Dictionary to the P&D Regulation

form part of the Regulation and apply for the purposes of the Regulation but not

otherwise. That is confirmed by the fact that for the purposes of the Territory

Plan, a side boundary is differently defined, namely:

a block boundary extending from the street frontage and adjacent to one

other block only.

214. There is no suggestion that any of the boundaries on Block 10 meet the

definition of a side boundary for the purposes of the Territory Plan. The

MUHDC, and rule 25 within it, are part of the Territory Plan. Block 10 is

wholly contained by roads and the floodway, which is owned Urban Open

Space.

215. Front boundary is defined in the Definitions to the Territory Plan to mean “any

boundary of a block adjacent to a public road, public reserve or public

pedestrian way.” It follows that Block 10 is bounded on all sides by front

boundaries, as defined.

216. Rear boundary is not defined, but the Tribunal is satisfied that none of the

boundaries on Block 10 is a rear boundary in circumstances where all the

boundaries meet the definition of front boundary.

217. For these reasons, the Tribunal agrees that rule 25 is not applicable because

Block 10 has three front boundaries but no side or rear boundaries.

218. Rule 58 of the MUHDC requires that no fewer than 70% of the apartments in a

multi-unit dwelling to which the MUHDC applies receive at least three hours of

direct sunlight between 9am and 3pm at the winter solstice. Although rule 58 is

not applicable, the Tribunal accepts the evidence of Mr MacCallum that

approximately 75% of the apartments in Building E would receive at least three

hours of direct sunlight between 9am and 3pm at the winter solstice.47

47 Transcript of proceedings 31 March 2016, page 119, lines 22 - 34

48

The Residential Zone Development Code

219. Mr Glass contended that the proposed development is a residential

development; that the RZ Development Code is therefore applicable; and that

the proposed development does not comply with rules 2, 20 and 24 at least of

that Code.

220. The Planning Authority, with reliance on the evidence of Ms Jamaly, submitted

that the RZ Development Code is not applicable because Block 10 is not within

a residential zone.48

Goodwin Homes made the same submission.49

221. The Tribunal agrees with the Planning Authority and Goodwin Homes that the

RZ Development Code does not apply. The fact that residents may live in the

proposed development is not to the point. That it is a ‘residential block’, per the

Definitions to the Territory Plan, is also not to the point. That residential care

accommodation is a permissible use in a residential zone is also not to the point.

222. The land is not zoned residential; it is zoned community facility zone. That

Block 10 is a ‘residential block’, or that residential care accommodation is a

permissible use in a residential zone does not convert the zoning of the block

from community facility zone to residential zone. The Tribunal acknowledges

that Element 5 of the RZ Development Code concerns “residential care

accommodation”, which this is, but Element 5 is applicable only in relation to

such accommodation located within a residential zone.

223. For these reasons, the Tribunal rejects Contention 4.

Contention 5 - development not compliant with the CRFLG General Code

224. The Tribunal has concluded that the CRFLG General Code applies for the

reasons given above but that does not mean every clause within it is applicable

in every case. For example, as discussed above, clause 3.10 is not applicable.

225. Clause 3.4 is also not applicable. It provides for mixed use or shared use of

community facilities. Mr Glass contended this will be occurring because the

proposed development intended a “mixed use” of the site, namely Building E to

48 Witness statement of Ms Jamaly at [11] and [12] 49 Goodwin Homes’ statement of facts and contentions at [14]

49

be used for residential care accommodation (meaning a nursing home) and

Buildings A, B, C, D and F to be used as independent living units. The Tribunal

rejects that proposition. It is too fine a distinction to be meaningful. One might

equally distinguish the accommodation areas in the different buildings from the

clubhouse or the parking areas or the staff quarters. Clause 3.4 contemplates

separate and independent uses by different community groups for different

purposes who would be making common use of the facility, for example

different clubs or community societies, who are otherwise operating

independently.

226. Block 10 is intended for a single use, namely accommodation within a

retirement village to be provided by a sole user, namely Goodwin Homes.

Contention 6 - development does not provide for reasonable privacy for

dwellings and principal private open spaces on adjoining residential blocks

227. Mr Glass contended that staff and residents in Building E will have unimpeded

views into the indoor and outdoor living areas and private open spaces of the

single dwelling residences to the west of Block 10. This overlooking, he said,

would significantly diminish the residents’ privacy and enjoyment of their

single dwelling properties.

228. Mr Glass relied on clauses 3.4 and 3.10 of the CRFLG General Code and rule

22 of the MUHDC as providing applicable protections against this overlooking.

For the reasons discussed above, the Tribunal concludes that clauses 3.4 and

3.10 the CRFLG General Code are not applicable. For the reasons discussed,

rule 22 of the MUHDC is also not applicable.

229. Protection of privacy for residents in nearby blocks is dealt with in rule 8 and

criterion 8 of the CFZ Development Code. Rule 8 provides a minimum setback

to boundaries of blocks in a residential zone of six metres. As discussed above,

all the buildings in the proposed development are setback from these boundaries

substantially more than six metres.

230. For the reasons discussed in Rudder, compliance with rule 8 is conclusive of the

point.

50

Contention 7 - insufficient justification for removal of Regulated Tree

231. Mr Glass contended that removal of regulated tree 8, as depicted on the

landscape plan, had not been adequately considered.

232. For two reasons, the Tribunal rejects the contention.

233. First, relevant to tree protection, rule 21 of the CFZ Development Code required

the Planning Authority to refer the development application to the Conservator

of Flora and Fauna where the development was “likely to cause damage to or

removal of any protected trees”. That occurred in this case. That was sufficient

for the purpose of compliance with rule 21. Where the development complies

with the approved applicable rule on the point, pursuant to section 121(2)(a) of

the P&D Act, the Tribunal has no jurisdiction to review the Conservator’s

response or the Planning Authority’s subsequent actions or decisions.

234. Second, there was no suggestion from the Conservator that Tree 8 should be

retained. The Conservator’s only comment was in relation to trees 209, 210 and

218, the removal of which needed to be considered under the P&D Act.50

The

Planning Authority did so, and determined that they could be removed. The

Tribunal does not have jurisdiction to revisit the issue.

235. By letter dated 29 February 2016, the Conservator confirmed support for

removal of Tree 8. Again, the Tribunal cannot revisit the issue.

Contention 8 - development not consistent with the residential zones objective to

provide for a wide range of housing choices

236. Mr Glass contended that the proposed development will not achieve the

objective common to all of the residential zone codes that the development

“provide for a wide range of affordable and sustainable housing choices”. He

relied on the fact that the majority of the accommodation in the proposed

development will be in “high-rise buildings” with “no low-rise townhouse type

alternatives” to enable residents to enjoy ground level amenities and activities.

50 Email from the Conservator, 6 August 2015 at 9:24am; T252 confirmed by further email from

the Conservator sent on 28 October 2015; T 95

51

237. Again, this is not an issue the Tribunal can consider. First, the submission is not

referenced to any applicable rules or criteria. Second, it relies on objectives for

the residential zone codes, yet Block 10 is in a community facility zone.

An additional submission

238. On 5 August 2016, Mr Glass made a further submission without leave regarding

imposition of lease variation charges under the Planning and Development

(Lease Variation Charges) Determination 2001 (No 1).

239. The Planning Authority and Goodwin Homes objected to the further submission

in circumstances where the hearing had concluded and Mr Glass did not have

leave to file further material.

240. The Tribunal upholds the objection. Courts have repeatedly confirmed that

supplementary submissions should be rejected even where a litigant is

unrepresented51

and even where the other party or parties consent.52

The

Tribunal considers those matters of procedure should apply equally in Tribunal

proceedings, even if leave might be more readily given in Tribunal proceedings.

241. The Tribunal acknowledges that Mr Glass may not have been aware of the need

to seek leave before filing further submissions. The Tribunal therefore adds that

had leave been granted the Tribunal would have rejected the submission. The

Tribunal has no jurisdiction to consider issues concerning lease variation on the

application before it.

Conclusion

242. The Tribunal has concluded that the proposed development complies with the

Territory Plan in every respect, save that Buildings B, D and E need to be

reconfigured or redesigned in a manner that achieves compliance with rule 7 or

criterion 7(a) of the CFZ Development Code. There are many options or means

by which this could be done. They are matters for Goodwin Homes to consider.

The Tribunal expects it could be done by amendment to the development

application pursuant to section 144 of the P&D Act.

51 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; Eastman v Honourable Justice

Besanko [2010] ACTCA 15 52 Notaras v Waverley Council [2007] NSWCA 333; Gupta v ACT (No 2) [2010] ACTSC 43

52

243. In these circumstances, and where the decision under review does not deal

separately with any of the proposed buildings, the Tribunal has concluded that

the preferable course is to set aside the decision and remit it to the Planning

Authority for it to reconsider the proposed development having regard to any

amendments to the development application that the applicant proposes in order

to address the existing non-compliance with criterion 7(a) of the CFZ

Development Code. The Tribunal will therefore so order.

………………………………..

President G C McCarthy

for and on behalf of the Tribunal

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HEARING DETAILS

FILE NUMBER: AT94/2015.

PARTIES, APPLICANT: Eric Glass

PARTIES, RESPONDENT: ACT Planning and Land Authority

PARTY JOINED Goodwin Aged Care Services

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT Dr D Jarvis

COUNSEL APPEARING, PARTY

JOINED

Mr C Erskine SC, Ms K Katavic

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT ACT Government Solicitor

SOLICITORS FOR PARTY JOINED Meyer Vandenberg Lawyers

TRIBUNAL MEMBERS: President G McCarthy, Senior

Member R Pegrum

DATES OF HEARING: 30, 31 March & 1 April 2016