ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KONSTANTINOU DEVELOPMENTS PTY LTD v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2017] ACAT 38

AT 63/2016

Catchwords: ADMINISTRATIVE REVIEW – planning and development – lease variation – child care centre – light industrial area – whether other permitted uses of a light industrial area will be sterilised – noise levels – air quality

Legislation cited: Planning and Development Act 2007 ss 48, 53, 119, 120, 148, 150

SubordinateLegislation cited: Community and Recreational Facilities Location General Code

Industrial Zones Development CodeLease Variation General Code

Cases cited: Baptist Community Services Pty Ltd v ACT Planning and Land Authority & Ors [2015] ACTCA 3Concerned Citizens of Canberra v Chief Planning Executive (Planning and Land Authority) [2014] ACTSC 165Lourandos and Yiannokopoulos v ACT Planning and Land Authority & Ors [2011] ACAT 25

Tribunal: Senior Member G Lunney SCSenior Member G Trickett

Date of Orders: 19 May 2017Date of Reasons for Decision: 19 May 2017

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 63/2016

BETWEEN:

KONSTANTINOU DEVELOPMENTS PTY LTDApplicant

AND:

ACT PLANNING AND LAND AUTHORITYRespondent

TRIBUNAL: Senior Member G Lunney SCSenior Member G Trickett

DATE: 19 May 2017

ORDER

The Tribunal orders that:

1. The reviewable decision dated 19 September 2016 is set aside and

substituted with the decision that the proposal to vary the Crown lease to

permit Community Use limited to Child Care Facility is approved.

………………………………..Senior Member G Lunney SC

Delivered for and on behalf of the Tribunal

REASONS FOR DECISION

1. This is an application for review of an administrative decision made under the

ACT Planning and Development Act 2007 (PD Act). The applicant had applied

to the respondent for development approval (DA) in relation to Block 18

Section 11, Mitchell, in the Territory, situated at the corner of Darling and

Heffernan Streets. The applicant sought a variation of the purpose clause of the

Crown lease to permit “Community Use of the site limited to Child Care

Facility.” The applicant’s development application was refused as was a

requested reconsideration of that decision.

2. The applicant has sought review of the reconsidered decision of the respondent.

The applicant seeks an order approving the application.

3. The subject land is vacant, is 1,685 sqm and its present purpose clause is as

follows:

To use the premises for one or more of the following purposes:

(i) funeral parlour;

(ii) light industry;

(iii) non retail commercial use limited to office;

(iv) shop;

(v) vehicle sales.

4. The land is located within an IZ2 zone which is described as an Industrial

Mixed Use Zone. The IZ2 - Industrial Mixed Use Zone objectives and

development table apply. Under the development table the DA is assessed

under the PD Act in the merit track. The development table specifies the

relevant code to be the Industrial Zones Development Code. Sections 119 and

120 of the PD Act apply.

The hearing and the evidence

5. The hearing was conducted between 31 January and 3 February 2017 inclusive.

It commenced with a view of the subject land and a short tour by foot of the

surrounding area so that the Tribunal members could gain an impression of the

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site, its location, and uses in the area. There was also a short tour by car of the

surrounding area.

6. The area seemed to be a mix of light industrial use peppered with quite a

number of shops retailing car parts and spares, paint, etc; a grocery outlet, gun

shop, coffee shop and the like. Traffic use appeared to be light. Although not

sighted, the Tribunal noted that there was a gymnasium business and a business

called ‘Kids’ Zone’ within the area. One large block nearby accommodated a

garden supply business which was close to the subject premises and appeared to

have a system for loading garden materials such as gravel and mulch from large

storage bins by front end loader into receiving trucks or light commercial

vehicles. The delivery area appeared to be entirely concreted.

7. Witnesses were called by both parties and statements for each witness had been

filed with the tribunal in advance of the hearing. Statements of facts and

contentions were filed in advance of the hearing by both parties, and written

and oral submissions were made by each party at the conclusion of the

evidence.

8. The application related only to a change in the purpose clause. There were

concept drawings of the premises that might be built on the land contained in

the tendered evidence, however these were not closely examined in the course

of the hearing.

9. Evidence for the applicant was given by Harry Konstantinou, a director of the

applicant company. He recounted the difficulty the applicant had had in finding

a tenant for a bulky goods facility on the subject land. He also said that in 1990,

there was only one retail centre in Mitchell, but that retail use had expanded

greatly since that time. He also said that based on uses in Fyshwick in

particular, Mitchell was missing a child care centre, and that on his experience

and knowledge of Mitchell, a child care centre was the best use of the land. He

said that the applicant had identified commercial interest in establishment of a

centre and that his investigations indicated that one would be commercially

viable.

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10. The applicant also called Petrus van der Walt, the principal of a consultant firm:

Canberra Town Planning Pty Ltd; specialising in town planning, Crown

leasing, and related advisory services. Two reports authored by him were

tendered. The first of these had extensive supplementary material annexed to it.

The second was prepared in January 2017 and was a response to two reports,

one of Ms Johnson and the other by Dr Wright filed by the respondent. There

was a previous report he had prepared for the reconsideration which is dated

June 2016 and which is found at pages 268 to 302 in the T documents which

became Exhibit 10. He commented in detail on the town planning implications

of the application, and generally supported approval of the application.

11. Deb Barnes, a principal of Capital Crown Leasing Pty Ltd also provided a

statement and gave evidence which provided the formal leasing context for the

application. She had been involved in submission of the DA and its

management.

12. Jerremy Lofts an acoustic consultant and director of Rudds Accoustics Pty Ltd

provided two statements and gave evidence. He had done acoustic testing on

the land reporting the results in his first report. The second one was prepared to

deal with criticism of his first report made by witnesses for the respondent. He

had done testing and prepared a report prior to the reconsideration. It is at pages

316 to 329 of the T-documents.

13. Capital Crown Leasing had commissioned Graham Ohmsen of SMEC to

provide an environmental and health risk assessment of the land. This was

largely triggered by a finding of the presence of Benzene during air testing at

the land. It was later determined that the methodology of that testing was faulty

and the presence of benzene ceased to be an issue.

14. However, there was some problem with the results gained on the first day of air

testing at the site which had not been carried out by Mr Ohmson. H prepared a

second report of 30 January 2017, and during the hearing he conferred with Dr

Wright, a witness called by the respondent, and they produced a joint report

which will be referred to later.

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15. Two reports were submitted by Phil Henry, Managing Director of Business

Geographics Pty Ltd, a marketing and business development consulting firm.

He gave evidence about the child care facility market in the ACT in general and

in the Gungahlin area in particular.

16. He was generally supportive of the location of a child care centre in Mitchell,

noting that there was no such facility at present, and that provision of light rail

to the general area would increase residential and employment growth there. He

concluded that a survey of local child care services indicated that underlying

demand for places was exceeding local supply.

17. For the respondent, a statement by Lisa Johnson, an employee of the respondent

authority was tendered and she gave evidence. She was a senior manager in the

respondent’s Planning Delivery Branch. She was not the assessing officer for

the DA, and held a law degree with First Class Honours in Environment and

Planning Law, and had about five years of relevant experience. She does not

support the application.

18. The respondent also relied on the evidence of Dr Jackie Wright who is director

of Environmental Risk Sciences Pty Ltd. The report addresses health issues

relating to the proposed development. The report says that she has over 25

years experience in human health and environmental risk assessment in

Australia.

Discussion

19. The structure of this section will be to trace the legislative requirements,

examine the DA and its issues in that context, the evidence, and submissions

made by the parties.

Onus

20. The first matter for determination is the respondent’s assertion that the

applicant bears an onus of proof to establish that the requirements of the

legislative matrix are met. The decision the subject of review is peppered with

statements that the ‘application did not demonstrate’ that a particular

requirement had been met. This assertion has been repeated in submissions

during the hearing.

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21. The Tribunal does not agree that the applicant bears an onus in the traditional

sense; however agrees that the evidence must demonstrate the compliance of

the DA with the various requirements of the Territory Plan. The following

quotation from Master Mossop, (as he was then), taken from Concerned

Citizens of Canberra v Chief Planning Executive (Planning and Land

Authority) [2014] ACTSC 165 expresses the law in the Territory as the

Tribunal understands it commencing from paragraph [174]:

174. Nineteenth submission: The plaintiff asserts that the statement that the defendant “has a duty to assess the proposal against the relevant provisions of the Territory Plan in order to satisfy itself whether or not such provisions have been met” involved an error of law because that approach was inconsistent with s 162 and s 170 of the PD Act.

175. The plaintiff’s argument was based on the assumption that there was an onus on a proponent for development to demonstrate compliance with the relevant provisions of the Territory Plan and that it was not open to the Authority to investigate issues for itself. Instead the plaintiff submitted that the Authority was reliant upon the proponent discharging a burden upon it to demonstrate compliance with the Territory Plan. If the plaintiff’s argument was correct it would have significant consequences because it would mean that all material that was necessary to conclude that a proposal was consistent with the Territory Plan would need to be incorporated within the DA. If it was not then it would not be open to the Authority to “plug the gap” by undertaking its own investigations or applying its own knowledge and experience to determine whether or not the requirements of the Plan had been complied with.

176. The plaintiff did not identify any provisions of the PD Act which had this effect or from which the position for which the plaintiff contended was a necessary implication. The plaintiff did, however, point to the part of the CFZ Code which, when explaining how proposals on the merit track and impact track were assessed against the provisions of the Code, said:Proposals in the merit track and impact track must comply with each relevant rule or its associated criteria, where the rule is not mandatory (i.e. it has no related criteria). Where a rule is fully met, no reference to the related criterion needs to be made. If the rule is not met, or where a criterion only applies, the onus is on the applicant to demonstrate that the relevant criterion is satisfied, through supporting drawings and/or written documentation.

177. In my view the approach taken by the plaintiff is not correct. The provisions of the PD Act do not impose an onus on an applicant in the sense with which lawyers are familiar in the context of adversarial proceedings. The PD Act does, however, prohibit the Authority from granting an approval where the development

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approved is inconsistent with the Territory Plan: s 50. While the PD Act clearly does impose significant, detailed and burdensome obligations upon proponents, the ultimate question is whether or not the Authority is satisfied that the proposal is consistent with the Territory Plan and should be approved: ss 120, 162. Leaving aside the vexed issue whether compliance with the Territory Plan is a jurisdictional fact or a matter for the opinion of the Authority, whether or not the provisions of the Territory Plan are met or considered to be met will inevitably involve the Authority using its own knowledge and expertise to assess the proposal. The PD Act expressly contemplates the need for advice from other specialist agencies: ss 148-151. Nothing in the PD Act denies the entitlement of the Authority to take into account matters arising from its own assessment of the proposal or information provided by other agencies based on their assessment of the proposal. In those circumstances, in my view, it cannot be said that the Authority is disabled from having regard to material outside a development application when assessing compliance with the Territory Plan and deciding whether or not to approve it.

178. In relation to the provisions of the CFZ Code relied upon by the plaintiff, the provisions of that code, which forms part of the Territory Plan, cannot determine the proper operation of the PD Act. The quoted provisions of the CFZ Code make it clear that an applicant that is either required or chooses to satisfy a criterion in the code must ultimately persuade the Authority that the subjective terms of the criterion are satisfied. In that sense it is correct to say that an applicant bears an onus. However, the fact that an applicant runs a risk that an inadequately detailed development application might not satisfy the Authority as to compliance with a criterion does not disable the Authority from considering for itself whether or not the proposed development does satisfy that criterion. In considering the issue of compliance with the Authority may have regard to its own assessment and matters outside the four corners of the development application.

22. His Honour refers to the provisions of a particular code in relation to

compliance with code criterion. As His Honour says above this statement in the

code requires the applicant to persuade the decision maker that the subjective

terms of the criterion referred to in the Code are satisfied. The Industrial Zones

Development Code makes the following provision in its introduction.

Proposals in the merit track and impact track have the option to comply with the rules or criteria, unless the rule is mandatory. Where it is proposed to meet the criteria, the onus is on the applicant to demonstrate, by supporting plans and written documentation, that the proposed development satisfies the criteria and therefore the intent of the element.

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23. Other codes have similar provisions relating to compliance with code criteria

requiring an applicant to demonstrate compliance with the criteria.

24. There is further indication of the need for an applicant to provide evidence in

support of an application in the merit track to be found in section 139 of the PD

Act. It provides as follows:

Division 7.3.2 Requirements for development applications

139 Form of development applications(1) This section applies to an application for development approval.(2) The application must—….

(e) if the application is for approval of a development in the merit track—be accompanied by information or documents addressing the relevant rules and relevant criteria; and ….

25. There is some difference in wording between this provision and the statement

typical in the ‘Introductions’ to the codes, however this is immaterial for

present purposes. However it is clear that the applicant bears an evidentiary

burden to show compliance with the applicable code.

Section 119 of the Planning and Development Act 2007

26. Section 119 is reproduced in Appendix ‘A’. In subsection (1) it relevantly

requires that development approval for a proposal in the merit track be

consistent with the relevant code. It also provides in subsection (2) that

approval must not be given if approval would be inconsistent with the advice of

an entity unless consideration has been given to any applicable guidelines; and,

any realistic alternative to the proposed development; and, the decision is

consistent with the object of the territory plan.

27. ‘Code’, ‘relevant code’ and ‘relevant development table’ are defined in the

dictionary to the PD Act as follows:

code means a code in the territory plan.

relevant code, for a development proposal, means a code that the relevant development table applies to the proposal.

relevant development table, for a development proposal, means the development table that applies to the proposal.

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28. The land is in an area which is zoned IZ2 so that the Industrial Mixed Use Zone

development table applies. This specifies the relevant code as being the

Industrial Zones Development Code. Other codes are however applicable. They

include the:

(a) Lease Variation General Code; and,

(b) Community and Recreational Facilities Location General Code.

29. Other codes may be applicable which could include the Parking and Vehicular

Access General Code, and Bicycle Parking Code but these do not appear to be

in contention at this stage.

30. The following codes are in contention.

The Industrial Zones Development Code31. This development code applies to all development in the industrial zones. It

provides specific development controls for individual codes and some site

specific controls.

32. There are a number of criteria which are relevant to this application of which

three are in contention in these proceedings. The first two are in Element 1

dealing with restrictions on use relating to community uses. The purpose of this

element is stated to be as follows.

Intent:

a) To provide for sufficient land to meet the industrial needs of the ACT

b) To ensure that uses ancillary to the Industrial Zone remain subordinate to primary uses and ensure an appropriate level of amenity for users

C3

Community uses are to be considered only where it is demonstrated that the proposed use does not jeopardise the use of surrounding land for industrial purposes.

C4

An application for community uses demonstrates that the proposed use:

a) services the needs of the local workforce, or

b) requires a scale of building or level of amenity that is not compatible with other available land.

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The last one, C33 relates to Element 5 relating to amenity and specifically to

noise. The purpose of the element is as follows:

Intent:

To provide for a high level of amenity through consideration of personal safety, landscaping and visual impact

C33

Where the proposed use is adjacent to, or is, a noise producing activity, noise attenuation measures are utilised to protect the amenity of the area and promote compatibility of uses.

33. Turning firstly to Criterion C3, the evidence including the observations made

by the Tribunal during the view on the first day of the hearing did not indicate

land uses in the immediate area that were necessarily incompatible with the

proposed use. Heavy trucks used the area, bulk garden supplies were stored,

however there were retail uses including a grocery store and a coffee shop

which would be affected if any local use was of a nature that could adversely

affect neighbours.

34. Criterion C3 extends not only to present uses, but also future uses as well.

Present use could change to another of those listed in the zone development

table. Practical considerations would intrude which would include block size

and improvements already erected on the land. However change of use in the

future remains a possibility.

35. The respondent submitted that uses in the neighbourhood could be changed to

other IZ2 assessable uses which by their nature could be restricted by the

presence of a child care centre with a sensitive population.

36. The respondent led evidence and made submissions based on the possibility

that uses could change in the area to include1 “many potentially hazardous

activities, such as storage or recycling of chemicals.” The possibility of a

warehouse transitioning from storage of soft drink to storing dangerous

materials was cited.

37. The process of inhibition of permitted uses nearby was referred to as a process

of ‘sterilisation’. It was articulated by Dr Wright as follows:

1 Page 8 of Exhibit 8, statement of Lisa Johnson

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the foreseeable sterilisation of the industrial activities in the industrial zone in order to accommodate the childcare centre as a sensitive receiver

38. Evidence was called by the respondent supporting this contention. Ms Johnson

at paragraph 105 of her report referred to the views of Dr Wright and said that

the proposed use could reasonably jeopardise the use of surrounding land for

industrial purposes. She does not however outline the mechanism of such a

process.

39. For her part, Dr Wright refers to planning issues and requirements in other

jurisdictions and notes the respondent’s concerns, however confines her

comments to health issues.

40. Mr van der Walt in his earliest report of June 2016 , notes legislative

requirements, notably environment protection regulations which regulate

reduction in noise and air emissions from premises in order to ensure the

integrity of the use of the area by their neighbours. He concludes this section as

follows:

There is no evidence provided that childcare centres across Canberra preclude industrial zone uses from operating in close proximity to these sites. In fact there are Child Care Centres operating in Fyshwick, Symonston, the Belconnen Trades area and approved immediately adjacent to petrol stations.

41. He returns to this opinion at paragraph 68 of his report of 18 December 2016

having conducted a review of child care centres in the areas mentioned. His

conclusion is as follows.

68. My investigations as set out in paragraph 67 have not provided me with any evidence to suggest the above centres, or lease variation to add child care use, have had any specific adverse impacts on the operation of the surrounding uses. Further, my investigations did not provide me with evidence to suggest that proximity to a childcare centre limits an adjoining block’s potential to develop the full complement of uses permitted. Similarly, surrounding higher impact uses do not appear to adversely impact on the safety or operation of these childcare centres.

42. In assessing the strength of the submissions of the respondent relating to

criterion C3, the probability of a change of use which could be inhibited as

referred to in the respondent’s submissions must be assessed. Child care centres

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have been located with apparent success in other industrial zones in the

Territory. Mr van der Walt’s research and opinion is logical and acceptable as

is the material he refers to indicating that occupiers are obliged to confine their

activities to give acceptable levels of emissions. Mitchell is flanked by

residential properties in nearby suburbs and further residential development

nearby is planned. The light rail project runs along the eastern margin of the

suburb and this will bring further residential development and reduce

opportunity for industrial expansion. The uses near to the proposed site are very

diversified and the chances of a change of use of the type suggested by the

respondent is in the Tribunal’s view so unlikely from a practical point of view

that it can be disregarded.

43. The Tribunal is satisfied that it has been demonstrated that the proposed use

would not jeopardise the use of surrounding land for industrial purposes.

44. Criterion C4 is stated in the alternative:

C4

An application for community uses demonstrates that the proposed use:

a) services the needs of the local workforce, or

b) requires a scale of building or level of amenity that is not compatible with other available land.

45. The second alternative is not applicable. There is evidence relied on by the

applicant that the proposed use would service the needs of the local workforce.

It relies principally on the reports of Philip Henry, principal of a geo-

demographic consulting business: Business Geographics. He is qualified and

experienced in spatial and statistical analysis. His reports were Exhibits 6.1 and

6.2. His first report included a map of what he described as the catchment area

for the proposed centre which included not only Mitchell, but also the suburbs

of Franklin and Harrison. He noted that there were only three long day care

centres in the catchment area at Harrison and Franklin, with no centre presently

in Mitchell.

46. His conclusion was expressed as follows:

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The subject site is well-placed to service demand from the working population in Mitchell, commuters from Franklin/Harrison travelling to the Canberra CBD along Flemington Rd and in the longer term future residential development in the Kenny growth area.

47. Mr Henry’s evidence and conclusion confirms the obvious conclusion that a

suburb with a workforce desirous of having childcare conveniently available,

would provide a demand for a childcare centre that had no competitor in the

suburb.

48. For the respondent, Ms Johnson examined the adequacy of child care in the

immediate area surrounding Mitchell and noted that it was likely that a new

facility would be built in Franklin. The Throsby Development Plan included a

block for community development which would include a childcare centre. She

also noted that the applicant’s report said that no childcare centres in the

catchment area were beyond capacity. It was her view that the Business

Geographics report did not demonstrate a service to the needs of the local

workforce.

49. The Tribunal has assessed the research and conclusions of the applicant’s

evidence and takes the view that the author is well qualified and experienced

and that his report can be accepted with confidence and does indeed

demonstrate support for the local workforce. The Tribunal concludes that the

proposed use services the needs of the local workforce.

50. In relation to Criterion 33, the respondent relied on evidence of Ms Johnson and

also a part of the Health Risk Assessment Report of Dr Wright. The applicant

relied on two reports of Jerremy Lofts an acoustic consultant and director of

Rudds Acoustics Pty Ltd.

51. Mr Lofts conducted tests at the subject property on two occasions: on

Wednesday 8 June 2016, and 12 December 2016. They included tests at or near

the property measuring controlled noise sources as well as day long ambient

noise testing. There is a potential noise source to the south of the land which he

thought needed addressing, however was of the view that this could be done by

noise attenuation measures during design and planning of the building for the

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block. His overall conclusion was expressed in his report of 16 December 2016

as follows (omitting reference to technical noise levels).

In conclusion, I believe that the Land can be adequately protected so that the outdoor play areas can meet the AAAS child care centre play area noise level …. and the Draft Noise Management Guidelines recommended level ….. .

52. Dr Wright criticised the reports in her report. The Tribunal notes her criticisms

including a suggestion that the data collected was limited and dealt with

existing noise sources only. She did not seem to appreciate that use of the use

of a grinder was done on an experimental basis by Mr Lofts to simulate

possible levels. The Tribunal is satisfied with the expertise of Mr Lofts and

with the methodology in conducting his testing. He was not able to cover all

possible conditions however the conclusions he comes to appear justified by the

data obtained. The Tribunal prefers his evidence to that of Dr Wright in this

area.

Community and Recreational Facilities Location General Code

53. This code is a guide to location of facilities covered by the code. In its

introduction it says that it does not impose ‘rigid standards’. The following

quotation is taken from the introduction.

PurposeThis Code is for use in making decisions about where to locate a broad range of community and recreational facilities, whether new facilities or the re-use of existing ones. They document sound town planning practice for agencies providing facilities, and include detailed guidelines which reflect the key location objectives. They are not rigid standards, but a guide intended for ACT planning and facility providers in determining suitable sites and locations for facilities. Location decisions should try to meet the general objectives, recognising that specific guidelines may not be achievable in all cases.

54. The code sets out a number of general location guidelines which include an

explanation of the meaning of ‘separation’ when used in the code, and this

refers to social separation and separation from the source of noise. The code

makes specific provision for individual community uses including child care

centre use. It suggests that the location should be located in a way to facilitate

access for dropping off and retrieving children as follows:

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Long day care centres on major work routes, or easy vehicle access near major work places. Only small centres in residential areas; on pedestrian path/open space system where possible.

55. The code also deals with the issue of separation as follows:

Social separation from correction facilities. Buffered from sight, smell, fumes and noise of industrial uses and from roads with high traffic volumes (refer to air quality guidelines). Separated from safety hazards (eg water bodies; busy roads).

56. The parties made submissions relating to the evidence led relating to these

environmental issues, and these are dealt with later in the context of the

suitability of the site for the proposed purpose.

Lease Variation General Code

57. This code either repeats provisions found elsewhere or are not in contention.

C1 and C4 are reproduced here, but C3 is relevant, but is not in contention. The

tendered material contains some reports relating to this criterion.

C1

A lease is varied only where all of the following are achieved:

i) the varied lease is consistent with the Territory Plan including all relevant codes;

ii) the land to which the lease applies is suitable for the development or use authorised by the varied lease.

C4

Community facilities or recreational facilities that are authorised by a lease comply with the Community and Recreational Facilities Location Guidelines General Code.

58. The issue of suitability is referred to in C1 in this code as well as section 120.

This is dealt with later.

Section 119

59. This section is reproduced in Appendix A. Subsection 1(a) in so far as relevant

is dealt with above in under the heading relating to the Leases Development

Code.

60. Subsection (2) provides that development approval must not be given for a

development proposal in the merit track if approval would be inconsistent with

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any advice given by an entity to which the application was referred under

section 148 of the PD Act. Section 139 requires a response to be given within

15 days of being made, and section 150 provides that if the response is not

made within that time, the entity is taken to have given advice that the entity

supports the application.

61. Two entities opposed the proposed development. Of those, the Health

Protection Service responded beyond the 15 day limit and is to be taken as

supporting the DA. The other was the Environment Protection Authority whose

response was as follows:

The proposed lease variation is not supported. The site is located in an industrial zone. The proposed activity has not been demonstrated to be compatible with activities permitted in the surrounding zoning.Activation of the site for the proposed use would potentially sterilise the surrounding area from future industrial activities.Furthermore the report titled ‘Preliminary Site Investigation, Block 18, Section 11 Mitchell. ACT’ dated 6 November 2015 by SMEC Australia Pty Ltd attached to this application has not indicated the site is fit for the proposed use and has identified areas of environmental concern recommending further assessment and possible remediation.

62. The matters raised have been examined elsewhere in this decision. As has been

pointed out previously, a variation of a lease to permit the community use of

child care centre is expressly permitted by the legislation. The applicant

submits and it is possible that the opposition of the Authority is in line with the

consideration at the moment of a policy that child care centres not be permitted

in industrial zones. The respondent has made no submission along those lines

and the suggestion remains only a possibility. The purpose of the present

investigation includes determining whether the proposal is compatible with

other activities in the zone and whether other permitted uses would be

‘sterilised’.

63. The sub-section refers to consideration of applicable guidelines and realistic

alternatives neither of which have been identified. It also requires consistency

with the Territory Plan if approval would be inconsistent with entity advice.

64. The object of the Territory Plan is set out in section 48 of the PD Act as

follows:

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48 Object of territory plan

The object of the territory plan is to ensure, in a manner not inconsistent with the national capital plan, the planning and development of the ACT provide the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation.

65. The Tribunal’s view is that the approval of the application sought would be

consistent with the objects of the Territory Plan as set out in section 48.

Section 120

66. Section 120 is set out in full in Appendix A.

67. It sets out a number of considerations which must be taken into account by a

decision maker when deciding a development application in the merit track. A

number of them are not applicable to the present application, however those

that follow must be considered.

68. The first is section 120(a) and requires consideration of the objectives for the

zone in which the development is to take place. The meaning of zone objectives

is set out in section 53 of the PD Act as follows.

53 Objectives for zones

(1)The objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone.

69. It is clear from the decision of the ACT Court of Appeal in Baptist Community

Services Pty Ltd v ACT Planning and Land Authority & Ors [2015] ACTCA 3

that the zone objectives are relevant in interpreting a code, whereas

inconsistency with a zone objective does not mandate rejection of a

development proposal, (refer to paragraph [62]). It also clear that not all of

them can or need to be met. The proposed use as a child care centre is

obviously not an ‘industrial’ use. Alignment of the proposed use with zone

objectives can only be indirect and mainly in a supportive context. The zone

objectives are dealt with below in turn where relevant or in contention.

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(a) Support the diversification and expansion of the ACT’s industrial base and employment growth.

70. To the extent that providing child care support for workers employed in

industrial work in Mitchell creates an amenity for them, it can be seen that there

is a connection with diversification and expansion of the industrial base in the

Territory. The enterprise itself contributes to employment growth by the

number of employees it engages.

(b) Facilitate investment in a wide range of industrial and related activities, with efficient land utilisation and provision of infrastructure.

71. It would be reasonable to assume that an area that provided the greater number

of ancillary support facilities such as shops cafes and a child care facility would

present as a more attractive investment target than an area lacking such

amenities. That attraction would not only be to those wishing to invest capital,

but also those deciding whether to seek employment in the area.

(c) Provide convenient access for ACT and regional residents to industrial goods, services and employment opportunities.

72. A child care centre would provide employment opportunities to regional

residents.

(g) Accommodate industry-associated retailing, services and other commercial uses without jeopardising an adequate supply of industrial land.

73. The Tribunal does not find that provision of a child care centre promotes this

objective when it is read as a whole.

(k) Make provision for small-scale services that support surrounding industrial activities, or which meet the needs of the local workforce.

74. This objective is met in that it is a small scale service which meets the need of

the local employee community for a child care centre thus supporting industrial

activities in the area.

Section 120 - Suitability

75. The next provision is 120(b) which refers to the suitability of the land for a

development of the kind proposed. This is a significant matter, however under

section 120, it is a matter for consideration under the section rather than a

matter for mandatory compliance. Suitability is also referred to in Criterion

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C1(ii) of the Leases Variation General Code. It is reproduced here because it is

in slightly different terms to section 120.

C1

A lease is varied only where all of the following are achieved:

i) …

ii) the land to which the lease applies is suitable for the development or use authorised by the varied lease.

76. The applicant submitted that suitability could only be usefully assessed when a

firm development proposal has been submitted. The applicant relied on a

Tribunal decision in Lourandos and Yiannokopoulos v ACT Planning and Land

Authority & Ors [2011] ACAT 25. At paragraph [216] the tribunal said:

However, regarding the ‘suitability’ of the land, we do not have any useful evidence or submissions as to what is meant by ‘suitability’ nor can we find any relevant authority to guide us. It may well be intended to refer to aspects of geophysical suitability (such as soil type, water table etc) or to environmental suitability (liability to flooding), or presence of endangered species, or soil contamination etc) or to social suitability (amenity of neighbouring land users, traffic and safety etc.). It is arguable that the subject land is suitable for multi unit housing because it is close to many other multi unit developments, but that may not be sufficient to deem it ‘suitable’ in every circumstance. We agree with Mr Erskine that its ‘suitability can only be usefully assessed when a firm development proposal is submitted for approval.

77. The respondent submitted that certain matters that could be presently

established relating to health risks to children attending a child centre rendered

the site as unsuitable for that purpose, and that issue could be examined and

established at this stage of this DA.

78. The Tribunal is of the view that the legislation requires the decision-maker on

this DA to consider suitability of the site in accordance with the legislation

referred to on the evidence available relevant to this application.

79. Much of the evidence led in the hearing related to this issue and the Tribunal is

well placed to make a determination on it. Factors of suitability which will

depend on the qualities of the physical development on the land will abide a

further application.

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80. One of the issues relating to suitability was air quality at the site.

81. Two experts gave evidence for the parties relating to air quality. Dr Wright a

health risk expert devoted a significant part of her report to this issue. Mr

Ohmsen an environmental health expert with experience in air quality testing

was called by the applicant. The data each used were two air quality monitoring

reports from a firm called SMEC contained in the T documents. The first was

dated 29 June 2016 at T331; and the second dated 11 July 2016 at T364.

82. During the course of the hearing, the two experts consulted with each other and

produced a joint report which became Exhibit 13. Referring to the two days of

data on which their original reports had been prepared they said the following:

We agree that the data from the first sampling round on 17 June 2016 is not reliable, and the data quality is not adequate. We agree that the data quality of the second round is adequate.They went on to point out that the data from the second day represented only one day’s sampling and may not be representative of all conditions, limiting its applicability.

83. After preparation of their report they gave evidence. Both agreed that although

the testing provided limited data, there was no indication of air quality issues at

the site although further testing should be carried out to provide further data.

84. That evidence aligns with the uses surrounding the site, and the impression

gained by the Tribunal during the view.

85. As to the general suitability of the site, noise issues have already been

discussed. Given that a final assessment of impact of noise will be made if and

when a building is designed for the proposed purpose, there is nothing

environmental which would make the site unsuitable if one discounts the

possibility of a radical change of nearby use.

86. Ms Johnson in her statement, (paragraph 21), did refer to what she described as

a serious chemical fire which occurred in the IZ1 zone of Mitchell to the north

of the site in September 2011. The Tribunal accepts her suggestion that such an

event would probably result in the evacuation of a child care centre at the site.

Random events such as fire, shootings, major traffic accidents do happen in

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Canberra from time to time resulting in lockdowns or evacuations. These are

events that cannot be predicted in occurrence or severity. Given block size and

use in the immediate area, and in the whole of the IZ2 for that matter, the

chances of such a major fire or similar event happening in the near area are

remote. Whilst of concern, the Tribunal does not consider that the chances of

occurrence of a similar fire or other industrially based event is sufficiently

significant to form the basis of not permitting the proposed use.

87. Paragraphs 120(c) and 120(d) require consideration of representations made to

the authority in relation to the application, and entity advice given in

accordance with section 149. Entity advice has been referred to, and only one

representation was made in response to public invitation. It was not in

opposition to the proposed development, but was not otherwise of note.

88. The final matter in section 120 for consideration relates to impact of the

proposed development including environmental impacts. It provides as follows:

(g) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.

89. This objective was not in contention in the course of the proceedings.

90. The Tribunal considers the site to be suitable for the proposed use for the

purposes of section 120 of the PD Act and the Lease Variation General Code.

Conclusion

91. The Planning and Development Act and the Territory Plan impose a blueprint

on the development and planning in the ACT. At times it has the appearance of

being labyrinthine, however it can be understood as a hierarchy of provisions in

which internal consistency is a dominant consideration. In this case there is

specific provision for inclusion of a child care use in the industrial zone in

which the land is located.

92. The evidence led by the applicant and the respondent indicates that with

appropriate steps being taken in design and construction of a facility built on

the land a safe environment can be provided. It is unlikely both that any

permitted change in use of the land in the immediate area will either have a

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deleterious effect on the proposed use, or that the proposed use will prevent or

restrict change in that permitted use.

93. The Tribunal is satisfied that there is a commercial need for the facility not only

from persons working within the suburb, but also from the residential areas

which are so close to the site. It can be expected that the advent of light rail will

accelerate that need.

94. The correct and preferable decision is that the DA be approved.

………………………………..Senior Member G Lunney SC

Delivered for and on behalf of the Tribunal

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HEARING DETAILS

FILE NUMBER: AT 63/2016

PARTIES, APPLICANT: Konstantinou Developments Pty Ltd

PARTIES, RESPONDENT: ACT Planning And Land Authority

COUNSEL APPEARING, APPLICANT Mr C Erskine SC

COUNSEL APPEARING, RESPONDENT Mr R Clynes

SOLICITORS FOR APPLICANT Meyer Vandenberg Lawyers

SOLICITORS FOR RESPONDENT ACT Government Solicitor

TRIBUNAL MEMBERS: Senior Member G Lunney SC

Senior Member G Trickett

DATES OF HEARING: 31 January 2017 to 3 February 2017

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APPENDIX A

Planning and Development Act 2007

Division 7.2.3 Merit track119 Merit track—when development approval must not be given

(1) Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with—(a) the relevant code; and(b) if the proposed development relates to land comprised in a rural

lease—any land management agreement for the land; and(c) if the proposed development will affect a registered tree or declared

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

Note 1 An application cannot be approved if it is inconsistent with the territory plan (see s 50) or the National Capital Plan (see Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), s 11).

Note 2 Relevant code—see the dictionary.

(2) Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under section 148 (Some development applications to be referred) unless the person deciding the application is satisfied that—(a) the following have been considered:

(i) any applicable guidelines;(ii) any realistic alternative to the proposed development, or

relevant aspects of it; and(b) the decision is consistent with the objects of the territory plan.

(3) To remove any doubt, if a proposed development will affect a registered tree or declared site—(a) the person deciding the development application for the proposed

development must not approve the application unless the approval is consistent with the advice of the conservator of flora and fauna in relation to the proposal; and

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

120 Merit track—considerations when deciding development approvalIn deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:(a) the objectives for the zone in which the development is proposed to

take place;

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(b) the suitability of the land where the development is proposed to take place for a development of the kind proposed;

(c) if an environmental significance opinion is in force for the development proposal—the environmental significance opinion;Note Environmental significance opinion—see s 138AA. Environmental

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

(d) each representation received by the authority in relation to the application that has not been withdrawn;

(e) if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications)—the entity’s advice;Note Advice on an application is given in accordance with section 149 if the

advice is given by an entity not later than 15 working days (or shorter prescribed period) after the day the application is given to the entity. If the entity gives no response, the entity is taken to have given advice that supported the application (see s 150).

(f) if the proposed development relates to land that is public land—the public land management plan for the land;

(g) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.

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HEARING DETAILS

To be completed by Presiding Member

Please omit which one does not apply.

To be sent to Parties Only YES ONLY TO PARTIESOr;To Be Published YES to be published and for parties to collect.

IF YES, Presiding Member to fill out information below :

FILE NUMBER:

PARTIES, APPLICANT:

PARTIES, RESPONDENT:

COUNSEL APPEARING, APPLICANT

COUNSEL APPEARING, RESPONDENT

SOLICITORS FOR APPLICANT

SOLICITORS FOR RESPONDENT

TRIBUNAL MEMBERS:

DATES OF HEARING:

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