ACT CIVIL & ADMINISTRATIVE TRIBUNAL

McGRATH AND ANOR v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2018] ACAT 100

AT 29/2018

Catchwords: ADMINISTRATIVE REVIEW – planning approval – ‘Mr Fluffy’ block – proposal for dual occupancy, RZ1 – substantial setback encroachments – unauthorised removal of regulated tree – lack of evidence that the proposed development “encourages high quality architectural standards” – reconsideration decision set aside

Legislation cited: Planning and Development Act 2007 ss 119, 120, 121Tree Protection Act 2005 ss 8, 10, 21

Cases cited: Deakin Residents Association v ACT Planning and Land Authority [2015] ACAT 37 Downer Community Association and ACT Planning & Land Authority & Anor [2007] ACTAAT 20Gingell v ACT Planning and Land Authority [2018] ACAT 62Javelin Projects v ACT Planning and Land Authority [2017] ACAT 87Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2017] ACAT 44Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2018] ACAT 95Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority [2018] ACAT 38

Subordinate Legislation cited: Multi Unit Housing Development Code r & c 7, 29, 30, 31, 40,

47, 56A, 57, 61, 73, 91

Tribunal: Presidential Member G McCarthySenior Member R Pegrum

Date of Orders: 22 October 2018Date of Reasons for Decision: 22 October 2018

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 29/2018

BETWEEN:ANGELA MCGRATH

ApplicantAND:

ACT PLANNING AND LAND AUTHORITYRespondent

AND:

MEGAN BRENNAN First Party Joined

FLEMING GROUP DEVELOPMENTS PTY LTD Second Party Joined

TRIBUNAL: Presidential Member G McCarthySenior Member R Pegrum

DATE: 22 October 2018

ORDERThe Tribunal orders that:

1. The decision dated 8 March 2018 of the respondent is set aside

………………………………..Presidential Member G McCarthy

for and on behalf of the Tribunal

REASONS FOR DECISION

1. The second party joined, Fleming Group Developments Pty Ltd (Fleming), is

the Crown lessee of a residential block in the suburb of Curtin (the subject

block). Ms Alexandra Arnold is the sole director of Fleming.

2. The subject block is zoned Residential RZ1 Suburban zone and has an area of

1,252m².

3. In 2015, the previous Crown lessee surrendered the lease over the subject block

to the ACT Government under the so-called Mr Fluffy buyback scheme. This

occurred because the house then on the subject block contained asbestos. The

house on the subject block was demolished. The subject block was then

remediated and sold to Fleming at public auction.

4. Plan Variation No 343 allows unit titling for dual occupancy development of

residential blocks in the RZ1 Suburban zone that are surrendered under the

buyback scheme and have an area greater than 700m².

5. On 13 October 2017, Fleming applied for approval to construct two single-

storey dwellings on the subject block to form a dual occupancy with carports,

associated landscaping, servicing and other site works.

6. On 15 January 2018, the respondent, the ACT Planning and Land Authority

(the Authority) refused the application. ACTPLA did so because the

development would have necessitated clearing three regulated trees towards the

rear of the subject block. Their removal was not supported by the Conservator

of Flora and Fauna (the Conservator).1 The Conservator’s reasons were as

follows:

Trees 4-6, regulated Quillaja saponaria (not unknown weed species)2 on the lease, are not supported for removal.

These 17m tall Trees are what was once part of the Cotter Plots and are very rare of this size in Canberra. (I do not know of any bigger, Westbourne Woods barely reaches half their height).

They are classed as excellent specimens of registerable quality.

The trees need to be retained in an appropriately considered development

1 Conservator’s Advice at T documents page 3182 On the plans lodged with the development application, Fleming

described the trees as “unknown weed species”

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7. The Conservator noted another regulated tree on the subject block that had not

been listed as a regulated tree.

8. The Conservator also noted details about another regulated tree towards the

front of the subject block as follows:

Tree 3 (Liquidambar sp now dead) appears to have met with a toxic substance as some severe smell emanated from alongside it upon inspection.

9. In its reasons for refusal of the development application, the Authority

determined that removal of the regulated trees would not be consistent with

objective (d) of the zone objectives for the RZ1 zone which states:

d) Ensure development respects valued features of the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties.

10. On or about 14 February 2018, Fleming applied for a reconsideration of the

decision to refuse the development application. The application included an

amendment so that two of the three Quillaja ‘Cotter Plot’ trees would be

retained.

11. On 8 March 2018 on reconsideration, the Authority approved the development

as amended subject to conditions (the reconsideration decision). The notice of

decision included conditions that “tree protection fencing shall be erected prior

to the commencement of any work on the site” and that “the two trees (tree

numbers 4 and 5) shall be retained and all construction activity in the vicinity of

these trees must be done in accordance with directions and/or supervision from

a suitably qualified arborist.”

12. On 5 April 2018 the applicant, Ms McGrath, applied to the Tribunal for an order

that the reconsideration decision be set aside and that the original decision made

on 15 January 2018 be confirmed (i.e. that the development application be

refused). Ms Brennan became a party to the proceedings and, for all practical

purposes, worked with and supported Ms McGrath. They presented their cases

collectively. Their statement of facts, issues and contentions dated 8 June 2018

was a joint document. For convenience, we shall refer to them in these reasons

for decision as ‘the applicants’.

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13. On 28 and 29 June 2018, the Tribunal heard the application for review.

Ms McGrath and Ms Brennan appeared on their own behalf. Ms P Bindon of

counsel appeared for the Authority. Mr C Erskine SC appeared for Fleming.

14. The applicants raised several issues as grounds for why the decision under

review should be set aside.

Section 119(1)(a)

15. Section 119(1)(a) of the Planning and Development Act 2007 (P&D Act)

provides that “development approval must not be given for development

proposal in the merit track unless the proposal is consistent with ... the relevant

code”. The applicants contended that the proposed development does not

comply with the Multi Unit Housing Development Code (the MUHDC). The

applicants made a general submission that the reconsideration decision does not

provide sufficient justification for non-compliance with rules, where a

developer can comply with a corresponding criterion, particularly where the

MUHDC provides:

Where there is a departure from a rule, 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.

16. The applicants referred to the tribunal’s decision in Javelin Projects v ACTPLA3

(Javelin Projects) where the Tribunal commented on compliance with a

corresponding criterion:

Where terms such as ‘proportionate’ and ‘reasonable’ are used in criteria, the Tribunal consider it useful to consider the ‘minimum ideal’ as set out in the related rule as a useful guide. Whilst clearly ‘something less’ than the rule requirements may be approved, the degree of divergence from the rule requirement is a matter that will help guide the Tribunal in its consideration of the evidence provided in support of satisfying criterion.

17. In Javelin Projects, the Tribunal referred to an earlier decision in Deakin

Residents Association4 where the Tribunal commented on the relationship

between rules and corresponding criteria in the MUHDC:

Context is an important tool in statutory interpretation and the requirements in C 36 should be informed by the terms of R 36. In effect C

3 Javelin Projects v ACT Planning and Land Authority [2017] ACAT 874 Deakin Residents Association v ACT Planning and Land Authority

[2015] ACAT 37 at [35]

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36 allows a lesser separation than 4 metres but requires this to be justified. Both R 36 and C 36 implement a particular purpose and policy, and this purpose and policy should inform the interpretation of C 36.

18. We accept the submission of the applicants and endorse the Tribunal’s earlier

comments in Javelin Projects and Deakin Residents Association. However, the

submission by itself does not establish non-compliance with the MUHDC.

Rather, it supports consideration of the nature and extent of a departure from an

applicable rule where Fleming and/or the Authority contend for compliance

with a corresponding criterion. We do so below regarding the numerous

instances where the proposed development does not comply with an applicable

rule.

Section 120

19. Section 120 of the P&D Act states seven matters that the ‘decision-maker’ must

consider when deciding a development application. These include the objectives

for the zone in which the development is proposed to take place (section

120(a)), each representation received by the Authority in relation to the

development application (section 120(d)) and any entity advice given in relation

to the application (section 120(e)).

20. The applicants made submissions on each of these considerations, contending

that the reconsideration decision had given insufficient regard to the objectives

for the RZ1 zone, had not properly addressed the issues raised in the

representations received and had not addressed the Conservator’s opinion that

the regulated trees that were, at the time, on the subject block should be

retained.

21. The Authority and Fleming submitted that, pursuant to section 121(2) of the

P&D Act, the Tribunal does not have jurisdiction to consider issues arising

under section 120, and that its role is confined to consideration of whether

applicable rules and/or criteria are met. Section 121(2) states:

(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—

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(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.

22. In Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail

REIT & Ors v ACT Planning and Land Authority5 the Tribunal conducted an

extensive review of relevant earlier Tribunal decisions and the relevant

legislation. Arising from that review, the Tribunal said by way of summary:

The Tribunal considers that its task on review of a merit track decision is to consider the questions of code compliance only (section 119(1)(a)). The Tribunal cannot review the decision in relation to other parts of section 119, the broader considerations listed in section 120, or any other matters which may have been relevant to the discretionary decision.

23. In Gingell v ACT Planning and Land Authority6 the Tribunal again received

submissions regarding the Tribunal’s jurisdiction, having regard to section 121.

The Tribunal said:

39. The Tribunal does not consider it necessary to conduct an extensive review of the relevant ACT cases which has been done in the Sladic case. That case contains an examination of the decision of the ACT Court of Appeal in Baptist Community Services v ACT Planning and Land Authority & Ors [2015] ACTCA 3. That case set out principles to be taken into account by the decision maker when making a decision under the PDA ab initio. Sladic sets out the principles to be applied on review of such a decision as a result of section 121 which are necessarily circumscribed as described in the section.

40. Those principles are also set out at paragraphs 226 to 230 of Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2017] ACAT 44.

41. In this case the applicants have not shown any contravention of the rules and criterion in the applicable codes assuming that imposed conditions are observed.

42. It is the decision of the Tribunal that it therefore does not have jurisdiction to examine the largely discretionary matters raised by all the applicants beyond consideration of the code provisions.

24. The ambit of the Tribunal’s jurisdiction, having regard to section 121(2), has

been the subject of many submissions and decisions over the years. Views

5 Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority [2018] ACAT 38 at [6]

6 Gingell v ACT Planning and Land Authority [2018] ACAT 62 at [39] – [42]

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varied, and still do. Recently, the Tribunal in Noah’s Ark Resource Centre

Incorporated v ACT Planning and Land Authority & Anor7 stated that “the

decision in Sladic is not binding on this Tribunal … [and that] … we have

decided to proceed on the basis set out in the decision in the previous Noah’s

Ark case.”8

25. The Tribunal’s decision in Sladic is on appeal to the Supreme Court. We

understand that a notice of contention has been filed regarding the Tribunal’s

jurisdiction, having regard to sections 119, 120 and 121.

26. However, in this case, it was not necessary to enter the debate. After

consideration of the applicable rules and criteria which is clearly within the

Tribunal’s jurisdiction, we concluded that the reconsideration decision should

be set aside for non-compliance with applicable rules and criteria.

Boundary setbacks and building height

27. Rule 29 and table A5 of the MUHDC require a minimum front boundary

setback of six metres for the subject site. In its assessment of the development

application, the Authority referred to a “minor front boundary encroachment”

although no dimension for this setback is shown on the plans. Nevertheless, the

Authority noted “development…meets criterion”.9 To be met, criterion 29

required the front boundary setback achieve all of a) “consistency with the

desired character; b) reasonable amenity for residents; and c) sufficient space

for street trees to grow to maturity”.

28. The Tribunal agrees that the proposed development satisfactorily addresses

these three criteria and agrees that a minor encroachment into the front

boundary setback should be permitted, but Fleming should with any future

development application for the subject block submit to the Authority a plan

prepared by a registered surveyor showing the exact distance of the proposed

development from the front boundary of the subject site so that the extent of the

encroachment is known and can later be measured for compliance.

7 Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2018] ACAT 95

8 Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2018] ACAT 95 at [32] – [33]

9 ACTPLA Assessment of Territory Plan Code Requirements (not dated) at T-documents page 225

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29. Rule 30 and criterion 30 of the MUHDC provide for minimum side and rear

boundary setbacks. They state:

30. Table A6, referred to in rule 30 a), relevant to the subject block identifies a

minimum setback of 3m from the side and rear boundaries for the subject block.

31. The applicants submitted that the approved plans show boundary setbacks for

the proposed development as follows:

For the rear dwelling the distance between the external wall and the boundary is as little as 1.25m on one side, 1.5m on the other side and 2.075m at the rear. The front dwelling has a side boundary of only 2.3m on one side and encroaches slightly on the front setback.10

32. In its assessment of the proposal, the Authority incorrectly reported that the side

and rear setbacks “complies with rule”, meaning rule 30. However, the

approved plans show setbacks which do not comply with rule 30, and to a

significant extent.

33. Fleming submitted that the reason the side and rear setbacks are less than the

required 3m is “to accommodate the two Chilean soapbark trees”. Fleming

offered no other argument in support of the reduced setbacks.11

10 Angela McGrath and Megan Brennan, statement of facts, issues and contentions dated 8 June 2018 at [11]

11 Second party joined statement of facts and contentions dated 25 June 2018 at 3.21

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34. Rule 31 of the MUHDC permits encroachments into the side and rear setbacks

for various minor building elements such as rainwater tanks, eaves and roof

overhangs not exceeding 600mm in width. The drawings approved by the

Authority include cross-sections through both houses which show eaves as

900mm wide. In its assessment of the application, the Authority made no

mention of the width of the eaves and noted only and incorrectly that the

proposal “complies with rule”.

35. The departures from rules 30 and 31 in relation to boundary setbacks and

allowable encroachments are not insignificant in their extent or effect. The

900mm wide roof overhangs appear on the drawings to be less on the south east

and south west boundaries of the site, but the width of the eaves at these points

is not dimensioned. The Tribunal notes that even if the eaves were reduced at

these points to 600mm, the separation of the edge of the roof from the adjoining

boundaries would be in the order of 650mm for the rear dwelling and 1700mm

for the front dwelling.

36. Criterion 30 a) requires that “buildings and other structures are sited to

achieve…consistency with the desired character”. ‘Desired character’ is defined

in the Territory Plan, Definitions, as follows:

Desired character means the form of development in terms of siting, building bulk and scale, and the nature of the resulting streetscape that is consistent with the relevant zone objectives, and any statement of desired character in a relevant precinct code.

37. There is no statement of ‘desired character’ in the Curtin Precinct Code, but the

applicants submitted that ‘desired character’ in this case involves a “consistency

of development throughout the suburb, being one of low density single detached

houses established on large blocks within a mature landscaped setting of street

trees and private gardens”.12

38. The Tribunal noted the considerable number of elements suggested by the

applicants as contributing to this “desired character” and the requirement of

criterion 30 b) for “reasonable separation between adjoining developments”. In

12 Angela McGrath and Megan Brennan, statement of facts, issues and contentions dated 8 June 2018 at [11]

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its consideration of boundary setbacks, the Tribunal considered ‘reasonable

separation’ and ‘detached houses’ to be particularly relevant.

39. A witness statement was provided by Mr Ted Streatfeild, who also gave

evidence before the Tribunal and was cross examined. Mr Streatfeild is a

registered planner with 15 years’ experience in the ACT Government planning

authority. Mr Streatfeild states that “side and rear setbacks are less than 3.0m in

order to accommodate two high quality protected trees within the design”. It

was his opinion that the proposal complies with criterion 30 because the

encroachments “are similar in nature and effects to many standard single

dwelling encroachments in an RZ1 zone…single dwellings are permitted to be

1.5m away from the side boundaries under the Single Dwelling Housing

Development Code…the spatial relationships appear consistent with the desired

character for an RZ1 zone”.13

40. In the opinion of Mr Streatfeild, ”the eave encroachments appear minor and

consistent with the desired character for an RZ1 zone”. In cross examination,

Mr Streatfeild thought this was acceptable ‘because it is quite similar to other

class 10 structures that you might get going up towards the boundary”.14

41. Mr Streatfeild’s statements as to setbacks and encroachments for single

dwellings in RZ1 zones are not helpful and are not correct. His statement that

“single dwellings are permitted to be 1.5m away from the side boundaries under

the Single Dwelling Housing Development Code” is misleading because the

1.5m setback permitted by that code applies only to one side boundary and only

where the setbacks from the rear boundary and any other side boundary are 3m.

42. As to Mr Streatfeild’s reference to “other class 10 structures”, the Tribunal

notes that this relates only to outbuildings and detached garages or carports and

does not apply to that part of a wall with a window of any sort. Likewise the

contention of Fleming that the setbacks “are consistent with what would be

permissible for single dwellings in RZ1 areas” is irrelevant: this is a dual

occupancy.15

13 Ted Streatfeild witness statement dated 25 June 2018 at [25]14 Transcript of proceedings, 29 June 2018 page 10, line 4015 Second party joined statement of facts and contentions dated 25 June

2018 at [3.1] and [3.23]

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43. A witness statement was provided by Mr Ronan Moss, who also gave evidence

before the Tribunal and was cross examined. Mr Moss is a registered architect

and a director of Cox Architecture. In his statement Mr Moss said “we provided

the client with high level planning advice” but he made no reference to building

setbacks or encroachments. In cross examination, Mr Moss opined that “the

choices of the roof and choice of eaves treatment was complementary to trying

to achieve something that had more of a robust quality”. Mr Moss told the

Tribunal he had been given a coloured rendering of the buildings which

suggested the roofs would be of a charcoal colour. He also understood that the

roofs would be metal with a pitch of 30 degrees.16

44. As noted earlier, the Tribunal in Javelin suggested that while “something less”

than the rule requirements may be approved, “the degree of divergence from the

rule” will guide the Tribunal in its consideration of the evidence supporting the

relevant criterion.17 The Tribunal in Deakin Residents Association noted also

that “context is an important tool in statutory interpretation”.18

45. The Tribunal finds the arguments in Javelin Projects useful in its consideration

of the words ‘consistency’ and ‘reasonable’ in criterion 30 b). The Tribunal

places emphasis also on the context of the proposed development and is of the

opinion that the existing pattern in the area of generously separated individual

houses on large blocks must be respected. In the opinion of the Tribunal,

‘something less’ than the rule requirements for setbacks might be approved in

this instance were this not unreasonably to impact on the pattern. In the opinion

of the Tribunal, the significant divergence in the proposed development from

the rules concerning boundary setbacks or projection of the roofs into those

setbacks cannot be accepted as a ‘reasonable’ interpretation of the intent of

criteria 30 a) or 31 a) which require that the proposed development achieves

consistency with the ‘desired character’ of the area.

16 Ronan Moss witness statement dated 22 June 2018; transcript of proceedings 28 June 2018 page 54, line 31; page 56, line 15

17 Javelin Projects v ACT Planning and Land Authority [2017] ACAT 87 at [72]-[74]

18 Deakin Residents Association Inc v ACT Planning and Land Authority [2015] ACAT 37

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46. Towards the close of the second day of hearing, Fleming told the Tribunal that it

would be prepared to accept the following variations to the proposed

development:

(a) the setback of the rear dwelling from the rear boundary be increased from

2075mm to not less than 3000mm;

(b) the setback of the rear dwelling from the north eastern side boundary be

increased from 1500mm to not less than 3000mm; and

(c) the setback of the rear dwelling from the south western side boundary be

increased from 1250mm to not less than 1500mm.19

47. The offer by Fleming to increase the setbacks to 3000mm from the northeast

boundary and the southeast (rear) boundary was an appropriate response for

these boundaries, but the Tribunal does not consider that the offered setback of

1500mm from the southwest boundary will provide ‘reasonable separation’

from the adjoining property. A setback of at least 2000 mm, still only two-thirds

of that required under the rule, should be made.

48. It is clear that Fleming’s suggested changes would demand extensive

adjustments to the planning and design of the rear dwelling which could not be

accommodated simply by shrinking the sizes of internal rooms and spaces. To

do so would make the rooms and spaces unworkable and, in all probability,

impermissible. Necessary changes would be so extensive that the revised plans,

elevations and sections would not bear any realistic resemblance to the existing

plans. A setback of 2000mm on the southwest boundary would add to the

changes required.

49. The Tribunal considered how best to resolve the issue and concluded that its

only sensible or realistic option is to set aside the reconsideration decision. The

existing setbacks are not compliant with criteria 30 or 31. With the revised

setbacks as proposed by Fleming and 2000m on the south-east boundary, it is

not appropriate for the Tribunal to decide or even suggest internal changes to

the design. It is for Fleming to reconfigure use of the space within the smaller

footprint.

19 Transcript of proceedings, 29 June 2018, page 107, line 11; page 108, line 23

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50. The Tribunal offers two other comments about setbacks that may assist with

future design.

51. First, it supports in principle the lesser setbacks of the front dwelling from the

south west boundary on the grounds that this would occur principally within the

primary building zone and would have the benefit of providing articulation of

the south west elevation of the proposed dwellings.

52. Second, provided the side and rear boundary setbacks for the walls of the rear

dwelling comply with rule 30, the Tribunal would agree to 900mm wide eaves

for both dwellings.

53. Where the Tribunal has decided to set aside the reconsideration because of non-

compliance with criteria 30 and 31, consideration of other issues is not strictly

necessary. However, it records its findings to assist with consideration of future

plans.

Buildings size and scale – plot ratio

54. The plot ratio for surrendered residential blocks in an RZ1 zone is determined

under rule 7 of the MUHDC. Compliance with rule 7 is a mandatory

requirement. It provides:

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55. The Authority calculated a plot ratio of 34.3% for the development as a whole

and 17% for the rear dwelling. This included an allowance of 18m² for each of

the double carport areas, meaning 36m² in total.

56. The actual floor areas of the proposed carports are 38m² and 42m²

respectively.20 The applicants contended that the full area of the carports should

be included when calculating the plot ratio of the whole development. When

that is done, the plot ratio exceeds 35%, with the result that rule 7 is not met. It

follows, they said, that the development must be set aside or varied to achieve

compliance with rule 7.

57. “Plot ratio” is defined in the Territory Plan, Definitions, as follows:

Plot ratio means the gross floor area in a building divided by the area of the site.’

58. “Gross floor area” is defined in the Territory Plan, Definitions, as follows:

Gross floor area (GFA) means the sum of the area of all floors of the building measured from the external faces of the exterior walls, or from the centre-lines of walls separating the building from any other building,

20 Transcript of proceedings, 28 June 2018, page 30, lines 18 – 21

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excluding any area used solely for rooftop fixed mechanical plan and/or basement car parking.

59. The Authority and Fleming contended that because the carport areas do not

have doors and are enclosed only at their rear and on one side, their floor areas

are not included when calculating plot ratio – save for the mandatory allowance

of 18m² for each area.

60. The applicants took issue with this exclusion. Ms McGrath, accurately in our

view, characterised the proposed construction as follows:

Perhaps when this rule was developed originally, we are thinking of old-style carports which could just be metal structures - which I argued in my submission is quite different to what we are talking about here. To me, what is being developed and proposed here is a garage that's missing a door and a bit out of the wall. It's quite different to a carport that's, sort of, a separate structure or something that can be taken off later or it's severable in some way. This is very much part of a building, it's a continuous roof, like, you couldn't cut it off later. It's got internal access to the house.21

61. We have considerable sympathy for the applicants’ viewpoint. In each case, the

carports are an integral part of a single building under one roof. The ‘intent’ of

rule 7 is to set a limit on the footprint of a proposed building or buildings

relative to the size of the block on which they are to be built. To exclude the

carport areas in the manner proposed defeats the intent of rule 7.

62. Also the proposed construction, with brick piers on each side of the entry to

each carport, readily lends itself to installation of a secure double garage door.

Each carport is, for all practical purposes, a garage awaiting its door.

63. Ms Jamali, who gave evidence as a Residential Outcomes Manager with the

Authority, appeared to acknowledge the loophole in rule 7 regarding plot ratio

calculations. At hearing, she said:

Because when the territory plan - previously, when we used to have carports, we were not able to include GFA at all because they were, like, open structures and they are not garages. But then it was - however, to make sure that, yes, there is some inclusion of some area in the gross floor area - otherwise you could get, like a triple carport or something which could be quite a bulky thing. But you couldn't add that to the GFA at all. So it was amended, I can't remember when, I think probably back

21 Transcript of proceedings, 28 June 2018, page 41, lines 35-44

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in 2000 when this clarification was added to rule 7 so that at least some of the GFA, like, you know, the area is included in GFA.22

64. Ms Jamali’s reference to “at least some of the GFA…is included in GFA” was a

reference to the obligation under rule 7 to include 18m² for each roofed car

space required to meet requirements under the Parking and Vehicular Access

General Code for residential car parking.

65. We have carefully considered the applicants’ submission but have concluded

that, without the garage doors, rule 7 as presently drafted allows Fleming to

include only 36m² of the floor areas rather than the actual areas of 80 m². Later

installation of the doors is an enforcement consideration, not a matter for

planning approval, however problematic and unlikely enforcement would be.

Landscaping

66. Criterion 40 of the MUHDC requires the proposed development to meet all of

seven landscape and site design objectives, one of which is the “planting of

trees with a minimum mature height of 4m.” The applicants contend that there

are no details to explain how this objective will be achieved.

67. Fleming contended that this objective is met, relying on the proposed planting

of six Pyrus SPP (pear) trees: three at the front of the block facing the street, one

to the east of the front dwelling and two to the east of the rear dwelling. These

trees, Mr Streatfeild said, can reach a mature height of up to 30 feet or

approximately 10m. In addition to the retention of two of the ‘Cotter Plot’ trees

on the subject block required under the reconsideration decision, Mr Streatfeild

thought that criterion 40 is met.

68. Ms Jamali was equivocal about whether criterion 40 is met, given its subjective

character, and proposed further conditions that the three Pyrus trees to be

planted in the front setback area be “advanced stock medium-sized mature

trees”. She also proposed as a further condition that the proposed shrubs to be

planted along the whole of the north-east boundary be “advanced stock fast-

growing hedges”. These further conditions, she said, “would ensure compliance

with criterion 40”. We note that Fleming indicated its agreement to all

conditions proposed by the Authority.

22 Transcript of proceedings, 28 June 2018, page 41, lines 17-25

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69. We also note that arising from the removal of the Eucalypt Cinera referred to

below regarding regulated trees, Fleming has agreed to a further condition that it

plant a replacement tree of semi-mature stock at approximately the same

location as the Eucalypt with a mature height of not less than four metres. For

reasons discussed below in relation to the applicants’ submissions regarding

regulated trees, we consider that this further condition should be made in

response to any further development application, but require the mature height

to be not less than eight metres. It will also add to compliance with criterion 40.

70. The Tribunal concludes that with these further conditions, criterion 40 would be

met and that these conditions should form part of any future approval decision.

Surveillance

71. The applicants submitted that the proposed development does not comply with

rule 47 b) of the MUHDC because the building facade of the front dwelling

facing the street does not have a door with a roofed element such as a verandah

or balcony. The front door of the front dwelling faces the north-eastern side

boundary. There is no door facing the street, roofed element or otherwise.

72. The applicants then noted that there is no assessment against corresponding

criterion 47 as to whether the buildings achieve passive surveillance of

adjoining streets and adjoining public open space.

73. The Authority agreed that the proposed development does not comply with rule

47. Ms Jamali said that the Authority had intended to include in its

reconsideration decision a condition that the landscape plan be adjusted to

provide for an easy way of finding the front door. It proposed that the Tribunal

add this further condition.

74. Mr Streatfeild opined that criterion 47 was met because the front elevation

windows to the living, dining and kitchen areas of the front residence face the

street, and because visitors are directed to the front door through the front open

space. The Tribunal is of the opinion that the extensive window treatments

facing the street (assuming they remain in any future design plans) will give

ample surveillance to the street and that criterion 47 will be met.

Building design

17

75. Criterion 56A of the MUHDC applies to dual occupancy dwellings on

surrendered residential blocks in an RZ1 zone. It provides:

76. The applicants noted the absence of plans depicting how the proposed buildings

will be seen from the street and contended that the proposed development does

not comply with criterion 56A.

77. The applicants also contended that:

The design of the development, with neither house facing the street, does not contribute to a visually harmonious streetscape, nor does it add variety and interest. The front dwelling has only the side of the building as the street aspect. The elevations depict a brick wall with three street facing windows. The main entry door is concealed around a corner. The development has two carports in the middle of the site without closing doors incorporated into the design, both of which will be visible from the street. The proposed development is not consistent with other developments in the street.23

78. Fleming stated that the proposed development had been “carefully designed…to

harmonise with the existing RZ1 streetscape of Dunstan Street…low rise,

pitched roofed, face-brick villas, in keeping with most other houses on Dunstan

Street”.24

79. Ms Jamaly said that in her opinion the proposed development complies with

criterion 56A:

The bulk and scale of the proposed development is low impact and will not have an adverse visual impact on the streetscape. The character of the

23 Angela McGrath and Megan Brennan, statement of facts, issues and contentions dated 8 June 2018, page 9 at [15.2]

24 Second party joined statement of facts and contentions dated 25 June 2018 at [3.1]-[3.2]

18

development will blend in with the existing streetscape character and will contribute to a visually harmonious streetscape.25

80. Mr Streatfeild likewise contended that the proposed development satisfies

criterion 56A:

In my opinion the C56A is satisfied because the design is of a high quality architectural standard as evidenced by the architectural drawings. The low density single-storey nature of the proposal contributes to a visually harmonious streetscape is (sic) consistent with development in the surrounding area and therefore the streetscape character will not be adversely affected. The architectural style of the proposal when viewed from the street is similar to nearby residences except with wider eaves.26

81. Mr Streatfeild gave evidence that “when you look at this development from the

street, it’s going to look quite similar to some of the elements - or all the

elements in that street…it’s of an architectural character and style and standard

that’s quite acceptable and good”.27 Mr Streatfeild also reminded the Tribunal

that the requirement in criterion 56A for dual occupancy development on

surrendered residential blocks to demonstrate “high quality architectural

standards” was not found in codes for standard residential development. He said

that “in RZ1 there’s no real control of a normal single house…that says you

have to have high architectural development or standards or harmonious

streetscape”.28

82. Regarding compliance with criterion 56A, Mr Moss said in his witness

statement:

The existing streetscape is predominately made up of ‘brick and tile’ houses with either gable or hip roofs. Many of the houses on the street are very simple in their appearance and are likely to have been built in Curtin’s early development. A number of the houses on the street appear to have been originally developed as government houses...

Importantly, the proposal sites its houses so that they make the most of their northerly aspect, ensuring ample sunlight and ventilation is achieved. The arrangement of the houses allows them to be detached dwellings rather than be semi-detached, which greatly reduces the bulk of the development and creates more variety and interest.

83. Mr Moss did not claim to have assisted in the preparation of designs for the

proposed development and he made no comment as to whether the designs 25 Rumana Jamaly, witness statement dated 25 June 2018 at [67]-[68]26 Ted Streatfeild witness statement dated 25 June 2018 at [50]27 Transcript of proceedings, 29 June 2018, page 76 line 20 and line 3028 Transcript of proceedings, 29 June 2018, page 73 line 22

19

encouraged high quality architectural standards. Mr Moss concluded that the

proposed development “in no way detracts from the existing character of the

street as in its built form it represents a contemporary architectural ‘take’ on the

street’s typology of brick and tile houses”.

84. In this respect, the Tribunal notes a decision of the (former) ACT

Administrative Appeals Tribunal in Downer Community Association and ACT

Planning & Land Authority & Anor29 where the tribunal, per President Peedom

and Senior Member P O’Neil, made the following observation in the context of

a zone planning objective that a proposed development “respects existing

streetscapes and adjoining development”:

It does not follow from the fact that a development proposes an observable difference to the existing style of development that it fails to respect it.

85. Ms Bindon, counsel for the Authority, made a similar observation:

It's about high-quality architectural standards that contribute to a visually harmonious streetscape character. It's harmonious, it's not consistency, and so it's not about being the same. I'm not a musician, but, as I understand harmony, it's about different chords but that work together. So difference in and of itself is not a bad thing, that's a good thing as long as it's harmonious.30

86. The Tribunal accepts the approach but notes that no evidence was given by any

party as to the degree to which the proposed development might encourage

‘high quality architectural standards’. In the absence of a definition in the

Territory Plan of ‘high quality architectural standards’ and without the benefit

of any expert opinion in this matter, the Tribunal notes only the contentions of

the applicants that the proposed development is not consistent with other

developments in the street.

87. If the Tribunal were not already setting aside the reconsideration decision, it

would have had difficulty in finding that criterion 56A is met. There is no

evidence to support such a finding; the development is no more than a simple

design devoid of any positive architectural feature. Mr Streatfeild’s observation

that encouragement of high architectural standards is not required for standard

29 Downer Community Association and ACT Planning & Land Authority & Anor [2007] ACTAAT 20 at [17]

30 Transcript of proceedings, 29 June 2018, page 129, lines 9-14

20

residential development is irrelevant; for a Mr Fluffy surrendered block it is

required under criterion 56A.

88. If future plans are lodged for development of the subject block, the application

should at least include full and clear documentation of the proposal including

accurate street elevations for each dwelling, articulations and descriptions of the

proposed materials and external finishes sufficient to enable an assessment of

whether the design “encourages high quality architectural standards”.

Solar access

89. Rule 57 of the MUHDC requires that:

The floor or internal wall of a daytime living area of the dwelling is exposed to not less than 3 hours of direct sunlight between the hours of 9am and 3pm on the winter solstice (21 June).

90. The applicants contended there is no evidence to establish that rule 57, which is

a mandatory rule, is met.

91. In response, Ms Jamali opined that rule 57 is met because “the north easterly

aspect of the proposed development takes full advantage of the morning sun and

both dwellings will also receive afternoon sun to a certain extent.” In her oral

evidence, Ms Jamali also said that the Authority did not request a shadow

diagram because it was quite confident that the proposed development would

receive reasonable solar access.31

92. Mr Streatfeild also noted that the “northern windows of each [dwelling will]

receive more than 3 hours of unimpeded solar access between 9.00am and

3.00pm.”

93. The Tribunal has examined the drawings and is satisfied that the northeast

orientation of both dwellings allows for solar access as required by rule 57. A

future design will require the issue to be reconsidered.

Principal private open space (PPOS)

94. Rule and criterion 61 of the MUHDC provide:

31 Transcript proceedings, 28 June 2018, page 72, lines 11-15

21

95. Principal private open space (PPOS) is defined in the Territory Plan,

Definitions, as follows:

Principal private open space means private open space that is directly accessible from a habitable room other than a bedroom.

96. Referring to rule 61 b), table A9 to the MUHDC sets out minimum areas and

dimensions for the PPOS, depending on the zone and the number of bedrooms.

In this case, each of the proposed dwellings is a four-bedroom dwelling,

meaning that the minimum area for the PPOS is 45m² and the minimum

dimension is 2.5m.

97. Regarding the front dwelling, Ms Jamali opined that it complies with rule 61 a),

b), d) and e) but, arguably, not c). As the applicants noted, the PPOS looks

directly onto the driveway leading up to the rear dwelling and will be visible

from the street unless and until proposed hedge plantings are established. Ms

Jamali therefore proposed the following:

I think the proposal includes some landscaping along the main, the principal private open space, which will take some time to grow and then provide privacy. So in my view, it's my opinion that a well-designed courtyard wall would actually provide privacy from day one, and that can

22

incorporate some landscaping along the - in front of the courtyard wall as well, to soften the courtyard wall.32

98. We agree with the applicants’ concerns and the Authority’s proposed additional

condition to address it. We note that Fleming proposed that all conditions

proposed by the Authority be adopted. We agree that, with the courtyard wall,

criterion 61 would be met, however the issue we’ll need to be revisited in a

further design.

99. The applicants also submitted that the PPOS for the front dwelling does not

comply with criterion 61. However, with the further condition to ensure

compliance with rule 61 c), no purpose is served by us considering compliance

with criterion 61; compliance with the applicable rule is enough.

100. Regarding the rear dwelling, the parties accepted that it does not comply with

rule 61, although for different reasons.

101. Mr Streatfield, for Fleming, opined that it complied with rule 61, save for rule

61 e) because the PPOS is located to the south-west of the rear dwelling and is

partially overshadowed by the buildings and the retained trees. Nevertheless, he

thought it complied with criterion 61, in particular criterion 61 e), because there

is “undersized” PPOS to the north and the appropriately sized PPOS to the

south-west “will give good cool shading in summer”.

102. Ms Jamali said that the rear dwelling did not comply with rule 61 d) because the

PPOS is not “directly accessible” from, and adjacent to, a habitable room other

than a bedroom. She recommended therefore a further condition that the living

room window facing onto the PPOS be changed to an access door to achieve

compliance with rule 61 d). Again, we note that Fleming proposed that all

further conditions proposed by the Authority be adopted. We see merit in Ms

Jamali’s proposed condition in response to the existing drawings, but a smaller

redesign of the rear dwelling to address necessary setbacks might resolve

concerns about its PPOS in other ways.

The driveway

103. Rule and criterion 73 of the MUHDC provide:

32 Transcript of proceedings, 28 June 2018, page 33, lines 8-13. See also, page 77, lines 23-29

23

104. Rule 73 applies to internal driveways that are used by residents of more than

one dwelling, as will occur with the proposed internal driveway for the subject

block. In such a case, rule 73 a) requires that the driveways “are set back from

external block boundaries by not less than 1 m”. The proposed internal

driveway complies with rule 73 a), except over a distance of approximately 5m

opposite the rear dwelling’s parking area where the driveway expands towards

the boundary. Over this distance, the driveway is 600mm from the boundary in

order to provide a turning area for cars to access the parking area. There will

still be hedge plantings against the fence, but only to a depth of 600mm. It

follows that the proposed internal driveways will also not comply with rule 73

c).

105. The applicants submitted that the departure from rule 73 a) is not justified, as

the proximity of cars entering and exiting the rear dwelling carport would cause

noise and fumes affecting the private open spaces of the neighbouring property

24

to an unacceptable degree. They also submitted that corresponding criterion 73

a) that there be “sufficient space for planting along property boundaries” is not

met with the result that the driveways are inconsistent with these requirements

under the MUHDC.

106. The applicants also contended that the requirement under rule 73 f) that an

internal driveway provide an “internal radius of at least 4m at changes in

direction and intersections” is not met.

107. Mr Streatfield and Ms Jamali both accepted that rule 73 a) is not met but

contended that criterion 73 is met.

108. The Tribunal was not persuaded by the applicants’ ‘noise and fumes’

submission. A separation of 600mm rather than 1m would not make any

material difference. Also, condition A4 of the reconsideration decision requires

Fleming to construct a new dividing timber fence on its north-eastern boundary,

1.8m high lapped and capped, subject to the agreement of the neighbour.

109. We see no need to respond to the non-compliance with rule 73 because a

revised design for the rear dwelling is likely to enable compliance with rule 73.

We add that, in our view, “sufficient space for planting along property

boundaries” to comply with criterion 73 a) would require planting of not less

than 1m consistent with the rest of the proposed hedge.

Turning space for vehicles

110. Rule 74 provides that internal driveways that serve four or more car parking

spaces (as this development will) and connect to a major road must provide

turning spaces on the block to allow vehicles to leave in a forward direction.

111. Whilst it was not argued at hearing, there appeared to be no dispute that the

subject block faces a major road. We shall proceed on that basis. In any event,

driving in a forward direction each way on the internal driveway is probably

necessary, and certainly appropriate, for entering and exiting the rear dwelling.

112. The turning circle diagrams for both carports demonstrate that a B99 and a B86

vehicle can access the carports and reverse out of the carports in order to travel

25

each way along the internal driveway in a forward direction. It follows that rule

74 is met.

113. The applicants contend that the compliance is still unacceptable because a

sufficient turning space is achieved only by breaching rule 73 a) that requires

the driveway to be setback from the north-eastern boundary by “not less than

1m”.

114. We do not agree that compliance with rules and criteria can be approached in

this way. Each is a stand-alone provision. Rule 74 is met. The fact that

compliance is achieved by not complying with another rule or criterion is

irrelevant. Compliance with rule 74 is still achieved. Compliance with another

rule and/or criterion, in this case 73, must likewise be considered as an

independent question. We also expect that with a smaller design for the rear

dwelling rule 74 will be met with compliance with rule 73.

Regulated trees

115. Under rule 91 of the MUHDC, the Authority was required to refer the

development application to the Conservator if the proposed development

requires ground work within the tree protection zone of a ‘protected tree’ or is

likely to cause damage to or removal of any ‘protected trees’. A ‘protected tree’

means a ‘registered tree’ or a ‘regulated tree’, as defined in section 8 of the Tree

Protection Act 2005.

116. In its original application by means of a Landscape Plan dated 13 October 2017,

Fleming sought approval to remove four existing protected trees.

117. The first (identified as Tree 3) was described as an unknown species “believed

to be dead”.

118. The remaining three trees, identified as Trees 4, 5 and 6, in the area proposed

for the rear dwelling were described as “weed trees unknown SPP”. Fleming

applied for their removal on the basis that “their location and size is detrimental

to the site as they i) inhibit the construction of a separate dwelling to the rear

and ii) constrain the planning of any rear dwelling including building design &

26

size, vehicle access and solar access & amenity, making an alternative design

(that retains the trees) unrealistic.” 33

119. Neither the Landscape Plan nor the statement against relevant criteria lodged

with the development application made any mention of the Eucalyptus Cinera

growing 1.45m from the north-eastern boundary towards the rear of the subject

block.

120. At hearing, Fleming contended there was uncertainty as to whether the

Eucalyptus was a regulated tree, given (it said) that its height had not been

measured. However, at hearing, Mr Erskine SC on behalf of Fleming

acknowledged that it was a regulated tree because, even if there was uncertainty

about its height, its girth 1m above ground level was greater than 1.5 m.34 No

explanation was given as to why the Eucalyptus was not mentioned on the

Landscape Plan or what efforts were made to measure any of its features in

order to ascertain whether it was a regulated tree.

121. It is also clear that the Eucalyptus was an important part of the visual amenity of

the subject block and the adjoining block. Ms McGrath gave evidence that it

provided significant shade and amenity to her rear garden.

122. On 16 November 2017 the Conservator provided advice to the Authority noting

the existence of the Eucalypt as a regulated tree, although not listed as a

regulated tree in the development application.

123. But for the Conservator visiting the subject block to inspect the trees proposed

for removal, many relevant facts may not have become known:

(a) Tree 3 (now dead) “appears to have met with a toxic substance as some

severe smell emanated from alongside it upon inspection”.

(b) Trees 4, 5 and 6 were not “weed species”. They are, or were, Quillaja

saponaria that were once part of the Cotter Plots. The Conservator stated

that, at 17m in height, these trees “are very rare of this size in Canberra”.

(c) The existence of the Eucalyptus Cinera as a regulated tree.

33 Statement against relevant criteria, page 7 of 9 (T documents page 397),

34 This circumference causes it to be a regulated tree under section 10(1)(b) of the Tree Protection Act 2005

27

124. On 14 February 2018, the Authority referred Fleming’s proposed retention of

two of the three Quillaja saponaria ‘Cotter Plot’ trees to the Conservator as part

of Fleming’s application for reconsideration of the decision to refuse its

development application.

125. By email sent on 22 February 2018, the Conservator still opposed the

development, stating among other things:

The Quillaja saponaria that is currently being proposed for removal is in the best condition of the three trees (and they are all excellent).

The trees need to be retained in an appropriately considered development and the removal of any of these trees is not supported as removing one tree may have a detrimental impact on the other two trees.

Another regulated tree (Eucalyptus Cinera) is not listed as regulated and has not been considered at all in the development. This tree is unlikely to survive the impact of the works. It must be noted that this tree has a lean and the tensile roots on the south-western side will need appropriate protection to ensure its stability and health.

126. The need for retention and protection of the Eucalyptus Cinera is implicit.

127. In the ordinary course, a person needs approval from the Conservator to remove

a regulated tree. The Tree Protection Act 2005, Division 3.3 and the approval

criteria determined under section 21 of that Act have established a scheme

governing approval, or otherwise, for the removal of a regulated tree.

128. However, where removal of a regulated tree forms part of a development

application under the P&D Act, section 119(2) permits the Authority to approve

the removal, regardless of the provisions of the Tree Protection Act 2005. The

Authority can override the view of the Conservator that a regulated tree should

be retained if it is satisfied that any applicable guidelines and any realistic

alternative to the proposed development or relevant aspects of it “have been

considered” and the decision is consistent with the objects of the Territory Plan.

129. That is what occurred in this case, at least in part. Notwithstanding the

Conservator’s advice, the Authority approved removal of one of the Quillaja

saponaria, but said nothing about the Eucalyptus.

28

130. Nevertheless, when the Authority’s reconsideration decision was under appeal

to the Tribunal, Fleming removed the Eucalyptus.

131. At hearing, the Authority contended that there are “alternative laws” for dealing

with Fleming’s conduct, but that it was “not something that should trouble the

Tribunal.”35 It submitted “the fact is we have to look at the application, the

property, as it is now.”

132. The Tribunal rejects that approach. It was, with respect, a disappointing

submission. What occurred was a blatant frustration of planning laws. Retention

or otherwise of trees, particularly trees protected under the Tree Protection Act

2005, is often an important issue when considering a proposed development.

Competing interests should be resolved according to law, not by flouting the

law. In our view, the fact that the Eucalyptus should still be on the subject block

is a factor to take into account.

133. Perhaps with this in mind, towards the close of the hearing, Fleming through its

counsel stated that it would agree to a further condition that it plant a tree of

semi-mature stock with a minimum mature height of not less than four metres in

the approximate location of the former Eucalypt Cinera. The Tribunal agrees

that this condition should be included in response to any future development

application, but the condition should require that the tree have a minimum

mature height of not less than eight metres to reflect, to some degree, the height

of the tree that was unlawfully removed and achieve some level of ‘make good’.

The additional tree will also promote compliance with criterion 40.

134. Before leaving this issue, comment is warranted. The Tribunal appreciates that

developers seek a clear site in order to maximise construction opportunities. The

Tribunal recognises that trees are often a significant impediment to them

achieving their commercial objectives. The Tree Protection Act, rule 91 of the

MUHDC and the Office of the Conservator of Flora and Fauna are, together, the

Legislature’s statements and structures regarding balance between the

commercial objectives of developers and protection of trees that provide

biodiversity, natural habitat and amenity among other things. We refer

generally to the Tribunal’s comments in Deakin Residents Association v ACT

35 Transcript of proceedings, 29 June 2018, page 121, line 6

29

Planning and Land Authority36 about a balanced application of section 119(2)

before overriding the opinion of the Conservator.

135. Fleming’s conduct, both in its scant, inaccurate and incomplete disclosure about

the protected trees on the subject block and in its subsequent conduct by

removing a regulated tree without approval and when the reconsideration

decision was under appeal, cause the Tribunal to observe that greater

protections are required. It is not about the applicants’ opinions, or the

Tribunal’s opinion, about the value of trees. It is about compliance with legal

structure. At the least, increased responsibility should be placed upon an

applicant for development approval to provide full and frank disclosure about

protected trees on a block proposed for development with significant adverse

consequences for inadequate disclosure.

Conclusion

136. For these reasons, whilst we note issues arising in relation to any further

development proposal, we have concluded that the reconsideration decision

should be set aside.

………………………………..Presidential Member G McCarthy

Delivered for and on behalf of the Tribunal

36 Deakin Residents Association v ACT Planning and Land Authority [2015] ACAT 37 at [89]-[93]

30

HEARING DETAILS

FILE NUMBER: AT 29/2018

PARTIES, APPLICANT: Angela McGrath

PARTIES, RESPONDENT: ACT Planning and Land Authority

FIRST PARTY JOINED Megan Brennan

SECOND PARTY JOINED Fleming Group Developments Pty Ltd

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT Ms J Bindon

COUNSEL APPEARING, FIRST PARTY JOINED

N/A

COUNSEL APPEARING, SECOND PARTY JOINED

Mr C Erskine SC

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT ACT Government Solicitor

SOLICITORS FOR PARTY JOINED Meyer Vandenberg

TRIBUNAL MEMBERS: Presidential Member G McCarthy

Senior Member R Pegrum

DATES OF HEARING: 28 and 29 June 2018

31