ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WILLIAMS v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2018] ACAT 128

AT 62/2018

Catchwords: ADMINISTRATIVE REVIEW — planning approval — operation of applicable and approved lease and development conditions — proposed development non-compliant with conditions or their intent for the purpose of applicable planning codes — decision set aside

Legislation cited: Land (Planning and Environment) Act 1991 (repealed) s 227Legislation Act 2001 ss 7, 88, 138, 139Planning and Development Act 2007 s 50, 51, 144, 431, 446A

Subordinate legislation cited: Commercial Zones Development Code

Gungahlin Precinct Map and CodeSingle Dwelling Housing Development Code

Cases cited: Ibbotson v ACT Planning and Land Authority & Anor [2015] ACAT 57Lourandos and Anor & ACT Planning & Land Authority and Ors [2011] ACAT 25

Tribunal: Presidential Member G McCarthySenior Member G Trickett

Date of Orders: 18 December 2018Date of Reasons for Decision: 18 December 2018

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 62/2018

BETWEEN:

LYNETTE WILLIAMSApplicant

AND:

ACT PLANNING AND LAND AUTHORITYRespondent

AND:

YANNING LUParty Joined

TRIBUNAL: Presidential Member G McCarthySenior Member G Trickett

DATE: 18 December 2018

ORDERThe Tribunal orders that:

1. The decision under review dated 23 May 2018 is set aside.

………………………………..Presidential Member G McCarthyFor and on behalf of the Tribunal

REASONS FOR DECISION

1. The party joined, Yanning Lu, is the Crown lessee of Block 1, Section 207,

Gungahlin (the subject block).

2. The blocks in Section 207 are unusual in many respects. They are in a mixed

use commercial/residential CZ5 zone, surrounded by residential RZ3 blocks.

They are (with two exceptions) small thin blocks, approximately 7.5m wide,

extending across Section 207 from a street to the front to a street at the back.

3. The subject block is only 313m² in area. It is 34m long on its eastern boundary,

32m long on its western boundary with an angled corner 2.84m long forming

the northwest boundary and with a mean width of approximately 9m. The

subject block is at the western end of Section 207. The block has three front

boundaries each to a public road (four if including the angled short northwest

boundary). Its primary frontage faces Phyllis Ashton Circuit, its rear boundary

faces Maria Smith Lane and its long western boundary faces

Helen Turner Street. Blocks 2-9 are all 34m long, but thinner. Each of them is

only 255m² in area.

4. Block 2 is built to its eastern and western boundaries, with the subject block to

its west and vacant Block 3 to its east. Block 4 is also vacant. Mixed use

commercial/residential developments on Blocks 5, 6 and 7 are also built to their

eastern and western boundaries, save for a small pedestrian access lane

approximately 1m wide between Blocks 5 and 6. A similar development is

presently under construction on Block 8. A mixed use commercial/residential

development built to its eastern and western boundaries is on Block 9.

5. All the existing developments follow a similar building profile and style of

construction. In each case, there is a three storey construction facing

Phyllis Ashton Circuit extending southwards into the block by approximately

12m.

6. Behind the three storey construction is a private open space (POS) at ground

level of approximately 54.5m2 in area, 10.5m long and 5.2m wide.

7. Beside the POS is a single storey access ‘corridor’ construction against an

eastern or western side boundary, 10.5m long and approximately 2m wide that

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connects the three storey construction to a single-storey double garage to the

rear facing Maria Smith Lane. The garage is set back less than 1m from the lane

front boundary.

8. Nib walls extend 425mm from the garage on each of the eastern and western

boundaries. All the developments have a tiled gable roof (save for Block 11).

9. The developments in Section 207, taken together, form a body of similarly

designed ‘mixed use’ terrace houses, although varying somewhat in matters

such as colour, materials, window treatments and articulation.

10. The party joined obtained approval for a development on the subject block that

is materially different from all the existing developments in Section 207. Those

differences include:

(a) two storeys of accommodation in the middle portion of the development

which includes a bedroom and ensuite at ground level, approximately

24m² in area, 7.5m long and approximately 3.2m wide and a kitchen at the

upper level, approximately 20m² in area, 6.23m long and approximately

3.2m wide;

(b) POS at ground level (alongside the proposed two storeys of

accommodation not including stairs and a balcony), approximately 37.4m2

in area, 6.56m by 5.7m, up to the western front boundary;

(c) two storeys of accommodation at the rear of the block for residential use,

above and behind a double garage. The ground floor approximately

44.5m2 in area, 5.5m long and 8.1m wide. The upper floor approximately

83.7m2 in area, 10.6m long and 7.9m wide;

(d) the double garage extending to the southern boundary, without nib walls

on the eastern and western side of the garage and a second storey set back

1.44m from the southern boundary;

(e) horizontal parapet or fin walls above the roofline on the eastern boundary

and western elevations; and

(f) two split-level skillion metal roofs, both at a 5 degree slope.

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11. Ms Williams objected to the development because of these differences, save for

the difference in presentation to Phyllis Ashton Circuit. She contended, among

other things, that the differences are contrary to the overall design and character

of the existing developments in Section 207 to the detriment of existing

developments as a whole.

12. She contended that the proposed second storey to the rear of the subject block

would overshadow the POS of the residential townhouse on Block 1, Section

205, on the other side of Maria Smith Lane opposite the subject block and be

detrimental to the visual amenity of residents living in that townhouse. She

expressed concern about overlooking from the second storey to the balcony, at

least, of the residential townhouse on Block 1, Section 205.

13. Ms Williams contended that if the proposed development were permitted to

occur on the subject block it would set a ‘precedent’ for similar developments

on vacant Blocks 3 and 4, Section 207, which would compound the differences

to the existing developments to their detriment.

14. Ms Williams was particularly concerned about the differences because, for

example, if the proposed profile for the proposed development on the subject

block were repeated on Block 3, the POS on Block 2 would be ‘sandwiched’

between high blank walls built right to its boundaries with the subject block to

the west and Block 3 to the east.

15. Ms Williams’ concerns are understandable, but the question is whether the

proposed development is permissible under the Territory Plan. The ACT

Planning and Land Authority (the Authority) and the party joined contended

that they are, and that the decision under review should therefore be affirmed.

16. We agree that the development needs to be assessed by reference to what is

legally permissible, not subjective views about what is appropriate or desirable.

17. Section 50 of the Planning and Development Act 2007 (the P&D Act) prohibits

the Authority from approving the development if it is “inconsistent” with the

Territory Plan. No party disputed that the Commercial Zones Development

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Code (the CZD Code) and the Single Dwelling Housing Development Code

(the Single Housing Code) form part of the Territory Plan and are applicable.

18. Rule 1/Criterion 1 of the CZD Code, state:

19. Rule 22/Criterion 22 of the Single Housing Code are identical, save that:

(a) paragraphs R1 (n) and (o) concerning landscaping and water sensitive

urban design are in the reverse order in Rule 22 of the Single Housing

Code; and

(b) Criterion 22 in the Single Housing Code refers to “any approved” lease

and development conditions rather than “any current, relevant” lease and

development conditions.

20. No party attached any meaning to these differences. In issue was whether the

subject block is “affected by approved lease and development conditions”.

21. Dr Jarvis who appeared for the Planning Authority tendered a document entitled

“Yerrabi Estate Stage 5 – Lease Conditions & Development Requirements”

dated 5 June 2003 (the LDCs).1 He contended that the LDCs are applicable for

1 Exhibit R4

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the purposes of R1/C1 of the CZD Code and R22/C22 of the Single Housing

Code.

22. For the purpose of finding that the LDCs are lease and development conditions,

Dr Jarvis submitted that we should apply the definition of “Development

condition” in the ‘Definitions’ part of the Territory Plan which states:

Development condition means any condition subject to the Planning and Development Act 2007, contained in a lease or an agreement collateral to a lease, or in a lease or agreement collateral to the lease that was made prior to the commencement of the Planning and Development Act 2007.

23. He submitted that because the LDCs constituted conditions in an agreement

collateral to the lease over the subject block and that the agreement was made

prior to the commencement of the P&D Act, they were within the definition of

development condition.

24. Mr Flint disagreed with this approach, noting that lease and development

conditions is italicised in R1/C1 of the CZD Code and R22/C22 of the

Single Housing Code, meaning it is a defined term, and that the meaning must

be determined by reference to all the italicised words. We agree. R1/C1 and

R22/C22 do not refer to a lease affected by development conditions.

25. Ordinarily, the meaning of a defined term can be found in the document in

which it appears, the P&D Act or the ‘Definitions’ part of the Territory Plan.

That is not so for lease and development conditions.

26. We have concluded that the LDCs are lease and development conditions, but the

complexity of the statutory labyrinth that must be travelled to explain why is

regrettable. Fortunately, the pathway was set out in Lourandos and Anor &

ACT Planning & Land Authority and Ors (Lourandos).2

27. The term began life in 2000 when introduced by way of amendment to the

Land (Planning and Environment) Act 1991 (the Land Act) to become

section 227(4) of the Land Act.

28. Section 227 stated:

2 Lourandos and Anor & ACT Planning & Land Authority and Ors [2011] ACAT 25

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227 Register of applications, approvals, orders and lease and development conditions

(1) The planning and land authority must keep a register of—

(a) each alteration or correction to an application made under section 226 (7); and

(b) each application that has not been withdrawn, or that is not to be taken to have been withdrawn and in relation to which the period for making an application under section 275 or section 276 has not ended; and

(c) each notice given to the heritage council under section 229 of a development application that relates to a place or object registered, or nominated for provisional registration, under the Heritage Act 2004; and

(d) each advice given to the planning and land authority by the heritage council under the Heritage Act 2004, section 60 (Advice about effect of development on heritage significance); and

(e) each notice of a development application given to the conservator under section 229 (4) (b); and

(f) each advice given to the planning and land authority by the conservator under the Tree Protection Act 2005, section 82 (Advice about tree protection on land subject to development); and

(g) each approval in relation to which the period for making an application under section 275 or section 276 has not ended; and

(h) each approval, for the period for which it remains in force; and

(i) each order, for the period for which it remains in effect; and

(j) the lease and development conditions (if any) applicable to a lease granted after the commencement of this paragraph; and

(k) any comments of the planning and land authority for the Minister’s consideration of an application under section 229B (Minister may decide some applications); and

(l) if an application has been reconsidered under subdivision 6.2.4—the date and details of the decision on reconsideration; and

(m) details of any minor amendment made under section 247.

(2) The planning and land authority may enter in the register details of lease and development conditions applicable to a lease granted before the commencement of subsection (1) (j).

(3) A person may, during office hours—

(a) inspect the register; and

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(b) make copies of, or take extracts from, the register or any part of a document relevant to an application.

Note  A fee may be determined under s 287 for par (b).

(4) In this section:

lease and development condition, for a lease, means a condition, other than a condition contained in the lease, that—

(a) was approved by the Territory when the lease was granted; and

(b) regulates the development or use of the land that is subject to the lease.

29. In Lourandos the Tribunal stated:

In this case, we are of the opinion that the legislature gave statutory recognition to lease and development conditions applying to both new and existing leases, by the enactment of section 227 of the repealed Act, and that the L&Ds were made under the authority of that Act.3

30. The next step in Lourandos was to determine whether the lease and

development conditions made under the Land Act had continuing operation for

the purposes of the P&D Act, noting that section 227 and the Land Act

generally were repealed upon commencement of the substantive provisions in

the P&D Act on 31 March 2008. The Tribunal drew on section 446A of the

P&D Act to conclude that they did. Section 446A stated:4

446A Transitional—application for development approval if lease and development condition

(1) This section applies to a development application if the application is—

(a) not in the code track; and

(b) for development on land to which—

(i) a lease and development condition made under section 446 applies; or

(ii) a lease and development condition made under the repealed Act applied immediately before the commencement day. (emphasis added)

(2) The planning and land authority, or Minister, must consider the lease and development condition in making a decision under section 162 (Deciding development applications) in relation to the development application if—

3 Lourandos at [94]4 Lourandos at [81]

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(a) the territory plan provides that the condition may vary the plan; and

(b) the condition is relevant to assessing the application and granting the approval.

31. In Lourandos, the Tribunal noted:

Section 446A was added in 2009 to ensure that any lease and development condition made under section 446, or any made under the repealed Act, were to be considered in deciding a DA if the Territory Plan provided that the condition might vary the Plan and the condition was relevant to assessing the application and granting the approval. It, too, is transitional but there is no accompanying definition of “lease and development conditions” so we presume that the definition from the repealed Act applies in these circumstances as well.5 (emphasis added)

32. We here note that section 446A, as a transitional provision, expired with effect

from 31 March 20116 three years after commencement of the P&D Act pursuant

to section 431(1), which has also now expired. However, the continued

operation of section 446A is preserved pursuant to section 88(1) of the

Legislation Act 2001, which states:

88 Repeal does not end effect of transitional laws etc

(1) The continuing operation of a transitional law or validating law is not affected only because the law is repealed.

33. In Lourandos, the Tribunal went on to determine that the lease and development

conditions in issue in that case fell within the definition of “Development

conditions” in the ‘Definitions’ part of the Territory Plan because they

constituted conditions in “an agreement collateral to the lease”. On this basis,

the Tribunal said:

171. We conclude that, despite the ambiguities arising from the lack of common definitions, there are both “lease conditions” applying to the subject land and “lease and development conditions” contained in “agreements collateral to the leases” that apply to the subject land. Therefore Rule R3A and Criterion C3A of the CZ5 Code come into play.

34. We here note that the CZ5 Mixed Use Zone Development Code was replaced in

December 2012 by the CZD Code.

5 Lourandos at [164]6 P&D Act Endnotes, Legislation history

9

35. Rule 3A and Criterion 3A of the CZ5 Mixed Use Zone Development Code

stated:

36. Of note is that the words “Lease and Development Conditions” in R3A/C3A

were not italicised to convey that they should, together, be understood as a

defined term. The Tribunal in Lourandos nevertheless found that the lease and

development conditions in issue in that case were “agreements collateral to the

lease” and so were within the definition of “development conditions” in the

Territory Plan. Using this reasoning, the Tribunal concluded that Rule 3A and

Criterion 3A of the CZ5 Code came “into play”.7

37. In this case, in our view, it is not necessary or appropriate to refer or rely upon

the definition of “development conditions” because “lease and development

conditions” is italicised in R1/C1 and R22/C22. In other words, the definition in

section 227(4) of the Land Act, via the transitional provisions mentioned above,

7 Lourandos at [170]-[171]

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should be directly applied. It follows that the LDCs are lease and development

conditions for the purposes of R1/C1 and R22/C22.

38. The next issue in this proceeding was whether the LDCs were “approved” and

are therefore applicable for the purposes R1/C1 and R22/C22. Mr Davies, who

gave evidence on behalf of the Authority, stated that thorough searches had

been unable to locate a copy of the LDCs marked “approved”. He nevertheless

maintained, as did Dr Jarvis, that the LDCs are lease and development

conditions for the purposes of R1/C1 and R22/C22.

39. Mr Flint who appeared for the party joined expressed doubt as to whether the

LDCs were approved. He noted that the LDCs are not on the Authority’s lease

and development conditions register8 as they should have been to comply with

section 227(1)(j) of the Land Act,9 and are not stamped “approved”. However

his submission, in our view, was problematic. For example, if the subject block

is not affected by the LDCs, the provisions of the Single Housing Code

concerning side setbacks are applicable. The width of the subject block would

make it impossible to construct a useable compliant building on the subject

block but complied with R12. Compliance with C12 would also be impossible

unless the reference in C12 b) to “reasonable separation” between adjoining

developments were to be construed as no separation at all.

40. The LDCs taken into evidence are stamped “Gungahlin Development

Authority”10 and initialled by someone on each page. For reasons dealt with in

Lourandos, we were not persuaded that the absence of an “approved” stamp on

the document or its absence from the lease and development conditions register

causes them not to be “approved” lease and development conditions.

41. In Lourandos, the Tribunal noted11 that section 227 of the Land Act was drafted

using language that recognised that lease and development conditions already

existed when section 227 was enacted in 2000. It must follow, in our view, that

8 The Authority is no longer required to maintain the register, but it remains on the Authority’s website: Lourandos at [93]

9 Lourandos at [92]10 The Gungahlin Development Authority was an authority established

under section 5 of the Gungahlin Development Authority Act 1996 (now repealed)

11 Lourandos [91]-[94]

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the obligation on the Authority to enter details of lease and development

conditions in the register was an administrative obligation, not a precondition

for approval of lease and development conditions. No party pointed to any

provision of the Land Act mandating that entry on the register was a

precondition for approval, and we could not find any such provision.

42. We also agree with the Tribunal’s conclusion in Lourandos that it is not within

the Tribunal’s competence to determine the validity of instruments made under

legislation, but we are entitled to form an opinion about the “expressed will of

the legislature”. In our view, even if the Authority omitted to enter the LDCs on

the register (as it seems), we should still presume from the stamping and

initialling of the document by the Gungahlin Development Authority that the

LDCs were approved. That conclusion is also consistent with the fact that all the

developments in Section 207 are built in, or substantially in, accordance with

the LDCs.

43. For these reasons, we are satisfied that the LDCs were approved and that the

subject block is affected by them for the purposes of R1/C1 of the CZD Code

and R22/C22 of the Single Housing Code. We turn to their content.

The lease and development conditions

44. In 2003, Section 207 was vacant unleased territory land and, in effect, a

“Greenfields site”. A resident of the area, Mr Thrower, gave evidence (which

we accept) that the blocks that make up Section 207 were offered to the market

through a ballot system. Mr Thrower explained that the Gungahlin Development

Authority gave prospective purchasers a document the same or substantially the

same as the LDCs for the purpose of them understanding the kind of

development they would be required to build.

45. The LDCs commence with an introduction, paragraph 1.1.1, which states:

The purpose of this document is to set out the relevant lease conditions and development requirements affecting the blocks in this document which will be enforced by the Territory.

46. Paragraph 2.1.6 of the LDCs states:

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The Developer, for the purposes of this document, is the Person or Company who is/was the registered Lessee of the Holding lease granted by the Territory for the purpose of developing the residential Estate.

47. In June 2003, the Developer was the Gungahlin Development Authority.12

48. Section 6 of the LDCs sets out the “fencing and special development

conditions”. It is comprised of 17 “sheets” which, by plans and words, depict or

state the development conditions. Sheet 7 is entitled “Special development

conditions applicable to blocks in Stage 5 of the Estate”. 25 conditions on

Sheets 7 and 8 then follow.

49. Condition 4 addresses the circumstance that some of the blocks in Section 207

would be released as a ‘group package release’. These groups were Blocks 10–

14, 15–19 and 20–22.

50. Condition 5 provides for “individual block release” and refers to Blocks 1–9,

Block 1 being the subject block. It states:

Because dwellings on each block are attached to a neighbour on one or both sides, a number of more prescriptive development controls are specified for scheduled blocks to facilitate construction and ensure that a unified & coordinated streetscape is achieved. The Lessee of each block is required to construct an external wall(s) along the common boundary(s) (where nominated) to the profile and details specified in Section 6.0 Sheets 12-14 of 17. The wall will be set out by a registered surveyor who will certify that the wall as built matches the specification in every respect.

Finishes and colours to any visible portion of boundary walls will be as described in Note 8. (emphasis added)

51. Sheets 12–14 are detailed design drawings setting out the “mandatory boundary

wall profiles”. The drawings make clear through several elevation drawings that

these mandatory requirements extend also to the height of the walls which in

turn affects the mandatory building profile. They provide, in substance, a site

plan and elevations that must be followed for developments on Blocks 1–9.

52. Sheet 13 of 17 depicts a roofline to a maximum height of 12m to permit three

storeys. However, for the subject block, Sheet 13 depicts an alternative lower

roofline and states:

12 Condition 3 of the special development conditions identifies the Developer as the Gungahlin Development Authority.

13

… line of roof to 2 storey development on Block 1 Section 207

53. Condition 8 (referred to as Note 8 in Condition 5) is entitled “Building form and

materials”. It includes the following statements:

Roofs to all dwellings (including carports) will be at a minimum pitch of 24.5°.

Flat roofs will not be permitted, however designs incorporating flat roof elements will be considered where the Lessee can demonstrate to the satisfaction of the Developer that the design achieves architectural excellence and makes an incontestable improvement to the streetscape.

Proposed materials and colours for roofs, gutters/facias, walls, windows and trim are to be approved by the Developer as part of the Design and Siting approval process. Applications must be accompanied by a Materials and Colour Schedule.

…

The use of fibre cement cladding, timber siding or Colorbond metal cladding is not permitted except as a highlight or trim element subject to approval by the Developer.

Roofs will be concrete or clay tiles or pre-coloured metal sheeting. Tile roofs are preferred. (emphasis added)

54. Condition 6 provides:

The dwelling and car accommodation will be constructed within the limits of the zones for each block as shown on the Planning Controls Plan.

55. The Planning Controls Plan is on Sheets 4 and 6 of Section 6 of the LDCs.

Sheet 4 depicts the layout for dwellings on Blocks 1–9. Sheet 6 depicts the

layout for buildings on Blocks 11–22. The Planning Controls Plan provides for

areas where there needs to be a “mandatory build to boundary” and the

“mandatory location for enclosed car accommodation”. The layout on Sheet 4

for Blocks 1–9 is consistent with the mandatory boundary walls for Blocks 1–9

depicted on Sheet 12.

56. Conditions 7a, b and c in Section 6 state that the front, rear and side setbacks

will be “as shown on the Planning Controls Plan.”

57. Condition 7d provides for building height. It states:

Building scale and bulk will be controlled by setback, height, and private open space provision (plot ratio may exceed 0.5 on any block, provided the aforementioned controls are achieved). Building heights are scheduled in the table below: (emphasis added)

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58. The “table below” in Condition 7d identifies that for Blocks 1 and 22 — being

the ‘end blocks’ of Section 207 — the mandatory number of storeys is 2 and the

maximum building height is 9.5m, unlike Blocks 2–21 for which the mandatory

number of storeys is three and the maximum building height is 12m.

59. Compliance with the LDCs explains the uniformity of design and construction

of the existing developments in Section 207.

60. Mr Thrower gave the following evidence about what occurred when land in

Section 207 was released to the market between 2002 and 2004:

The issued [LDCs] were used as a reference during the design of the buildings to ensure compliance with both the intents (sic) of the [LDCs] and also to comply with the imposed “Mandatory” requirements.

Due to the complex requirements of the conditions it would usually take two or more re-designed to gain developers (sic) consent.

After gaining developers consent the process moved forward to lodging a Development Approval with ACTPLA who would also check the design for compliance with the [LDCs] (sic).13

61. Moving forward to this proceeding, no one suggested that the development

proposed for construction on the subject block would comply with the LDCs,

and so comply with R1 of the CZD Code and R22 of the Single Housing Code.

We accept, however, that compliance is no longer necessary. Under both Codes,

it is sufficient under corresponding C1 and C22 if the proposed development

meets “the intent” of the LDCs.14

62. What then is their intent? On one view, it is stated at paragraph 1.1.1, quoted

above, meaning the intent (or purpose) of the lease and development conditions

is to set out the “requirements” affecting the blocks. Sections 2 to 6 then set out

many conditions covering a wide range of matters such as provision of utility

services, minimum building covenants of $60,000, pollution, drainage,

vegetation and, relevantly, development “conditions”.

63. Such an approach, in our view and as found in Ibbotson v ACT Planning and

Land Authority & Anor,15 would defeat the latitude and purpose of C1 and C22

13 Witness statement dated 8 October 2018, Exhibit A314 Ibbotson v ACT Planning and Land Authority & Anor [2015] ACAT 57

at [94]-[97]15 Ibbotson at [97]

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where there is non-compliance with corresponding R1 and R22. It is an

interpretation that would cause R1 and R22 to be mandatory. We consider the

“intent” of the development conditions, at least, is stated at the commencement

of the special development conditions as follows:

These conditions have been prepared to protect the amenity of all residents in this premier estate and to provide a level of certainty about site planning, streetscape and architectural outcomes. Streetscape objectives include design unity, visual interest, estate legibility and minimising the visual impact of car accommodation. Application of these conditions will ensure the development of a more attractive residential neighbourhood for the benefit of homeowners, neighbours and the general community.

64. In our view, the proposed development does not “meet the intent” of the LDCs

or Section 6 of them. The departures in the proposed development from the

conditions in Section 6, particularly the replacement of the single storey

corridor construction between the front and rear of the block with two storeys of

living areas including a kitchen and bedroom on the eastern boundary of the

subject block, the substantial reduction of POS, the pitch and design of the roof

and the second storey above the garage to the rear of the block, are so

significant and would be so apparent to any casual observer that they would

significantly damage “the amenity of all residents in this premier estate”

because they would destroy the “design unity, visual interest and estate

legibility” of the developments in Section 207 as a whole.

65. It follows that the proposed development does not comply with the LDCs or

their intent, with the result that it does not comply with R1/C1 of the CZD Code

or R22/C22 of the Single Housing Code, which in turn means the proposal is

inconsistent with the Territory Plan and therefore must not be approved

pursuant to section 50 of the P&D Act.

66. Consequent upon this conclusion, other issues raised by the parties do not affect

the outcome, but we deal with them briefly for completeness.

67. The Gungahlin Precinct Map and Code (the Gungahlin Precinct Code) is

applicable because the subject block, and the whole of Section 207, is within a

small piece of land shown at the top of the Gungahlin Precinct Map identified

with the codes “RC2” and MT3”.

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68. Regarding building envelope, the Planning Authority submitted that the

conditions concerning the building envelope at sheet 14 of the LDCs are no

longer applicable because they have been “overtaken by generally larger scale

[development] permitted by the Gungahlin [Precinct Code]”.16 We disagree.

69. The provisions in the Gungahlin Precinct Code regarding larger scale

development are directed to the Gungahlin Town Centre only, as depicted in

figure 12 of the Gungahlin Precinct Code and dealt with under the section of the

Code entitled “RC1 – Gungahlin Town Centre”.

70. The only provisions of the Gungahlin Precinct Code that concern the subject

block, it being within the area identified on the Map as “RC2”, are rules and

criteria 66, 67 and 68 which deal with ground floor use, ground floor maximum

gross floor area and building height, respectively. With the exception of

building height, dealt with below, there is nothing in the Gungahlin Precinct

Code that is inconsistent with the LDCs and so nothing in it that should prevail

or apply over the LDCs (by prevailing over R1 and C22) to the extent of an

inconsistency.17

71. To the extent that the Single Housing Code is relevant to the question of

building envelope, the Planning Authority submitted that “it is necessary to rely

on the criteria”.18 Again, we disagree. The Single Housing Code deals with

building envelope for mid-sized blocks19 approved under an estate development

plan before 5 July 2013 under R8/C8 and R9/C9. Dr Jarvis made submissions as

to why the proposed development is consistent with the desired character

reflected in the CZ5 objectives. Perhaps it is, but the question is unnecessary to

decide because, under R22, the provisions of the LDCs concerning building

envelope “take precedence” over the provisions concerning building envelope in

the Single Housing Code. The proposed development does not comply with the

provisions of the LDCs concerning building envelope and does not “meet the

16 Respondent’s outline of submissions 4 October 2018 at [12]17 P&D Act section 11518 Respondent’s outline of submissions 4 October 2018 at [13]19 A mid sized block is defined in the Dictionary to the Territory Plan is

a block with an area greater than 250 m² but less than or equal to 500 m², which includes the subject block

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intent” of the LDCs. In other words, compliance or otherwise with “the criteria”

is irrelevant.

72. Dr Jarvis submitted that the limit of two storeys for the subject block under

condition 7d of the LDCs is no longer applicable because, under rule 68 of the

Gungahlin Precinct Code, three storeys and possibly four storeys is permissible.

73. Rule and Criterion 68 of the Gungahlin Precinct Code state:

74. Under section 115 of the P&D Act, if code requirements in a precinct code that

applies to a development proposal are inconsistent with code requirements in a

development code or a general code that applies to the proposal, the code

requirements in the precinct code apply to the extent of the inconsistency.

Dr Jarvis submitted that rule 68 of the Gungahlin Precinct Code applies over

R1/C1 of the CZD Code and R22/C22 of the Single Housing Code (they being

development codes) which would otherwise pick up and apply a maximum of

two storeys required under condition 7 d) of the LDCs.

75. We agree that the entitlement under rule 68 to a maximum of three storeys on

the subject block applies to the extent of the inconsistency with the LDCs.

We were not persuaded that four storeys would be permissible in this case under

criterion 68, but it was not necessary to decide because the proposed

development is only three storeys.

76. In our view, rule 68 of the Gungahlin Precinct Code overrides the height

limitation in condition 7d of the LDCs, but that has no bearing on the many

other conditions in Section 6 of the LDCs or their intent. In substance, all that

can be said is that Rule 68 permits an additional storey on the subject block, and

on Block 22 at the other end of Section 207, to permit a development on those

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two blocks that would be materially the same as the developments or

permissible developments on Blocks 2–21 between them.

77. The applicant made submissions opposing the proposed development on the

grounds that the second storey above the garage unreasonably affected the

privacy and amenity of the residents of the townhouse on the opposite side of

Maria Smith Lane. The Authority and the party joined submitted that these

concerns were alleviated by conditions requiring obscure glass on the windows

of the second storey facing Maria Smith Lane and by increasing the distance of

the second storey from the boundary. In our view, it is unnecessary to decide

whether these amendments sufficiently addressed privacy and amenity because,

to comply with the intent of the LDCs, the second storey should not be there at

all.

78. We make the same observation regarding solar access. The applicant contended

that the proposed 11m side boundary walls adjacent to the POS for the subject

block would unreasonably impede solar access for users of the POS of Block 2.

The Authority and the party joined disagreed, pointing out that the subject block

is to the west of Block 2. It was submitted that we should not take into account

the risk of a similar development on Block 3, which might impede upon the

solar access to the POS of Block 2, because that would involve a different

development in a different place. We accept that the 11m high wall would only

be to the three storey front part of the development whereas the wall adjacent to

the POS would be 8m high extending down to 7m, but the debate was tangential

because it did not address the more fundamental need for single storeys in these

parts of the subject block (and the corresponding parts of Block 3) in the

interests of design unity of developments in Section 207 as a whole.

79. At the close of the hearing, the party joined agreed to an amendment eliminating

the parapet fin walls above the roofline, but again this was a matter of detail in

comparison to the departures from the LDCs that would be so substantial as to

defeat the intent of the LDCs.

80. For these reasons, the decision under review will be set aside.

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………………………………..Presidential Member G McCarthyFor and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER: AT 62 /2018

PARTIES, APPLICANT: Lynette Williams

PARTIES, RESPONDENT: ACT Planning and Land Authority

PARTY JOINED Yanning Lu

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT Dr D Jarvis

COUNSEL APPEARING, PARTY JOINED N/A

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT ACT Government Solicitor

SOLICITORS FOR PARTY JOINED Mills Oakley

TRIBUNAL MEMBERS:Presidential Member G McCarthy

Senior Member G Trickett

DATES OF HEARING: 10 and 11 October 2018

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