act civil & administrative...

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COSTIN & PYKE v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2018] ACAT 129

AT 20, 21, 49 and 50 of 2018

Catchwords: ADMINISTRATIVE REVIEW — planning approval — supportive housing – conformity with Crown lease issued after development approval – use of community facilities zone land — subject block outside a designated bush fire prone area — adequacy of parking — decision confirmed

Legislation cited: Districts Act 2002 s 7Planning and Development Act 2007 ss 50, 120, 247, 340

Cases cited: Gingell & Anor v ACT Planning and Land Authority [2018] ACAT 62Lourandos and Anor & ACT Planning & Land Authority and Ors [2011] ACAT 25

Tribunal: Presidential Member G McCarthySenior Member R Pegrum

Date of Orders: 15 August 2018Date of Reasons for Decision: 18 December 2018

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 20/2018

BETWEEN:

WARWICK BRUCE COSTINApplicant

AND:

ACT PLANNING AND LAND AUTHORITYRespondent

AND:

AUSTRALIAN CAPITAL TERRITORY REPRESENTED BY THE PUBLIC HOUSING RENEWAL TASKFORCE

Party Joined

TRIBUNAL: Presidential Member G McCarthySenior Member R Pegrum

DATE: 15 August 2018

ORDERThe Tribunal orders that:

1. The decision under review is confirmed, save for a variation to refer to “Block 3” in substitution for “Block 1”.

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


BETWEEN:

ANDREW PYKEApplicant

AND:


AND:

AUSTRALIAN CAPITAL TERRITORY REPRESENTED BY THE PUBLIC HOUSING RENEWAL TASK FORCE

Party Joined




1. The decision under review is confirmed, save for a variation to refer to “Block 3” in substitution for “Block 1”.

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

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BETWEEN:

ANDREW PYKEApplicant

AND:


AND:


Party Joined




1. The decision under review is confirmed, save for a variation to refer to “Blocks 3 and 4, Section 45” in substitution for “Block 1 Section 45”.

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

3


BETWEEN:

WARWICK BRUCE COSTINApplicants

AND:


AND:


Party Joined




1. The decision under review is confirmed, save for a variation to refer to “Blocks 3 and 4, Section 45” in substitution for “Block 1 Section 45”.

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

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REASONS FOR DECISION

1. In proceedings AT 20 and 21 of 2018, Mr Costin and Mr Pyke applied to the

Tribunal for review of a decision of the ACT Planning and Land Authority

(the Authority) made on 14 February 2018 to approve construction of 20

single-storey townhouses with associated garages, landscape, paving and other

site works on an eastern portion of Block 1, Section 45, Chapman. Block 1 is

within the Community Facilities Zone (the CF Zone).

2. At the time of the decision, Block 1 was unleased territory land. With reference

to a certificate of title issued on 15 June 2018, Block 1 is now divided into

Blocks 3 and 4. The division is reflected in Deposited Plan 11575 registered

under section 7 of the Districts Act 2002. The proposed works are to be

constructed on Block 3 (the subject block). The certificate of title records the

Australian Capital Territory as the registered proprietor. The purpose clause in

the Crown lease dated 14 June 2018 states that the land is to be used “for the

purpose of supportive housing only”, which is a permitted use in the CF Zone.

3. The applications in proceedings AT 20 and 21 of 2018 were identical. Mr

Arthur of counsel represented both applicants. His submissions, written and

oral, applied equally to each application. All evidence received in one

proceeding was received as evidence in the other. In our reasons, we have

therefore dealt with the applications as if they were one. At the conclusion of

the hearing, the Tribunal made orders confirming the decision under review,

save for a variation of the identified Block number from “Block 1” to “Block

3”. We stated we would publish our reasons. We now do so.

4. In proceedings AT 49 and 50 of 2018, Mr Costin and Mr Pyke applied to the

Tribunal for review of the Authority’s decision to approve an extension of the

existing stormwater main and sewer main, a new water tie, footpath, landscape

and associated site and verge works. This proposed work is necessary to support

the proposed townhouses. Towards the close of the hearing on 13, 14 and

15 August 2018, Mr Arthur advised that the applicants no longer pressed their

applications in proceedings AT 49 and 50 of 2018. The Tribunal therefore made

orders confirming the Authority’s decision, save for a variation to identify the

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new block number for the subject block. Where the applications were not

pressed, the Tribunal does not deal with them further.

5. The applicants challenged the approval to construct the townhouses and

associated works on the subject block on several grounds. As the hearing

unfolded, many of those grounds were no longer pressed and so we do not deal

with them further. We deal with the issues that remained.

Supportive housing

6. The applicants contended that because, at the time the decision was made, there

was no Crown lease in place permitting supportive housing, the approval should

be understood as approval for works constituting multi-unit housing which is a

prohibited development on community facility land. The applicants submitted

that without a lease restricting use of the land to supportive housing, the

development could not comply with rule 1 of the Community Facilities Zone

Development Code (the CFZ Code), which restricts the occupation of

individual dwellings to persons in need of support.

7. In our view, the substance of this argument fell away upon registration of the

Crown lease which, among other things, permits supportive housing and limits

the use of the subject block to that purpose. The Tribunal reviews a decision

afresh by reference to the evidence before it which can include evidence that

was not before the original decision-maker. The evidence before the Tribunal

included the Crown lease. All that need be said is that the proposed

development can only be used for the purpose of supportive housing, which is a

permitted use on community facility land. The lease purpose clause also

achieves compliance with Rule 1 of the CFZ Code.

8. The applicants next submitted that it is ‘notorious’ that the ACT Government

intends to use the developments on the subject block for public housing. They

refer to the absence of any information in the public domain that describes the

characteristics of persons in need of support, or the nature of the support

services to be provided in the proposed townhouses which may (or would)

impact on the extent to which persons providing support services would need to

be present or visit or how many would need to do so. The applicants relied on

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the witness statement of Ms Anca Costin dated 1 August 2018 in which she

described her searches on ACT government websites and her inability to find

any information in relation to supportive housing.

9. The applicants submitted that where there is no evidence that the party joined

intends to use the proposed development for supportive housing, or the kind of

intended supportive housing, and where the townhouses would readily lend

themselves to be used as mainstream public housing which would constitute

multi-unit housing contrary to the Crown lease and which is a prohibited use on

community facility land, the development should be refused.

10. The applicants relied upon section 50 of the Planning and Development Act

2007 (the P and D Act), which mandates that a development proposal must be

refused that is inconsistent with the Territory Plan. It was submitted that where

the Tribunal cannot or should not be satisfied that the proposed development

will be used for supportive housing, and more than likely will be used for multi-

unit housing, the Tribunal cannot be satisfied that the land will be used for its

permitted use and so the development should be refused.

11. Supportive housing is defined in the ‘Definitions’ part of the Territory Plan as

follows:

Supportive housing means the use of land for residential accommodation for persons in need of support, which is managed by a Territory approved organisation that provides a range of support services such as counselling, domestic assistance and personal care for residents as required. Although such services must be able to be delivered on site, management and preparation can be carried out on site or elsewhere. Housing may be provided in the form of self-contained dwellings. The term does not include a retirement village or student accommodation.

12. We were not persuaded by the applicants’ arguments, nor were these

proceedings the time or place to comment upon the different circumstances in

which persons would be in need of support and so would be eligible to live in

supportive housing or the kinds of services contemplated under the definition.

13. We accepted the general proposition that a person should not be permitted to

construct a building where it is plainly intended for a prohibited purpose, for

example as a place of worship or for commercial or industrial use, simply by

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stating that it will be used for a permissible use. Support for that proposition is

found in Lourandos and Anor & ACT Planning & Land Authority and Ors

(Lourandos).1 In that case, the Tribunal considered an application to vary the

purpose clause in a Crown lease to permit multi-unit housing, even though the

lease and development conditions applicable to the subject land did not permit

multi-unit housing. In refusing the application to vary the lease, the Tribunal

had regard to the obvious later intentions. The Tribunal said:

In our opinion, it matters not that there is, at present, no proposal for the design and siting of any building. The intent of the applicants is clearly to develop multi dwelling housing on the consolidated block if the DA was to be approved, and that would be contrary to the intent of the L&Ds. We rely on the views of Higgins J. in Jewel Food Stores Pty Ltd & Ors v Minister for Environment Land and Planning (1994) 122 FLR 269 at 279 where, in reference to approval of a lease variation, he said

…it is, I think, permissible to have regard to the consequences which that approval authorises. That must include the prospect that the redevelopment thereby permitted will be carried out.

14. We mention these statements to acknowledge the principle upon which the

applicants rely, but there is nothing about the proposed development that

persuaded us that the Territory intends to use it contrary to its permitted use.

The fact that an impermissible use is possible, in a practical sense, is not

sufficient. Further, many aspects of the proposed development, for example its

compliance with the Access and Mobility General Code and in particular its

compliance with the requirements of Australian Standard 42994 for adaptable

housing Class C, evidenced by the report from Eric Martin and Associates,2

support an expectation that the townhouses will be used for their intended

purpose.

15. If someone wishes in due course to contend that the townhouses or any of them

are not being used for supportive housing, as required under section 247 of the

P and D Act, they may complain to the Authority under section 340 of the P and

D Act that the Territory is conducting a controlled activity which includes,

under Schedule 2, item 1, failing to comply with the provision of a lease.

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

2 T documents, pages 1258-1262

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16. In short, we were not persuaded that the applicants’ concerns were grounds to

refuse the development. Their concerns are matters for enforcement, not a basis

for why the development should not proceed.

17. Last, on this subject, we were not persuaded (as the applicants submitted) that

the decision under review needs to be amended to refer to supportive housing as

the only permissible use for the development. That limitation already exists

under the Crown lease and, by reference, the zoning of the subject block.

A bushfire risk

18. The applicants placed great reliance on their submission that the subject block is

prone to bushfires, and that it is not appropriate to build residential

accommodation to be used for supportive housing, meaning to be occupied by

persons in need of support, in a place which would place the occupants at risk of

injury or death from fire. They drew upon the bushfires that burned into many

suburbs of Canberra, including Chapman, 15 years ago.

19. They relied upon the ACT Strategic Bushfire Management Plan v 3 which

provides, at page 56:

Developments that will concentrate members of the community at high risk from bushfire in declared BPAs [meaning Bushfire Prone Areas] are not permissible

20. They relied upon a Bushfire Risk Assessment Report prepared in 2014 by the

Land Development Agency (the LDA) in respect of a proposed residential aged

care facility on Block 1, Section 45 – meaning land that now includes the

subject block - that did not proceed. The Report stated at “Section 7”:

This report has examined the topography, vegetation, fire history and the fire paths which are likely to present a threat to the proposed Residential Aged Care facility.

The site is located on the western edge of the suburb of Chapman and was overrun by the 2003 Canberra Bushfires, causing substantial damage to surrounding assets.

This exposure to a Catastrophic fire event remains, irrespective of the provision of fire protection measures as the landuse is for frail aged persons who are not likely to be capable of either self-evacuation or attending to fires which occur on the site.

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The site is not an optimum location for this type of development, and will only be fully acceptable following development of the urban zoned land located to the north and northwest of Kathner Street.

21. They contended that the Planning for Bushfire Risk Mitigation General Code

(the Bushfire Code) is applicable and that, pursuant to that Code, a Bushfire

Risk Assessment must be done (and has not been done) in accordance with

paragraph 4.1.1 of the Code in relation to fuel loads and water supply.

22. We were not persuaded by the applicants’ arguments.

23. The subject block is not in a designated bushfire prone area with the

consequence that the Bushfire Code is not applicable. The applicants contended

however that the boundaries of the designated bushfire prone area will be

reviewed and refined from time to time to reflect changes in land use and

tenure, and that if the proposed dwellings are built on the subject block “the

boundary will be adjusted accordingly - thereby bringing the development back

within the [bushfire prone area].” We can see no basis for why that assumption

should be drawn. In any event, in our view, the Tribunal (and the Authority)

should proceed according to the law as it is, not what someone might think it

might later become.

24. Also, even if not required, a bushfire risk assessment was conducted because a

northern portion of what was then Block 1 (but not within what is now the

subject block) is in a designated bushfire prone area. The report found that the

proposed development will comply or reasonably comply with all the identified

bushfire safety requirements.3

25. The Tribunal also received evidence from Mr Samoty, a civil engineer with

Cardno Pty Ltd, who explained that the water main pressure to the subject

block, in the event of a need to draw water elsewhere for firefighting, will be

“39 m head in peak demand, which is far in excess of the 10 m head minimum

required.”

26. The applicant’s submissions regarding opposition in 2014 to a residential aged

care facility (RACF) were unconvincing. The definition of supportive housing

3 T documents, page 1083

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excludes a retirement village, and involves housing for a much broader sector of

the community than the elderly and frail. Also, the LDA’s observations were

made in 2014 at a time when the whole of Block 1 including the subject block

was within a designated bushfire prone area.

27. We also reject the proposition that the Tribunal, or the Authority, should

‘second-guess’ the Emergency Services Agency’s reasoning for changing the

boundary of the designated bushfire prone area or entertain debate that areas

outside the designated bushfire prone area should still be treated as prone to

bushfire as if they were within a designated bushfire prone area.

Crime prevention

28. The applicants contended that the proposed development does not comply with

criteria 5 and 6 of the Crime Prevention through Environmental Design General

Code (the Crime Prevention Code). Criterion 5 requires planting in public

spaces not to obscure views along paths and streets or to entrances and not to

create secluded hiding areas. Criterion 6 concerns selection of plant materials in

open space and community (shared) areas. It requires selection of plant material

which is sturdy and, in areas of high crime, makes it difficult to snap main

growing stems and increases its chance of survival.

29. We were not persuaded by the applicants’ submissions. We accept the evidence

of Mr Davies, a Development Assessment Officer with the Authority, that the

proposed plantings meet criterion 5. 4 We share Mr Davies doubts that criterion

6 is applicable, noting the absence of evidence that this area of Chapman is an

area of high crime, but are nevertheless satisfied that criterion 6 would still be

met, noting that the proposed plantings have a minimum stock size of 2.5 m.

Parking

30. The applicants made a general submission that the subject block was not

suitable for supportive housing because of inadequate parking. They expressed

concerns that service providers or visitors would have insufficient parking on-

site and would need to park on Darwinia Terrace. They contended that this was

not appropriate for supportive housing, especially for persons with mobility

4 T documents, page 1370

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concerns. They referred to the Access and Mobility General Code, rule 12 of

which requires a “minimum of one accessible car parking space for each

adaptable dwelling designed in accordance with AS 2890.6”. They also referred

to the Parking and Vehicular Access General Code, clause 3.6.4 of which sets

out locational requirements for long stay, short stay and operational parking

(meaning parking for vehicles used directly as part of the operation within the

development). In particular, the Code requires “operational parking” on-site.

31. We were not persuaded that these provisions of these codes are not met.

32. As mentioned, Mr Martin provided an access report explaining why the Access

and Mobility Code is met.

33. The need for on-site operational parking is also met, having regard to the

number of car spaces available and that service providers are, in all likelihood,

likely to come and go at different times of a day or on different days of a week

according to need.

34. The applicants also made a general submission that 20 townhouses used for

supportive housing was likely to cause parking needs beyond what will be

available on-site, and that persons will therefore be required to park on

Darwinia Terrace. This, they said, was unacceptable for supportive housing.

The applicants contended that the “suitability of the land” by reference to this

matter was an issue which the Authority was required to consider under section

120(b) of the P and D Act, and which the Tribunal should consider on review.

35. Having regard to earlier decisions of the Tribunal that its jurisdiction, on

review, is confined to considering whether applicable rules and criteria have

been met,5 we were not persuaded that we had jurisdiction to consider this issue

on a general ‘suitability’ basis.

36. However, even if we did have jurisdiction to consider the issue, we were not

persuaded that the land is not suitable for supportive housing. The Territory

remains the Crown lessee of the subject block and will own all the proposed

5 Gingell & Anor v ACT Planning and Land Authority [2018] ACAT 62 at [36]-[42]

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townhouses and associated works on it. Residents will come and go, as

occupants of a townhouse, according to whether they need, or no longer need,

supportive housing.

37. We were also not persuaded that residents will have an entitlement to a car

space in the sense that occupation of a townhouse would bring with it an

entitlement to a car space. Rather, we expect that car spaces will be used and

allocated according to need. Some residents might not have a car or need a car,

but require a car space for service providers who are visiting them to attend to

their needs. Service providers might be visiting for short periods of time and/or

not every day. With basic co-ordination and communication, we expect that

arrangements could be made for service providers to share car spaces by using

them at different times. We make the same observations about visitors. It is all a

matter of appropriate management of car spaces on-site.

38. Also, we can see no reason why it would be inappropriate for persons visiting

the site without any particular operational need for on-site parking to park on

Darwinia Terrace. It is a wide street, constructed and designed to accommodate

kerbside parking.

Entity referral

39. The applicants contended that the Authority’s referral of the proposed

development to the applicable statutory entities, particularly the ACT

Emergency Services Agency (the ESA), was deficient because it was not drawn

to their attention in the referral notices that the proposed development was to be

used for supportive housing. It was submitted, therefore, that their responses

could not and should not be accepted as reliable without this additional

important information and that approval “cannot be given” until the giving of

“proper notice” has been done.

40. We were not persuaded by this argument. The Authority forwarded the

development application to all of the relevant entities, including the ESA. The

referral notices were, in substance, no more than a covering document to

explain the purpose of referring the development application. On the third page

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of the application,6 under the heading “Proposed use of the Land”, the applicant

wrote “Supportive housing”. It is reasonable to presume that the ESA and all

other entities to which the application was referred would have read the

application and therefore known the proposed use of the land and proposed

buildings on the subject block when giving their responses.

41. Also, from at least 7 June 2016, the Public Housing Renewal Taskforce were

corresponding with the ESA about the suitability of the subject block (and other

possible sites) in the context of it being used for supportive housing.7

Conclusion

42. For these reasons, the decision under review was confirmed.

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

6 T documents, page 9277 Witness statement of Andrew Pyke, attachment 20A, page 10

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HEARING DETAILS

FILE NUMBER: AT 20, 21, 49 and 50/2018

PARTIES, APPLICANTS: Warwick Costin and Andrew Pyke

PARTIES, RESPONDENT: ACT Planning and Land Authority

PARTY JOINEDAustralian Capital Territory Represented by The Public Housing Renewal Taskforce

COUNSEL APPEARING, APPLICANTS Mr R Arthur

COUNSEL APPEARING, RESPONDENT Mr P Walker

COUNSEL APPEARING, PARTY JOINED Mr R Clynes

SOLICITORS FOR APPLICANT Elringtons

SOLICITORS FOR RESPONDENT ACT Government Solicitor

SOLICITORS FOR PARTY JOINED King & Wood Mallesons

TRIBUNAL MEMBERS:Presidential Member G McCarthy

Senior Member R Pegrum

DATES OF HEARING: 13, 14 and 15 August 2018

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