act civil & administrative...
TRANSCRIPT
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MOROZOW v ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2017] ACAT 79
AT 20/2017
Catchwords: ADMINISTRATIVE REVIEW – planning and development – constructions of hotel and associated works – whether the proposed development satisfies criterion C57(a) and criteria C58(a) and C58(b) of the Commercial Zones Development Code and is it consistent with objective f) of the CZ6 Leisure and Accommodation Zone Objectives – whether the proposed development is consistent with objective d) of the CZ6 Leisure and Accommodation Zone Objectives – whether the proposed development satisfy criteria C57(b) and C58(c) of the Commercial Zones Development Code
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68Planning and Development Act 2007 ss 48, 50, 53, 55, 113, 119, 120, 121, 138, 138AE, 141, 407
SubordinateLegislation cited: Commercial Zones Development Code cr C57, C58
Cases cited: Downer Community Association and ACT Planning & Land Authority [2007] ACTAAT 20Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority and Anor [2017] ACAT 44Stryver Pty Ltd v ACT Planning and Land Authority & Ors. [2004] ACTAAT 42
Tribunal: Senior Member G Lunney SC (Presiding)Senior Member R Pegrum
Date of Orders: 28 September 2017Date of Reasons for Decision: 28 September 2017
AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 20/2017
BETWEEN:
ALEXANDER MOROZOWApplicant
AND:
ACT PLANNING AND LAND AUTHORITYRespondent
RAJEEV JYOTIFirst Party Joined
SUSAN PARRSecond Party Joined
SIROCCO (ACT) PTY LTDThird Party Joined
JOHN MICHAEL KALISHFourth Party Joined
JEREMY RILEYFifth Party Joined
DESMOND FOOKSSixth Party Joined
TRIBUNAL: Senior Member G Lunney SC (Presiding)Senior Member R Pegrum
DATE: 28 September 2017
ORDER
The Tribunal orders that:
1. The decision of the respondent is confirmed.
………………………………..Senior Member G Lunney SC
Delivered for and on behalf of the Tribunal
2
REASONS FOR DECISION
Introduction
1. Mr Alexander Morozow (Mr Morozow or the applicant) has sought review of
a decision by the ACT Planning and Land Authority (the Authority or the
respondent) made under section 113(2) of the Planning and Development Act
2007 (the Planning Act) being a decision to approve, subject to conditions,
development application 201630073 for construction of a hotel and associated
works (the proposed development) at Block 9 Section 19 Forrest ACT (the
subject site).1
2. The applicant is a long time nearby resident. A number of residents in streets
close to the proposed development are joined as parties in this matter. The
registered proprietor of the subject site Sirocco (ACT) Pty Ltd (Sirocco) is the
third party joined in this matter.
3. The applicant seeks the following orders.
(a) That the development application be rejected.
(b) That the authority issues a guideline to the proponent of any further
development application pursuant to section 138AF of the Planning Act
requiring community consultation be undertaken through all of the
following:
(i) letter box drops to all residents of sections 19 and 20 and also
nearby sections; and
(ii) a publicly notified community meeting and meetings with both the
Inner South Community Council and the Forrest Residents Group.
(c) That all driveway crossings for any future proposed development be
located on Franklin Street as is the case with the existing driveways on the
block and as was the development applicant’s original wish.2
1 Notice of decision at T-documents pages 89-1472 T-documents page 13
3
The decision of the Authority
4. The Authority approved, subject to conditions, the proposal for:
Construction of a hotel comprising of 227 rooms, a restaurant, bar and lounge, a function room and multi-purpose office and meeting rooms; in a seven-storey building with three basement levels for car parking. (The development also includes a pool, gym, health spa/treatment rooms, hairdresser, storage rooms, plant rooms, waste room, and loading dock;
new driveway crossings; associated landscaping and site works; and a variation to the Crown Lease purpose clause by adding the
following uses: carpark; commercial accommodation use LIMITED TO commercial
accommodation unit, hotel and/or serviced apartment; drink establishment;
indoor recreation facility; restaurant; and shop LIMITED TO personal services.3
5. The Tribunal notes in particular that the following further information was
required to be lodged with the authority by the developer for approval4:
(a) Revised site plan, landscape plan and architectural drawings showing
wind amelioration measures; confirmation of compliance with the
recommendations in the wind report; vehicle sight lines in the vicinity of
the driveway crossings on Dominion Circuit; and additional advanced
stock trees between the building and the Dominion Circuit boundary.
(b) Revised noise management plan endorsed by the EPA.
(c) Incorporation of the recommendations and mitigation measures contained
in the wind impact assessment dated 27 July 2016.
(d) Compliance with a number of requirements of Transport Canberra and
City Services (TCCS) including the engagement of a landscape architect
or consultant arborist to supervise and document works within tree
protection zones and construction access to the site by the existing
driveway on Franklin Street only.
3 T-documents page 894 T-documents page 91
4
The development application
6. Development application 201630073 was lodged on 25 August 2016 by Elton
Consulting (Elton) on behalf of Sirocco. The application was accompanied by
architectural and engineering drawings and supporting documents including a
design report dated 8 August 2016 prepared by architects Bates Smart; a
planning report and statements against criteria dated August 2016 by Elton
Consulting; a landscape report dated 8 August 2016 by Turf Design Studio; a
noise management plan dated 14 July 2016 by SLR Consulting Australia; a
traffic engineering assessment dated 9 August 2016 by Traffix Group; and a
qualitative environmental wind impact assessment dated 27 July 2016 by SLR
Consulting Australia.
7. The development application was publicly notified from 1 September to
21 September 2016 and this period was extended until 5 October 2016. Twenty-
one (21) written representations were received during the public notification
period and one late representation was received after 5 October. Issues raised in
the representations included inadequate community consultation; failure of the
Authority website during the consultation period; inconsistency with CZ6 zone
objectives; non-compliance with the Commercial Zones Development Code;
overshadowing; the height of landscaping; privacy; noise; traffic and parking.5
8. Entity responses were supportive or supportive with conditions.
9. In response to issues raised by representors and entities, further information was
lodged with the Authority in December 2016 under section 141 of the Planning
Act:
(a) A tree management plan prepared by a consulting arborist from Canopy
the Tree Experts.
(b) An updated traffic engineering assessment dated 24 November 2016
prepared by Traffix Group.
(c) Updated solar shadowing studies prepared by Bates Smart showing
shadows cast by existing trees.
5 T-documents page 44
5
The subject site
10. The site of the proposed development is basically rectangular and has an area of
5450 square metres with frontages of approximately 90 metres to Dominion
Circuit and 66 metres to Franklin Street. The frontage to Franklin Street is
aligned about 35 degrees west of north. A site survey dated November 2015
shows that the boundary to Dominion Circuit is essentially level. The land falls
approximately one metre from the Franklin Street boundary down to the road
level.
11. There are mature street trees along Dominion Circuit and Franklin Street. A
club building on the subject site has been demolished and the site is being used
as a commercial carpark with vehicular access from Franklin Street.
12. The site is within a CZ6 Leisure and Accommodation zone. Land use zones in
the vicinity of the subject block are RZ1 Suburban zone to the west; RZ2
Suburban Core zone on Dominion Circuit to the south of the site and CZ5
Mixed Use zone to the east of the site across Franklin Street.
Applicable law
13. The relevant statute is the Planning Act. The Planning Act provides that there
must be a territory plan the objects of which are set out in section 48 as follows:
The object of the territory plan is to ensure, in a manner not inconsistent with the national capital plan, the planning and development of the ACT provide the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation.
14. Section 50 of the Planning Act provides that a territory authority must not do any
act, or approve the doing of an act, that is inconsistent with the Territory Plan.
15. Section 53 of the Planning Act states:
(1) The objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone.
16. Section 55 of the Planning Act states:
(1) A code (other than a general code or precinct code that is a concept plan) in the territory plan must contain either or both of the following:
6
(a) the detailed rules that apply to development proposals the code applies to;
(b) the criteria that apply to development proposals the code applies to, other than proposals in the code track.
(2) A code must be consistent with each objective for the zone to which the code relates.
(3) A code that sets out the requirements that apply to stated areas, or places, or states that it is a precinct code, is a precinct code.
(4) A code that sets out the requirements for types of development, or states that it is a development code, is a development code.
(5) A code that sets out requirements applicable to the Territory, the Executive, a Minister or a Territory authority is a general code.
(6) To remove any doubt, a general code may also contain—
(a) policies to be complied with; and
(b) rules and criteria applicable to development proposals the code applies to.
17. Division 7.2.3 of the Planning Act, specifically sections 119 and 120, sets out the
considerations applicable when deciding development approvals in the merit track.
In accordance with section 119 of the Act, approval must not be given to a
development proposal in the merit track unless the proposal is consistent with the
relevant code in the Territory Plan and with entity advice. The relevant code is
defined to be the Commercial Zones Development Code (CZDC).
18. The decision before the Tribunal is a reviewable decision in accordance with
section 407 of the Planning Act.
19. Section 68 of the ACT Civil and Administrative Appeals Tribunal Act 2008
(ACAT Act) provides that the Tribunal may exercise any function given by an
Act to the entity for making the decision. The Tribunal has all the powers of the
Authority in reviewing the decision to the extent that those powers are related to
the making of the decision under review.
The Tribunal proceedings
20. The matter was heard on 18, 19 and 20 July 2017. Immediately prior to the
commencement of the hearing, the Tribunal, the parties, the parties joined and
7
their representatives inspected the subject site and adjacent sites and the general
environment of Section 19 Forrest including Dominion Circuit, National Circuit
and Franklin Street.
21. Mr Morozow represented himself at the hearing. Mr Walker SC and Ms Katavic
appeared for the Authority. Mr Bird appeared for Sirocco (ACT) Pty Ltd.
22. Three of the resident parties joined attended or were represented at the hearing,
where they actively supported the applicant. The resident parties joined engaged
in cross examination of witnesses as they considered appropriate but, in doing
so, pointed out that they wished to emphasise their own view of opposition to
the proposed development.
23. Neither the applicant nor the resident parties joined called expert witnesses to
give evidence in support of the applicant’s submissions.
The applicant’s submissions
24. A statement of facts and contentions (the statement) was filed by the applicant
on 22 May 2017. The resident parties joined subscribed to the applicant’s
statement. The applicant had previously prepared similar statements and a
response to a statement of facts and contentions filed by the respondent.6
25. The applicant’s statement of facts and contentions is in three parts. It
commences with the following general observations regarding the adverse
impact of the proposed development on the residents of the surrounding streets:
We submit that if the development as proposed were to proceed, its detrimental impact would be both significant and irreversible. A seven storey 227 room hotel with a 500-seat function room on this site is the wrong development in the wrong place on the wrong scale and would:
Detrimentally impact on the privacy and amenity of existing homes that form the surrounding landscape
Represent a substantial intrusion into the unique low-rise surrounding landscape and garden character of the suburb
6 Exhibit 3, statement of facts and contentions by Alexander Morozow, Rajeev Jyoti, Susan Parr, John Michael Kalish, Jeremy Riley and Desmond Fooks, 22 May 2017
8
Dominate the surrounding skyline and set a height precedent that other lessees in section 19 would consider themselves entitled to match
Impact severely on traffic flows and parking access for a considerable distance around the development site including the nearby primary school
Result in a significant erosion of the Walter Burley Griffin vision for Canberra
Undermine the public policy objectives for which the National Capital Authority has responsibility through its setting of special requirements for main avenues.
26. In Part A of his statement headed ‘Territory Plan’, the applicant submits that the
proposed development fails to meet criterion C57 and criterion C58 of the
Commercial Zones Development Code as follows:
Commercial Zones Development Code
Element 18: Buildings - CZ6
Rules Criteria18.1 Number of storeysR57
The maximum number of storeys is 2.
C57
Buildings achieve all of the following:
(a) consistency with the desired character
(b) reasonable solar access to dwellings on adjoining residential blocks and their associated private open space.
18.2 SetbacksR58
Minimum boundary setback is 6m.
Note:
This applies to front, side and rear
C58
Buildings comply with all of the following:
(a) are compatible with the desired character
9
boundaries. (b) are appropriate to the scale and function of the use
(c) minimise detrimental impacts including overshadowing and excessive scale.
27. The applicant also submits that the proposed development is not consistent with
the zone objectives for the CZ6 Leisure and Accommodation Zone, in particular
objectives d) and f) as follows:
CZ6 – Leisure and Accommodation Zone
Zone Objectives
a) Provide for the development of entertainment, accommodation and leisure facilities for residents of and visitors to the ACT and surrounding region
b) Protect leisure and accommodation uses from competition from higher order commercial uses, and encourage activities that enhance the region's economic diversity and employment prospects
c) Ensure leisure and accommodation facilities have convenient access to public transport
d) Protect the amenity of nearby residential areas, with regard to noise, traffic, parking and privacy
e) Ensure the location of facilities, and their design and landscaping is compatible with environmental values
f) Ensure that the bulk, scale, size, design and landscaping of development is compatible with the surrounding landscape
g) Encourage activity at street frontage level and provide an appropriate level of surveillance of the public realm.
The applicant further submits that the proposed development fails to address the
safety implications of directing all hotel exit traffic onto Dominion Circuit
rather than Franklin Street.
28. In Part B of his statement headed ‘Statutory Failures’ and in Part C headed
‘Circumvention of Statutory Planning Process’, the applicant refers to section
138AE of the Planning Act regarding a number of procedural matters in relation
to community consultation. When asked during the course of the hearing what
action he was seeking from the Tribunal in relation to these parts of his
10
statement, Mr Morozow responded that he sought comment from the Tribunal
supporting his contentions.
29. The Tribunal declined to do so and referred the applicant to the decision of the
then ACT Administrative Appeals Tribunal in Downer Community Association
and ACT Planning & Land Authority [2007] ACTAAT 20 where the Tribunal
responded to the contention by the applicant that, among other matters, the
Planning Authority had given inadequate consideration to the application as
follows:
We do not need to dwell on this contention. On the hearing of an application for review of decision the Tribunal stands in the shoes of the original decision-maker. It is not necessarily the Tribunal’s concern to determine whether the respondent was right or wrong or whether it followed correct procedures or whether those procedures were flawed or deficient. Its principal function is to determine what, on the evidence before it, is the correct or preferable decision for it to make.7
30. This Tribunal adopts the decision in Downer, which has been followed in a
number of later cases. Accordingly, the Tribunal will not take any action in
these proceedings in relation to the second order sought by the applicant in
respect of community consultation and will not deal with the issues raised in
Parts B and C of his statement of facts and contentions.
The issues
31. Section 119 (Appendix 1) of the Planning Act requires consistency with entity
advice and with the relevant code, in this case the CZDC. As noted earlier by
the Tribunal, entity advice has been either supportive or conditionally
supportive. The developer has agreed to meet the conditions of approval.
32. Section 120 (Appendix 1) of the Planning Act requires consideration of a
number of matters when deciding an application in the merit track. Section 121
of the Act is reproduced in Appendix 1 and limits the scope of the Tribunal’s
review.
7 Downer Community Association and ACT Planning & Land Authority [2007] ACTAAT 20 at [5]
11
33. The respondent submitted that the Tribunal should consider the discretionary
considerations referred to in section 120.8
34. Recent decisions of the tribunal in Glass v ACT Planning and Land Authority
and Anor [2016] ACAT 96 and Noah’s Ark Resource Centre Incorporated v
ACT Planning and Land Authority and Anor [2017] ACAT 44 indicate that
where a rule in a code has not been complied with and a decision is to be made
relating to the corresponding criterion, it is appropriate for the reviewing
Tribunal to consider the issues in section 120 of the Planning Act.
35. In Glass, referred to above, the Tribunal made the following observations.
44--For these reasons, the Tribunal concludes that it has jurisdiction to consider the objectives of the zone where the development is approved to occur, subject to the constraint that where a development is subject to a rule concerning an issue or point and is compliant with that rule the Tribunal cannot further consider the issue or point.
45--In this case, it is common ground that none of the proposed buildings comply with rule 7 of the Community Facility Zone Development Code concerning building height. The question then is whether the buildings comply with corresponding criterion 7, as discussed below. However, in that circumstance the Tribunal must also consider the issues in section 120 where relevant. Under section 120(a), those issues include the zone objectives for the Community Facility Zone, but within limits.
36. The third party joined, Sirocco Pty Ltd (Sirocco), made a similar submission to
that of the respondent. Sirocco submitted also that the Tribunal should not
conduct a wide ranging review of all aspects of the decision but restrict its
enquiry to the issues raised between the parties, citing Stryver Pty Ltd v ACT
Planning and Land Authority & Ors. [2004] ACTAAT 42 in support. The
Tribunal generally agrees with that approach.9
37. The issues before the Tribunal relate to the issues raised between the parties and
the submissions by Mr Morozow that the proposed development does not comply
with the relevant legislation and planning codes as follows:
8 Statement of facts and contentions of the respondent at [17] to [24]9 Statement of facts and contentions of Sirocco (ACT) Pty Ltd dated 26
June 2017 at [69]
12
(a) Issue 1: does the proposed development satisfy criterion C57(a) and
criteria C58(a) and C58(b) of the CZDC and is it consistent with objective
f) of the CZ6 Leisure and Accommodation Zone Objectives?
(b) Issue 2: is the proposed development consistent with objective d) of the
CZ6 Leisure and Accommodation Zone Objectives?
(c) Issue 3: does the proposed development satisfy criteria C57(b) and C58(c)
of the CZDC?
Consideration of the issues
Issue 1: Does the proposed development satisfy criterion C57(a) and criteria C58(a) and C58(b) of the CZDC and is it consistent with objective f) of the CZ6 Leisure and Accommodation Zone Objectives?
38. It is common ground that the proposed development does not comply with rule
57 and rule 58 in the CZDC. The Code provides that where there is a departure
from a rule “the onus is on the applicant to demonstrate that the relevant
criterion is satisfied through supporting drawings and/or written
documentation”.
39. Criteria 57(a) and 58(a) are expressed slightly differently. Criterion 57(a) relates
to building height and requires “consistency with the desired character”. Both
criteria 58(a) and (b) relate to setbacks from boundaries. Criterion 58(a) requires
that buildings are “compatible with the desired character”. Criterion 58(b)
requires that buildings are “appropriate to the scale and function of the use.”
40. It was not suggested by any of the parties that there was any operative
difference between the two requirements for consistency and/or compatibility
with “the desired character” for the purposes of the decision under review.
41. The Territory Plan defines ‘desired character’ as:
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 the relevant precinct code.
42. There is no relevant precinct code for the subject site.
13
43. The relevant zone objectives are the objectives for the CZ6 Leisure and
Accommodation Zone. Objective f) reads as follows:
f) Ensure that the bulk, scale, size, design and landscaping of development is compatible with the surrounding landscape.
44. The Territory Plan defines ‘streetscape’ as follows:
the visible components within a street (or part of a street) including the private land between facing buildings, including the form of buildings, treatment of setbacks, fencing, existing trees, landscaping, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.
45. For the purposes of determining consistency, and in the absence of any relevant
submissions from the parties, the Tribunal does not identify any tension
between the differential use of ‘landscape’ and ‘streetscape’ in the provisions
referred to above. Landscape refers, at least potentially, to a greater area than
streetscape and the Tribunal will refer to that on the assumption that the
streetscape forms part of the landscape.
46. The proposed development is seven stories high and exceeds the primary
setbacks on both street frontages by approximately three metres. Mr Morozow
describes the proposed development as being “in a residential setting” and “in
the midst of residences” and submits that in its setting it “cannot by any stretch
of the imagination be considered compatible with this surrounding landscape.”
He also refers to buildings on Canberra Avenue as being subject to NCA
controls and comparison with them as not being appropriate.10
47. In his submissions, Senior Counsel for the respondent tendered documents to
indicate that CZ6 zones were to be found all over Canberra because of the
diverse nature of their objectives and allowed uses. The uses will not vary, but
what would be an appropriate development will depend on the physical context
in which the site is located, so that the streetscape will largely define the
parameters of the development that should proceed.
10 Exhibit 3, statement of facts and contentions by Alexander Morozow, page 2, page 7
14
48. A witness statement was tendered by Mr Philip Vivian, who was the principal
architect involved in the design of the proposed development. Mr Vivian gave
evidence and was cross examined about his design. He appended to his witness
statement a copy of his design report which had been submitted with the
development application. Mr Vivian described the concept for the building as
follows:
Our aim is to create a unique Garden City building typology inspired by Griffin’s planning of Canberra. The organic form connects with the natural environment while responding to neighbourhood views as well as the scale of local streets. The building’s aesthetic is created through an honest and direct expression of structure and construction, remaining true to the laws of nature.
The building’s form has been designed to meet a number of site specific issues relating to the building’s context. The curved form with three ends minimises the building’s impact on the streetscape and confines the bulk of the building to the centre of the site. The façade wraps its way around the building often recessing to create an entrance or expressing itself to form a defined space such as the function room. This, in addition to the setback on the top floor reduces the perceived scale of the building and creates interesting and varied elevations that have a minimal impact upon the two streetscapes and neighbouring properties. The soft edges that the curved form presents also allow the building to sit respectfully into the prominent corner site that it occupies and its orientation opens up the corner allowing for unrestricted views and sunlight.11
49. Mr Vivian gave evidence that he had taken particular care to minimise
overshadowing of the houses opposite. Solar studies showed that the building
“casts virtually no additional shadow on Dominion Circuit residences than that
already cast by the existing trees.” Responding to a suggestion from Mr
Morozow that the shadow effect of a tree is more dappled than the shadow cast
by a building, Mr Vivian said that for “large mature trees with large canopies I
believe the impact is not substantially different.”12
50. As to the building itself, Mr Vivian noted the façade is “highly modelled giving
it a fine grain which references domestic scale buildings…a human scale…a
hotel design differently wrapped in a glass façade would not have that fine grain
11 78 Franklin Street Forrest ACT: DA design report dated 8 August 2016 at T-documents 1260; T-documents 1284
12 Witness statement at [7]; transcript of proceedings 18 July 2017 page 15, line 37; page 16, line 16
15
scale.” The plant at the roof level had also been set back a minimum of four
metres from the building façade to reduce its visual impact.13
51. A witness statement was also tendered by Mr Chris Gell, a manager with the
Environment, Planning and Sustainable Development Directorate. Mr Gell is a
senior development assessment officer employed by the respondent. He was not
the assessing officer for this development application.14
52. It was the view of Mr Gell that the bulk, scale, size, design and landscaping of
the proposed development was consistent with objective f) of the CZ6 zone
objectives. He gave evidence and tendered simulated images of the proposed
development together with images of a rule-compliant two-storey building with
six metre setbacks from the site boundaries. Mr Gell provided the following
opinion in his statement.
In my opinion, the proposed building is more sympathetic to the streetscape compared to a building footprint with continuous setbacks of 6 metres to all of the block boundaries…a building that has continuous setbacks of 6 metres would create more solid continuous building facades along Dominion Circuit and Franklin Street, similar to other buildings in the area that are built close to the block boundaries…in my opinion, the height of the proposed development is consistent with other existing buildings in the area that have exceeded two storeys.15
53. As to landscaping, Mr Gell said:
The large boundary setbacks and advanced stock plantings will enable the hotel building to sit within a landscape setting, which also consists of existing tall street trees along Dominion Circuit and Franklin Street…the height of the proposed building is consistent with the heights of the tall mature eucalyptus street trees along Dominion Circuit.16
54. The Tribunal notes the above expert opinions and disagrees with the applicant’s
assertion that the development is in a residential area or in an area of
predominantly domestic design. The buildings along Canberra Avenue,
particularly those in section 18 across Franklin Street, are relevant since they
form part of the landscape. The circumstance that they conform to a different
design regime may explain why they have their particular appearance but that 13 Transcript of proceedings page 17, line 1814 Exhibit 9, witness statement of Chris Gell15 Exhibit 9 at [35]16 Exhibit 9 at [39], [38]
16
permanent appearance is an important feature when considering the nature of
the environment in which they and the proposed development will exist.
55. The subject site is one of a progression of mixed use sites mainly two blocks
wide commencing at Canberra Avenue and progressing along National Circuit
to Hobart Avenue. There is an interface with domestic residences in Dominion
Circuit along its length. No matter what building is built on the subject site, it
will probably be of a more industrial appearance (for example, the former Club)
in contrast to the homes in Dominion Circuit.
56. In the opinion of the Tribunal, the evidence establishes that there are existing
trees and shrubs which will shield the residences from the new development.
The height of the hotel is mitigated by its design; by the surrounding streetscape
constituted by sections 18, 19, and 12 Forrest; by its landscaped grounds; and by
the mature trees in both Franklin Street and Dominion Circuit. The development
application includes an attractive landscape plan which has been improved by
imposed conditions. The building has a modest footprint on the site allowing for
generous landscaping. The design of the building is varied and attractive.
57. In the opinion of the Tribunal, the proposed building is an appropriate response
to its setting and to the scale and functions of its use. The Tribunal finds that the
proposed development complies with criterion 57(a) and with criteria 58(a) and
58(b) of the Commercial Zones Development Code and is consistent with the
definition of desired character and objective f) for the CZ6 Leisure and
Accommodation Zone.
Issue 2: is the proposed development consistent with objective d) of the CZ6 Leisure and Accommodation Zone Objectives?
58. CZ6 zone objective d) reads as follows:
d) Protect the amenity of nearby residential areas, with regard to noise, traffic, parking and privacy
59. In relation to the word ‘amenity’ in objective d) above, the applicant has
submitted that the impact of the development is evident and that, when
considering loss of amenity in relation to the proposed development, the loss of
amenity due to existing developmental impact and environmental change should
17
also be taken into account. The Tribunal notes this submission and has
considered this in its assessment of the proposal.
60. The applicant submits that the use of ‘protect’ in objective d) in the absence of
any qualification such as ‘from unreasonable loss of amenity’ indicates that the
intent of the objective is to prevent any interference at all with or loss of the
amenity of the residents.
61. The Tribunal does not accept this latter submission. ‘Protect’ is used in the list
of objectives in the company of ‘provide for’, ‘encourage’ and ‘ensure’. The
planning context indicates that it is being used as meaning to defend, safeguard
or look after the interests of, implying that there should be no unreasonable
interference with the described amenity. Furthermore, the matters listed in the
objective as requiring protection are not absolute concepts capable of being
totally avoided if any development goes ahead and if there is human activity on
the site. The interpretation suggested by the applicant conflicts with similar
objectives in other codes, for example the Community Facility Zone which was
dealt with in Glass. Planning is an area in which uniformity of meaning could
be expected between the provisions of codes. If that were not the case, then
clear words emphasising the difference could be expected.
Zone objective d) – noise
62. In relation to noise, the applicant fears that the operations of the proposed
development would inevitably generate a severe but unspecified amount of
noise by day and night. The evidence indicates that the developer and the
Environment Protection Authority are aware of the possibility that noise
generated on the site, particularly in the function room, must be dealt with by
soundproofing and acoustic management so as to avoid unreasonable levels of
sound which could impact on surrounding residents.
63. At this stage, a condition has been applied to the development approval intended
to ensure that local amenity is not unreasonably impacted. The developer is
willing to comply with the condition to bring that result about. The Tribunal is
satisfied that incorporation of the provisions of a revised noise management
plan will ensure that amenity relating to noise would be protected.
18
Zone objective d) - traffic and parking
64. A component of the applicant’s opposition to the proposed development is
grounded in his view that there are existing traffic and parking problems in the
vicinity which already impact on the amenity of residents in the area. This
concern is exacerbated by a belief that additional traffic generated by the
development would worsen these conditions to a significant degree.
65. The expert evidence is to the contrary.
66. The development application was accompanied by a traffic engineering
assessment prepared by the Traffix Group and dated August 2016. This report
was revised in November 2016 in response to comments received during the
consultation process. The updated report considers the impact of traffic
generated by morning conferences in the proposed function centre and also
traffic generated by the recent occupation of a new office building at 1 Canberra
Avenue.
67. The applicant submits that the traffic assessments are flawed in a number of
respects. In particular, Mr Morozow notes the failure to refer to the
requirements of Part 3.4 of the Parking and Vehicular Access General Code for
the safety of pedestrians and cyclists. The applicant also submits that traffic
exiting from the development would direct headlights onto the aged persons’
complex at night and create an unsafe situation with traffic travelling at
considerable speed in Dominion Circuit.
68. The traffic assessments were prepared by Mr William De Waard, an
experienced engineer and transport planner. Mr De Waard gave evidence and
was cross examined. It was his opinion that local road intersections would
operate satisfactorily under post-development conditions. The inclusion of
expected development volumes would bring a marginal increase in delay and
queue length at the intersection of Dominion Circuit and Canberra Avenue.
69. As to the safety implications for exiting traffic raised by Mr Morozow,
Mr De Waard said that the separation of entry and exit points on Franklin Street
and Dominion Circuit was “an appropriate way of distributing vehicular
19
movements to and from the site…that is actually the safest movement out of a
site…I have no concerns at all about the ability to provide a safe exit.”17
70. Mr De Waard told the Tribunal that the time of greatest traffic generation by the
proposed development would be between 7pm and 8pm which was outside the
peak period for general vehicle movements in the area. At this time, there would
be queueing on the basement ramp but this would not interfere with other traffic
movements closer to the building. Parking demand generated by the
development would be accommodated by the on-site parking proposed. Mr De
Waard concluded that there was no traffic engineering reason why the proposed
development should not be approved.18
71. The Authority also tendered a statement from Timothy Adrian Wyatt who is a
manager in the Environment, Planning and Sustainable Development
Directorate. Mr Wyatt is an expert experienced in the area of transport
management. He gave evidence that the updated traffic engineering assessment
had sought to determine whether the additional traffic generated by the
development could be reasonably accommodated on the surrounding road
network and whether the provision for parking was adequate.
72. In Mr Wyatt’s opinion, the development was unique in providing “additional
publicly available parking so we did not have reason to believe that was going
to have a significant adverse impact on the existing situation.”19 This comment
aligned with the following conclusion in his written statement:
Based on the additional information received and the subsequent analysis of the supplementary information, including the drawings associated with the development application, I formed an overall view that the development proposal would not have significant adverse parking and traffic impacts which required further remedial measures.20
73. The Authority also tendered a statement from Mr Jeff Bell who is an operations
manager with Transport Canberra and City Services. Mr Bell is suitably
qualified and has worked in the field of traffic engineering for more than 17
years. It was his view that there was a legible and well-connected road network 17 Transcript of proceedings 19 July 2017 page 65, line 38 18 Transcript of proceedings 19 July 2017 page 64, line 3719 Transcript of proceedings 19 July 2017 page 129, line 2820 Witness statement of Timothy Adrian Wyatt dated June 2017 at [14]
20
around the subject site and that there were sufficient options for traffic to and
from the site.
74. Mr Bell advised that computer analysis had confirmed that the proposed
development would have a negligible impact on the operation of the
intersections at Dominion Circuit/Canberra Avenue, National Circuit/Franklin
Street, Dominion Circuit/Franklin Street and Arthur Circle/Dominion Circuit.
The proposed development would result in marginal increases in delay and
queue length at the National Circuit/Canberra Avenue intersection.
75. In Mr Bell’s view, the proposed development provided adequate on-site
parking. He noted that the nearest school was approximately 500 metres from
the subject site. It was his opinion that traffic generated by the development
would not have a significant impact on school children crossing roads in the
area.
76. The Tribunal has already referred to the expert evidence of Mr Chris Gell as to
the bulk, scale, size, design and landscaping of the proposed development.
Mr Gell gave further evidence in relation to traffic and parking. It was the
opinion of Mr Gell that the development “has protected the amenity of nearby
residential areas with regard to noise, traffic, parking and privacy and is
consistent with objective d) of the CZ6 zone.”21
77. Mr Gell noted the support of TCCS with conditions in relation to traffic
movements. In relation to parking, he noted the excess of parking spaces over
the calculated requirement and that the “current on-street parking arrangements
in the nearby surrounding streets are time limited.” In his opinion “there is
unlikely to be any residual impact on the amenity of nearby residential areas due
to parking.”22
78. The available evidence acknowledges some impact by the development on
traffic movement and parking in the area, but descriptors such as minimal and
marginal are used. The Tribunal is satisfied that it is unlikely that there will be a
21 Exhibit 9 at [30]22 Exhibit 9 at [23]
21
significant impact on local residents’ amenity from increased traffic movements
or local parking availability.
Zone objective d) - privacy
79. Mr Gell also gave evidence in relation to privacy. On a plan annexed to his
witness statement, Mr Gell marked the distances of the front boundary of the
subject site from the nearby houses in Dominion Circuit. He noted the
encroachment of some hotel rooms facing Dominion Circuit but noted also that
these rooms were more than 38 metres from the houses. Up to 71 metres
separated other rooms from the houses. Hotel rooms on higher levels would
have their views filtered by trees towards Dominion Circuit. New and existing
vegetation would further screen the houses from lower rooms and the function
room. His conclusion in relation to privacy was as follows:
In my opinion, the privacy of nearby residential buildings across Dominion Circuit is protected by the existing and new landscaping and the distance separation between the hotel building and the residential buildings.23
80. The Tribunal accepts the opinion of the experts above and is satisfied that the
amenity of nearby residential areas with regard to noise, traffic, parking and
privacy will be protected and that the proposed development is thus consistent
with objective d) of the CZ6 Leisure and Accommodation Zone.
Issue 3: Does the proposed development satisfy criteria C57(b) and C58(c) of the CZDC?
81. Criterion C57(b) which relates to number of stories provides as follows:
Buildings achieve...reasonable solar access to dwellings on adjoining residential blocks and their associated private open space.
82. Criterion C58(c) which relates to setbacks provides as follows:
Buildings…minimise detrimental impacts including overshadowing and excessive scale.
83. Shadow diagrams have been prepared and are in evidence. These show that
there is some impact on the block of flats to the west, however the evidence
relating to this topic indicates that this is early in the morning, its duration is
23 Chris Gell at [29]
22
relatively brief and any impact on this adjoining site has not been the subject of
adverse submission.
84. The evidence of Mr Vivian the architect of the proposed building has already
been referred to at paragraph 48. He said that care had been taken to minimise
overshadowing of the houses opposite. These houses do not adjoin the subject
block and are therefore not covered by criterion C57(b).
85. The Tribunal having examined the diagrams filed and noting the views of
Mr Vivian is of the view that shadowing of the houses opposite and their
surrounding land would be minimal, of short duration, and confined to a
relatively short period of the year.
86. The evidence does not establish any other potential detrimental impacts that
could result from the setbacks being exceeded. The evidence establishes that the
proposed development is not of excessive scale.
87. The Tribunal is satisfied that the proposed development satisfies criteria C57(b)
and C58(c) of the CZDC.
Public Submissions
88. The submissions received were both supportive of and opposed to the proposed
development. The views of those opposed to the development were either
similar to or the same as the submissions put by the applicant and the resident
parties joined. A constructive suggestion made by one of the supportive
representors was taken up and further information was provided in response as
part of the assessment process. The Tribunal notes the representations made but
in the circumstances will not deal with them individually.
Conclusion
89. The Tribunal is satisfied that the proposed development is consistent with the
Commercial Zones Development Code for the purpose of section 119 of the
Planning Act. The Tribunal is also required by section 120 to consider the
objectives for the RZ6 Leisure and Accommodation Zone. Objectives d) and f)
have been the subject of evidence and consideration by the Tribunal in the
course of the hearing of these proceedings and decision.
23
90. Of the other objectives, objective c) (…access to public transport) was the
subject of evidence establishing that there was a bus stop servicing two routes
within easy walking distance of the proposed development and that it was
expected that taxis would be available for guests at the hotel. Although not
directly raised as an issue in the proceedings, the Tribunal is of the view that the
intent of objective e) (…compatible with environmental values) is complied
with by the proposed development. The proposed development is consistent
with the remaining objectives.
91. For the reasons previously referred to, the Tribunal confirms the decision under
review.
………………………………..Senior Member G Lunney SC
Delivered for and on behalf of the Tribunal
24
APPENDIX 1
Planning and Development Act 2007
119 Merit track—when development approval must not be given(1) Development approval must not be given for a development proposal in
the merit track unless the proposal is consistent with—(a) the relevant code; and(b) if the proposed development relates to land comprised in a rural lease
—any land management agreement for the land; and(c) if the proposed development will affect a registered tree or declared
site—the advice of the conservator of flora and fauna in relation to the proposal.
Note 1 An application cannot be approved if it is inconsistent with the territory plan (see s 50) or the National Capital Plan (see Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), s 11).
Note 2 Relevant code—see the dictionary.
(2) Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under section 148 (Some development applications to be referred) unless the person deciding the application is satisfied that—(a) the following have been considered:
(i) any applicable guidelines;(ii) any realistic alternative to the proposed development, or
relevant aspects of it; and(b) the decision is consistent with the objects of the territory plan.
(3) To remove any doubt, if a proposed development will affect a registered tree or declared site—(a) the person deciding the development application for the proposed
development must not approve the application unless the approval is consistent with the advice of the conservator of flora and fauna in relation to the proposal; and
(b) subsection (2) does not apply in relation to the conservator’s advice.
120 Merit track—considerations when deciding development approvalIn deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:(a) the objectives for the zone in which the development is proposed to
take place;(b) the suitability of the land where the development is proposed to take
place for a development of the kind proposed;
25
(c) if an environmental significance opinion is in force for the development proposal—the environmental significance opinion;Note Environmental significance opinion—see s 138AA. Environmental
significance opinions expire 18 months after they are notified (see s 138AD).
(d) each representation received by the authority in relation to the application that has not been withdrawn;
(e) if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications)—the entity’s advice;Note Advice on an application is given in accordance with section 149 if the
advice is given by an entity not later than 15 working days (or shorter prescribed period) after the day the application is given to the entity. If the entity gives no response, the entity is taken to have given advice that supported the application (see s 150).
(f) if the proposed development relates to land that is public land—the public land management plan for the land;
(g) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
121 Merit track—notification and right of review(1) To remove any doubt, if a development proposal is in the merit track, the
application for development approval for the proposal must be publicly notified under division 7.3.4.
(2) If there is a right of review under chapter 13 in relation to a decision to approve an application for development approval for a development proposal in the merit track, the right of review is only in relation to the decision, or part of the decision, to the extent that—(a) the development proposal is subject to a rule and does not comply
with the rule; or(b) no rule applies to the development proposal.
26
HEARING DETAILS
FILE NUMBER: AT 20/2017
PARTIES, APPLICANT: Alexander Morozow
PARTIES, RESPONDENT: ACT Planning and Land Authority
FIRST PARTY JOINED Rajeev Jyoti
SECOND PARTY JOINED Susan Parr
THIRD PARTY JOINED Sirocco (ACT) Pty Ltd
FOURTH PARTY JOINED John Michael Kalish
FIFTH PARTY JOINED Jeremy Riley
SIXTH PARTY JOINED Desmond Fooks
COUNSEL APPEARING, APPLICANT N/A
COUNSEL APPEARING, RESPONDENT
P Walker SC and Kristy Katavic
SOLICITORS FOR APPLICANT N/A
SOLICITORS FOR RESPONDENT ACT Government Solicitor
SOLICITORS FOR FIRST, SECOND, FOURTH, FIFTH AND SIXTH PARTY JOINED
N/A
SOLICITORS FOR THIRD PARTY JOINED
Clayton Utz
TRIBUNAL MEMBERS: Senior Member G Lunney SC (Presiding)
Senior Member R Pegrum
DATES OF HEARING: 18, 19 and 20 July 2017
27