ACT CIVIL & ADMINISTRATIVE TRIBUNAL IBBOTSON v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2015] ACAT 57 AT 17 of 2015 Catchwords: ADMINISTRATIVE REVIEW – planning and development – development application - Lease and Development Conditions – CZ5 zone – compliance with codes Legislation cited: ACT Civil and Administrative Appeals Tribunal Act 2008 s 68 Legislation Act 2001 s 150 Planning and Development Act 2007 ss 46, 50, 53, 55, 113, 115, 119, 120, 162, 407 Cases cited: Amarso v ACTPLA [2012] ACAT 9 AMC Projects v ACTPLA [2006] ACTAAT 13 Cvetanoski v Commissioner for Land and Planning [1999] ACTAAT 42 Scherl & ACT Planning and Land Authority [2011] ACAT 37 List of Texts/Papers cited: Building an Integrated Transport Network: Parking dated June 2015 Gungahlin Precinct Code Commercial Zones Development Code Multi Unit Housing Development Code Residential Zones Development Code Parking and Vehicular Access General Code Justice and Community Safety Directorate: ACT Road Hierarchy Tribunal: Ms E. Symons – Presidential Member Mr R. Pegrum – Senior Member Date of Orders: 24 August 2015 Date of Reasons for Decision: 24 August 2015
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ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IBBOTSON v ACT PLANNING AND LAND AUTHORITY & ANOR
(Administrative Review) [2015] ACAT 57
AT 17 of 2015
Catchwords: ADMINISTRATIVE REVIEW – planning and development –
development application - Lease and Development Conditions –
CZ5 zone – compliance with codes
Legislation cited: ACT Civil and Administrative Appeals Tribunal Act 2008 s 68
Legislation Act 2001 s 150
Planning and Development Act 2007 ss 46, 50, 53, 55, 113,
115, 119, 120, 162, 407
Cases cited: Amarso v ACTPLA [2012] ACAT 9
AMC Projects v ACTPLA [2006] ACTAAT 13
Cvetanoski v Commissioner for Land and Planning [1999]
ACTAAT 42
Scherl & ACT Planning and Land Authority [2011] ACAT 37
List of
Texts/Papers cited: Building an Integrated Transport Network: Parking dated June
2015
Gungahlin Precinct Code
Commercial Zones Development Code
Multi Unit Housing Development Code
Residential Zones Development Code
Parking and Vehicular Access General Code Justice and Community Safety Directorate: ACT Road Hierarchy
Tribunal: Ms E. Symons – Presidential Member
Mr R. Pegrum – Senior Member
Date of Orders: 24 August 2015
Date of Reasons for Decision: 24 August 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL AT 15/17
BETWEEN:
KATHLEEN IBBOTSON
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
NATIONAL CAPITAL INVESTMENTS PTY LTD
Party Joined
TRIBUNAL: Ms E. Symons – Presidential Member
Mr R. Pegrum – Senior Member
DATE: 24 August 2015
ORDER
The Tribunal Orders that:
1. The decision under review is varied by imposing an additional condition of
approval as follows:
(a) Within 28 days from the date of this decision, or within such further time
as may be approved by the ACT Planning and Land Authority, the party
joined/lessee shall lodge for approval a plan of landscape prepared by a
qualified landscape architect for the area between the building and the
property line on Donnelly Lane showing new plantings of shrubs and
suitable advanced trees with types and sizes to screen the service zone and
meet the intent of the Development Intentions Plan and Planning Control
Plan 07/13 and 07/14.
………………………………..
Ms E. Symons – Presidential Member
for and on behalf of the Tribunal
2
REASONS FOR DECISION
1. Dr Kathleen Ibbotson (Dr Ibbotson or the applicant) has sought review of a
decision by the ACT Planning and Land Authority (the respondent) under
section 162 of the Planning and Development Act 2007 (the Planning Act) to
approve, subject to conditions, a development application (DA 201324439)
made by Heyward Lance Architecture (Heyward) on behalf of National Capital
Investments Pty Ltd (the party joined) for the construction of “a four storey
mixed use development comprising commercial use at ground level and 45
dwellings at upper levels; a basement car park and associated works” at Block 1
Section 68 Gungahlin (Anthony Rolfe Avenue) (the subject site).1
Summary of Tribunal decision
2. In summary, the Tribunal’s reasons for decision are as follows. On the
application of Heyward for the approval of DA 201324439 the respondent
sought and obtained further information in relation to parking and then
considered and approved the DA subject to conditions (the decision).
3. The applicant challenges the decision made by the respondent and opposes the
Tribunal confirming that decision. The applicant’s challenge at the hearing was
limited to traffic and parking.
4. The Tribunal notes the traffic and parking issues raised by the applicant,
however, considering sections 119 and 120 of the Planning Act, the Tribunal
does not think that there is a basis for refusing the DA or setting it aside in
whole or in part. The approval should however be subject to the further
condition set out in these orders.
5. The Tribunal varies the decision of the respondent by adding the further
condition set out in these orders. In the following paragraphs, the Tribunal has
dealt only with the major issues that arose during the hearings and on which the
Tribunal has based its decision.
The Decision of the Authority
6. The development application was lodged with the respondent on 25 June 2014.
1 T-Documents page 105
3
It was considered in the merit track under sections 119 to 122 of the Planning
Act and no issue about this was raised before the Tribunal. The respondent
sought and obtained entity advice from Emergency Services ACT, ActewAGL
Water Division, ActewAGL Electrical Division and ActewAGL Gas Networks.
By letter dated 26 February 2014, the party joined had given notice of the
proposed development to about 25 nearby properties. The site plan and
elevations of the building were delivered by letter drop to residents on
Gungahlin Place north of the subject site, along Anthony Rolfe Avenue to the
east and in Huyer Street immediately behind Donnelly Lane. Residents were
invited to contact the developer within ten days with any comments but there is
no record of any response to the invitation.2
7. Public notification by the respondent of the development application
commenced on 2 July 2014 and ended on 23 July 2014.
8. On 4 July 2014 the respondent requested further information pursuant to section
141 of the Planning Act from Heyward in order to address issues which are not
relevant for this review.
9. On 25 September 2014, Heyward lodged the further information together with
an addendum dated August 2014 to the original parking report from Northrop
Consulting Engineers (Northrop) in response to a request from the Major
Projects and Transport (MPAT) and further surveys of the site (parking for
site).
10. More than 40 written representations were received by the respondent during
the public notification period. The majority of these were brief with repeated
references to existing “severe parking issues” and a “shortfall of parking
spaces” in the proposed development.3
11. Two detailed and illustrated challenges to the proposed development were
submitted by Dr Kathleen Ibbotson and Mr Peter Ibbotson, who lived nearby,
and by Mr Peter Weatherstone. The principal concern of Dr and Mr Ibbotson
was the impact of the development, with a predicted 81 car shortfall in car
h) There are existing free public car parks on section 228, 232 and 226.
i) The applicant disagrees with the respondent and the party joined on
the calculation of the distance from section 228 to the subject site.
j) Public parking in Gungahlin Town Centre and adjacent areas is
currently free.
k) When blocks reserved by the Plan for public parking are developed,
ACTPLA policy is to require the same number of public spaces to
be retained on the developed site, in addition to the parking required
by the Parking and Vehicular Access General Code.
The applicant’s contentions
35. In her application for review, Dr Ibbotson advised that her family had bought
their house in 2008 in Sarre Street, one of the streets bordering the proposed
development. In that application she said “we appreciate that we live in a mixed
use area and that these regions have the potential ability for sharing of public
car parks” and that mixed use areas “have some potential for reducing
provision through shared and consolidated parking”. However, in her opinion:
there have already been too many development applications approved
without sufficient parking, with each development pointing to the same
public car parks for their overflow needs…an additional 74 legal car
parks are not going to be found in this region of Gungahlin. This
development will affect the amenity, safety, efficiency, access and equity18
of the residents and business owners in the area. This is contrary to the
objectives for mixed use zones.19
36. In her application, Dr Ibbotson re-stated her earlier concerns that there was
“inadequate description of the shadowing caused by the proposed building” and
that there was no information provided as to the impact of the proposed
restaurants and shops on the surrounding community including noise
generation, hours of operation and venue sizes. There were additional concerns
during the construction phase as to hours of site operation, parking for
tradesmen, requirements for closing of local streets and the effects of vibration
18 The CZ5 zone objectives 19 T-Documents page 36
11
from heavy machinery on existing buildings close to the subject site.20
37. The applicant provided the Tribunal with an extensive dossier of material
relating to the decision under review. The Tribunal recognises the considerable
effort of the applicant in presenting her objections to approval of the DA. In her
opening statement, the applicant said it was not her intention to stop the
development but she did not want “70-odd extra cars in my neighbourhood”.
The Tribunal reminded the applicant of her other concerns “for example
shadowing et cetera”. The applicant then advised the Tribunal “I formally
withdraw all of those other concerns”.21
38. In addition to the contentions referred to in the previous paragraph the applicant
also contended that:
a. The Margrie Lane carpark (section 228) should not be counted (in
the required offsite car parking spaces) because it is over a 200
metre walk away and it should be reserved for the town centre
usage and not for a proportionately tiny development that is located
outside the town centre boundary…22
and
b. The proposed development does not meet the Territory Plan in terms
of its proposed on-site car parking provisions and it does not meet
the intent of the lease and development conditions on the block,
namely that “all residential and commercial carparking provisions,
as calculated using the Parking and Vehicular Access General
Code, are to be accommodated in a single or double underground
carpark on-site.”23
The respondent’s contentions.
39. Dr Jarvis contended that the decision under review should be affirmed and the
40. application dismissed.24
20 T-Documents pages 78-79 21 Transcript of Proceedings 3 June 2015 page 13 line 27 22 Transcript of Proceedings 3 June 2015 page 11 lines 22-25 23 Transcript of Proceedings 3 June 2015 page 11 lines 41-44 24 Respondent’s Statement of Facts and Contentions at [19]
12
41. He told the Tribunal that “the parking in this proposed development meets the
intent of the lease and development conditions”25
and that, other than for
resident parking, the Parking and Vehicular Access General Code “permits a
development of this kind to rely upon publicly available off-site parking” for
commercial visitors. “The Parking and Vehicular Access General Code does
however require that that parking be within 200 metres, and there is a dispute
between the parties as to how that should be calculated”.26
The party joined’s contentions
42. The party joined contended in its Statement of Facts and Contentions that the
building was designed “to completely comply with the relevant Lease and
Development Conditions (L&DCs), the building footprint as set out in the
specific L&DCs, the Multi-Unit Housing Code and the Territory Plan, as well
as the ACT Parking and Vehicular General Access Code”.27
43. Before deciding on the specific uses for the commercial tenancies, the party
joined had arranged for a parking study to be carried out and further car parking
studies were undertaken during the assessment of the development application.
Since the application for review was made, the party joined has made further
changes which have increased the number of on-site car park spaces from the
original 65 to 76, thereby reducing reliance on off-site car parks. The new
proposed basement and ground floor car parking design was annexure B to the
party joined’s Statement of Facts and Contentions.
Issues
44. The issues before the Tribunal therefore relate to compliance with relevant
legislation, the Codes and the adequacy and location of car parking. They are:
a) Issue 1: Does the proposed development comply with the Gungahlin
Precinct Map and Code?
b) Issue 2: Does the proposed development comply with the relevant
development codes – the Commercial Zones Development Code; the
25 Transcript of Proceedings 3 June 2015 page 19 line 30 26 Transcript of Proceedings 3 June 2015 page 13 lines 32-44 27 Party Joined Statement of Facts and Contentions at [2]
13
Residential Zones Development Code and the Multi Unit Housing
Development Code?
c) Issue 3: Does the proposed development comply with the Parking and
Vehicular Access General Code?
d) Issue 4: Does the proposed development comply with the approved Lease
and Development Conditions including the Planning Control Plan and
Development Intentions Plan?28
e) Issue 5: Would development approval be consistent with sections 119 and
120 of the Planning Act?
Consideration of the issues
Issue 1 – The Gungahlin Precinct Map and Code
45. Under section 115 of the Planning Act, where more than one type of code
applies to a development and there is inconsistency between provisions, the
order of precedence is Precinct Code, Development Code, and General Code.
46. The Gungahlin Precinct Map covers a large area bounded on the south by
Gungahlin Drive and on the north by Horse Park Drive. The Gungahlin Town
Centre is at the centre of the Precinct. The subject site is within a CZ5 mixed
use commercial zone immediately to the north of the Town Centre across
Anthony Rolfe Avenue. The CZ5 zone is some 1000 metres long and 70 metres
deep and separates the Town Centre from the RZ3 urban residential zone in the
northern part of Gungahlin.
47. Figure 3 in the Gungahlin Precinct Code describes Anthony Rolfe Avenue as a
‘major collector road’ with an on-road cycle lane and off-road shared paths. The
Tribunal notes that the document ACT Road Hierarchy issued by the Justice and
Community Safety Directorate states that the ‘classification of roads in the ACT
is based on a formal road hierarchy’. ‘Major collector roads’ are described as
roads that “collect and distribute traffic within residential, industrial and
commercial areas. They form the link between the primary network and the
roads within local areas and should carry only traffic originating or
28 T-Documents pages 239-240
14
terminating in the area. The volume of traffic carried is constrained by
environmental objectives - safety and traffic noise - rather than road geometry
and reflects the limited area that they serve. Direct property access is still
permissible but the level of traffic may dictate that access and egress
arrangements should be such that vehicles can exit properties in a forward
direction”.29
48. The Tribunal notes that the role of Anthony Rolfe Avenue is to “carry only
traffic originating or terminating in the area”. The Tribunal notes also the
environmental objectives for a major collector road in relation to safety and
traffic noise. The Tribunal notes the concerns of the applicant with regard to
haphazard parking and incomplete pathways, pedestrian crossings and lighting
along Anthony Rolfe Avenue, but such matters are urban infrastructure issues to
be addressed by the appropriate authorities as the district and town centre
develop.
49. Only three planning criteria in the Gungahlin Precinct Code apply to this mixed
use commercial development area - C66 (noise generating uses); C67 (activities
ancillary to residential use); and C68 (maximum 4 storeys subject to
compatibility with desired character; reasonable solar access to dwellings on
adjoining residential blocks). A noise management plan was submitted with the
development application. The proposed development satisfies both of the other
criteria.
50. For the reasons set out above, the Tribunal concludes that the proposed
development is consistent with the Gungahlin Precinct Map and Code.
Issue 2 – Does the proposed development comply with the relevant development
codes: the Commercial Zones Development Code; the Residential Zones
Development Code and the Multi Unit Housing Development Code?
51. The Commercial Zones Development Code provides additional planning, design
and environmental controls to support the objectives of the CZ5 mixed use
zone. The Commercial Zones Development Code states that the Residential
Zones Development Code and the Multi Unit Housing Development Code are
29 Justice and Community Safety Directorate: ACT Road Hierarchy
also applicable to development in commercial zones.
52. Criterion C1 in the Commercial Zones Development Code requires that the
development “meets the intent of any current relevant lease and development
conditions”. The Multi Unit Housing Development Code contains a similar
requirement at C4 - “the development meets the intent of any approved lease
and development conditions”. The Tribunal will consider the interpretation of
“intent…of lease and development conditions” as a separate issue.
53. Figure 9 in the Gungahlin Precinct Code shows four sites in the Town Centre
reserved for public car parking, two of which, Section 228 (known as Margrie
Lane) and Section 229 are on the south side of Anthony Rolfe Avenue and are
visible from the subject site. The applicant has contended that parking by
visitors in the car parks at Margrie Lane or Section 229 will not meet criterion
C82 in the Multi Unit Housing Development Code and does not permit “safe
and direct visitor entry” to the proposed development because it requires a
visitor “to cross a busy street in Gungahlin without traffic lights and navigate
this passage without a paved footpath”.30
The respondent contends, and the
Tribunal noted on the view, that Anthony Rolfe Avenue is a divided
carriageway with a generous landscaped median strip and that there are several
existing walkways across Anthony Rolfe Avenue, near the subject site and
providing safe and easy access to the carparking on Section 228 and future 229.
54. The Tribunal has reviewed building and site plans and has considered the
requirements of the Multi Unit Housing Development Code for visitor parking.
55. The applicant did not call any expert evidence to support her contention that
visitors parking in Margrie Lane will not have “safe and direct visitor entry” to
the development. Mr David Field said in evidence “the Margrie Lane carpark is
an open carpark which has a clear link from one side of the road to the other.
For me there are (sic) good access, there is a good site distance and it is visible.”
31 The Tribunal accepts the evidence of Mr Field.
56. The Tribunal finds, having considered the available evidence, that the proposed
30 Fact #17 in the applicant’s Statement of Contentions 31 Transcript of Proceedings 4 June 2015 at page 94, lines 35-37
16
development satisfies criteria C82 and C8332
for accessibility for visitors.
Likewise the proposed development meets criterion C8433
that car parking
spaces on site and not in the basement do not dominate site landscaping.
Criterion C85 provides that “reasonable provision is made for short stay
parking for delivery trucks” and is also met.
57. The Multi Unit Housing Development Code contains no other requirements
relevant to the proposed development. The Residential Zones Development
Code contains no requirements relevant to the proposed development.
58. The Tribunal concludes that the proposed development is consistent with the
Commercial Zones Development Code; the Residential Zones Development
Code and the Multi Unit Housing Development Code.
Issue 3 Does the proposed development comply with the Parking and
Vehicular Access General Code.
59. Sections 1.3 and 1.4 of the Parking and Vehicular Access General Code state:
The code adopts a performance based approach and section 3 sets out, for
each of the zones, objectives relating to the provision of parking which
development proposals are required to meet. The relevant schedule in
section 3 defines the minimum parking provision requirements for
permitted development for each of the zones.
The scale of parking provision required is derived from a set of criteria
relating to safety, economic efficiency, accessibility, commercial viability
and social and environmental objectives. The parking provision rates take
account of factors such as the availability of public parking and the
potential for shared parking with neighbouring developments,
accessibility of the location to public transport, and relevant transport,
economic, social and environmental policies, such as travel demand
management measures.
…
Parking generated by a development is generally required to be
accommodated on site or in a location consistent with the criteria in
section 2.
32 C83: Visitor parking is accessible to all visitors 33 C84: Car parking spaces on the site (including garages but excluding basement car parking)
achieves all of the following (a) do not dominate site landscaping (b) are consistent with the desired character
17
…
However the performance approach adopted in these codes provides the
flexibility to enable a proposal to be supported where the proponent can
demonstrate to the satisfaction of the Territory that the objectives can be
met either by provision of a lesser on-site rate or by utilising spare
capacity in publicly available on-street or off-site parking...
The utilisation of spare capacity in on-street or off-site parking areas is at
the discretion of the Authority, having regard to, inter alia, the potential
demand which may be generated by a particular proposal as well as the
potential for nearby lessees to seek to expand their activities and lay claim
to a proportion of the available capacity in publicly available on-street
and off-street car parking areas.
60. Section 3.3.1 of the Code gives the following objectives for parking and
vehicular access in the CZ5 mixed use zone:
a) Amenity
i) no regular overspill of parking occurs in neighbouring residential
areas which detracts from the amenity of these areas
ii) the provision of parking does not detract from creating vibrant,
interesting and lively centres
b) Safety
i) no traffic hazards are created by the provision of access and
parking facilities for a development
ii) the safety of all users, especially pedestrians and cyclists, is
considered
iii) the creation of community surveillance of car parking areas by
people using neighbouring areas
c) Efficiency
i) the efficient use of existing and future public parking provision by
the consideration of sharing of facilities, wherever possible
ii) commercial vehicles delivering or collecting goods are
accommodated
d) Access
i) safe and efficient access to mixed use areas by all users including
business, workers, residents, shoppers and visitors as well as by
operational and commercial vehicles
e) Equity
i) the maintenance of an adequate supply of public parking for the
level of development and activity approved in a mixed use area
f) Non-commercial use
i) the successful operation of non-commercial uses in mixed use areas,
especially community uses which will require adequate set-down
18
and pick-up facilities.
61. The applicant has argued that the safety of drivers and pedestrians is a critical
issue in the context of parking and access. The applicant acknowledges that she
lives in a mixed use area and that her house is in a CZ5 zone but she reminded
the Tribunal that houses on the other side of her street are in a RZ3 residential
zone and that “the proposed development is bordered by a RZ3 residential
area”34
. Further objectives for residential zones are given in Section 3.1.1 of the
Parking and Vehicular Access General Code.
62. Dr Jarvis reminded the Tribunal that parking for residents of the proposed
development was all contained within the site and that the theoretical number of
visits to the ground floor businesses will not all occur at the same time.35
63. It is accepted by all parties that the proposed development meets the
requirements for resident parking within the basement level.
64. The applicant nevertheless contends that the majority of the objectives in the
Parking and Vehicular Access General Code for the CZ5 mixed use zone and
the RZ3 residential area are not presently being met and that this situation will
worsen if the proposed development proceeds. The applicant provided
photographs of private cars parked in residential streets in the immediate
vicinity of the subject site. The Tribunal walked along these streets and
observed that many cars were parked carelessly and there appeared to be few
vacant parking spots outside private houses.
65. At the centre of the objection to the proposed development is the vexing
question of the ‘ownership’ of kerbside parking in residential areas and the need
to allow access for service vehicles and garbage collection. Cross examined by
Dr Jarvis, the applicant stated that one of the reasons she was there was
“because my husband has trouble finding a car park”.36
66. In his opening statement, Mr Farzan reminded the Tribunal that “Dr Ibbotson
34 Fact 122 in the applicant’s Statement of Facts 35 Transcript of Proceedings 3 June 2015 at page 16 line 8 36 Transcript of Proceedings 4 June 2015 at page 121 line 15
19
has chosen to live in a CZ5 zone”.37
67. The applicant contends that parking spaces outside her own house “are often
taken by employees of the businesses nearby on Anthony Rolfe”.38
The applicant
asks whether existing residents have a right “to park their cars somewhere in
the vicinity of their homes”.39
It is human nature, she says, to park “where it is
convenient and generally where it is legal if possible”.40
At the same time, the
applicant asks if it is reasonable “to expect only two cars ever being used, or
that garages aren’t used for any other purpose than car storage”. However,
when cross examined by Mr Farzan, the applicant admitted that her house has a
generous garage with room for three cars but that the space is used as a
workshop and they park only one car in the garage and their other car in the
street.41
68. Mr Timothy Wyatt gave evidence as to the targets, objectives and strategies of
the ACT Government for transport and planning in Canberra. He referred to the
document ACT Planning Strategy: Planning for a Sustainable City dated July
2012 which states at page 44 that:
parking in our town and group centres must be aimed at supporting
businesses and be limited to shorter stays of up to three hours. In
suburban residential areas, developments must provide sufficient parking
to keep the amenity of residential areas. However, less parking will be
needed in town and group centres and along rapid inter-town transit ways
where there is good access to public transport.
69. The Tribunal was also referred to the most recent ACT Government policy
document related to planning and transport Building an Integrated Transport
Network: Parking dated June 2015. This document notes that the government:
…will pursue opportunities for more efficient use of parking assets across
the week and different times of day (for example supporting retail during
the day, restaurants at night and recreational activities on the weekend)42
…Ultimately it is up to the prospective residents to satisfy themselves that
37 Transcript of Proceedings 3 June 2015 at page 23 line 2 38 T-Documents page 52 39 T-Documents page 58 40 T-Documents page 97 41 Transcript of Proceedings 4 June 2015 at page 132 line 20 42 Page 7
20
their housing provides the on-site parking they require.43
70. The Parking and Vehicular Access General Code has precise definitions44
for
short stay parking (“generally up to 4 (four) hours duration”) and long stay
parking (“generally longer than 4 (four) hours duration”). Section 3.3.4 of the
Parking and Vehicular Access General Code gives specific requirements for the
location of long stay, short stay and operational parking in a commercial CZ5
mixed use zone elsewhere than in the city centre as follows - long stay parking:
on-site or within 400m except for residential use where parking is to be on-site;
short stay parking: on-site or within 200m; and visitor parking: on-site or within
200m.
71. A significant amount of time was taken up at the hearing in relation to how the
distance of 200m is to be measured and whether, if one of the Margrie Lane
carpark boundaries was within the 200m limit, the whole of the car park spaces
in that car park should be counted.
72. When considering the measurement of distance the Tribunal noted that section
150 of the Legislation Act 2001 provides:
150. Measurement of distance
In applying an Act or statutory instrument, distance is to be measured in a
straight line on a horizontal plane.
73. The applicant variously contended that distance should be measured by the
walking distance from the development; that there was more than one
convention according to Mr Wyatt’s evidence and according to the different
expert opinions in the decision of Amarso v ACTPLA45
(Amarso); and that, if
defined as a straight line, it should be measured from the front door of a
property and transcribe a circle from that point such that any carparks within
that circle are deemed to be able to be considered and those outside would not
be included.
43 Page 11 44 Section 1.5 45 [2012] ACAT 9
21
74. In his Witness Statement46
Mr Wyatt stated at paragraph 48 that: “.... in
determining the application of the 200 metre provision. Conventional practice is
that these distances to off-site car spaces has been measured block to block,
straight line or concentrically from the site rather than strict walking distance.”
75. In relation to the applicant’s contention that distance should be measured by
‘walking distance’ the Tribunal noted that section 3.3.4 of the PVAGC, which
referred to ‘locational requirements’, under City Centre long stay parking states
“On-site or in publicly available carparks up to 1km distant” (Tribunal’s
emphasis). Otherwise the section states ‘within 200m or 400m’. There is no
reference to walking distance.
76. In Amarso, in which Dr Jarvis also appeared for the respondent Authority, a
differently constituted tribunal considered the application of the 200m
measurement. That tribunal noted this was an issue on which the expert
opinions differed and did not decide the issue. In that case, Dr Jarvis had
referred to the evidence of Mr Paul Isaks, a transport specialist in the Transport
Planning and Strategy Section of the City Planning Division in the Environment
and Sustainability Directorate of the ACT Government, that “there was a long
standing convention or practice in the ACT to take account of the available
spare capacity as long as the “crow flies” distance between the nearest
boundary of the development and the car park boundary was less than the 200m
specified in the Parking Code. In his view, weight should be given to the
convention in the interests of administrative consistency.”47
The Tribunal noted
Mr Wyatt’s evidence that he “succeeded the responsibilities on behalf of the
department and subsequently ACTPLA that were held by Mr Isaks.’48
77. Dr Jarvis told the Tribunal, as in Amarso, that weight should be given to the
convention in the interests of administrative consistency.
78. Notwithstanding the definition of ‘measurement of distance’ in the Legislation
Act, the applicant was critical of the lack of definition of where the straight line
starts. The applicant was also critical of the respondent failing to take
46 exhibit R5 47 Amarso at [122] 48 Transcript of Proceedings page 220 lines 4-5
22
appropriate action since Amarso was decided in 2012 to define this
measurement in the Parking and Vehicular Access General Code or in the
Territory Plan, given that the definition was crucial to some developments.
79. The Tribunal concurs with Dr Jarvis that, in the interests of administrative
consistency, the measurement of distance, in this case 200m, should adopt the
convention referred to by Mr Wyatt above. Notwithstanding the applicant’s
criticism, the applicant did not call any expert evidence which might have
assisted the Tribunal to determine this issue.
80. The Tribunal finds, in applying the convention, measuring either in a straight
line or concentrically, that a part of the Margrie Lane carpark is within the 200m
distance and that, therefore, the car parking spaces in that carpark are able to be
included by the respondent as available off site carparking.
81. The Tribunal notes that the Margrie Lane car park is currently being
reconfigured and extended north towards Anthony Rolfe Avenue with an
increase in capacity of approximately 74 car spaces. Northrop Consulting
Engineers has advised that none of the additional car parking associated with
the adjacent commercial development is relying on the Margrie Lane car park.
Northrop has reported that extension of the car park will include pram ramps on
Anthony Rolfe Avenue and that there will be footpaths on the north verge of
Anthony Rolfe Avenue. Northrop also noted “restaurant peak demand will be
outside of the peak shop demand thus assisting with efficient use of parking”49
.
82. The Tribunal has previously noted that resident demand for car parking in the
proposed development has been met within the boundaries of the subject site
and the several parking studies undertaken on behalf of the party joined have
determined that there are adequate numbers of parking spaces available for short
stay and long stay parking for visitors to the site. The Tribunal concludes that
the proposed development complies with the Parking and Vehicular Access
General Code.
49
Parking Study: Block 1 Section 68 Gungahlin ACT May 2015 pages 7 and 9
23
Issue 4 – Does the proposed development comply with the approved Lease and
Development Conditions including the Planning Control Plan and Development
Intentions Plan?50
83. The issue of compliance with the L&DCs was at the heart of the applicant’s
case. The lease and development conditions for the subject site are a relevant
consideration because they are referred to in the Commercial Zones
Development Code and the Multi Unit Housing Development Code.
84. The applicant contends that “the lease and development conditions, even the
intent of the lease and development conditions, should take precedence over the
Parking and Vehicular Access General Code”.51
She further contends that the
lease and development conditions were a higher imperative than meeting the
provisions of any of the precinct, development or general codes.52
85. The respondent contended53
that in the “site specific” L&DCs for the subject
site, the object and intent is expressed in specific provisions at the beginning of
that part of the L&DCs, namely “Development Intentions Plan” and “Planning
Objectives.” The development intentions plan54
shows that the intent of the
L&DCs was not necessarily to have all car parking in basements, because it
depicts some car parking at ground level.
86. The respondent referred the Tribunal to the decision of the predecessor of this
tribunal, the ACT Administrative Appeals Tribunal, in Cvetanoski v
Commissioner for Land and Planning55
in which that tribunal stated at [9]:
The applicant’s argument relies on applying rules of statutory interpretation to
the words of Appendix II.1 as if it were subordinate legislation. This poses a
difficulty in that the Plan has not been drafted as a statutory instrument. It has
been drafted by planners. The Plan’s introduction states that its structure has
been devised to meet a number of objectives which include “to be readily
available to the ACT Community” and “to be as simple to use as possible.” The
rules of statutory interpretation cannot readily be applied to it.
87. The ‘Lease and Development Conditions’ in the present matter is also a
50 Approved Lease and Development conditions dated 5 March 2007 are at T- Documents 217 –
240 51 Transcript of Proceedings 3 June 2015 at page 29 line 1 52 Contentions 8 and 9 in the applicant’s Statement of Contentions 53 Respondent’s Statement of Facts and Contentions at [29], [34] 54 Tribunal documents page 240 55 [1999] ACTAAT 42 [9-10]
24
planning instrument and it is not to be construed in a legalistic manner. The
Tribunal’s approach is to have regard to the planning policy it reflects. The
Tribunal refers to and adopts an observation by a differently constituted tribunal
in AMC Projects v ACTPLA56
: “We observe, however that many of the features
of the proposed development which give rise to the objections raised by the
objectors are the natural consequence of the policies introduced to permit more
intensive development in residential core areas.”
88. Mr Ajith Buddhadasa did not accept the applicant’s contentions as to the
interpretation of the lease and development conditions. In his statement57
,
Mr Buddhadasa said that - “meeting the intent of the lease and development
conditions and the requirements of the Territory Plan including the Parking and
Vehicular Access General Code was both important and necessary”.58
In his
opinion, the intent of the lease and development conditions for the subject site
in relation to car parking was given under the heading ‘Planning Objectives’ as
to “minimise the impact of car accommodation when viewed from [the] public
and private domain”.
89. He further stated that the - “Section under the heading ‘Planning principles’
and subsequent sections in the L&Ds outline some qualitative and quantitative
measures to be used to realise the intents mentioned under the planning
objectives. In that L&Ds suggest providing underground car parking so that the
visual impacts from car parking areas can be minimised therefore the above
intent can be met.”59
90. It was Mr Buddhadasa’s contention that this interpretation is supported by the
Development Intentions Plan which formed part of the lease and development
conditions and shows a possible built-form outcome with basement parking for
residents and a small number of cars parked behind the building and screened
by landscaping.60
He opined - “Therefore it is evident from the L&Ds that the
L&Ds does not require or to provide all the carparking generated by this