Johnson & Xu v ACTPLA Summary for WVCC

Johnson & Xu vs ACTPLA (ACAT AT12/6) Summary

Woden Valley Community Council Meeting03 October 2012

Tina Xu

A group of residents appealed to the Tribunal for the approval of a Development Application (DA) by the planning authority & the Tribunal approved the DA in a revised form.

The most important thing is not the result, but the findings and insights that we would like to share with you.

What is it about?

We are not seeking reversal of the ACAT decision & we are in no position to appeal its decision.

At the end of this presentation, we wish to get you thinking…

We are not against re-development but it should be done responsibly.

ACTPLA ACT Planning and Land Authority

ACATACT Civil and Administrative Tribunal

TaMSTerritory and Municipal Services

THE SITE

THE SITE

2045m2

THE PROPOSAL

12 two-storey two-bedroom units with 22 underground carparks

2 September 2010The DA was lodged by Mr Milin. It sought approval of 15 residential units.

THE HISTORY

Prescribed period 45 working days to 3 November 2010.

The DA underwent public notification and 10 adjoining neighbours/schools received written notifications.

Thirteen objections were submitted to ACTPLA including one from the Department of Education.

Developer Due DateACTPLA

Comments from government agencies:

ACTPLA:

TaMS:

Tree Protection Unit:

22 December 2010 ACTPLA sent all the comments and objections to Mr Milin and sought further information to be provided by 28 January 2011.

ACTPLA’s letter to Mr Milin advised that

Developer Due DateACTPLA

NO decision on the application was made within the prescribed period.

NO request of extension was submitted by Mr Milin within the prescribed period.

NO information was provided by Mr Milin before the (1st) due date.

The DA was deemed to be refused (refer to Section 12 ACAT Act and Section 163(3) Planning and Development Act 2007).

Developer Due DateACTPLA

02 June 2011ACTPLA notified Mr Milin: “the Authority has provided you with sufficient time…I have been instructed to refuse the DA”.

03 June 2011 Parts of Draft Variation 306 (DV306) came into interim effect limiting a block of this size to a maximum of 5 dwellings – as opposed to 12.

Developer Due DateACTPLA!!!

07 June 2011Mr Milin wrote to seek reversal of refusal and requested 4 weeks extension.

08 June 2011 ACTPLA granted an extension of time to provide information expiring on 8 July 2011, despite the fact that this request was made far beyond the prescribed period.

However, NO information was provided by the (2nd) due date.

Developer Due DateACTPLA

19 July 2011ACTPLA notified Mr Milin & granted further extension to 22 July 2011 (3rd due date).

02 August 2011 Mr Milin lodged amended plans which sought permission for 12 residential units.

The revised DA underwent public notification but only 5 adjoining neighbours received notifications.

Developer Due DateACTPLA

???

23 August 2011 Mr Milin re-lodged the plans because “the plans lodged on 02 August 2011 were incomplete.”

The ACTPLA’s internal communications read, “this s144 would need to be notify again at the Authority’s expense”, the DA underwent re-notification; only 7 adjoining neighbours received notifications.

During the above two public notifications, 25 written objections were received.

Developer Due DateACTPLA

?

After another 3 months18 November 2011 Mr Milin lodged further revisions.

01 December 2011 ACTPLA internal review approved the DA.

22 December 2011 ACTPLA sent out notifications of the approval of this DA in its amended form.

Developer Due DateACTPLA

7. Approved a DA with multiple departures from the Territory Plans and Multi-Unit Housing Development (MUDH) Code including several mandatory rules – Section 119

SUMMARYACTPLA has not complied with multiple sections of the Planning & Development Acts 2007:

1. Failed to provide notices to all adjoining parties – Section 153(2) & 153(4).

2. Failed to make decision within the legal timeframe – Section 122 & 162(3).

3. Revived a deemed refused DA as “original” DA so as to avoid abiding by DV306 – Section 163.

4. Failed to refuse a DA when further information not provided within due date (twice) – Section 142(2)

5. Granted extensions to the developer far beyond the prescribed period –Section 142(2)

6. Granted more than one extensions – Section 141(4)

7. Approved a DA with multiple departures from the Territory Plans and Multi-Unit Housing Development (MUDH) Code including several mandatory rules – Section 119

SUMMARYACTPLA has not complied with multiple sections of the Planning & Development Acts 2007:

1. Failed to provide notices to all adjoining parties – Section 153(2) & 153(4).

2. Failed to make decision within the legal timeframe – Section 122 & 162(3).

3. Revived a deemed refused DA as “original” DA so as to avoid abiding by DV306 – Section 163.

4. Failed to refuse a DA when further information not provided within due date (twice) – Section 142(2)

5. Granted extensions to the developer far beyond the prescribed period –Section 142(2)

6. Granted more than one extensions – Section 141(4)

7. Approved a DA with multiple departures from the Territory Plans and Multi-Unit Housing Development (MUDH) Code including several mandatory rules – Section 119

SUMMARYACTPLA has not complied with multiple sections of the Planning & Development Acts 2007:

1. Failed to provide notices to all adjoining parties – Section 153(2) & 153(4).

2. Failed to make decision within the legal timeframe – Section 122 & 162(3).

3. Revived a deemed refused DA as “original” DA so as to avoid abiding by DV306 – Section 163.

4. Failed to refuse a DA when further information not provided within due date (twice) – Section 142(2)

5. Granted extensions to the developer far beyond the prescribed period –Section 142(2)

6. Granted more than one extensions – Section 141(4)

7. Approved a DA with multiple departures from the Territory Plans and Multi-Unit Housing Development (MUDH) Code including several mandatory rules – Section 119

SUMMARYACTPLA has not complied with multiple sections of the Planning & Development Acts 2007:

1. Failed to provide notices to all adjoining parties – Section 153(2) & 153(4).

2. Failed to make decision within the legal timeframe – Section 122 & 162(3).

3. Revived a deemed refused DA as “original” DA so as to avoid abiding by DV306 – Section 163.

4. Failed to refuse a DA when further information not provided within due date (twice) – Section 142(2)

5. Granted extensions to the developer far beyond the prescribed period –Section 142(2)

6. Granted more than one extensions – Section 141(4)

7. Approved a DA with multiple departures from the Territory Plans and Multi-Unit Housing Development (MUDH) Code including several mandatory rules – Section 119

SUMMARYACTPLA has not complied with multiple sections of the Planning & Development Acts 2007:

1. Failed to provide notices to all adjoining parties – Section 153(2) & 153(4).

2. Failed to make decision within the legal timeframe – Section 122 & 162(3).

3. Revived a deemed refused DA as “original” DA so as to avoid abiding by DV306 – Section 163.

4. Failed to refuse a DA when further information not provided within due date (twice) – Section 142(2)

5. Granted extensions to the developer far beyond the prescribed period –Section 142(2)

6. Granted more than one extensions – Section 141(4)

7. Approved a DA with multiple departures from the Territory Plans and Multi-Unit Housing Development (MUDH) Code including several mandatory rules – Section 119

SUMMARYACTPLA has not complied with multiple sections of the Planning & Development Acts 2007:

1. Failed to provide notices to all adjoining parties – Section 153(2) & 153(4).

2. Failed to make decision within the legal timeframe – Section 122 & 162(3).

3. Revived a deemed refused DA as “original” DA so as to avoid abiding by DV306 – Section 163.

4. Failed to refuse a DA when further information not provided within due date (twice) – Section 142(2)

5. Granted extensions to the developer far beyond the prescribed period –Section 142(2)

6. Granted more than one extensions – Section 141(4)

7. Approved a DA with multiple departures from the Territory Plans and Multi-Unit Housing Development (MUHD) Code including several mandatory rules – Section 119

SUMMARYACTPLA has not complied with multiple sections of the Planning & Development Acts 2007:

1. Failed to provide notices to all adjoining parties – Section 153(2) & 153(4).

2. Failed to make decision within the legal timeframe – Section 122 & 162(3).

3. Revived a deemed refused DA as “original” DA so as to avoid abiding by DV306 – Section 163.

4. Failed to refuse a DA when further information not provided within due date (twice) – Section 142(2)

5. Granted extensions to the developer far beyond the prescribed period –Section 142(2)

6. Granted more than one extensions – Section 141(4)

THE ACAT APPEAL

August 2011 – December 2011(Before ACTPLA’s decision) Discussion among residents, schools, community council & local members

December 2011 – January 2012(Before ACAT appeal) Discussion & consultation with other resident groups, experts & lawyers

18 January 2012 Lodgement of application for ACAT review

10 other residents joined (total 11 parties)

13 February 2012 Received T-documents (769 pages)

01 March 2012 Mediation

March 2012

▪ Moral, physical and financial support from local residents and schools

▪ Help & guidance from WVCC, Dickson & Chifley resident groups

▪ Extreme difficulty encountered in finding experts because many of them “have conflict of interest” or “do not want to be against ACTPLA.”

▪ Involved multiple experts including town planner, architect & civil engineer from NSW, and access consultant, traffic engineer, tree consultant from ACT.

▪ Barrister pro bono

23, 26, 28, 29 March 2012 Submitted Applicant’s Statements of Facts & Contentions, expert & witness statements (11 parties & 14 other residents/parents)

Multiple non-compliance with the Territory Plans & MUHD Codes identified:1. RZ2 Objective (b) – the proposed development does not address the existing neighbourhood characteristics in scale, form and site development2. MUHDC Rule 15 – the plot ratio exceeds 50% (mandatory)3. MUHDC 72 – driveway gradient too steep and transitions inappropriate (not meeting Aus/NZ standard)4. MUHDC Rule 40 – the tree management plans are inaccurate & inadequate (mandatory)5. MUHDC Rules 46 and 47 – no stormwater management plan (mandatory)6. MUHDC Rule 86 – insufficient sunlight to Unit 11 (mandatory)7. MUHDC Rule and Criteria 89 & 90 – inadequate POS for Units 2, 3, 10, and 118. Access and Mobility Code – no adaptable housings or pathways (mandatory)

23 April 2012 Received ACTPLA and the developer’s Facts & Contentions and expert witness statements

Revised plans included:

1. Major changes in Unit 4 & 5 in order to provide adaptable units and pathways

2. Major alteration in driveway in order to meet Australian/NZ Standards

3. Reduction of bedroom number along with the above revisions in order to reduce plot ratio to <50%

Further consultation with our experts on the revised plans (& therefore expense) required

07-11 May 2012 Hearing Proper

Day 1 & 2: site visit & cross-examination on town planners

Day 3: cross-examination on tree consultants & civil engineers▪ Both tree consultants agreed that the tree survey inaccurate and tree management plan inadequate

▪ A permission from Tree Protection Unit to remove a tree missed in survey

▪ A hand-drawn stormwater management plan & water tanks shown to our engineer 5 minutes before hearing

▪ A permission from TaMS for outside-boundary driveway alteration

Day 4: cross-examinations on residents and Mr Milin▪ Another stormwater management plan as our engineer pointed out that the one designed on Day 3 would not work

▪ Further revisions on block A in response to Arborist’s concerns (to protect the trees)

▪ Tree Protection Unit confirmed that the TMP needs redesign

▪ Comments from ACTPLA Civil Engineer on the water tanks proposed on Day 3

Day 5: cancelled, as the developer needed more time to provide a new tree management plan!

28 May 2012▪ A new tree management plan

▪ Another version of stormwater management plan

30 May 2012 Tree Protection Unit approved the new tree management plan

12 June 2012 Hearing resumed

13 August 2012 ACAT decision to approve the DA in the final revised form

We were appealing ACTPLA’s approval of a DA that was clearly not approvable.

We, as ordinary residents, at our own expense, had to do what ACTPLA should have done in identifying the non-compliance, while being treated as nuisance by ACTPLA & the developer.

Based on our legitimate objections, the developer made further revisions 4 months after ACTPLA’s approval (2 weeks before the Tribunal hearing), design on the run during the hearing & even 2 weeks after the hearing.

To us, the Tribunal has chosen not to take into account of ACTPLA’s lack of compliance to its rules and has stretched its own rule to give the developer as much time as needed to make revisions.

SUMMARY

While significant planning issues have been recognised in our established suburbs and DV306 coming into effect, what is left for us will be the first and maybe the only development of this kind in this area.

Seeing what happened in ACTPLA’s approval and ACAT appeal processes, how would we expect the developer to submit properly approvable plans in the first place? And how would we trust they are properly assessed?

We were appealing ACTPLA’s approval of a DA that was clearly not approvable.

We, as ordinary residents, at our own expense, had to do what ACTPLA should have done in identifying the non-compliance, while being treated as nuisance by ACTPLA & the developer.

Based on our legitimate objections, the developer made further revisions 4 months after ACTPLA’s approval (2 weeks before the Tribunal hearing), design on the run during the hearing & even 2 weeks after the hearing.

To us, the Tribunal has chosen not to take into account of ACTPLA’s lack of compliance to its rules and has stretched its own rule to give the developer as much time as needed to make revisions.

SUMMARY

While significant planning issues have been recognised in our established suburbs and DV306 coming into effect, what is left for us will be the first and maybe the only development of this kind in this area.

Seeing what happened in ACTPLA’s approval and ACAT appeal processes, how would we expect the developer to submit properly approvable plans in the first place? And how would we trust they are properly assessed?

We were appealing ACTPLA’s approval of a DA that was clearly not approvable.

We, as ordinary residents, at our own expense, had to do what ACTPLA should have done in identifying the non-compliance, while being treated as nuisance by ACTPLA & the developer.

Based on our legitimate objections, the developer made further revisions 4 months after ACTPLA’s approval (2 weeks before the Tribunal hearing), design on the run during the hearing & even 2 weeks after the hearing.

To us, the Tribunal has chosen not to take into account of ACTPLA’s lack of compliance to its rules and has stretched its own rule to give the developer as much time as needed to make revisions.

SUMMARY

While significant planning issues have been recognised in our established suburbs and DV306 coming into effect, what is left for us will be the first and maybe the only development of this kind in this area.

Seeing what happened in ACTPLA’s approval and ACAT appeal processes, how would we expect the developer to submit properly approvable plans in the first place? And how would we trust they are properly assessed?

We were appealing ACTPLA’s approval of a DA that was clearly not approvable.

We, as ordinary residents, at our own expense, had to do what ACTPLA should have done in identifying the non-compliance, while being treated as nuisance by ACTPLA & the developer.

Based on our legitimate objections, the developer made further revisions 4 months after ACTPLA’s approval (2 weeks before the Tribunal hearing), design on the run during the hearing & even 2 weeks after the hearing.

To us, the Tribunal has chosen not to take into account of ACTPLA’s lack of compliance to its rules and has stretched its own rule to give the developer as much time as needed to make revisions.

SUMMARY

While significant planning issues have been recognised in our established suburbs and DV306 coming into effect, what is left for us will be the first and maybe the only development of this kind in this area.

Seeing what happened in ACTPLA’s approval and ACAT appeal processes, how would we expect the developer to submit properly approvable plans in the first place? And how would we trust they are properly assessed?

We were appealing ACTPLA’s approval of a DA that was clearly not approvable.

We, as ordinary residents, at our own expense, had to do what ACTPLA should have done in identifying the non-compliance, while being treated as nuisance by ACTPLA & the developer.

Based on our legitimate objections, the developer made further revisions 4 months after ACTPLA’s approval (2 weeks before the Tribunal hearing), design on the run during the hearing & even 2 weeks after the hearing.

To us, the Tribunal has chosen not to take into account of ACTPLA’s lack of compliance to its rules and has stretched its own rule to give the developer as much time as needed to make revisions.

SUMMARY

While significant planning issues have been recognised in our established suburbs and DV306 coming into effect, what is left for us will be the first and maybe the only development of this kind in this area.

Seeing what happened in ACTPLA’s approval and ACAT appeal processes, how would we expect the developer to submit properly approvable plans in the first place? And how would we trust they are properly assessed?

We were appealing ACTPLA’s approval of a DA that was clearly not approvable.

We, as ordinary residents, at our own expense, had to do what ACTPLA should have done in identifying the non-compliance, while being treated as nuisance by ACTPLA & the developer.

Based on our legitimate objections, the developer made further revisions 4 months after ACTPLA’s approval (2 weeks before the Tribunal hearing), design on the run during the hearing & even 2 weeks after the hearing.

To us, the Tribunal has chosen not to take into account of ACTPLA’s lack of compliance to its rules and has stretched its own rule to give the developer as much time as needed to make revisions.

SUMMARY

While significant planning issues have been recognised in our established suburbs and DV306 coming into effect, what is left for us will be the first and maybe the only development of this kind in this area.

Seeing what happened in ACTPLA’s approval and ACAT appeal processes, how would we expect the developer to submit properly approvable plans in the first place? And how would we trust they are properly assessed?