ACT CIVIL & ADMINISTRATIVE TRIBUNAL

	
	GRIFFITH NARRABUNDAH COMMUNITY ASSOCIATION v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2011] ACAT 61

AT 11/17

Catchwords:	ADMINISTRATIVE REVIEW – planning and land development – land in the community facilities zone (CFZ) – proposal to build 160 bed residential aged care facility – provisions of CFZ Development Code – whether Rule R6 of CFZ Development Code means that Residential Zones Multi Unit Housing Development Code applies – whether proposed development is a multi unit dwelling – definition of dwelling – proposed removal of trees presently on unleased Territory land – trees will become protected trees on issuing of Crown lease – application of Tree Protection Act 2005 – whether advice of Conservator required – whether decision can be inconsistent with advice of Conservator – consideration of matters under section 120 of the Planning and Development Act 2007 – relevant zone objectives – suitability of the land - probable impact including environmental impact of the proposed development – compliance with Rules and Criteria of CFZ Development Code.

Legislation:		Planning and Development Act 2007, ss. 119, 120 & 148
Tree Protection Act 2005, ss. 15, 21, 22, 23, 32, 35 & 39
Tree Protection (Interim Scheme) Act 2001(Repealed) 

List of Regulations:	Planning and Development Regulation 2008, ss. 5 &26
Tree Protection (Approval Criteria) Determination 2006 (N0 2) Disallowable Instrument D12006 – 60.  
Tree Protection (Tree Management Precinct) Declaration 2009 (No 1)  Notifiable Instrument N12009-213 
Tree Protection (Built-Up Urban Areas) Declaration 2010
(No2)  Notifiable Instrument N12010 – 414
Territory Plan 2008

Access and Mobility General Code 
 
Bicycle Parking General Code

Community and Recreation Facilities Location  Guidelines General Code

  	 Community Facility Zone Development Code

Parking and Vehicular Access General Code

   	Residential Zones Multi Unit Housing Development   
 	Code

List of Texts/Papers:	Griffith Neighbourhood Plan

Cases:	Bozin v Conservator of Flora and Fauna (Administrative Review) [2010] ACAT 91
Lourandos and Yiannokopoulis v ACTPLA (Administrative Review)[2011] ACAT 25
Paxevanos and ACT Planning and Land Authority & Ors [2008] ACTAAT 20

Tribunal:			Mr B. Hatch 		Presiding Member
Dr D. McMichael 	Senior Member

			
Date of Orders:		   12 September 2011	
Date of Reasons for Decision: 12 September 2011	
AUSTRALIAN CAPITAL TERRITORY		)
CIVIL & ADMINISTRATIVE TRIBUNAL	)	AT11/17

BETWEEN:             GRIFFITH NARRABUNDAH
COMMUNITY ASSOCIATION INC.

				Applicant

	                                 AND:               ACT PLANNING AND 
            LAND AUTHORITY

             Respondent

	AND: 		BAPTIST COMMUNITY 
     SERVICES – NSW and ACT

							Party Joined

TRIBUNAL:		Mr B. Hatch		Presiding Member
Dr D. McMichael 	Senior Member 

DATE:		12 September 2011

ORDERS

1.	The decision under review is varied by imposing the following additional or varied conditions on the approval: 

Additional Conditions

A1(c)  	revised site plan of car parking provision based on an estimate,                           
            certified by Baptist Community Services, of the number of 
peak shift employees of the facility when fully operational;

A1(d)   	a study of current and likely future external noise affecting the 
            	 proposed development to be undertaken by a qualified noise 
             management consultant and revised plans showing 
any necessary noise amelioration measures;

  	Varied conditions

	B11  TREE PROTECTION
	The trees shown as “to be removed” on drawing numbered TMP1C Sheet 2 are to be removed and a Tree Management Plan covering the protected trees that will remain on the site is to be prepared and submitted for approval by the Conservator of Flora and Fauna.

	 C2 TREE PROTECTION
	The applicant/lessee shall protect and maintain all existing trees and shrubs on adjoining blocks overhanging the subject site, on the verge, and on unleased Territory land immediately adjacent and shall protect and maintain those protected trees on the subject land (other than those approved for removal) in accordance with the approved Tree Management Plan.

………………………………..
Mr B Hatch
Presiding Member
for the members of the Tribunal

REASONS FOR DECISION

Introduction

1.	The Griffith/Narrabundah Community Association (“the applicant”) has sought review of a decision of the ACT Planning and Land Authority (“the respondent”) to approve, with conditions, Development Application (“DA”) No 201018575, for the construction of a 160 bed Residential Aged Care Facility on Griffith Section 78 Block 46 (“the subject land”).  The decision was made pursuant to section 162 of the Planning and Development Act 2007 (ACT) (“the Planning Act”) on 10 February 2011.  The applicant is an Incorporated Association which made a representation under section 156 of the Planning Act about the decision and is by virtue of Schedule 1, Column 4, Item 4 of the Planning Act an eligible entity entitled to apply for review of the decision under section 408 of the Planning Act.  

2.	The land in question is within a Community Facility Zone (“CFZ”) under the Territory Plan 2008 (“the Plan”) and is subject to the Community Facility Zone Development Code (“the CFZ Code”) as well as to any relevant General Codes and the Griffith Neighbourhood Plan.  One of the Objectives of the CFZ is to

(d) Provide sites for adaptable and affordable housing for people in need of supportive housing and residential care.

“Residential care accommodation” is a permissible development under the CFZ Development Table and is subject to assessment under the Merit Track. It is defined in the Plan as follows:

Residential care accommodation means the use of land by an agency or organization that exists for the purpose of providing accommodation and services such as the provision of meals, domestic services and personal care for persons requiring support.  Although services must be delivered on site, management and preparation may be carried out onsite or elsewhere.

3.	The proposed development (to be known as Gracewood Griffith) involves the demolition of a single storey building and associated structures (the former Griffith Infant School and more recently the O’Connell Education Centre); the construction of a three storey 160 bed aged care facility with undercroft and surface parking; and associated landscaping, paving and other site works.  It is intended to be built for Baptist Community Services –NSW and ACT (“BCS”) which was joined as a party to the proceedings. 

4.	BCS, inter alia, provides aged care services in a number of facilities in NSW and the ACT including at Morling Lodge in Red Hill.  Morling Lodge, now over 40 years old, is an ageing 105 bed facility that BCS is anxious to replace.  BCS envisages that completion of the proposed development will enable it to relocate the existing Morling Lodge residents and thus permit redevelopment of the Red Hill site.  In negotiations with the ACT Government over possible sites, it was made clear that the Government wanted any new facility to provide additional aged care places and 160 beds were nominated as the required number.

5.	The land on which the proposed development is to be built has been offered by the Land Development Agency (“the LDA”) to BCS for direct sale at current  market value.  However, evidence was given that the ACT Government had advised BCS that if, in redeveloping the Red Hill site, BCS were to provide some social housing it would waive payment for the Griffith land in return for a 15 year lease of the apartments in the Red Hill development.  

6.	While the BCS application to the LDA originally envisaged an area of 
17,000 m2 to 18,000 m2, following consideration by the respondent and the LDA an area of 16,490 m2 was eventually offered based on what was described as a “natural boundary” but with the requirement that the facility should nevertheless provide for 160 residential aged care beds.

 The Hearing

7.	The matter was heard over five days on 18, 19, 20, 21 and 22 July 2011.  The applicant was represented by Ms M. Fanning, President of the Griffith/Narrabundah Community Association.  The respondent was represented by Mr P. Walker of Counsel, while the party joined was represented by 
Mr C. Erskine SC of Counsel.  The Tribunal viewed the site in the presence of the parties and their representatives on 18 July and had before it the documents on which the respondent had relied in arriving at its decision (“the T Documents”) as well as witness statements and other documents tendered in evidence.

8.	The applicant called as its primary witness Mr Anthony Powell AO, an experienced consultant town planner and civil engineer, who was formerly Commissioner of the National Capital Development Commission. Mr Simon Hawke, Senior Development Assessment Officer of the respondent, who had been responsible for assessing the DA, had prepared a witness statement for the respondent, but was not called to give evidence by Mr Walker. Consequently, Ms Fanning called him as a witness and tendered his witness statement.  No witnesses were called by the respondent.

9.	Evidence for the party joined was given by Ms Rebecca Stockley, a senior consultant town planner with CB Richard Ellis Pty Ltd, who was commissioned by BCS to provide expert evidence on the planning issues relating to the proposed development; Mr David Field, an experienced consulting engineer with Northrop Consulting Engineers, who gave evidence about the adequacy of parking provisions and the potential impact of the proposed development on traffic in the surrounding streets; Ms Deborah Matthews, a registered landscape architect with Scenic Landscape Architecture which had prepared the landscape plans for the proposed development; Mr Doug Melloh, Disability Access Consultant and a Senior Associate of Stanton Dahl Associates, architects for the project and a firm with significant experience in planning and development of aged care facilities; and Ms Emma Hill, General Manager Strategy and Risk with BCS who had had considerable experience in the planning and oversight of BCS facilities.

10.	The issues raised by the applicant in this case mainly concerned the scale of the proposed development and its compatibility with neighbouring residential development as well as its impact on traffic, the adequacy of solar access to the residential units, and the proposed removal of some valued significant trees. However, a primary issue was whether the proposed development was subject to a 35% plot ratio.  Counsel for the party joined conceded that if it was, then the proposal could not be approved, as it had a plot ratio of around 70%. The tribunal decided to deal with this matter first in order not to waste time in unnecessary debate about the other issues should that prove to be the case.

The primary issue

11.	Ms Fanning submitted that Rule R6 of the CFZ Code had the effect of calling up the Residential Zones - Multi Unit Housing Development Code (“the MUHD Code”) and that, as a consequence, the proposed development was required to comply with that Code. In particular, she submitted that Rule R258 applied, which limits Residential Care Accommodation to a maximum plot ratio of 35%, whereas they estimated the plot ratio of the proposal to be over 70%.

Rule R6 of the CFZ Code reads as follows:

All single and multi unit dwelling developments are designed to comply                      with the relevant parts of the Residential Zones – Multi-Unit Housing Development Code.  This is a mandatory requirement.  There is no applicable criterion.

12.	Mr Powell contended that the effect of Rule R6 was to expropriate the MUHD Code; in effect, it became the Residential Zones and Community Facility Zone MUHD Code.  He noted that in the public information report accompanying Draft Variation 302 (entitled CFZ Development Code Policy Review) the respondent had stated that “Currently Rule R6 of the CFZDC calls up the relevant parts of the Residential Development Codes of the Territory Plan for assessment purposes”.  However, because Variation 302 had not been adopted, the Tribunal ruled that its contents could not be relied upon.

13.	Ms Stockley gave evidence about how she had interpreted Rule R6.  She observed that both single dwelling housing and multi-unit housing were prohibited uses in the CFZ Development Table. In her opinion, the multi unit dwelling developments referred to in R6 were developments such as supportive housing or retirement complex which were permissible uses within the CFZ and to which the MUHD Code could be applicable. In any case, she opined that the proposed development did not constitute a multi unit dwelling development, as it did not contain any “dwelling”.

14.	Multi-Unit housing is defined in the Plan as

The use of land for more than one dwelling and includes but is not limited to dual occupancy housing and triple occupancy housing.

15.	The term “dwelling” is defined in the Plan as having the same meaning as in the Planning and Development Regulation 2008 (“the Planning Regulation”).  That definition reads

5	Meaning of dwelling

(1)	In this regulation

dwelling -

(a)  means a class 1 building, or a self-contained part of a class 2 
       building that –

(i)	includes the following that are accessible from within the building, or the self-contained part of the building:

(A)   not more than two kitchens;
(B)    at least 1 bath or shower;
(C)    at least 1 toilet pan; and

(ii) does not have access from another building that is either a class 1 building or the self contained part of a class 2 building;
	
(b) includes any ancillary parts  of the building and any class 10a buildings associated with the building.

(2)	 In this section
kitchen does not include -

(a)	outdoor cooking facilities; or 
(b)	a barbeque in an enclosed garden room.

16.	This is scarcely the most lucid definition and it is no surprise to the Tribunal that it generated much discussion as to its meaning.  The reference to class 1, class 2, and class 10a buildings calls up the Building Code of Australia (“the BCA”) use of these terms. Ms Stockley observed that there was a pre-requisite requirement that to be a dwelling, a building must be a class 1 or self-contained part of a class 2 building. 

17.	While the BCA was not in evidence, the relevant sections were cited in the
witness statement of Mr Hawke.  A class 1 building is defined as a single dwelling (whether a detached house or one or more attached houses each separated by a fire resisting wall) or a boarding house, guesthouse, hostel or the like with a total area of all floors not exceeding 300 m2 and where not more than 12 reside…while a class 2 building is defined as a building containing 2 or more self-occupancy units each being a separate dwelling. It is self evident that the proposed development is not a class 1 building, but whether it is a class 2 building depends on whether it contains 2 or more self-occupancy units each being a separate dwelling.

18.	The applicant contended that because each of the resident rooms in the proposed development contained a bathroom and toilet, it was in effect self-contained accommodation forming part of the building, and that the absence of a kitchen did not rule it out from being a dwelling because the requirement was that there should be not more than two kitchens, which did not preclude there being no kitchen at all.  They contended that there were numerous instances of units without kitchens being built in Canberra, for example student accommodation.
The Tribunal did not accept this proposition, because the definition of “dwelling” required the listed facilities to be “accessible” and it was not possible for a non-existent kitchen to be accessible. 

19.	Examination of the plans for the building revealed that in each of the 8 “homes” forming the common area of each group of resident rooms was a kitchen accessible to residents from any part of the building. Consequently, the Tribunal concluded that even if the resident rooms were to be regarded as self-contained parts of a class 2 building, there were more than 2 kitchens accessible to them, so that they did not meet the Planning Regulation definition of a dwelling.

20.	Further, the BCA defines a self-occupancy unit as including “a room or suite of associated rooms in a Class 5, 6,7, 8 or 9 building, or a room or suite of associated rooms in a Class 9c aged care building which includes sleeping facilities and any area for the exclusive use of a resident”.  It is clear that most of the proposed resident rooms are “self-occupancy units” (some are proposed to house two residents) but in the Tribunal’s opinion they do not meet the definition of a dwelling in the Planning Regulation. Our view is reinforced by the fact that the BCA includes a separate Class 9c for aged care buildings and the proposed development was accepted as such by BCS consultants Cardno ITC when reviewing the proposal (at T 361).  

21.	The Tribunal therefore ruled that the proposed development was not a multi unit dwelling development and hence Rule R6 did not apply to it.  Consequently, no plot ratio limitation applied to the development in question.  We now turn to the other issues raised by the applicant and will deal first with those arising under sections 119 and 120 of the Planning Act and then with those arising under the CFZ Code .

Other issues

(a) Trees

22.	The applicant was particularly concerned that a number of valuable trees would need to be removed in order to accommodate the proposed development on the site and noted  that the Conservator of Flora and Fauna (“the Conservator”) had given advice that the application could not be supported for this reason.  
Ms Fanning drew attention to section 119 (2) of the Planning Act which requires that 
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 division 7.3.3 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 territory plan.

	In her submission, there were realistic alternatives to the proposed development that had not been given proper consideration.

23.	When asked what realistic alternatives to the proposed development he had considered, Mr Hawke said that there were none, because there was an ACT Government requirement to supply 160 beds, and in order to meet this and retain the trees in question, it was likely the facility would need to be significantly increased in height (to 4 storeys) and he did not consider that realistic. 

24.	Ms Fanning submitted that insufficient effort had been made to get ACT Government agreement so a smaller facility, such as 120 beds but no evidence was given to support this submission.  On the contrary, a letter from Kerry Browning of the Direct Sales section of the LDA to the LDA’s Chief Executive dated 5 December 2008 (attached to the Applicant’s second Statement of Facts and Contentions) and an email from Mr Ross McKay, Director, Project Facilitation, Department of Land and Property Services dated 2 May 2011 (Exhibit 12) make it clear that the direct sale of the land was contingent on BCS achieving 160 beds on the site.  Ms Fanning also suggested that a staged redevelopment of the considerably larger Morling Lodge site at Red Hill was a realistic alternative, but the Tribunal believes that would require relocation of existing Morling Lodge residents during the construction phase, which does not seem to this Tribunal to be a realistic alternative as it would involve complex and disruptive arrangements, even if available beds could be found.

25.	While the Conservator’s advice was said to have been sought under 
section 148(1) of the Planning Act (T306) and Mr Hawke stated that the Conservator’s advice was provided pursuant to section 119(2) of the Planning Act, it was not advice given following referral under division 7.3.3 which relates only to registered trees and declared sites (as section 119(3) of the Planning Act makes clear). The trees in question are not “registered” nor is the land a “declared site”.  Division 7.3.3 deals with referral of DAs and section 148 requires the respondent to refer a DA prescribed by regulation to an entity prescribed by regulation.  The relevant regulation is the Planning Regulation section 26(2), which specifies only a DA relating to any part of a declared site within the meaning of the Tree Protection Act 2005 (“the Tree Act”) as needing to be referred to the Conservator. Interestingly, there is no requirement to refer a DA involving a registered tree, despite the provisions of 
section 119(3).

26.	The matter is further complicated by the fact that the land is, at present, unleased Territory land. The Tree Act defines “regulated tree” as being a tree of a particular size on leased land in a tree management precinct which must be declared by the Minister under section 39 of the Tree Act and must be in a declared built-up urban area. By Notifiable Instrument N12009-213 and Notifiable Instrument N12010 – 414, the land in question has been declared to be in a tree management precinct in a declared built-up urban area, but it is not yet leased land.

27.	Mr Walker submitted that the proposed development need never have been submitted to the Conservator for the reasons set out in paragraph 26 above, but instead should have been referred to the Land Custodian, as specified in Planning Regulation 26(2) because it is unleased land.  He further submitted that the Land Custodian had given agreement (referring to T312).  However, the Land Custodian has simply signed the DA form (at T328) in his capacity as notional lessee of the land.  The Tribunal does not consider that this can be regarded as some form of approval to the damaging or removal of the trees in question.

28.	It is a condition of the approval under review that the approval will not take effect until a crown lease for the land has been registered, so that if the DA is approved by the Tribunal and a lease is issued, some of the trees upon the land will become regulated trees and hence protected trees and will come under the relevant provisions of the Tree Act.

29.	It is an offence under section 15(1) of the Tree Act to damage a protected tree or to undertake prohibited groundwork within the protection zone of a protected tree, but section 22 provides for a person to apply for approval to undertake tree damaging activity or prohibited groundwork.  The Conservator may approve such activities in certain circumstances. Section 23(3) requires the Conservator to have regard to (a) the approval criteria and (b) the advice (if any) of the advisory panel and (c) anything else the Conservator considers relevant. 
Section 21 provides for the Minister to determine the approval criteria.  This has been done by way of Disallowable Instrument D12006 – 60.  It has not been suggested that any of the trees in question may be removed under the Criteria, nor does there appear to have been any advice from the advisory panel. The question is are there any relevant considerations.

30.	An earlier Tribunal considered the difficulties posed by the change in wording between the repealed Tree Protection (Interim Scheme) Act 2001 (“the Interim Scheme Act”) and the Tree Act in Bozin v Conservator of Flora and Fauna (Administrative Review) [2010] ACAT 91 at [49], noting that there is no express provision in the current Criteria Determination to permit removal of a tree to permit redevelopment of a property, whereas the Criteria Determination under the Interim Scheme Act allowed the Conservator to approve the removal of a tree if it was demonstrated that all reasonable development options and design solutions had been considered to avoid the necessity of tree removal.  However, it also noted that under the present Act the Conservator could have regard to anything that she considered relevant.  The Tribunal concluded that the redevelopment proposal in Bozin was a relevant matter, albeit not one that would in that case outweigh the Conservator’s advice.

31.	The consequence of the issuing of a lease over the subject land would be that an application could be made by the party joined in this matter to undertake tree damaging activities. That, however, would lead to a repetition of much of what has already occurred. The facts are that the proposed development was referred to the Conservator by the respondent.  The Conservator gave advice on the proposal and the respondent has decided not to accept the Conservator’s advice, relying on the provisions of section 119(2) which allows a development approval to be given if the respondent is satisfied that “any realistic alternative to the proposed development, or relevant aspects of it” has been considered. However, s 119(2) applies only to advice given in response to a referral under Division 7.3.3, which this was not.

32.	Mr Erskine suggested (and Mr Walker agreed) that in order to avoid having the issue raised again when a crown lease is issued, the Tribunal might make it a condition of approval of the DA that the trees marked for removal on 
Drawing No TMP1C  Sheet 2 (at T587) be removed, and that such a condition would provide a basis for exemption from the controls in sections 15 to 19 of the Tree Act under section 19(1)(c)(3)(A) of that Act.  Ms Fanning objected to this course of action as a “further attempt to circumvent the Tree Protection Act and to minimize any possibility that the Conservator exercise powers under the Act to protect the trees concerned” and submitted that the suggestion should be rejected.

33.	 While conscious of the concerns of the Conservator about several trees that will be removed if the development proceeds, the Tribunal is satisfied that there are no realistic alternatives to what is proposed and recognises that the architect has gone to some lengths to retain a significant number of the larger trees on the site.   We see no merit in further review of the matter. If it decides to approve the DA, the Tribunal will adopt the course of action proposed by Mr Erskine. However, the issue of the trees is further considered below under Code issues at paragraphs 108 -112.

Section 120 matters

34.	Section 120 of the Planning Act provides that a decision maker, when deciding a DA in the merit track, must consider a range of matters.  Ms Fanning submitted that the respondent’s decision maker had not given adequate and sufficient consideration to some section 120 matters, notably item (a) - the objectives of the zone; item (b) - the suitability of the land for a development of the kind proposed, and item (f) - the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts, nor had he given sufficient  consideration to item (c), that is, representations received in relation to the application, including about potential traffic impacts. 

Section 120 item (a) - Zone Objectives

35.	Ms Fanning noted that the author of the Statement of Findings, had simply asserted that the proposal met all objectives of the zone, without providing any evidence that any assessment had been made.  By contrast, the applicant contended that the proposal was inconsistent with some of the CFZ objectives, in particular objectives (c) and (e) which read:

(c) 	Enable the efficient use of land by allowing the grouping, co-location and multi-use of community facilities…

(e) 	Safeguard the amenity of surrounding residential areas against unacceptable adverse impacts due to the operation of community facilities.

36.	In relation to objective (c), Ms Fanning submitted that there was no relationship between the proposed nursing home and the other facilities in section 78 and that the land could have been used much more efficiently by allocating it for a use which was complementary with those other facilities. She noted that the land to the east was recreation/playing fields, a complex housing artists’ studio and an art exhibition area, while the Griffith Community Hall was located to the south between the proposed development and the shopping centre.  In her view, it was unlikely that the residents of the nursing home would use any of these facilities nor would there be any scope for “multi-use” of the nursing home facility.  She submitted that there would have been much greater synergies and efficiency if the land had been allocated to low or medium aged care accommodation such as supportive housing or a retirement village because a larger proportion of the residents would have been able to utilise the nearby facilities.

37.	In relation to objective (e), Ms Fanning observed that most of the neighbouring area is low-density single residential dwellings. She submitted that the amenity of the surrounding residential development would be affected by the mass and height of the development which was out of scale with the surrounding environment and that there would be a loss of privacy for nearby residences. She further submitted that the development would seriously detract from the garden suburb character of this part of Griffith through loss of trees, open space and views, and have a detrimental impact on the streetscape.

38.	Mr Erskine drew attention to the differences between section 119 and
 section 120 of the Planning Act.  He observed that section 119 required a decision maker not to approve a proposal that was inconsistent with the relevant code, whereas section 120 required the decision maker only to consider the matters listed. It did not impose any obligation to make a decision that was “consistent” with them, but was intended to assist in reaching a balance between sometimes competing objectives.  Thus, it was open to the Tribunal to make a decision that was inconsistent with a matter listed in section 120, so long as it had looked carefully at the matter and provided a rational reason for making its decision.

39.	We agree with Mr Erskine, and have carefully considered the matters raised by Ms Fanning.  As to objective (c), we note that the land has long been identified as suitable for a residential aged care facility and is so recognized in the Griffith Neighbourhood Plan. We accept that the applicant is not opposed to such a facility in that location – only to the kind of facility that is proposed, and that its opposition may be due to misunderstanding the nature of the proposal.  

40.	Mr Powell described the proposed facility as akin to a “hospital” or a “hospice” on the presumption that it would be occupied by high care residents. While 105 of the 160 beds will be classified as “high care” under the Commonwealth aged care funding arrangements by transfer of the beds allocated to Morling Lodge, Ms Hill made it clear that the 55 additional places for which funding would be sought would be low care beds and that, consistent with the concept of ageing-in-place, it was likely that a significant proportion of the persons resident in the facility when built, would be classified as low care and would be able to make some use of the neighbouring facilities.

41.	The Tribunal recognises that, given the likely mix of residents in the proposed facility, they would be less able to make use of the neighbouring facilities than, say, the residents of a retirement village, but it is not persuaded that the proposal represents an inefficient use of the land.

42.	As to objective (e), we were given no evidence that the operation of the facility would create unacceptable impacts on the surrounding residential areas, other than possible impacts from increased traffic, which we will deal with under Code issues.

43.	 	The suggestion that privacy of nearby residences would be affected cannot be substantiated.  The proposed development is to be sited more than 30 m from the adjacent residential zone on the north side of Blaxland Crescent while the houses opposite are themselves set back considerable distances from their block boundaries, with substantial street trees and other vegetation separating them from the facility.  It will also be sited considerably lower than, and at a substantial distance from, any existing or future residential development on the west side of Stuart Street (even though it will be in part three stories).  No privacy issues can arise, as a sketch of the relative levels prepared by Mr Melloh demonstrates (Exhibit 13).

44.	 	As to the impact on the garden suburb character of the area, that is not something which arises from the operation of the proposed facility but will also be addressed below under Code issues.

45.	We conclude that, having carefully considered the objectives (c) and (e) of the CFZ, we do not consider that the proposed development will be inconsistent with those objectives.

Section 120 item (b) - Suitability of the land for the kind of development proposed
	
46.	Section 120 (b) requires the decision-maker to consider the suitability of the land for a development of the kind proposed. The applicant contended that the land was unsuitable for such a development, primarily because the site was too small for the size of the proposed development and would not be large enough to allow the development of landscaped gardens, and secondarily because it would not be possible to design a building to accommodate 160 residents in sole occupancy units such that each would receive what it described as “the minimum requirement for three hours direct sunlight”. It was also contended that the location was unsuitable because most (if not all) of the residents would not be able to make use of the nearby commercial area or other facilities. We have already addressed the last of these contentions in paragraph 41 above.

47.	In the Statement of Findings accompanying the decision, it was simply asserted that Residential Care Accommodation was a permissible use in the CFZ and that the land was therefore suitable, but that is an inadequate approach to this matter. The meaning of “suitability” in this section is not clear.  The Tribunal made some suggestions about possible meanings in Lourandos and Yiannokopoulis v ACTPLA [2011] ACAT 25 at [216] but, as Mr Erskine observed, nothing has changed since that decision was published.

48.	Mr Hawke did turn his mind to the question in his witness statement 
(Exhibit 17) observing that the site was considered suitable because it was close to open space and the commercial area (which could be accessed by residents without crossing any roads) as well as to the adjacent residential area which would integrate the residents into the community, rather than them being isolated far from residential areas.  He considered that the adjacent open space would provide visual amenity and noted that access to open space, shops and other facilities was considered desirable for this type of facility in the Community and Recreation Facilities Location Guidelines General Code (“the CRFLG Code”).

49.	There can be no doubt that the size of the block being offered to BCS is smaller than they might have expected from the initial discussions with the LDA, but only slightly so (about 50m2 to 150m2). Annexure B to the witness statement of Mr Melloh (Exhibit 10) showed a variety of design options that had been considered for the development, including Figure 5a, which Mr Melloh described as their preferred concept plan, but which would have required a larger site than was being offered.  Figure 5b shows the final preferred option.  In the Tribunal’s view, it sits comfortably within the site boundaries, with adequate setbacks from the adjacent streets and nearby facilities, noting that to the north is an extensive area of urban open space and the Blaxland Arts Centre  occupying the former Griffith Primary School buildings.  We do not agree that the site is unsuitable on account of size alone.

50.	The issue of access of residential aged care bedrooms to sunlight is not addressed in the CFZ Code.  The applicant’s reference to a minimum requirement for three hours of direct sunlight comes from the Criterion C23 of the CFZ Code, which applies to “dwellings” either within or adjacent to a development. Because we have determined that there are no “dwellings” within this development, nor any adjacent dwellings that would be affected by it as far as sunlight is concerned, C23 is not applicable to this development. Nevertheless, the proposed building does provide a number of common sitting and dining areas, accessible internally by residents, which are generally north facing, as are a significant number of the individual resident rooms. It would clearly be impossible to design such a facility with every resident room having access to sunlight (and we observe that even in single residential houses, there is no requirement that bedrooms have access to sunlight, only the main daytime living areas). Evidence was given that the “dementia garden” would also receive sunlight throughout much of the day in mid-winter, while the “summer” and “winter” gardens would do so either during the morning or the afternoon pending on their orientation. We do not consider the site to be unsuitable on account of inadequate access to sunlight.

51.	The extent of the landscaped gardens to be developed is demonstrated in the Landscape Plans at T579 and T580, while T577 and T678 show the pathways proposed to be constructed through the landscaped areas surrounding the building.  In addition, a roof terrace garden is proposed, accessible by lift, at the second floor level between the east and west wings. There is no useful measure against which the adequacy of the proposed landscape areas can be judged.  There are no provisions in the CFZ Code regarding landscaping, other than 
Rule R34 and Criterion C34, which require an approved or a draft Tree Management Plan where protected trees are affected.

52.	Mr Powell, in his witness statement of 15 June 2011 (Exhibit 2) was critical of the amount of space that had been allocated for gardens, describing them as “remnant” spaces and comparing them unfavorably with those at other facilities, in particular, the Goodwin Retirement Villages at Farrer.  His statement had annexed to it aerial photographs of a range of aged care facilities, both in Canberra and elsewhere.  He gave his opinion on the adequacy of the gardens in most of them.  However, neither the photographs nor his comments were of much assistance to the Tribunal in assessing the adequacy of what is proposed here.

53.	Mr Powell was also critical of the proposed roof garden terrace.  In his first witness statement of 7 May 2001 (Exhibit 1), he described it as “ a roof top walkway of some kind that I can’t quite fathom from the drawings that will be totally unworkable from climate and safety standpoints”.  In his 15 June 2011 statement, he expanded his view that roof top gardens were “a dubious proposition” for reasons of safety and maintenance and because they would be too cold in winter to attract users.  

54.	Mr Melloh, in his second witness statement (Exhibit 11), explained that the roof top garden was intended to be accessed (via lifts at each end) from the two “high care homes” whose residents can have mobility issues and that it would assist these residents and staff to access the outside environment. However, when cross examined about the roof garden terrace, he agreed that there would be times in both mid-winter and high-summer when it would be unusable. 

55.	Few details about the roof terrace garden can be gleaned from the drawings available.  Ms Matthews, the landscape architect, did not include it in her landscape planting proposals, nor did she comment on it in her witness statements or in evidence. While we respect Mr Powell’s knowledge of the safety and maintenance problems that can arise from roof-top gardens, we do not consider that the roof terrace garden proposed is in any way inconsistent with the Plan.  We consider that its operation is a matter for other agencies to consider.

56.	Ms Matthews, in her first witness statement of 20 May 2011 (Exhibit 8), strongly defended the adequacy of the gardens and walkways that she had designed.  She stated that

Access to the outside areas is provided by wide doorways allowing the full range of modes of movement including beds to be wheeled outside.  There are no steps in any part of the landscape and all paths are less than 1:20 slope.  The landscape gardens will be beautiful, there is plenty of interest provided by way of sculptures, outdoor chess, a playground for visiting children, an outdoor café seating area as well as variety and seasonal change in the planting.  The accessible path system is extensive and travels through the landscaped gardens; there are seating areas close to living rooms and an outdoor physio area provides a relaxing environment for therapy. 

There are four internal atrium gardens within the buildings, each of these are viewed from upper and lower floor levels  These gardens have tall palm trees, trellis attached to the wall with climbers to extend to the upper level and ground level shrub planting.

57.	Ms Matthews is a qualified and experienced landscape architect with substantial experience in designing landscaping for aged care facilities.  She questioned 
Mr Powell’s assessments of the gardens in other facilities and provided better aerial photographs of a number of them.  She contended that the quality of the landscape in this proposal was superior to those identified by Mr Powell, and asserted that the latter had larger areas of carpark or road asphalt abutting the building and their landscape spaces appeared to be less varied or interesting.

58.	Absent any standards against which to judge the adequacy of the landscaped garden space that is to be provided, we do not consider the site unsuitable on this ground.

Section 120 item (c) - Consideration of representations received that have not been withdrawn

59.	Ms Fanning submitted that the decision maker had given insufficient consideration to the representations received about the proposed development including traffic impacts.  We will deal with the question of traffic generation under Code issues below.  No evidence was presented to demonstrate that the decision maker had not considered any of the representations received.  On the contrary, they are summarized in the Notice of Decision at T49 to T51 and comments on each of them are made.  There are no grounds for refusing the DA on this account.

Section 120 item (f) - Probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts

60.	In her submissions, Ms Fanning drew attention to section 120(f) which requires the decision maker to consider the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.  This is a broad-brush requirement and, as the Tribunal observed in Lourandos at [217], is not to be taken as confined to what would generally be regarded as environmental impacts and could include social impacts.  However, in considering any such impacts, the Tribunal is bound by section 121(2) which limits our right of review to matters where a Rule has not been complied with or where there is no Rule.

61.	Ms Fanning relied on Criterion C18A of the CFZ Code which requires that the development meets the requirements of the CRFLG Code and submitted that it was inconsistent with Objective 3 of that Code which is

To protect and enhance residential amenity for ACT residents whilst meeting the need to provide access to facilities best located in the residential area.

Ms Fanning contended that the amenity of the surrounding residential area would be adversely affected because of the mass and height of the building being out of scale with the surrounding environment, which she described as mostly consisting of low-density single residential buildings, and that the design of the building had little in common with the surrounding area. She submitted that, the density of the proposed development, with a plot ratio greater than 70% was inappropriate for this part of Canberra.  She further submitted that the development would seriously detract from the garden suburb character of this part of Griffith through loss of trees, open space, and views, and have detrimental impact on the streetscape 

62.	As to the height and setback of the building, these are subject to Rules R10  and R11 of the CFZ Code and will be dealt with under ‘Code Issues’.  As to the trees, these have been dealt with above, but are subject to Rule R34 and will also be dealt with further under ‘Code Issues’.  While there are a number of Rules in the CFZ Code relating to environmental matters such as water consumption, water quality, storm water quantity, heritage, site contamination, erosion and sediment control, and hazardous material, none of these were raised by the applicant as issues of concern.

63.	The Tribunal does not accept that the proposed building is inappropriate for this part of Griffith or that it has little in common with the surrounding area.  It is, after all, located close to a commercial centre, a recently built community hall, the 2 storey Asprey apartment building and the renovated former primary school, now the Blaxland Arts Centre, none of which are single residential dwellings nor have any commonality in design.  It is also directly across Stuart Street from an RZ2 zone which, in all probability, will in due course be re-developed with a range of multi-dwelling developments.   Furthermore, the Objective 3 of the CRFLG Code acknowledges the need to provide access to facilities best located in residential areas, and it is widely accepted that residential aged care facilities should be located in or close to residential areas, contrary to Mr Powell’s opinion.

64.	The Tribunal accepts that the development will be of quite a different character from the RZ1 Residential housing on the north side of Blaxland Crescent, but observes that it is well separated from that housing by distance and by the tree-lined street. Given that the proposed development is in a different zone under the Plan, it cannot be expected to replicate the architecture of the mid-20th century housing opposite.

65.	As to the impact on the streetscape and views, these are matters about which the Tribunal received no expert evidence.  In our opinion, the development will be substantially screened from view by street trees, retained trees and planted vegetation on site, while the slope of the land will minimise any impact on the view to the north from Stuart Street. We do not accept that the proposed development will adversely impact on these aspects of the environment.

Code Issues

66.	The proposed development is subject to the CFZ Code.  Section 121(2) limits the Tribunal’s right of review to matters covered by a Rule that has not been met or where there is no Rule.  The Tribunal is entitled to satisfy itself that a Rule has been met and where a Rule has not been met but Criteria apply, the Tribunal is empowered to consider whether the Criteria have been complied with.  

67.	The CFZ Code is, by its nature, a wide-ranging Code designed to deal with a variety of types of community facilities. Consequently, not all Rules or Criteria are likely to be relevant to every DA.  Rule R6 has been dealt with in paragraphs 11-21 above and found not to apply.  The following Rules and Criteria are relevant to this DA and have been raised by the applicant as matters of concern:

Building and Site Controls
Height - Rule R10 and Criterion C10  
Setbacks - Rules R11 and Criterion C11
Built Form
Interface - Criterion C16
Location Requirements for Community and Recreation Facilities
Criterion C18A
Parking and Site Access
Traffic Generation -Criterion C19
Vehicle Access and Parking - Criterion C20
Bicycles – Criterion C21
Amenity
Solar Access - Criterion C23
Neighbourhood Plan - Criterion C27
Environment
Trees - Rule R34 and Criterion C34
We deal with them in sequence below.

Building Height

68.	Rule R10 requires the maximum building height of buildings on community facility land within 30m of blocks in a Residential Zone to be 2 storeys. In this case, while part of the proposed building is 3 storeys, none of that part is within 30m of blocks the Residential Zones opposite in Blaxland Street and Stuart Street. Consequently, the Rule has been met and is not subject to review.

Building Setbacks

69.	Rule R11 requires a minimum setback for building on community facility land to boundaries of blocks in a Residential Zone of 6m.  As the proposed building will be set back at least 6 m from its own block boundaries which are separated from nearby residential blocks by roadways, the Rule has been met and is not subject to review.

Interface

70.	Criterion C16 requires that elements of the development that present to, or are visible from the street, promote an attractive and appropriate streetscape. There is no applicable Rule. The development was not assessed against this Criterion by the Assessment Officer (T 298) but instead against C15 which does not apply.  The applicant contended that the proposed development would not promote an attractive and appropriate streetscape, and that, on the contrary, because it was a massive building it would completely dominate and change the streetscape in both Stuart Street and  Blaxland Crescent and would seriously detract from the streetscape.  Ms Fanning listed various characteristics of the neighbourhood which she contended exemplified the streetscape.  However, no evidence was given by any witnesses with expertise in streetscape assessment, with the possible exception of Mr Powell, but he provided no analysis of the streetscape characteristics.  We have already set down our views on streetscape at paragraph 64 above.

Community and Recreation Facilities Location Guidelines General Code

71.	Criterion 18A requires that the development meets the requirements of the CRFLG Code.  There is no applicable Rule. The Assessment Officer simply stated that “the proposal meets the requirements of this Code that are relevant to the development.  Adequate parking provided, close to shops without having to cross public roads, existing pedestrian access, close to transport, not on main arterial road”. However, that is a somewhat superficial assessment.

72.	This Code has three key components – Objectives; General Location Guidelines; and Detailed Location Guidelines, each of which contains material relevant to the present matter.

73.	The relevant Objective is 

To protect and enhance residential amenity for ACT residents whilst meeting the need to provide access to facilities best located in the residential area

We have already addressed this in paragraphs 62, 63, and 64 above.

74.	The General Location Guidelines include 10 issues, of which the following are particularly relevant to this matter - 3.5 Separation; 3.6 Access and Mobility; and 3.7 Parking.

75.	Under the heading ‘Separation’, the CRFLG Code states that “In considering relationships to other uses ‘separated from’ (unless specifically prescribed) will mean 
1.	noise separation – set apart from roads or other noise generating activities by distances which are within the relevant noise guidelines volumes set out under the Noise Management Guidelines

while in the Detailed Location Guidelines under the heading ‘Residential Care Accommodation’,  it is stated that

Hostels and nursing[homes] should be located in quiet areas (such as residential areas)…(and) …noise separation or adequately buffered from major and/or continuous sources of noise…

76.	The applicant contended that that the proposed development would be in close proximity to the Community Hall, where dance classes are held at last four evenings a week and which is available to be hired out for parties and other community activities. The applicant was also concerned about the proposal that a “restaurant and bar” would replace the long-established New Star Chinese restaurant which, in their view, was likely to generate considerable noise, especially at night, which could adversely affect the residents of the facility. 

77.	 However, no evidence about the proposed bar/restaurant, or the noise likely to be generated from it or the Community Hall was adduced, nor were the Noise Management Guidelines relied upon. An Environmental Noise Impact Report was prepared by Day Design Pty Ltd and submitted as part of the DA, but it addressed only the noise arising from the proposed development, not noise affecting the development.

78.	Given the distance between the nearest residential rooms in the facility and the future bar/restaurant, with the Community Hall located more-or-less between them, the Tribunal is not persuaded that unacceptable levels of noise will cause problems for the residents.  However, because this is a matter which should have been considered, if we decide to approve the proposed development, we will make it a condition of approval that a study of current and likely external noise impacts be undertaken and that appropriate noise attenuation measures be incorporated into the building if necessary.

79.	The second item in the General Location Guidelines is 3.6 Access and Mobility which requires attention to the Australian Design Standard AS1428.1-1993, Design for Access and Mobility, to ensure access to all community and recreation sites by older people and people with disabilities.  That standard has now been superseded by AS1428.1 2001 and by AS 1428.1b-2009.  An Access and Mobility Report for the proposed development was prepared by Stanton  Dahl Architects for BCS in accordance with the Plan’s Access and Mobility General  Code  which picks up the Australian Standard and applies to Residential Aged Care facilities.  It concluded that “all the resident areas, amenities, facilities, as well as staff and visitor areas have been designed to comply with the requirements for access”.

80.	In his first witness statement (Exhibit 1), Mr Powell contended that roughly 20% of the site along the Stuart Street frontage has gradients in excess of 3% making it unsuitable for patients’ pedestrian and wheelchair movement.  
Ms Matthews’ evidence was that gradients of up to 5% (1:20) were considered accessible in the Standard and that all the paths proposed were less than 1:20 slope and without steps.  Ms Fanning contended that access to the majority of the shops in the local centre would be difficult for many mobile residents because they had steps and sometimes heavy doors.  That however, is not a matter falling under the CRFLG Code which refers to accessibility to and within the proposed development.

81.	The third relevant item in the CRFLG Code is 3.7 Parking, which states that parking should be provided for all community and recreation facilities...in accordance with the Parking and Vehicular Access General Code.  As this is also a requirement of the CFZ Code, it is dealt with in paragraphs 94 - 101 below.

82.	The CRFLG Code deals with other aspects of Residential Aged Care in the Detailed Location Guidelines.  Under the heading “Other Issues”  are the following relevant matters:
Locate hostels and nursing homes to maximise views and overlook active streetscape in residential areas…Gardens and or balconies and living areas should have north or north easterly aspect with good sun penetration

Parts of the proposed development will take advantage of views to the north and east along Blaxland Crescent, over the adjacent open space and towards the Blaxland Arts Centre and to the south towards the Community Hall and  towards the local shops while the upper floor of the western section will have views along Stuart Street.  We have dealt with the issue of solar access in paragraph 50 above and consider that the proposed development is consistent with the CRFLG Code in this regard.

Traffic

83.	Criterion C19 of the CFZ Code relates to traffic.  It states:

The existing road network can accommodate the amount of traffic likely to be generated by the development

The DA was accompanied by a Parking and Traffic Assessment prepared by Northrop Consulting Engineers for BCS in June 2010. In relation to traffic, it concluded that:

 4.  The numbers in the traffic analysis indicate that the proposed   
      Development would not have a significant impact on the traffic flows  
      on the roads surrounding the proposed development;
5.   A small number of accidents have occurred in the vicinity of the 
      proposed development;
6.  Other modes of transport, walking and public transport is (sic) 
     available to the residence (sic), employees and the visitors of the   
     proposed development.

84.	The report focused on the traffic in Stuart Street, which is classified as a minor estimated that collector road with a maximum traffic capacity of 3000 vehicles per day (“vpd”). It traffic that would be generated by the proposed development would be 256 vpd, representing about 10% of the daily vehicle trips given by the traffic count of 2,474 vpd, and that the total would be well below the ultimate capacity of the street at 3,000 vpd. In the absence of traffic counts for Blaxland Crescent, the report adopted the counts for nearby Frome Street of 433 vpd and added to it the 256 vpd generated by the proposed development.  This gave an estimated total of 689 vpd, well below the ultimate capacity of Blaxland Crescent, which is defined as an access street Type B with a maximum traffic capacity of 1,000 vpd.

85.	The applicant contended that the analysis was flawed, because it was based on traffic counts conducted by Roads ACT from 11 to 19 April 2007, which did not reflect current traffic levels, and because the counts were made in a section of Stuart Street, which did not take account of traffic approaching the Griffith shops via Barrallier Street. They further contended that the counts were made immediately after Easter and when schools were on holidays and Parliament was not sitting, hence the level of traffic would have been underestimated.

86.	Ms Fanning suggested that based on the 2,474 vehicles per day counted in Stuart Street in 2007, and allowing for additional traffic arriving via Barrallier Street, adjustment for the holiday period, adjustment for the increase in traffic from 2007 to 2013 when the development will be completed, additional traffic generated by RZ2 redevelopment in Stuart Street and additional traffic generated by the Community Hall and the proposed bar/restaurant, the traffic could be between 3,666 vpd and 4266 vpd depending on a range of assumptions.  Either figure would be well in excess of the design capacity of  Stuart Street.   

87.	Ms Fanning relied on representations made by Mr John Edquist, a resident of Lindsay Street, Griffith, in response to the notification of the proposal and 
Mr Edquist’s subsequent response to Mr Field’s undated first witness statement, which was attached to the Applicant’s Response to the Facts and Contentions of the party joined. Mr Edquist had also challenged the validity of the traffic generation rates adopted, which, he wrote, (in the absence of ACT guidelines) were those produced by the NSW  Road Transport Authority in October 2002 and might well not be applicable to Canberra in 2011.  He also contended that Mr Field’s estimates for the traffic generated by the Community Hall and the new bar/restaurant were inadequate.

88.	Mr Field gave evidence in support of the Northrop analysis, in which he had participated. He contended that the methodology for the traffic analysis was in accordance with good practice for preparing traffic reports for developments.  He stated that the rates adopted had been conservative, at the upper end of the generation rates, whereas lower end rates are expected from aged care facilities run by religious organizations. He explained that the Northrop report for this proposal had been prepared well before the multi-unit development proposed for Blocks 2–6 Section 75 Griffith in Stuart Street.  However, that development was estimated to add an extra 146 vpd to the Stuart Street traffic which would bring the total to 2,778 vpd, still well within the street’s capacity.  For peak hour, the estimate was 268 vehicles per hour (vph), which was 67% of the estimated peak hour volume of 400 vph for Stuart Street.

89.	In oral evidence, Mr Field said that the starting point for the report had been the traffic counts done in 2007 and did not agree that their timing made them unreliable. He had visited the site with colleagues during the morning and evening peak hours, but agreed that there could be other “peaks” during the day and evening. They considered Griffith as a “mature” area and did not think that it was likely to change much in coming years. He agreed that traffic using Barrallier Street to access Stuart Street could add to the traffic volumes, but not by more than half.

90.	He said that the “maximum capacity of 3,000 vpd” was a nominal figure from Roads ACT and that some roads could accommodate more than this number. In his opinion, Stuart Street could do so, but as the numbers rose above 3,000 vpd there might be problems at some intersections, especially at peak periods. The morning peak was more of a problem than the evening peak, because the latter was spread over a wider time band.  He affirmed his view that the roads were quite capable of carrying the additional traffic arising from this development.

91.	Ms Fanning submitted that, based on the evidence before the Tribunal, the Traffic Assessment Report prepared for the proposed development was faulty and its conclusions were unsafe.  She noted that there had been no comment on traffic issues (other than those that would arise during construction) from the Department of Territory and Municipal Services when the proposal had been referred to it.  However, she made no submissions about what the Tribunal should do in response to her submissions (other than to refuse the development).

92.	Mr Erskine submitted that the applicant had produced no evidence of any kind as to the ability of the existing road network to accommodate the amount of traffic likely to be generated by the development, its criticism being aimed at the Northrop Report methodology and no other credible figures were put forward.  He referred to Paxevanos and ACT Planning and Land Authority & Ors [2008] ACTAAT 20, in which a development proposal had been refused by the former AAT because of the impact of traffic that would generated on Goyder Street, Narrabundah.  He observed that in that case, Goyder Street was already carrying well above its preferred capacity – over 4,000 vpd on a street intended to carry 3,000 vpd  - but submitted that no such arguments can be made in the present case. In his submission, the Tribunal could be comfortably satisfied that the criticisms of the Northrop methodology were not soundly based and that the proposal would not lead to the road network being unable to accommodate the increased traffic.

93.	Having carefully considered the available evidence and the submissions of the parties, the Tribunal is not persuaded that the increased in traffic arising from this development cannot be accommodated as required by Criterion C19, although we would have preferred that a more recent traffic survey, in a more appropriate location and at a more normal time, that took into account those matters raised by the applicant, had been undertaken.

Vehicle Access and Parking

94.	Criterion C20 is that vehicle access and parking complies with the requirements of the Parking and Vehicular Access General Code (“the PVA Code”).  The PVA Code is not a “guidelines’ Code but is a performance based code.  It states at section 1.3 that “the relevant schedule in section 3 defines the minimum parking provision requirements for permitted development for each of the zones”.  Section 3.6 the PVA Code deals with parking provision in the CFZ and section 3.6.5 is a schedule of parking provision rates for various types of development.  For Residential care accommodation the rates prescribed are:

0.25 spaces/bed or accommodation unit; plus 
1 space/staff residential unit; plus
1 space/non-resident peak shift employee.

	In addition, section 2.4 of the PVA Code requires that motorcycle parking spaces are to be provided at a rate of 3 per 100 car spaces with a minimum of 
1 per 30 car parking spaces.

95.	The DA proposed that these requirements would be met by providing 40 spaces (0.25 x 160 beds) plus 17 spaces (1 x 17 employees) plus 2 motorcycle places 
(1 per 30 car spaces) and the Northrop Parking and Traffic Assessment concluded that there were an adequate number of both car and motorcycle parking spaces.

96.	Mr Powell contended that the “hospital” would, in all probability, give rise to overflow parking in this area and in Blaxland and Stuart Streets, in his opinion,  having adverse amenity impacts on the surrounding residential properties and for users of the shopping and commercial services at the Griffith shops.

97.	 Mr Field’s evidence was that there were adequate numbers of parking spaces provided for the aged care development and that no overspill into other parking facilities in the vicinity was expected. He rejected Mr Powell’s contentions on the ground that it was not a hospital. However, Mr Edquist’s attachment to the applicant’s second Facts and Contentions Statement questioned the adequacy of the parking guidelines, suggesting that reference to BCS experience of parking needs at Morling Lodge would have been reassuring.  Mr Erskine also submitted that the guidelines were “perverse and bizarre”.

98.	Whether or not these Guidelines do accurately reflect the parking needs of a residential aged care facility such as this, is not a matter for this Tribunal to determine. The parking requirements for an aged care facility are quite different from most other community uses, because of the variation in the capacity of the residents, the number of care and other staff involved at different times of day, and the variation in visiting patterns including those of health, allied health, and other service providers. We consider that it would be useful for a review of the appropriateness of the relevant provision of the PVA Code to be undertaken.

99.	 At hearing, the number of peak shift employees was questioned. Ms Hill agreed that if all relevant staff were included, the number could be 25 which would increase the parking requirement by 8 car spaces (and possibly 1 motor cycle place).  

100.	Mr Erskine subsequently advised the Tribunal that Mr Melloh had calculated that it would be possible to provide the 8 additional parking spaces at grade. He also observed that the PVA Code allowed for some flexibility where it could be demonstrated that the objectives for the provision of parking “in that area” could be met, and submitted that the Tribunal could approve the proposal as it currently stands.  However, the Tribunal was aware that Ms Hill’s estimate of peak staff numbers was “off the top of the head” and that in order to comply with the Criterion, it was necessary to comply with the Code, and that required an accurate assessment of peak shift employees,  

101.	If we decide to approve the proposed development we will make it a condition of approval that a revised parking plan, based on a fresh assessment of peak shift employee numbers, be prepared to the satisfaction of the respondent.

		
Bicycle Parking

102.	Criterion C21 states that Bicycle parking complies with the requirements of the Bicycle Parking General Code (“the BP Code”) and that Code specifies 
1 Class 1 or Class 2 bicycle parking space per 10 beds after the first 10 beds for staff and residents and 1 Class 3 space per 15 beds after the first 15 beds for visitors. The DA includes provision of the appropriate number of spaces and the Northrop Parking and Traffic Assessment stated that “There are adequate numbers of bicycle parking spaces.”

103.	While the applicant did not raise the adequacy of the bicycle parking provision as an issue, Mr Erskine questioned the need for it, given that one car parking space was to be provided for each peak shift employee.  Who would use them, he asked. The Tribunal does not know, but given the ACT Government’s commitment to increasing the use of bicycles as part of its Sustainable Transport Plan for the ACT, which requires adequate “end-of-trip” facilities such as safe and secure bicycle parking, we accept that the provision of the spaces is a requirement of the CFZ Code and must be met.

Solar Access

104.	Criterion C23 deals with solar access. It requires that developments are designed and sited to allow a minimum of 3 hours of direct sunlight onto the floor or wall of the main daytime living area and the private open of any dwelling within a development and any dwellings adjacent the subject site, between 9.00 am and 3.00 pm on 21 June.  As we have already ruled that there are no dwellings within the proposed development, nor are there any adjacent dwellings whose solar access would be affected, we conclude that the Criterion does not apply to this development

Neighbourhood Plan

 105.	Criterion C27 requires that where a Neighbourhood Plan exists, development demonstrates a response to the key strategies of the relevant Neighbourhood Plan.  The Griffith Neighbourhood Plan (“the GNP”) does exist, having been published by the respondent in September 2004.  Its key strategies are set out on page 4 of the GNP and, for Community Facilities, they are:

Retain the integrity of land defined under the Territory Plan as Community Facility

Ensure that adequate Community Facility land is available for needs of current and future residents,

	The GNP, at page 33, addresses the future character of Griffith Community Facilities, including replacement of the former O’Connell Education Centre with aged care accommodation, and sets out various requirements for any such new development.  However, these are not “key strategies”.

106.	In its initial objections to the proposed development, the applicant contended that it was not consistent in several ways with the GNPs’ requirements for redevelopment of the O’Connell Education Centre, but subsequently, in its submissions, acknowledged that the proposal was not inconsistent with the key strategies.  Nevertheless, it persisted in the view that the proposal did not take into account the requirements of the GNP when considering the suitability of the site.  These included:
Any new development will respect and relate with the open space;
The new development will respect the existing landscape-dominated open space on the corner of Stuart Street and Blaxland Crescent;
Significant trees will be incorporated into the design of the new facility;
Parking and access requirements will be accommodated for within the site boundary; 
The remaining area of Section 78 Block 42 will be formalized as Urban Open Space; 
Any redevelopment…will be a maximum of two stories (within 30 metres from blocks in Residential Land Use Policy areas; 
The design and layout of any new buildings in the central areas will respect Griffith’s existing garden suburb character and the design qualities of the surrounding original development

107.	The Tribunal considers that the proposed development does respect this vision and is demonstrably a response to the key strategies for the CFZ.  It therefore finds the proposal to be consistent with Criterion C27.

Tree Management Plan

108.	Rule R34 and Criterion C34 deal with Tree Management Plans. The Rule requires that, in accordance with section 148 of the Planning and Development Act 2007, where the development proposal requires groundwork within the tree protection zone of a protected tree or is likely to cause damage to, or removal of, any protected trees, the application must be accompanied by a Tree Management Plan approved under the Tree Protection Act 2005.  The party joined conceded that no approved Plan was submitted with the DA, but relied instead on Criterion C34 which requires that, if an approved Tree Management Plan is required but not provided, then a draft Tree Management Plan is to accompany the application, and that draft Plan will be referred to the relevant agency in accordance with the requirements of the Planning and Development Act 2007.  The party joined stated (T 348) that a Tree Management Plan and assessment has been compiled by Scenic Landscape architecture for referral to the relevant agency.

109.	This Rule refers, however, to section 148 of the Planning Act.  As has been explained above at paragraph 25, section 148 does not require the respondent to refer this proposed development to the Conservator, because it is not on a declared site nor does it affect a registered tree. Consequently, it could be argued that no Tree Management Plan is required under the CFZ Code.

110.  Part 4 of the Tree Act deals with Tree Management Plans which “may provide for activities that may be undertaken in relation to a tree and may set out conditions about how the activities are to be undertaken”.  Section 31 provides that the Conservator may determine guidelines for tree management plans, and such a determination is a notifiable instrument.  Tree Management Plan guidelines have been established by Notifiable Instrument NI 2010 -50.

111.	Section 32 of the Tree Act provides, inter alia, that the Conservator may propose, and the land management agency may apply, for a tree management plan, and that, in addition, “anyone else may apply for approval of a tree management plan for any tree on leased land in a built-up urban area” (to the Conservator in writing).  Section 35(1) provides that the Conservator must decide whether to approve the plan.  Section 35(4) requires the Conservator to have regard to (a) the guidelines; (b) the advice (if any) of the advisory panel; and (c) anything else the conservator considers relevant.

112.	In the event that the Tribunal decides to approve the development, and to make it a condition of approval that the trees marked for removal on T587 be removed (as proposed in paragraphs 33 and 34 above), we will also amend Condition B11 of the decision under review to require that a Tree Management Plan, covering the protected trees that will remain on the subject land, is to be completed and submitted to the Conservator for approval prior to construction.

Conclusion

113.	It will be evident for the reasons set out in the above paragraphs that the Tribunal does not agree with the majority of the objections to this proposal raised by the applicant.  It considers that the proposed development is consistent with most of the sections of the relevant Codes in the Plan, with the exception of Criterion C20 of the CFZ Code relating to provision of parking for staff.  While we recognize the genuine concern of the applicant for the proposed removal of a number of large trees that will, once a lease is issued, become protected trees, we are satisfied that there are no realistic alternatives to the proposed development given the requirement that it deliver 160 aged-care beds on the 1.68 hectares of land to be provided. Consequently we will adopt the courses of action set out in paragraphs 33 and 112 above. We will also require some additional planning to be undertaken in regard to car parking and external noise.

Decision

114.	The decision under review is varied by imposing the following additional or varied conditions to the approval:

Additional Conditions

A1(c)  revised site plan of car parking provision based on an estimate,                             
  	  certified by Baptist Community Services, of the number of peak shift 
  employees of the facility when fully operational;

A1(d)  a study of current and likely future external noise affecting the proposed     
  	  Development to be undertaken by a qualified noise management 
 	  consultant and revised plans showing any necessary noise 
  amelioration measures;

  Varied conditions

B11  TREE PROTECTION

	The trees shown as “to be removed” on drawing no TMP1C Sheet 2 are to be removed and a Tree Management Plan covering the protected trees that will remain on the site is to be prepared and submitted for approval by the Conservator of Flora and Fauna.

 C2	TREE PROTECTION
	The applicant/lessee shall protect and maintain all existing trees and shrubs on adjoining blocks overhanging the subject site, on the verge, and on unleased Territory land immediately adjacent and shall protect and maintain those protected trees on the subject land (other than those approved for removal) in accordance with the approved Tree Management Plan.

…………………..……………..
Mr B. Hatch 
Presiding Member
for the members of the Tribunal

PUBLICATION DETAILS

TO BE PUBLISHED
To be completed by Tribunal Staff

PART A							FILE NO: AT 11/17	

APPLICANT:		Griffith/Narrabundah Community Association Inc
RESPONDENT:		ACT Planning and Land Authority
      PARTY JOINED:            Baptist Community Services – NSW and ACT  
	
COUNSEL APPEARING:	APPLICANT:	N/A
RESPONDENT:	Mr P. Walker
PARTY JOINE: 	Mr C. Erskine SC

SOLICITORS:			APPLICANT:	 N/A
RESPONDENT:	ACT Government Solicitor
PARTY JOINED:     N/A

OTHER:				APPLICANT:	Ms M. Fanning
RESPONDENT:	N/A
PARTY JOINED:	N/A

TRIBUNAL MEMBER/S:	Mr B. Hatch
				Dr D. McMichael

DATES OF HEARING: 18-22 July 2011		PLACE: CANBERRA

DATE OF DECISION: 12 September 2011		PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )	CASE NOTE ( )	UNREPORTED DECISION ( )

COMMENTS: