CITATION: TMP Builders Pty Ltd v Development Consent Authority NT LMT 56
PARTIES: TMP BUILDERS PTY LTD ABN89070419108
v
development consent authority
TITLE OF COURT LANDS AND MINING TRIBUNAL
JURISDICTION: LANDS AND MINING TRIBUNAL ACT
FILE NO(s): LMT-56-2002-P (20208472)
DELIVERED ON: 11 September 2002
DELIVERED AT: DARWIN
HEARING DATE(s): Not applicable
DECISION OF: D LOADMAN, CHAIRPERSON
CATCHWORDS:
PLANNING ACT – APPEAL AGAINST REFUSAL OF DEVELOPMENT PERMIT FOR THE CONSTRUCTION OF 14 UNITS – WHETHER SPECIAL ZONING PROVISIONS ARE DISCRETE AND ALL-EMBRACING PROVISIONS CONCERNING PLANNING REQUIREMENTS APPLICABLE IN AREA ZONED SPECIAL USE – EFFECT OF PROVISIONS OF THE DESIGN GUIDE ON FORMAL PLANNING PROVISIONS OF THE DARWIN TOWN PLAN AND OR LAND USE OBJECTIVES – WHETHER DESIGN GUIDE PROVISIONS IN ANY EVENT OPERATE TO SUPPORT SPECIFIED GROUNDS OF REFUSAL – EFFECT OF EXPERT EVIDENCE OF LANDSCAPE ARCHITECT IN RELATION TO RELEVANT GROUNDS OF REFUSAL
Lands and Mining Tribunal Act NT
Planning Act NT
REPRESENTATION:
Appellant: June D’Rozario & Associates Pty Ltd
Respondent: Development Consent Authority
Judgment category classification: B
Judgment ID number: LMT-56
Number of paragraphs: 74
IN THE lands and mining tribunal
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. LMT-56-2002-P (20208472)
BETWEEN:
TMP BUILDERS PTY LTD ABN89070419108
Appellant
AND:
DEVELOPMENT CONSENT AUTHORITY
Respondent
DECISION
(Delivered 11 September 2002)
Mr David LOADMAN, CHAIRPERSON
HISTORY
1. In February 2002 the appellants applied to the Development Consent Authority for consent to the development of Lot 10 in the subdivision of Lot 6696 Town of Darwin (“the land”).
2. The land is a specified lot in a subdivision. The development permit in respect of the subdivision is DP01/0392. The subdivisional plan and the permit were supplied to the Tribunal by the respondent in response to certain information requested by the Tribunal.
3. Appended to the Permit is the drawing referred to in the subdivisional development permit. In respect of each of the lots in the subdivision on the northern of side of Dinah Court, apart from Lot 7252 permitting flat or unit development for 12 units in a 2 storey structure, every one of the remaining lots numbering 6 in all contemplated the construction of a 3 storey structure of flats or units numbering in each instance 16.
4. There is a note located on the plan referred to in the following terms “the residential density indicated on this plan is subject to the provision of basement carparking, an increased area of ground level landscaped area, and demonstrated residential amenity for the proposed dwellings and locality”.
5. It is beyond dispute that the sub-divider and vendor of such lots, the purchaser of such lots, and the general public, could have been under no illusion as to the proposed development. In lay parlance the sub-division caters for the construction of blocks of flats amongst other things comprising in such cases the proposed construction of 16 units or flats in each development, such construction consequently being necessarily commensurately bulky in appearance with the foreshadowed number of units.
6. There are certain formal outstanding matters relating to the subdivision which are not relevant for the purposes of determining this appeal.
7. The zoning applicable to the land is SU46, a zoning specified in Darwin Town Plan 1990 at Clause 15.23.1.
8. The precursor of the application referred to in paragraph 1 at a meeting held to consider same on 3 April 2002 was deferred. The respondent required the appellant to address issues specified in a letter dated 11April 2002 (“Respondent’s April letter”) addressed to the appellant.
9. The relevant text of Respondent’s April letter is in the following terms:
PART LOT 6696 DINAH COURT, TOWN OF DARWIN
The Development Consent Authority, at its meeting deferred consideration of your application to develop the above land for the purpose of 16 flats pending receipt of satisfactory revised plans showing:
· A reduction in the density of the project in relation to setbacks;
· A site coverage no greater than 50%;
· Reduced height of the 2nd floor (as noted on the plans);
· Provision of a disabled car parking bay;
· Increased compliance with the relevant development provisions and SU46 requirements, and
· Improved consistency. with the objectives contained in the Design –Guide for Residential and Commercial Development in the NT, including cross ventilation arid natural light.
Reason for the Decision
1. The proposal is inconsistent with the NT Planning Scheme.
2. .The proposal represents an overdevelopment of the site and is incapable of providing appropriate levels of residential amenity to future occupiers.
3. Increased consistency with zone requirements, development provisions and the Design Guide for Residential and Commercial Development in tie NT will likely lead to a design response more suitable to the locality and capable of securing appropriate levels of residential amenity.
Please note that the closing date for lodgement of plans for consideration at the May meeting is 26 April 2002.
Should you require any further information on this matter, please telephone Kirrily Chambers on 8999 7937 .
10. As a consequence of the matters specified, the appellant revised the plans submitted in February 2002. Such revision was, at least by the appellant, perceived to accommodate the respondent’s requirements. The revised plans reflected a reduction in the number of units from 16 to 14. The revised plans also purported to address the matters that had been raised in the Respondent’s April letter.
11. At a formal view which will be referred to later in this decision, those assembled were informed by a planner, the Tribunal believes was employed by the Department of Lands, Planning and Environment (“DPLE”), that it was as a matter of fact the case that the internal configuration of the proposed dwellings in the revised plan, particularly entrances adjacent to kitchen and laundry areas, remained predominantly the same in such revised plans as in the first set of plans. It is apparently uncontested and advised to the Tribunal on behalf of the appellant by letter of 19August 2002 that in relation to the fence setback the respondent made that setback a condition precedent to the issue of the said subdivisional permit DP01/0392 which is apparent from a letter dated 23October 2000 at attachment 3 of the appellant’s 128(1) submission at dot point 5.
12. On 14 May 2002 the Development Consent Authority issued a Notice of Refusal with the following Reasons (“the Grounds of Refusal”):-
STATEMENT OF REASONS FOR DETERMINATION
NOTICE OF REFUSAL
N 802/0011
Reasons
1. The visual bulk of the building coupled with the reduced setback proposed is not supportive of the objective of the requirements of clause 17.3 (Building Setbacks) which is to ensure residential buildings will not detract from the amenity of the streetscape.
2. A variation to clause 17.2 (Landscape Area for Flats) is not supported as the limited area provided in response to this requirement is not designed or sited to allow its use for the enjoyment of residents.
3. The location of the building entrance to the rear of the building is inconsistent with the Site Layout and Landscaping Element of the Design Guide for Residential and Commercial Development in the Northern Territory as it does not facilitate integration into the neighbourhood, provide a sense of address or a safe, comfortable and functional environment.
4. The orientation of the flats, internal configurations and location of windows is not supportive of the objectives of the Energy Efficiency Element of the Design Guide for Residential and Commercial Development in the Northern Territory or the Central Darwin District Land Use Objective to promote aesthetic and energy efficient building design.
5. The location of habitable rooms and intended screening methods are inconsistent with the Visual and Acoustic Privacy Element of the Design Guide for Residential and Commercial Development in the Northern Territory in that bedrooms overlook communal access areas and screening methods will be inadequate to secure visual and acoustic privacy and compromise the principles of design for energy efficiency.
6. The revised proposal does not appropriately respond to the objectives of the Building Envelope Element of the Design Guide for Residential and Commercial Development in the Northern Territory as the setback proposed to the street frontage coupled with the height and length of walls, site coverage and visual bulk of the building is not acceptable in the neighbourhood setting.
7. The internal configuration of dwellings is poor and not conducive to achieving high levels of residential amenity particularly with respect to dwelling entries through kitchens and the location of laundry areas adjoining dwelling entries.
8. The development is not capable of securing appropriate future levels of residential amenity for residents or the locality generally.
13. On 30 May 2002 the appellants lodged a Notice of Appeal at the Lands and Mining Tribunal. The text of the Notice of Appeal (without attachments) is set out below:
1. RELEVANT BACKGROUND
1.1. The Appellant applied to the Development Consent Authority for consent to develop Lot 10 in the subdivision of Lot 6696 Town of Darwin for 16 dwelling units and basement car park in a building of 4 levels, including the basement.
1.2. Lot 10 is situated in Dinah Court, a waterfront subdivision off Frances Bay Drive, in the Dinah Beach locality.
1.3. The land is zoned SU46 under the Darwin Town Plan 1990. SU46 is a Specific Use Zone to accommodate specific development projects which may not be permissible or adequately catered for in other zones.
1.4. Lot 10 has an area of 1735 m2.
1.5. The development application, lodged on or about 18 February 2002, sought approval to construct 12 x 3-bedroom units and 4 x 2-bedroom units.
1.6. The Authority deferred consideration of this application, and on 11 April 2002 wrote to the applicant, requesting revised plans showing : reduction in the density of the project in relation to setbacks; site coverage not greater than 50%; reduced height of the second floor; provision of a disabled parking bay; increased compliance with the relevant development provisions and the SU46 zone requirements; and improved consistency with the objectives of the Design Guide for Residential and Commercial Development, including cross ventilation and natural light.
1.7. The applicant responded to the Authority’s letter by submitting revised plans showing : reduction in the number of units from 16 to 14 together with increased setbacks; reduction in site coverage from 60% to 46%; reduction in the height of the building; provision of a disabled parking space; and assessments of the compliance of the building with the development provisions and SU46 zone and the Design Guide. A copy of the revised plans and submission is at Annexure 1.
1.8. Following submission of the revised proposal, Development Assessment Services provided the applicant with an assessment of the revised proposal. A copy of the DAS assessment is at Annexure 2.
1.9. The applicant responded to issues raised in the DAS assessment in a submission dated 8 May 2002. A copy is at Annexure 3.
1.10. At the hearing of the application on 8 May 2002, the applicant made oral submissions and answered questions put by members of the Authority.
1.11. The Authority considered the application on 8 May 2002 and issued Notice of Refusal NR02/0011 dated 14 May 2002. A copy of Notice of Refusal NR02/0011 is at Annexure 4.
1.12. Pursuant to s 111(1) of the Planning Act, the Applicant appeals against the Authority's determination to refuse consent to its revised proposal.
2. GROUNDS OF THE APPEAL
2.1. The Authority is wrong in rejecting the proposal on the basis that the proposal is not supportive of the objective of the requirements of clause 17.3 of the Darwin Town Plan because -
2.1.1. the objectives of setbacks for residential buildings in zone SU46 are contained in paragraph 3(e) of SU46, and the proposal complies with these objectives.
2.1.2. the application demonstrated that, even if clause 17.3 applies to the proposal, the proposal complies with the objectives of clause 17.3
2.2. The Authority is wrong in rejecting the proposal on the basis that a variation to clause 17.2 is not justified as the landscaped area provided is not designed or sited to allow its use for the enjoyment of residents because -
2.2.1. the landscaping requirements for development in Zone SU46 are set out in paragraphs 3(h), (i) and (k) of SU46, and the proposal meets the requirements of these paragraphs.
2.2.2. the application demonstrated that, even if clause 17.2 applies to the proposal, the proposal complies with clause 17.2 and would not require a variation to the provisions of this clause.
2.2.3. there is no valid basis for the Authority’s conclusion that the landscaped area is not designed or sited to allow its use for the enjoyment of residents.
2.3. The Authority is wrong in rejecting the proposal on the basis that the location of the building entrance is inconsistent with the Site Layout and Landscaping Element of the Design Guide for Residential and Commercial Development as the building entrance does not facilitate integration into the neighbourhood, provide a sense of address or a safe, comfortable and functional environment because -
2.3.1. there is no valid basis for the Authority’s conclusion that the location of the building entrance will impede the integration of the building into the neighbourhood.
2.3.2. the front of the building will align with the front boundary of the land, and consequently, the building will address the street.
2.3.3. the address of the building will be clearly identifiable.
2.3.4. the path to the building entry will be clearly identifiable.
2.3.5. there is no valid basis for the Authority’s conclusion that the building entrance is not safe, comfortable and functional.
2.4. The Authority is wrong in rejecting the proposal on the basis that the orientation of the units, internal configurations and location of windows is not supportive of the objectives of energy efficiency because -
2.4.1. the application demonstrated that the building is correctly oriented with respect to the direction of prevailing breezes.
2.4.2. there are no relevant performance standards for energy efficiency that are required to be met.