ACT CIVIL & ADMINISTRATIVE TRIBUNAL

NORTH CANBERRA COMMUNITY COUNCIL v ACT PLANNING AND

LAND AUTHORITY & ANOR [2022] ACAT 69

AT 10/2022

Catchwords: ADMINISTRATIVE REVIEW – planning and land

development – subdivision and lease variation in parks and
recreation zone – proposed Crown leases with exclusive car park
use and oval – existing uses on single block – proposed
construction of new verge crossing on unleased Territory land –
whether proposed developments inconsistent with applicable
codes under the Territory Plan – whether inconsistent with entity
advice – absence of public land management plan

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68

Planning and Development Act 2007 ss 50, 119, 120, 147A,
148, 149, 162
Territory Plan
Subordinate
Legislation cited: Bicycle Parking General Code
Commercial Zone Development Code
Community and Recreation Facilities Location General Code
Estate Development Code
Lease Variation General Code
Parking and Vehicular Access General Code
Parks and Recreation Zones Development Code
Planning and Development Regulation 2008

Cases cited: Chung Yi Developments Pty Ltd v Australian Capital Territory

[2020] ACAT 71
Downer Community Association and ACT Planning and Land
Authority [2007] ACTAAT 20
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR
577
Eldridge v ACT Planning and Land Authority [2020] ACAT 22
Glass v ACT Planning and Land Authority [2016] ACAT 96
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85

Tribunal: Senior Member K Katavic

Member W Hawkins

Date of Orders: 16 August 2022

Date of Reasons for Decision: 16 August 2022
 AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 10/2022

BETWEEN:

NORTH CANBERRA COMMUNITY COUCIL

Applicant

AND:

ACT PLANNING AND LAND AUTHORITY

Respondent

AINSLIE FOOTBALL AND SOCIAL CLUB LIMITED

Party Joined

TRIBUNAL: Senior Member K Katavic

Member W Hawkins

DATE: 16 August 2022

ORDER

The Tribunal orders that:

1. The decision under review is confirmed.

………………………………..
Senior Member K Katavic
 2

REASONS FOR DECISION

Introduction
1. The development application before the Tribunal relates to the site of the Ainslie
Football Club oval, known as Block 19 Section 26 Ainslie (the Subject Site).

2. The Ainslie Football and Social Club, the party joined, anticipates eventually
redeveloping the entire site with the oval as a centrepiece. However, the
development application, the subject of the Tribunal’s review, relates only to the
areas occupying the oval and adjacent car parks and unleased Territory land
facing Angas Street.

3. The Development Application sought approval for a variation to the Crown lease
for Block 19, subdivision and lease variation to permit car park as an exclusive
use for the resulting blocks and the construction of a verge crossing on unleased
Territory land to Angas Street. The verge crossing is to be constructed only on
the area of unleased Territory land and not within the site itself, at this stage.

4. On 22 December 2021, pursuant to section 162 of the Planning and Development

Act 2007 (the Planning Act) the respondent granted approval, subject to
conditions, the following:

(a) A variation to the Crown lease by deleting clause 3(j) relating to building
setback.

(b) Subdivision of Block 19 Section 26 Division of Ainslie into three blocks.

(c) A variation to the Crown lease of two of the resulting blocks to permit the
use of car park as a standalone use.

(d) A variation to the three resulting Crown leases to include access rights; and

(e) Construction of a verge crossing to Angas Street.

5. This is the reviewable decision before the Tribunal. The applicant opposes the
approval, citing various inconsistencies with applicable codes under the Territory
Plan and seeks orders that substitute the approval with a refusal.
 3

The hearing and the evidence

6. The applicant relied on written submissions and submissions in reply as well as
the following documents:

(a) Notice of Decision from the planning authority dated 15 May 2020.1

(b) Report from Calibre Professional Services Pty Ltd dated 12 February
2020.2

(c) Data from Roads ACT dated 11 August 2020.3

(d) Civil Works Report dated 13 September 2021.4

(e) Further Civil Work Detailed Plan dated 13 September 2021.5

(f) Traffic Impact Assessment Report prepared by Quantum Traffic Pty Ltd
dated 29 September 2021.6

(g) Traffic Assessment Report dated 29 September 2021, Chapter 2.7

7. The applicant did not call any witnesses to give oral evidence before the Tribunal.

8. The respondent relied upon its written submissions and a witness statement of
Ms Karen Walker, Assistant Director within the DA Leasing Section of the
respondent dated 10 May 2022.8 Ms Walker also gave evidence before the
Tribunal at the hearing.

9. The party joined is the Crown lessee and proponent of the development. It relied
upon its written submissions and the following evidence:

(a) Witness Statement of Simon Patterson dated 19 April 2022.9

1 Exhibit A1
2 Exhibit A2
3 Exhibit A3
4 Exhibit A4
5 Exhibit A5
6 Exhibit A6
7 Exhibit A7 – This report relates to a separate development proposed elsewhere on the Site, which

at the time of hearing had not been decided. The applicant sought to rely upon the whole report
however the tender was limited to Chapter 2 only.
8 Exhibit R1
9 Exhibit PJ1
 4

(b) Expert Report from Richard Nash, Purdon Planning dated 19 April 2022.10

(c) Expert Report from Hamish McDonald, Quantum Traffic dated 19 April
2022.11

(d) An aerial photograph of the site marking the outline of the subdivision.12

10. Each of the party joined’s witnesses gave evidence before the Tribunal.

11. The Tribunal also had regard to the T-Documents lodged by the respondent.

The subject site and the development application

12. The Subject Site occupies an area of about 5,569 ha13 and is boarded by
Limestone Avenue, Wakefield Avenue and Angas Street. It comprises
carparking, the oval and associated facilities as well as a caretaker cottage near
the corner of Angas Street and Limestone Avenue. The Club sits on a separate
block facing Wakefield Avenue (the Club Site).

13. The Crown lease14 permits the site to be used only for the purpose of an enclosed
oval and ancillary facilities. It requires the Crown lessee provide and maintain
299 car parking spaces, three bus spaces and 20 bicycle spaces. Vehicular access
is only permitted from Wakefield Avenue and on Angas Street in specific
locations, which we discuss in more detail below. No vehicular access is
permitted from Limestone Avenue.

14. The unsealed car parking areas lie between the blocks facing Wakefield Avenue
(including the Club Site) and the oval. Around the oval there is a grandstand,
players and coaches facility, a memorabilia pavilion, temporary seating and a
canteen/food service facility.

15. A waste and storage enclosure is located behind the Club Site on the Subject Site
and is used by the Club. A maintenance shed for the groundskeeper is also located
nearby.

10 Exhibit PJ3
11 Exhibit PJ4
12 Exhibit PJ2
13 T-Documents page 579
14 T-Documents page 579
 5

16. The Subject Site is located in a Parks and Recreation Zone – Restricted Access
Zone (PRZ2) under the Territory Plan and is subject to a public land management
overlay. The relevant code with which development proposals in PRZ2 must
comply is the Parks and Recreation Zone Development Code.15 There are of
course others.

17. The development application seeks to subdivide the Subject Site into three
resultant Crown leases. One for the oval, which was referred to as Block C and
two exclusively for car parking use. The first being the area behind the Club Site
towards Angas Street and Wakefield Avenue, called Block B and the second
being towards the corner of Limestone Avenue and Wakefield Avenue, called
Block A. It also proposes some variations to the terms of the leases.

18. The development application also seeks approval for the construction of a verge
crossing to Angas Street on unleased Territory Land only which will eventually
link up with an internal section of road on proposed Block C. This became known
as the ‘driveway to nowhere’ as the crossing proposed under this development
application does not extend beyond the area of unleased Territory Land. The
internal link section on the site is the subject of a separate development
application which at the time of the hearing had not yet been decided. This
additional development application also includes the construction of a new
childcare centre on Angas Street closer to Wakefield Avenue. It was lodged with
the respondent for assessment in November 2021 and is awaiting decision.16 It is
not the subject of the review before this Tribunal.

19. The parking requirements under the existing Crown lease are to be distributed
amongst the resulting leases with Block A to provide 197 car parking spaces and
three bus parking spaces and Block B to provide 68 car parking spaces and Block
C to provide 34 car parking spaces and 20 bicycle spaces.

15 PRZ2 – Restricted Access Recreation Zone Development Table

16 Exhibit PJ1 at [35]
 6

Issues for consideration

20. Section 50 of the Planning Act states:

Effect of territory plan

The Territory, the Executive, a Minister or a territory authority must not do
any act, or approve the doing of any act, that is inconsistent with the
territory plan.

21. Section 119(1)(a) of the Planning Act relevantly prohibits the approval of a
development proposal in the merit track unless the proposal is consistent with the
relevant code.

22. Further, section 119(2) of the Planning Act precludes a development application
in the merit track from being approved if the approval is inconsistent with entity
advice.

23. These provisions apply to the Tribunal as it is conducting merits review of the
decision and stands in the shoes of the respondent.17 The Tribunal must:18

(a) confirm the decision under review; or

(b) vary the decision under review; or

(c) set aside the decision under review and either substitute it with a different
decision or remit the matter back to the respondent to consider in
accordance with the reasons given by the Tribunal.

24. The applicant contended the development did not comply with the following
provisions of the Planning Act and the Territory Plan:

(a) Parks and Recreation Zones Development Code (PRZDC):

(i) Rule 13: Subdivision.

(ii) Criterion 19: Interface.

17 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589; Minister for Immigration
and Ethnic Affairs v Pochi [1980] FCA 85 at [10] (Smithers J); see also, Glass v ACT Planning and
Land Authority [2016] ACAT 96 at [18]; Downer Community Association and ACT Planning and Land
Authority [2007] ACTAAT 20 at [5]; Eldridge v ACT Planning and Land Authority [2020] ACAT 22
at [21]; see especially ACT Civil and Administrative Tribunal Act 2008 section 68(2)
18 ACT Civil and Administrative Tribunal Act 2008 section 68(3)
 7

(iii) Criterion 21A: Location Requirements for Community Recreation

Facilities.

(iv) Criterion 22: Pedestrian Movement.

(v) Criterion 23: Bicycle Parking.

(vi) Criterion 24: Vehicle Access and Parking.

(vii) Criterion 25: Traffic Generation.

(viii) Criterion 31: Assessment of Environmental Effects.

(b) Parking and Vehicular Access General Code (PVAGC):

(i) Section 2.

(ii) Section 3.7.

(c) Lease Variation General Code (LVGC):

(i) Criterion 1: Varying Leases – General.

(ii) Criterion 3: Adding uses generally.

(d) Section 120(f) and (g) of the Planning Act.

25. The applicant also raised other issues regarding the contents of the draft Crown
leases and the conditions of approval.

Issues under the PRZDC

Subdivision – R13
26. R13 is a mandatory rule. Under this rule, subdivision is only permitted where:

(a) the subdivision is part of a development application for another assessable

development;

(b) it is demonstrated that any residual block can accommodate another

assessable development designed in accordance with the relevant section of
the PRZDC.

27. In Chung Yi Developments Pty Ltd v Australian Capital Territory,19 (Chung Yi)
the tribunal had cause to consider a rule in the Commercial Zone Development

19 [2020] ACAT 71
 8

Code (the CZDC) of the Territory Plan drafted in the same terms as R13,20
although it was considering compensation in relation to compulsory acquisition
of land. The tribunal held:

103. In our view, although without the benefit of argument and

without being determinative, “a development application for another
assessable development” contemplates provision of a DA for a proposed
development, in addition to the DA applying for the subdivision, with
enough information to enable the Planning Authority to assess and
determine that the proposed development will comply with the Territory
Plan and with the P and D Act generally. For a DA to be ‘assessable’
simply because it has sufficient information to assess it against relevant
rules and criteria, regardless of whether the proposal would or could be
approved, would render R33 and R27 purposeless. In other words, in
order for the subdivision to be approved, R33 and R27 require provision
of a development proposal that can be approved on a block arising from
the subdivision.

28. The applicant contends that although the application for subdivision was lodged
together with an application for a verge crossing and lease variations, the
subdivision is not part of those development applications, because, as we
understand the applicant’s argument, they are not related to or intrinsic to the
subdivision.21

29. The Development Application seeks approval for a subdivision, construction of

a verge crossing and lease variations.22

30. R13a does not require the subdivision “to be part of another assessable
development” rather it only requires the subdivision “to be part of a development
application”. The task in assessing whether this part of the rule has been met is to
identify what makes up the development application and whether it includes
another assessable development for which approval is required. In other words,
the rule contemplates a development application for a development proposal in
addition to the development application for the subdivision.23 There is nothing in
the wording of R13a that requires some connection between the proposed
subdivision and any other assessable development for which approval is sought

20 Rule 33 of the CZDC

21 Applicant’s submission at [12]-[14]
22 T-Documents page 444
23 Chung Yi at [103]
 9

in the development application. They can be completely disparate assessable

developments under the same development applications. There is however some
control found in R13b which we discuss below.

31. ‘Development’ as defined in section 7 of the Planning Act includes, amongst

other things, building a structure on land and varying a lease. ‘Development
application’ is defined in the Dictionary to the Planning Act to mean an
application in relation to a development proposal made under chapter 7 of the
Planning Act. The PRZ2 Development Table identifies varying a lease as an
assessable development in the merit track hence requiring a development
application under chapter 7. We are satisfied that this part of R13 is met.

32. The applicant contends in respect of R13b, that it has not been demonstrated that
the residual blocks can accommodate the proposed car parks on the basis that the
variations require a substantial increase and rearrangement of car parking to
Block A and some car parking to Blocks B and C will be added or moved.24

33. Mr Nash gave evidence that there were a number of Merit Track Assessable uses
permitted in PRZ2, such as aquatic recreation facility, care park, childcare centre,
club, communication facility, community activity centre, educational
establishment, guest house, hotel, indoor recreation facility, motel, outdoor
recreation facility, parkland, playing field and public agency, which could be
accommodated on any one of the residual blocks having regard to the shape and
size of each block, accessibility of the blocks, ability to separately service the
blocks with utilities, and operability as standalone blocks.25

34. Mr Nash concluded, based on this approach, that the size and shape of Blocks A
and B were appropriate to accommodate many, but not all, of the mentioned uses,
and noted they were already used as car parks.26 He further noted Block C could
accommodate all of the mentioned uses and was already used as an enclosed
playing field.27 Having regard to the other considerations, Mr Nash told the
Tribunal, that easements from Block C provided access to Blocks A and B and

24 Applicant’s Submissions at [15]-[16]

25 Exhibit PJ3 at [17]-[18]
26 Exhibit PJ3 at [19]
27 Exhibit PJ3 at [19]
 10

Block C was accessible from Wakefield and Angas Streets with each having street
frontage from which any services infrastructure could be connected thus enabling
each residual block to operate as standalone blocks.28 We accept Mr Nash’s
evidence.

35. Car parking use is permitted on the Site29 and specified in the existing Crown
lease to require the provision of 299 spaces. The residual leases do not propose
any change to that total number and distribute the number of spaces across the
residual blocks substantially in accordance with the current arrangement on the
Site. We accept that this is demonstrated on the Lease Parking Requirements
Plan.30 All that is required is sufficient information to determine whether the
residual blocks can accommodate another assessable development, in this case
car park use for 299 car spaces and an enclosed oval on Block C, when designed
in accordance with the relevant part of the PRZDC. The relevant part of the
PRZDC, in relation to car parking is C24, which requires compliance with the
PVAGC. C24 is discussed in more detail below, however R13b does not require
a full assessment of the car park proposal as the car parks are not actually being
constructed. Nonetheless the construction of car parking would be an assessable
development and if configured as indicated on the Lease Parking Requirements
Plan31 is likely to comply with the PVAGC. As discussed in Chung Yi, we
consider this is all that is required. In terms of Block C, it already accommodates
an enclosed oval which is an assessable development.

36. We are satisfied residual blocks A and B can accommodate car park use, as
demonstrated on the Lease Parking Requirements Plan32 and that the indicative
parking arrangement shown on that plan demonstrates how car parking can be
configured and designed to comply with the parking requirements of the PVAGC.
We are not required to conduct an assessment as to whether it would or could be
approved.

28 Exhibit PJ3 at [20]-[22]

29 PRZ2 Development Table
30 T-Documents page 571
31 T-Documents page 571
32 T-Documents page 571
 11

37. R13 has been met.

Interface – C19
38. The applicant contends the proposed verge crossing does not satisfy C19 as it
fails to promote an attractive and appropriate streetscape. The applicant claims it
is deficient as it does not connect to any internal road and is the middle of an area
used for a children’s playground and public exercise equipment. ‘Streetscape’ is
defined in the Territory Plan to mean:

Streetscape includes the visible components within a street (or part of a

street) including the private land between facing buildings, including the form
of buildings, treatment of setbacks, fencing, existing trees, landscaping,
driveway and street layout and surfaces, utility services and street furniture
such as lighting, signs, barriers and bus shelters.33

39. The respondent did not make any submissions regarding C19. The party joined
submits the verge crossing is not unsafely proximate to the playground and
exercise equipment and is in a location consistent with a previously agreed
outcome. The party joined further contends that the construction of the verge
crossing in the absence of any internal connection road immediately does not
offend the streetscape and is a commonplace streetscape feature nonetheless.

40. The proposed verge crossing is approximately 60m, in a straight line, from the
playground and exercise equipment.34 Its location was the subject of an earlier
variation to clause 3(d) of the Crown Lease in 2020 (the 2020 Variation).35 We
are satisfied the location of the proposed verge crossing is a sufficiently safe
distance from the playground and the exercise equipment and in a location
consistent with Area 2 as permitted by the varied Crown lease.

41. In addition, Mr McDonald gave evidence as to the appropriateness of the location.

He said the proposed verge crossing would not generate any additional vehicle
movements on the road network; that no road safety issues could be identified;
that it would be strategically appropriate for the Angas Street road environment;
that there were no continuous obstructions that exist or are proposed within the
verge that would prevent the pedestrian sight triangles as defined in relevant

33 Territory Plan 2008 Chapter 13, Part B at page 36

34 Exhibit PJ1 at [32] and annexure G
35 T-Documents pages 327 and 336
 12

standards; its location significantly exceeds the minimum requirement for a

location downstream of a high-angle left-turn under section 2.3.2 (d) of the
PVAGC; that the proposed verge crossing does not pose any safety concerns in
relation to the existing width of Angas Street. Mr McDonald concluded that there
were no traffic engineering reasons why the proposed verge crossing should not
be given development approval.36 We accept Mr McDonald’s evidence and
consider C19 is satisfied.

Location Requirements – C21A

42. The applicant contends the proposed verge crossing does not meet the
Community and Recreation Facilities Location General Code (the CRFLGC) as
required by C21A, specifically sections 3.5 and 4 of the CRFLGC. The applicant
contends the location of the proposed verge crossing would reduce residential
amenity and reduce the noise separation of the enclosed oval from the residential
area.

43. The respondent did not make any submissions regarding C21A. The party joined
submits that residential amenity is likely to be enhanced if the verge is constructed
and connected by internal road as it will provide access to 30 car park spaces. The
party joined also contends that the Crown lease limits the hours any verge
crossing can be used.37

44. The Tribunal does not accept the applicant’s submission. The 2020 Variation was
the product of consent orders made in earlier proceedings in the tribunal seeking
to challenge the approval, subject to conditions, of a variation to clause 3(d) of
the Crown lease for Block 19 Section 26 Ainslie which removed all restrictions
on access on Angas Street.

45. The applicant was a party to those proceedings and entered into an agreement
which resulted in the lease being varied to limit any vehicular access from Angas
Street to two specific locations: one being permitted adjacent to the existing
caretaker’s cottage, known as Area 1 and one being permitted further down away
from the caretaker’s cottage towards the Club Site, known as Area 2. Both Area

36 Exhibit PJ4 at [3]-[12]

37 T-Documents page 334
 13

1 and 2 were identified on a lease plan accompanying the consent order and lease
variation. The agreed variation also provided that a maximum of 30 car parking
spaces be accessible from any vehicular access in Area 2 and excluded the use of
any vehicular access from Angas Street between 12:00am and 6:00am.

46. The verge crossing, the subject of these proceedings, is now being proposed to be
constructed in Area 2 consistent with the location agreed in the 2020 Variation.
We do not accept its location falls foul of sections 3.5 and 4 of the CRFLGC
particularly in circumstances where such a complaint is raised following an
earlier agreed mediated outcome in relation to the locations of any verge crossings
on Angas Street. We are not reviewing the 2020 Variation, which decided by
agreement on Area 2 as the location for any other verge crossing on Angas Street,
but rather whether its construction as proposed is compliant. For the purposes of
the contention regarding C21A, we consider C21A is satisfied.

Pedestrian Movement – C22

47. The applicant contends that the safe and convenient movement of public transport
passengers, pedestrians and cyclists is not provided as stipulated in C22. The
applicant contends that this has not been demonstrated particularly in relation to
a verge crossing that does not connect to any internal road in the middle of an
area that is used for a children’s playground and public exercise equipment.

48. The respondent did not make any submissions with regard C22. The party joined
submits that there is nothing unsafe or inconvenient about the proposed verge
crossing whether or not it is immediately connected to the internal road and that
it is approximately 60 metres from the children’s playground and not proximate
to the exercise equipment and that there is presently no road or formed path that
connects the verge crossing to the internal road.

49. There is currently no constructed or designated pedestrian or cycling

infrastructure along this section of Angas Street that would be affected by or
interfered with as a consequence of the construction of the verge crossing.
Nothing about the proposed verge crossing detracts from the provision of safe
and convenient pedestrian and cyclist movement. We agree with the joined party
and consider that C22 is satisfied.
 14

Bicycle Parking – C23

50. The applicant contends an assessment against the Bicycle Parking General Code
(the BPGC) has not been undertaken and therefore C23 has not been satisfied.
The respondent and party joined contend the criterion is not applicable as there is
no proposed development for bicycle parking and the existing bicycle parking is
unaffected.

51. Ms Walker, in her evidence, said that an assessment against the BPGC was not
undertaken and C23 did not apply as the current provision for bicycle parking in
the Crown lease is unchanged and is proposed to be included in Block C and the
physical location was also unchanged.38 Notwithstanding her view that the BPGC
did not apply, Ms Walker carried out an assessment against the BPGC.39 As a
result of this assessment, Ms Walker concluded that “while the development in
question does not require end of trip facilities or bicycle parking the approval of
this proposal does not reduce the existing facilities on site and is consistent with
the requirements of the Crown lease.”40

52. We agree C23 of the PRZDC does not apply.

Vehicle Access and Parking – C24

53. C24 requires vehicle access and parking to comply with the PVAGC. The
applicant contends certain aspects of the PVAGC have not been satisfied. These
are considered below and for the reasons expressed, C24 is satisfied.

Traffic Generation – C25

54. C25 requires that the existing road network can accommodate the amount of
traffic likely to be generated by the development.

55. The applicant contends that it cannot and relied largely upon the Estate
Development Code to submit that Angas Street although classified as an ‘access
street’ with an acceptable daily traffic volume of 1,000 vehicles per day is

38 Exhibit R1 at [22]-[23]
39 Exhibit R1 attachment
40 Exhibit R1 attachment
 15

according to four Roads ACT traffic surveys carrying from about 124 to 418
vehicles more than this and the 418 more vehicles being from a 2019 survey.

56. The respondent submitted that the criteria related to estate development plan and
that the Estate Development Code has no application to the proposed
developments the subject of these proceedings.

57. The party joined submitted that the applicant’s submissions were fundamentally
flawed. This submission was based on the applicant not adducing any expert
evidence in support of its arguments and that the verge crossing will not generate
any vehicle movements in and of itself. The party joined also submitted the Estate
Development Code does not apply. The party joined relied upon the evidence of
Mr McDonald.

58. Mr McDonald expressed the opinion that the construction of the verge crossing
itself would not generate any additional traffic movements. He told the Tribunal
that any additional traffic generation would occur once it was connected to an
internal road. This is the internal road that is not proposed under this development
application. Assuming additional traffic may be generated after the proposed
verge crossing is connected, Mr McDonald considered Angas Street could
comfortably accommodate any additional traffic.

59. The Tribunal is not reviewing what might happen if the verge crossing is
ultimately connected to an internal road. To do so goes beyond an assessment of
whether this proposal that is the subject of this review satisfies C25.

60. In addition, we do not accept that the Estate Development Code applies. As the
party joined submitted, the Estate Development Code sets parameters for
calculating expected traffic volume of new roads and associated design
requirements rather than capacity. Its use and application in assessing
developments which do not involve proposals for new estates is problematic. We
consider it problematic to retrofit expected traffic volumes to roads which have
existed, and functioned, well before the creation of the Estate Development Code
to ascertain whether a road should be assigned a particular classification to test
its capacity. This is not a sound basis for determining whether a road is operating
 16

at an acceptable capacity based on acceptable traffic volumes. It is not indicative

of what constitutes acceptable daily traffic capacity.

61. According to Mr McDonald, based on the tables in the Estate Development Code,
Angas Street is 9 metres wide which is more than an access street and less than a
minor collector road but has about 1134 daily trips using 2020 data of which 50%
are through trips and therefore functioning at volumes expected of a minor
collector road.41 Mr McDonald told the Tribunal that expected traffic volumes
associated with the proposed verge crossing, whether or not the connecting road
was constructed could be safely accommodated on Angas Street. He based this
opinion on his assessment of the physical and environmental capacities of Angas
Street and safety components. In relation to whether the levels that he analysed
on Angas Street with its current characteristics were within tolerable ranges so as
to not impact on amenity, Mr McDonald said the impacts to amenity were not
necessarily a black and white threshold but more of a gradual thing and suggested
that the existing volumes are well within an appropriate level of traffic for Angas
Street.

62. In circumstances where, on the evidence before the Tribunal, the proposed verge
crossing alone would not generate additional traffic and having regard to the
evidence of Mr McDonald, we conclude C25 is satisfied.

Environmental Effects – C31

63. C31 requires a development application be accompanied by an Assessment of
Environmental Effects which addresses a number of specified items. There is no
applicable rule.

64. The applicant contends that an Assessment of Environmental Effects was not
lodged with the development application.

65. The respondent submits there is some doubt as to whether C31 applied to the
development application. Ms Walker gave evidence that during the assessment it

41 According to Table 2A of the Estate Development Code a minor collector road has an expected
traffic volume of 1001-3000 vehicles per day and is to be designed and constructed to a minimum
width of 10 metres.
 17

was decided the lease variation and verge crossing construction would not impact
paragraphs h)-i) of C31 and therefore a further response was not required.

66. The Party Joined since provided an Assessment of Environmental Effects for the
purposes of C31 addressing each of the paragraphs contained therein.42

67. Whether C31 applies or not, an Assessment of Environmental Effects has since
been provided. C31 only required the development application be accompanied
by such an assessment. Assuming it applies, C31 has been satisfied.

Issues under the PVAGC

Section 2
68. The applicant contends the requirements of section 2 of the PVAGC have not
been fully considered. This is premised upon the contention that the development
application requires a rearrangement and addition of the car parking spaces. The
applicant specifically contends:

(a) the disabled parking requirements have not been met (section 2.2.4);

(b) street parking supply will be reduced (section 2.3.2d); and

(c) the minimum distance from the tangent point of the kerb return of the
closest intersection has not been achieved (section 2.3.2d).

69. In relation to disabled parking rates, the PVAGC relevantly states that parking
spaces for people with disabilities are to comprise a minimum of 3% (rounded up
to the nearest whole number) of the total number of parking spaces required in
accordance with this code.

70. Ms Walker gave evidence as to the requirements for disabled parking under the
PVAGC. She said that the PVAGC did not require the provision of any number
of car parking spaces for this development. She told the Tribunal that the
obligation to provide a certain number of car parking spaces was found in the
Crown Lease, not the code. She further said that for car park use in PRZ2 the only
applicable parking provision rate was for one space per peak shift employee,

42 Exhibit PJ1 annexure E

 18

referring to Schedule 7 in section 3.7.5 of the PVAGC. In circumstances where

there are no employees, no provision of parking spaces is required.

71. We accept Ms Walker’s evidence in this regard and accept that no provision for
disabled parking spaces is required.

72. The applicant contended that section 2.3.2d) is not met as only one driveway per
property is desirable and the additional verge crossing will reduce street parking
supply. However, section 2.3.2d) further states that additional access points for
larger sites will be considered and for sites with multiple street frontages one
access point for each street may be desirable. Under the current restrictions in the
Crown lease for the Site, which has three street frontages, no vehicular access is
permitted from Limestone Avenue. The Tribunal also notes it is a large site. We
also accept Mr McDonald’s evidence that there is very low demand for on-street
parking along Angas Street43 such that supply is not affected by the construction
of the verge crossing. The Crown lease has previously been varied to allow for
an additional access point on Angas Street, as discussed above. We do not agree
the proposed verge crossing is inconsistent with this section.

73. As to the applicant’s contention regarding the distance from the tangent point,
Mr McDonald gave evidence as to where the distance was to be measured from
and said it was the intersection of Limestone Avenue and Angas Street which is
approximately 203 metres from the verge crossing.44 We accept Mr McDonald’s
evidence and agree the minimum distance requirement is met.

74. We are satisfied the relevant parts of section 2 of the PVAGC have been satisfied.

Section 3.7
75. The applicant contended the development application failed to meet the amenity
and safety requirements of section 3.7. The applicant submits the verge crossing
did not connect with any internal road and was in an area where there is a
playground and exercise equipment which could make it unsafe. The applicant

43 Exhibit PJ4 at [19]-[20]

44 Exhibit PJ4 at [41]-[43]
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further submits that there is potential for future paid parking on the site and that
the parking provision rates for a ‘playing field’ have not been assessed.

76. First, the use on Block C is for an enclosed oval, not a playing field and thus the
parking provision rates for a playing field do not apply. Secondly, the proposed
verge crossing is approximately 60 metres from the playground and equipment
which we do not regard as being unsafe and thirdly, Mr Patterson gave evidence
that the party joined had no intention of introducing paid parking on-site.45

77. We are satisfied section 3.7 of the PVAGC has been satisfied.

Issues under the LVGC

Varying Leases – C1
78. C1 of the LVGC stipulates a lease can only be varied where all of the following
are achieved and the varied lease is consistent with the Territory Plan including
all relevant codes and the land to which the lease applies is suitable for the
development or use authorised by the varied lease. Having concluded above that
the development application is compliant C1 is satisfied.

Adding uses generally – C3

79. The applicant contended C3ii) in relation to increased traffic flow had not been
satisfied. We refer to our findings in relation to traffic capacity above for C25 of
the PRZDC and for reasons stated consider C3ii) is satisfied.

Other matters arising under the Planning Act – section 120

80. The applicant contends the approval had been given contrary to entity advice
therefore invoking the prohibition on approval under section 119(2) of the
Planning Act. The applicant further contends that entity advice had not been
considered under section 120(f) of the Planning Act and therefore the respondent
had not complied with section 120(f).

81. The applicant specifically submitted that both the Strategic Planning and the
Territory Planning Section, both units within the Environment Sustainable
Development Directorate, gave entity advice and did not support the
development. It contends that this constitutes entity advice for the purposes of

45 Exhibit PJ1 at [25]

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consideration under section 120(f) and prohibited the respondent from approving
the development by reason of section 119(2).

82. On 6 April 2021, the respondent referred the development application to various
entities for advice, including Strategic Planning, purportedly pursuant to section
148 of the Planning Act.46 On 8 April 2021 Strategic Planning advised it did not
support the development application.

83. On 29 April 2021 the respondent sought comment from Territory Planning and
Strategic Planning following the submission of further information from the party
joined.47 The development was not supported.

84. Neither Strategic Planning nor Territory Planning are entities for the purposes of
section 148 despite the respondent purportedly referring the development
application pursuant to that provision.48

85. As section 148 does not apply to the comments provided by Strategic Planning
and Territory Planning, section 119(2) is not enlivened. Similarly, the
requirement to consider entity advice under section 120(f) does not extend to the
comments provided by Strategic Planning and Territory Planning.

86. The applicant contended that section 120(g) had not been considered and could
not be satisfied as a public land management plan did not exist. A public land
management plan for the Site does not exist, whether it should or not is beyond
the scope of review. All section 120(g) requires is consideration of one assuming
it exists. In any event consideration of the management objectives was undertaken
and the proposal does not alter the use of the site for sport and recreation.

87. The consideration under section 120(g) extends only to a plan of management if
one exists. In the circumstances there is no basis under section 120(g) to refuse
to approve the development.

46 T-Documents page 437

47 T-Documents page 378
48 Planning Act ss 147A, 148 and 149; Planning and Development Regulation 2008 regulation 26
 21

Conditions and draft leases

88. The applicant raised issues with several conditions of approval, namely A2.a),
A2.b), A2.d), A2.e) and A4.2.c). The respondent submits that Condition A4.2c)
was required by ACT Fire and Rescue and the remaining required by Transport
Canberra City Services as part of the entity advice it gave. The party joined did
not cavil with the imposition of any of these conditions.

89. The Tribunal does not propose to interfere with the conditions. The applicant
would hope they were more clearly drafted or that it would have some visibility
as to how they may be complied with but ultimately it is a matter for the party
joined how it responds to the conditions.

90. The applicant raised several issues with the terms of the draft Crown leases. We
do not regard the Tribunal’s scope of review to extends to reviewing the terms of
the draft leases except to the extent they are substantially in accordance with the
variation applied for which is the subject of review. We are satisfied they do.
Much of the applicant’s contention relates to whether the party joined will comply
with the terms of the leases. The Tribunal cannot assume it won’t and
Mr Patterson gave evidence that it would and went so far as to say that some
structures will be removed. The Tribunal can do no more than accept the party
joined will comply with the terms of the leases.

91. The Tribunal accepts that other issues such as removal of the setback brings the
lease in line the requirements of the Territory Plan.

Conclusion

92. For the reasons set out above, the decision under review is confirmed.

………………………………..
Senior Member K Katavic

Dates of hearing: 24, 25 & 26 May 2022

Applicant: M Hipkins, authorised representative
Counsel for the Respondent: N Oram
Solicitor for the Respondent: ACT Government Solicitor
Counsel for the Party Joined: J Bird
Solicitor for the Party Joined: BAL Lawyers