RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL

RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL Citation: Henry Design and Consulting v Clarence City Council & Ors [2017] TASRMPAT 11 Parties: Appellant: Henry Design and Consulting Respondent: Clarence City Council Subject Land: 6 Venice Street, Howrah Appeal No: 20/17P Jurisdiction: Planning Appeal Hearing Date(s): 15 June 2017 Decision Date: 7 July 2017 Delivered At: Before: Hobart GP Geason, Chairman ME Ball, Member Counsel: Appellant: D Morris First Respondent: N Sommer Solicitors: Appellants: Simmons Wolfhagen First Respondent: Dobson Mitchell &Allport Catchwords: Planning Appeal Clarence Interim Planning Scheme 2015 Multiple dwelling development considerations relevant to exercise of discretion whether development compatible with density of surrounding area clause 10.4.1 Clarence Interim Planning Scheme

The proposal, refusal and appeal grounds REASONS FOR DECISION 1. This is an appeal against the refusal of a proposal to demolish an existing two storey brick dwelling house and construct four new dwellings on a 1,290m² lot at 6 Venice Street, Howrah. The site is on the northern side of Venice Street and has a slight slope towards the west. 2. The proposed dwellings are designed in a linear arrangement with vehicular access via a shared driveway running along the western boundary. Each dwelling provides three bedrooms and a living space on the upper level, with an integrated double garage on the ground level. Each unit has an upper level deck facing the Derwent River i. 3. Council refused the application in January 2017. That refusal was appealed on the following single ground: 1. The proposed development is compatible with the surrounding area and so consequentially complies with clause 10.4.1 P1of the Clarence Interim Planning Scheme 2015. Particulars (a) (b) The proposed development is compatible with the density of the surrounding area and therefore satisfies cl. 10.4.1 P1. Further, in assessing whether or not the proposed development is compatible with the surrounding area, the difference between what is permitted pursuant to c. 10.4.1 A1 (a density of 325 m2) and the extent of dwelling density discretion sought by [the] proposed development is inconsequential in terms of compatibility (for the comparison principle see Rowell v Clarence City Council [2012] TASRMPAT 94). Planning scheme provisions 4. The relevant parts of the Clarence Interim Planning Scheme 2015 (the Scheme) are as below. 5. Clause 7.5.1 of the Scheme provides that a use or development must comply with each applicable standard in a zone. 6. Clause 8.8.1 of the Scheme provides that the planning authority has the discretion to refuse or permit a use or development if: a) the use is within a use class specified in the applicable Use Table as being a use which is discretionary; b) the use or development complies with each applicable standard but relies upon a performance criterion to do so; or c) it is discretionary under any other provision of the planning scheme, and d) the use or development is not prohibited under any other provision of the planning scheme. File No: 20/17P Page 2 J No. 11-2017

7. In determining an application for any permit, Clause 8.10.1 of the Scheme requires the planning authority to consider the matters required by Section 51(2) of the Act: a) all applicable standards and requirements in this planning scheme; and b) any representations received pursuant to and in conformity with ss57(5) of the Act, but in the case of the exercise of discretion, only insofar as each such matter is relevant to the particular discretion being exercised. 8. Clause 7.5.1 requires compliance with each applicable standard in a zone or code. Compliance for the purposes of clause 7.5.1 consists of complying with the acceptable solution or the performance criteria for that standard as specified under Clause 7.5.3 of the Scheme. 9. Clause 7.5.4 provides that the relevant objective in an applicable standard may be considered to help determine whether a use or development complies with the performance criterion for that standard. 10. The main provision, Clause 10.4.1, provides as follows: 10.4.1 Residential density for multiple dwellings Objective To provide for suburban densities for multiple dwellings that: (a) Make efficient use of suburban land for housing; and (b) Optimise the use of infrastructure and community services. Acceptable Solutions A1 Multiple dwellings must have a site area per dwelling of not less than: (a) (b) 325m2; or If within a density area specified in Table 10.4.1 below and shown on the planning scheme maps that specified for the density area. Performance Criteria P1 Multiple dwellings must only have a site area per dwelling that is less than 325m2, or that specified for the applicable density area in Table 10.4.1, if the development will not exceed the capacity of infrastructure services, and: (a) (b) Is compatible with the density of the surrounding area; and Provides for a significant social or community housing benefit and is in accordance with at least one of the following:- (i) (ii) The site is wholly or partially within 400m walking distance of public transport stop; The site is wholly or partially within 400m walking distance File No: 20/17P Page 3 J No. 11-2017

of a business, commercial, urban mixed use, village or inner residential zone. Application of the Scheme to the proposal 11. The subject land is zoned General Residential under the Scheme. 12. The Purpose of the General Residential Zone is: 10.1.1.1 To provide for residential use or development that accommodates a range of dwelling types at suburban densities, where full infrastructure services are available or can be provided. 10.1.1.2 To provide for compatible non-residential uses that primarily serve the local community. 10.1.1.3 To provide for the efficient utilisation of services. 13. The proposal, as a multiple dwelling development, is a permitted use within the Zone. 14. The proposal does not satisfy Acceptable Solution A1 of Clause 10.4.1 as the proposed site area of 322.5m² exceeds the Scheme s minimum site area of 325m² pursuant to clause 10.4.1. 15. Accordingly, the proposal must therefore satisfy the corresponding Performance Criteria 10.4.1 P1 as set out above. 16. It is agreed between the parties that subclause P1(b) is not in issue, that the capacity of infrastructure is not in dispute and that Table 10.4.1 is not relevant to the matter. 17. Therefore, the proposal must demonstrate that it possesses a site area per dwelling that (a) is compatible with the density of the surrounding area. This is the basis of this hearing. 18. None of the relevant terms in P1(b) (i.e. compatible, density, or surrounding area ) are defined in the Scheme. 19. With respect to the meaning of compatible, the parties referred to dictionary meanings, as well as the Tribunal s recent decision in M Flood v George Town Council [2016] TASRMPAT 34 and other decisions. 20. Although not defined in the Scheme, the word density clearly relates to the concept of site area per dwelling. Site area is defined in the Scheme as the area of the site (excluding any access strip) divided by the number of dwellings. Access strip in the Scheme means land, the purpose of which is to provide access to a road. This could mean the handle of a battleaxe lot, or it could mean a driveway of the sort provided in this proposal. 21. The inclusion of access strip in this definition raises an awkward element in the assessment of compatibility. The Scheme is obscure in this regard. If the density of the proposal is to exclude the proposed driveway, does that mean that the driveway areas of developments land within the surrounding area should also be excluded in the determination of compatibility? Although the amount of 322.5m² of site area per dwelling was often File No: 20/17P Page 4 J No. 11-2017

mentioned during the hearing, that figure was agreed to include the area of the proposed driveway; excluding the driveway would produce a lesser figure a denser development. The planners agreed that the assessment of compatibility set out in P1(a) should be based on a figure of 322.5m² for the proposal (that is including the driveway area), and the density of development within the agreed surrounding area also includes all driveway areas where access areas are not associated with a strata development. This approach may not be relevant in all cases but it is accepted here and the Tribunal so holds. 22. Surrounding area as used in P1(a) was the subject of some dispute in the hearing. The positions of the parties on this issue are set out below. The town planning evidence 23. Initially, the town planning experts disagreed about how surrounding area should be measured pursuant to P1. Council's planner, Ms A Beyer took the surrounding area to be either the area of Venice Street, or, alternatively, the area within 100 metres from all parts of the subject land. Ms Duckett, planner for the Appellant took surrounding area as being guided by the Planning Scheme s definition of streetscape, and was the area within 100m of the centroid of the subject land. In the final event, however, the planners agreed to include the properties within Ms Beyer s 100m surrounding area as being relevant to this phrase as shown at End Note ii. 24. Ms Beyer interpreted P1 strictly. That is, with regard only to the stipulated density calculations. In her assessment of whether the proposed development was compatible with the density of the surrounding area, she adopted the approach set out in the Tribunal s decision in Flood s case (supra) i.e. that compatible means capable of existing together in harmony. 25. Ms Duckett adopted a slightly different approach. She used the interpretation of compatibility arising from M Drury v Hobart City Council [2017] TASRMPAT 99/15P; that is, how a new development might fulfil or complete an existing area. In that assessment, she felt that aspects of importance included infrastructure and supporting services, townscape character, and other non-numerical matters. This was supported by embracing the objectives of 10.4.1 amongst other reasons. The competing legal submissions 26. Council s argument is based on the strict interpretation that P1 in cl. 10.4.1 contains a freestanding test, having no relationship to A1 in that clause. Viewed properly, it is unaffected by any other town planning matter (such as streetscape, character, etc) or any other provision of the Planning Scheme 1. It is purely a numbers-based evaluation of density calculations and, ultimately, whether a comparison of those calculations indicates compatibility between proposed and existing densities. On those numbers, the proposed development cannot be said to be compatible with the surrounding area. 27. In stark contrast, the Appellant s approach is based on an examination of the interrelationship between P1 and A1 in cl. 10.4.1 of the Scheme. An A1-compliant development is acceptable anywhere in the General Residential Zone, and a density of 325m² must therefore be considered in harmony with the density of any surrounding area. Thus, it acts as a benchmark or cornerstone against which proposals with densities less than 325m² are to be tested for compatibility under P1. Because the proposed development is only 1 Council s position is that P1 ignores character and refers only to density in the form of numbers. If relevant at all, matters of character are peripheral to the required test. File No: 20/17P Page 5 J No. 11-2017

slightly less than 325 m2, it must be considered compatible (in harmony with) under the test posed in P1. 28. A second leg to the Appellant s argument is that, applying clause 10.4.1 properly, the eventual density of the relevant General Residential Zone will be much less than it now is. When redeveloped to the capacity anticipated by the provisions of cl. 10.4.1, the density will more closely approach the 325m² figure in A1. This likely future density is relevant in the test of compatibility of density required by P1. 29. Further, the Appellant submitted that, viewed on the ground, the difference between the development s proposed density of 322.5m² and the 325m² figure would be so slight as to be imperceptible. Correct interpretation of clause 10.4.1 30. The Tribunal accepts that the Council s approach to clause 10.4.1 is correct, and it so holds. 31. Clause 10.4.1 A1 establishes the magic number of 325 m2/dwelling; it contains no other considerations. It is akin to a bomb which, when detonated by a compliant development, obliterates any and all non-numerical planning considerations peripheral to density - such as existing and proposed development density, compatibility with streetscape, character, urban form and so on. The only matter of any importance is the number. 2 32. An A1-compliant development may be wildly divergent from prevailing density, but the Scheme proclaims it acceptable anywhere in the General Residential Zone, and immune from any considerations of compatibility or other impedimenta. 3 33. It follows then that, contrary to the Appellant s submission, there is nothing in the Scheme indicating or requiring an A1-compliant development to be accepted as being in harmony with the surrounding area. Clause 10.4.1 appears to encourage development densities which could be seen as ruthlessly antithetical to those prevailing in the Zone, rather than harmonious with them. A development meeting A1 is deemed to achieve the objectives of the standard and there is nothing in those objectives relating to the concept of harmony or the determination of compatibility. 34. P1 is in stark difference to A1. A failure to comply with A1 opens the door into the murky gloom of the complex test required by P1. The components and requirements of that test are independent of the content of A1. The P1 test only involves a conclusion as to whether the density of one thing (a new development) is compatible with the density of another thing (the surrounding area ). Properly viewed, the cl. 10.4.1 objectives do not affect this test. 35. An attempt to elevate the A1 density of 325m² to a factor relevant to the test required by P1 would be invalid. A1 cannot be used to influence or determine the compatibility test. 4 36. This approach would evict the identified components from the P1 test, and re-tenant P1 with the A1 standard. This would lead to an intractable and paradoxical conclusion. That is, if a development is acceptable because it varies only slightly from 325 m2, the corollary is that 2 An A1-compliant development must, of course, also negotiate any Scheme provisions other than 10.4.1. 3 The effect of A1 may be brutal, but it is one way to answer the common and vexed question arising where the density of an existing area (and, therefore, its character) is proposed to be significantly altered by a planning control that is: where and in what circumstances are drastically divergent developments acceptable? Here, the loud and clear answer is: anywhere and any circumstances. 4 This is clear from cl. 7.5.3 of the Scheme in which the disjunctive word or means that P1 must do its work without comfort or support from, and isolation to, A1. Although cl. 7.5.4 provides that objectives may be used to determine compliance with performance criteria, it has no work to do here and cannot in any case be used in isolation to determine compliance with P1. File No: 20/17P Page 6 J No. 11-2017

one varying significantly from the magic number must approach, or be unacceptable. This could, for example, result in the conclusion that a proposal of very high density may be unacceptable in any part of the Zone - even a part possessing a density high enough to otherwise exhibit compatibility with that development (sensu cl. 10.4.1 P1). This would be contrary to the context of the Scheme and the intent of the Clause. 37. Particular (b) of the Appeal Ground relies on A Rowell v Clarence City Council [2012] TASRMPAT 94 to support this approach of the Appellant. Although it is true that that decision held that it was relevant to look at the attributes of an as-of-right development in the assessment of a performance criterion, it was on a basis limited to interpreting ambiguous standards in the performance criterion. In any event, it must, for several reasons, be distinguished in the present matter. Rowell dealt with Planning Directive PD 4, now replaced by PD 4.1. In the earlier document, the performance criteria set out tests relying on non-numerical, and largely subjective, considerations involving evaluations of concepts such as adequate, reasonable, maximise, minimise, facilitate, consistent with future character, etc. Only one Criterion (overshadowing) required an objective, numerical evaluation. In distinct contrast, clause 10.4.1 P1 in the Scheme is founded on specific numerical calculations rather than any subjective concerns. 38. The second leg of the Appellant s argument - that the proposal would be consistent with eventual redevelopment density of the surrounding area - is not to point. It is the existing density of the surrounding area which is identified as the relevant component in the P1 test. 39. The context of the relevant planning controls is such that, as Ms Sommer for the Council submitted: a future density based on speculative future development is not relevant to this assessment. The Tribunal accepts that position. 5 40. As correctly pointed out by Mr Morris for the Appellant, the Scheme contains Table 10.4.1 - a potential provision which could have been used (and is so used in other planning schemes) to delineate certain parts of the Zone where developments of varying densities may be acceptable. However, in this Scheme, Table 10.4.1 is not utilised in that manner. It contains no information at all and this is, at least in part, a reason for the complexities emerging in this matter. 6 41. That the density of the proposal is so close to the 325m² figure as to be imperceptible on the ground is also not on point. As outlined above, the A1 provision is black or white. The difference of less than a square metre in site area may mean a development does not make the cut and, brutal as it may be, must then face the perilous journey through the different, difficult and often draconian test contained in P1. 42. Ms Beyer s evidence was that the difference between the proposal and one complying with the required density would be perceptible on the ground. More on point, she said that the comparison should not be between the existing site area and a slightly larger complying one, but between the (non-complying) four dwellings proposed, and a (complying) three dwelling development (satisfying A1 and therefore permitted ). Density of proposal and surrounding area 43. A Statement of Expert Agreed Facts was prepared by the two town planners. 5 Of passing interest on this issue, the evidence of Ms Beyer was that the whole of the area cannot be expected to be redeveloped to a higher density. This was, she said, because not all lots were capable of multiple dwelling redevelopment to the density permitted by the Scheme. 6 A somewhat similar method present in other States is to allow development standards to be malleable - subject to justification. This would also have overcome the drastic differences between the implications of A1 and P1 in the Scheme, but is not present here. File No: 20/17P Page 7 J No. 11-2017

44. The extent and degree of agreement in that Statement is a credit to them and of significant assistance to the Tribunal. 45. Table 1 in that Statement sets out the site areas of existing lots within the agreed surrounding area as below: Average site area for surrounding properties within 100m of the subject site 1 10 Howrah Point Court, Howrah (CT50866/14) 1016m2 2 10 Howrah Point Court, Howrah (CT50866/11) 1360m2 3 10 Howrah Point Court, Howrah (CT50866/10) 3741m2 4 10 Howrah Point Court, Howrah (CT50866/9) 640m2 5 10 Howrah Point Court, Howrah (CT50866/8) 634m2 6 10 Howrah Point Court, Howrah (CT50866/7) 619m2 7 10 Howrah Point Court, Howrah (CT50866/13) (CT1017631/13) 586m2 8 10 Howrah Point Court, Howrah (CT50866/12) (CT1017631/12) 1226m2 9 10 Howrah Point Court, Howrah (CT107631/12) 1215m2 10 10 Howrah Point Court, Howrah (CT50866/6) 718m2 11 1/4 Howrah Point Court, Howrah (CT147512/2) 297m2 12 2/4 Howrah Point Court, Howrah (CT147512/2) 346m2 13 3/4 Howrah Point Court, Howrah (CT147512/3) 330m2 14 4/4 Howrah Point Court, Howrah (CT147512/4) 478m2 15 3 Howrah Point Court, Howrah 770m2 16 2 Howrah Point Court, Howrah 615m2 17 1 Howrah Point Court, Howrah 660m2 18 2 Venice Street, Howrah 857m2 19 4 Venice Street, Howrah 1481m2 File No: 20/17P Page 8 J No. 11-2017

20 8 Venice Street, Howrah 1290m2 21 10 Venice Street, Howrah 1290m2 22 12 Venice Street, Howrah 1290m2 23 14 Venice Street, Howrah 735m2 24 53 Howrah Road, Howrah 529m2 25 1 Corinth Street, Howrah 1857m2 26 1 Venice Street, Howrah (CT155754/1) (CT115806/?) (C155806/?) 860m2 27 1/3 Venice Street, Howrah (CT135947/1) 332m2 28 2/3 Venice Street, Howrah (CT135847/2) 421m2 29 5 Venice Street, Howrah (CT43850/2) 599m2 30 7 Venice Street, Howrah (CT43850/1) 541m2 31 3 Corinth Street, Howrah 1075m2 32 5 Corinth Street, Howrah 1257m2 33 7 Corinth Street, Howrah 1459m2 34 9 Corinth Street, Howrah 1396m2 35 2a Corinth Street, Howrah (CT52524/4) 723m2 36 2 Corinth Street, Howrah (CT43850/5) 802m2 Mean lot size 951.22m2 Median lot size 802m2 Table 1: Average site area for properties within 100m of 6 Venice Street. (Land area calculations have been sourced from the Clarence City Council s GIS and includes the access areas were not associated with a strata development. 46. The agreed calculations within that area and that of the proposed development are as below, and the Tribunal accepts those calculations. (a) The mean lot size (i.e. site area per dwelling) is 951.22 m2, File No: 20/17P Page 9 J No. 11-2017

(b) The median lot size is 802 m2, and (c) The site area per dwelling of the proposal 322.5 m2. Whether compatible 47. Both parties focused on Flood s case to reach an understanding of compatible in cl. 10.4.1 P1(a) 7. That case devolved to a determination of the compatibility of proposed with existing development densities very similar to the present matter 8. 48. The starting point here is the same as was in Flood: 30. The scope of the meaning to be given to the words of the performance criterion are to be determined by reference to the purpose of the provision. The purpose is set out in the objective to the clause. The objective is to provide for suburban densities for multiple dwellings that a) make efficient use of urban land for housing; and b) optimise the use of infrastructure and community services. It is to the provision of suburban densities that the exercise is focused in this case. 9 49. Letting the objectives do their work, it is evident that providing for suburban densities for multiple dwellings in this Scheme infers that such a density is the minimum figure of 325m² in A1. Ostensibly, that objective may be used to determine compliance with a performance criterion (cl. 7.5.4), but the test in P1 looks to prevailing density rather than what suburban densities may become. 50. Consistent with the approach taken in Flood, the Tribunal holds that compatibility in the context of the present hearing requires a finding that the proposal is consistent with the density of the surrounding area. Not necessarily the same density, but at least similar to, or in harmony or broad correspondence with the surrounding area. 51. The evidence upon which this decision must be based is reproduced in Table 1 of the Statement of Expert Agreed Facts set out above. The agreed calculations are densities of 322.5 m2/dwelling for the proposed development, as compared with 951.22m² (mean) and 802 (median) per dwelling in the surrounding area. 52. A careful consideration of these densities indicates that the P1 requirement of compatibility is not achieved in this case. There is a very significant divergence among the figures. The figures are neither consistent with each other nor similar to, or in harmony or in broad correspondence with each other. 53. For that reason, the Tribunal finds that the development is not compatible with the density of the surrounding area as required by clause 10.4.1 P1(a) of the Clarence Interim Planning Scheme 2015. 54. Accordingly, the application must be refused. The appeal is dismissed. 7 Other authorities cited are of lesser relevance to this issue: A & J DeCesare v Clarence City Council [2010] TASRMPAT 50, Secheron Holdings Pty Ltd v Hobart City Council [2010] TASRMPAT 56, and Aviation Consolidated Holdings Pty Ltd G Ters and Y Wand v Hobart City Council [2010] TASRMPAT 41. 8 As pointed out by Ms Sommer, the Tribunal is not bound by prior decisions but comity suggests that the interpretation in Flood be followed in this matter. 9 The objectives of Clause 10.4.1 of the George Town Interim Planning Scheme are identical with those in the Clarence Scheme - save for the use of suburban in the Clarence Interim Planning Scheme in place of urban in the George Town Scheme. File No: 20/17P Page 10 J No. 11-2017

55. S28(1) of the RMPAT Act directs that each party to this appeal is to pay its own costs. The Tribunal will consider an application for a costs order under s28(2) if it is made in writing with supporting submissions within 14 days of the date of this decision. If an application is made, the operation of s28(1) is stayed until further order. 56. If requested, the Tribunal will reconvene to hear any evidence in respect of any matter bearing upon an order for costs. File No: 20/17P Page 11 J No. 11-2017

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