Savvas v Commissioner for Land and Planning & Ors [2002] ACTSC 121 (6 December 2002)

Last Updated: 12 December 2002

KEITH SAVVAS v COMMISSIONER FOR LAND AND PLANNING AND OTHERS [2002] ACTSC 121 (6 December 2002)

CATCHWORDS

BUILDING AND CONSTRUCTION - town planning - Land (Planning and Environment) Act 1991 - appeal from Administrative Appeals Tribunal affirming decision taken to have been made to refuse development application - proposed construction of second residence on land in Old Red Hill precinct - need for consistency with Territory Plan and Heritage Places Register - requirements to conserve heritage significance of the precinct - intensity of development - relevance of proposed subdivision under Unit Titles Act 1970 - whether approval would involve change in subdivision pattern - whether development would adversely affect streetscape - whether areas under low portions of ceiling should be included in gross floor area.

Land, Planning and Environment Act 1991, ss 7(3), 8, 54, 230(2), 230(3), s 231(1)(a)(i)

Territory Plan, cl 2.2 of Pt A3, par 13.4 of Pt A2, Pt D, Pt B(1)

Heritage Places Register, Appendix V

Unit Titles Act 1970

Rice v Henley [1914] HCA 75; (1914) 19 CLR 19

Ian Turner Partners (NSW) Pty Ltd v Lane Cove Municipal Council (1985) 57 LGRA 224

Edgar v Department of Environment, Land and Planning [1993] ACTAAT 59

North Canberra Community Council and Moraska-Ahearn v Commissioner for Land and Planning [2000] ACTAAT 6

Mercredits Ltd v Commonwealth of Australia (1975) 35 LGRA 65

Golden Fleece Petroleum Ltd v Rockdale Municipal Council (1984) 52 LGRA 202

Wilson v Commissioner for Land & Planning & Ors [2001] ACTAAT 26 (28 September 2001)

APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

No. SCA 103 of 2001

Judge: Crispin ACJ

Supreme Court of the ACT

Date: 6 December 2002

IN THE SUPREME COURT OF THE )

) No. SCA 103 of 2001

AUSTRALIAN CAPITAL TERRITORY )

APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: KEITH SAVVAS

Appellant

AND: THE COMMISSIONER FOR LAND AND PLANNING

First Respondent

NATIONAL TRUST OF AUSTRALIA (ACT)

Second Respondent

B and L THEARLE

Third Respondent

ANNE FORREST

Fourth Respondent

D L THEARLE

Fifth Respondent

M McINTOSH

Sixth Respondent

B and A HOWARTH

Seventh Respondent

OLD RED HILL PRESERVATION GROUP INC

Eighth Respondent

E LAURIE

Ninth Respondent

DR and MRS G J HARVEY

Tenth Respondent

P and G BIRD

Eleventh Respondent

A WILES

Twelfth Respondent

E and R DIGWEED

Thirteenth Respondent

ORDER

Judge: Crispin ACJ

Date: 6 December 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.1. This is an appeal from a decision of the Administrative Appeals Tribunal affirming a decision taken to have been made by the first respondent to refuse approval of a development application relating to the proposed construction of a further residence on land described as block 11, section 4, division of Red Hill ("the block"). The first respondent failed to make a decision in relation to the application before the expiration of the prescribed period and, accordingly, was taken to have refused to approve the application by virtue of s 230(2) of the Land, Planning and Environment Act 1991 ("the Act"). The first respondent also refused to exercise the discretion provided by s 230(3) to approve the application notwithstanding the expiration of the prescribed period.

2. The block is located at the corner of Monaro Crescent and Flinders Way, Red Hill and consists of some 3,833 square metres of land with frontages of approximately 95 metres to Monaro Crescent and approximately 35 metres to Flinders Way. It is adjoined on the other sides by a block containing a single residence and a block containing the Embassy of the Holy See. It has a spacious garden with mature trees and shrubs and a relatively new photinia hedge planted along the boundary lines adjacent to the streets. An existing two storey residence is located towards the rear of the block and a tennis court is located between that residence and Flinders Way. The proposed development involved the removal of the tennis court and the erection of a two storey detached house substantially on its site together with the provision of a new driveway and associated landscaping. It was also proposed that the block would be subdivided pursuant to the Unit Titles Act 1970.

3. The proposal was opposed by the second respondent and by the third to thirteenth respondents inclusive who were all objectors.

4. Section 8 of the Act effectively prohibits the approval of any development application that would be inconsistent with the Territory Plan. Section 7(3) provides that the Territory Plan may incorporate a Heritage Places Register and s 54 provides that the Register must include, inter alia, a statement of the heritage significance of each identified heritage place and specify requirements for the conservation of that heritage significance, including requirements for the conservation of features identified as intrinsic to that heritage significance. It was common ground that the Heritage Places Register should, therefore, be taken to have been incorporated into the Territory Plan and that the development application could not have been approved if inconsistent with any requirements of the Register that had been properly specified pursuant to s 54.

5. In its reasons for decision, the Tribunal observed that the Legislative Assembly had passed a motion on 28 June 2000 recommending that the Executive direct the ACT Planning Authority to review the Territory Plan in order to provide for a development intensity of no more than one dwelling on any block in the Red Hill housing precinct. The Executive subsequently gave such a direction and the Planning and Land Management Group ("PALM") duly undertook the proposed review. A report concerning the review was tabled in the Legislative Assembly on 30 November 2000. On 14 February 2001 the Legislative Assembly passed a further motion recommending that the Executive direct the ACT Planning Authority to implement policies providing for the contemplated development intensity of not more than one dwelling per block in the Red Hill housing precinct. The executive subsequently gave a direction to that effect and the policies were reflected in a draft Territory Plan variation released by PALM for public comment in July 2001. During the proceedings before the Tribunal it was argued that the policy reflected in the report of the review and/or the draft variation should be accepted as planning guidelines which the Tribunal was obliged to take into account by virtue of cl 2.2 of Pt A3 of the Territory Plan. The Tribunal rejected this contention and its decision to do so was not challenged on appeal. It is therefore unnecessary for me to consider this issue further.

6. The Tribunal adverted to the principle stated in par 13.4 of Pt A2 of the Territory Plan that places of heritage significance "will be protected in accordance with the requirements for their conservation set out in the Heritage Places Register". It then quoted the following passage from the Heritage Places Register, Appendix V to the Territory Plan, concerning the heritage significance of the Red Hill housing precinct (place no 52):

The Red Hill housing precinct clearly demonstrates the philosophy of Garden City planning which underpinned the early planning of Canberra by the Federal Capital Advisory Committee (FCAC) and the Department of the Interior. Red Hill represents the grandest of development of a garden suburb within the ACT through its spacious and highly landscaped subdivision, intended for public sale to the higher socio-economic groups. In conjunction with the other garden city precincts, it demonstrates the early Canberra philosophy of segregating different socio-economic groups between regions and suburbs of the ACT, a planning approach that has been discontinued in favour of creating a more integrated socio-economic community.

The outline of the major streets within the precinct appeared on Walter Burley Griffin's official plan of Canberra, prepared in 1918. The actual subdivision was planned in 1924 by Sir John Sulman, Chair of the FCAC and the first blocks were sold in December 1924.

The subdivision of Red Hill provided larger block sizes than in any other area of Canberra. The large block sizes facilitated the development of a semi rural landscape, including provision for domestic livestock and orchards, to supplement the limited availability of fresh produce at the time. Little evidence of this semi rural use remains. The spacious blocks have precipitated the construction of substantial homes and diplomatic missions within park-like settings, reflecting a variety of architectural styles and complemented by extensive private landscaping