25 February 2020

ACTPLA defends approval of Zapari development in Coombs

| Ian Bushnell
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Zapari's proposed design

Zapari’s second proposal will be scaled back more as part of the deal struck with ACTPLA. Images: Supplied.

The ACT Planning and Land Authority (ACTPLA) has rejected claims that it’s a toothless body unwilling to fight for its decisions in the courts after the latest challenge to an ACTPLA ruling resulted in a deal that will see 140 apartments built on a Coombs site that originally only allowed a maximum of 44 apartments.

The first proposal from developer Zapari was for an eight-storey, 212-apartment development on the corner of John Gorton Drive and Terry Connolly Avenue but this was rejected, as was a scaled-back version of seven storeys and 149 apartments, with floor area more than halved and setbacks and green space increased.

ACTPLA cited overdevelopment, poor design, overshadowing and privacy implications for neighbouring residences when it knocked back the proposals, prompting Zapari to go to the ACT Civil and Administrative Tribunal (ACAT), much like POD Projects had done with its apartment block development also in Coombs.

As with POD, ACTPLA went into mediation with Zapari and has cut a deal to accept another revised proposal, including a lease variation to allow the 140 apartments.

Deputy Director-General, Sustainability and the Built Environment Geoffrey Rutledge said that once the matter was referred to ACAT, ACTPLA was no longer a decision-maker but a respondent with a duty to assist the tribunal, including entering into mediation.

“After considering the revised design proposed by the applicant, the three parties (Zapari, the Planning and Land Authority, and the Weston Creek Community Council) reached agreement on a revised proposal subject to a range of conditions,” Mr Rutledge said.

Zapari’s new plans include further reducing the building size and making improvements to the façade and amenity for units, cutting the number of apartments back to 140, a gradual reduction of the building height from six levels to four on the northern side, an increased curvature to the façade and various other details to improve the outcome and amenity of the proposed development.

“The Planning and Land Authority is of the view that the revised proposal, with the conditions imposed with the consent of the Tribunal, will be an approvable development having regard to the locality and RZ5 High Density Residential zoning of the site,” Mr Rutledge said.

“The conditions imposed by the Tribunal impose further protections to retain design elements that are critical to the outcome, and to ensure that the Weston Creek Community Council is advised in a timely way and involved in future amendments to the development.”

Mr Rutledge defended ACTPLA’s record in ACAT, saying that during the last financial year, the Tribunal upheld its original decisions for 88 per cent of matters that proceeded to hearings.

“The planning and land authority will only agree to resolution through mediation if the reasons for refusal are appropriately addressed, if any revised proposal is approvable under the Planning and Development Act 2007 and if the revised proposal represents an acceptable development outcome for the location,” he said.

Zapari

ACTPLA went into mediation with Zapari and has cut a deal to accept another revised proposal.

Community activist Ryan Hemsley remained disappointed that ACTPLA was seemingly unable to stop developments that, in its own words, deviate significantly enough from both the intentions of the estate development plan and the maximum dwelling numbers specified in the site’s crown lease to warrant refusal.

“I understand that the planning laws allow developers to vary the development restrictions of crown leases, and that such lease variations are not uncommon,” he said. “However, I firmly believe that there is a material difference between a development that seeks to increase the maximum dwelling number by 25 per cent, and one that seeks to increase that number by over 200 per cent.”

“The ongoing approval of these kinds of developments will have significant consequences for the ability of the ACT Government to ensure orderly development in greenfield locations using crown lease provisions.”

Mr Hemsley said residents who lived near sites earmarked for multi-unit development would now have much less certainty about the type and density of building they could expect to be built on that site.

“I understand that the intent behind permitting lease variations is to encourage development in the ACT. However, I think the question needs to be asked: should this desire to encourage development be accommodated at the expense of buyer certainty and the ability of government to achieve desired development outcomes?”

Mr Hemsley said the government’s approach of approving ad-hoc lease variations risked a potential oversupply of units in the ACT, which may in turn impact on revenue from land sales.

He said the government appeared selective about which sites were worthy of protection from overdevelopment, evidenced by mandatory and enforceable restrictions on dwelling numbers in places such as the old Downer school site.

“While we couldn’t stop these developments from being approved, we did secure concessions that meant they ended up being less damaging than the original proposals. We need to ensure that these recent approvals are not seen as a green light for developers to lodge equally inappropriate development applications in the future,” Mr Hemsley said.

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So to address another issue, those who in good faith who bought a Townhouse in the Opus complex backing onto this development thinking their neighbours would be 44, 2-3 story Townhouses and now will be blocked out (I am one of them). The value of these will not only drop but will be harder to sell, will ACTPLA be paying compensation, NO! se we are definitely the losers here.

I think too many people don’t understand that the proposed number of units associated with a block when it’s released is not a hard maximum and a developer can always apply to have the lease varied to match their proposed design.

This building is in a high density development area, you should expect high density development if you purchase nearby.

And in these cases, it isn’t true that when the lease gets changed, the taxpayer gets ripped off because the developer has to pay the LVC when this occurs that captures most of the uplift in value of the land.

You are right that the site is zoned as High Density, but the site also has a Maximum Dwelling Unit number attached to it. The Suburban lang Agency (who sold the land) have always included the statement : “this number must not be exceeded”, so purchasers made the mistake of believing them. It is true that developers have sometimes sought a lease variation to have that number increased, but in the past such variations have never exceeded 25%. It seems that you need to be a “gullible mug” to purchase any property adjacent to an empty block as you can have no certainty about what might be built there. What a stupid outcome for a planning system.

You do have a valid point, however I believe most people would be understanding if the 44 was increased to 50 or perhaps even 60.

But adding another 96 is ridiculous. That is more than three times the original maximum.

There is a bit of misinformation on this article so I’d like to clear some things up for people, and I thought your comment was the best to reply to as you touched on the issue already.

I’m not necessarily for or against this project, to be honest I haven’t even looked at the plans!
But to clear some things up around zoning and what is permissible:

– The zoning of the site hasn’t changed with this decision, only the permissible number of dwellings. On an RZ5 site (the most dense residential zoning available in the ACT) there is no limit to dwelling numbers and no limit to plot ratio. The ‘suitable’ number of dwellings is driven by other factors such as open space and dwelling interface.

– The approval of this DA for a higher yield simply means the permissible number of dwellings in the Crown Lease is being varied, the zoning is staying as is.

– When ACAT assesses the DA, they aren’t looking at the provisions of the lease necessarily, they are looking at what is permissible under the zoning. In this instance the proposed DA must have been consistent with the zoning controls and hence was approved.

Again I’m not necessarily for this development, but I’m just pointing out that the issue with this is why was it zoned RZ5 in the first place? If the gov wanted a lower density developed on the site they should have made it RZ4. This would have led to the maximum number of storeys being 3, and a maximum plot ratio of 80% (effectively restricting the yield on the site).

John,
No, the site didnt have a maximum dwelling unit number attached to it, which is exactly my point.

Cbr2020,
This is sort of what I was getting at. I actually think the legislation should be more restrictive in this space and the planning should be better, bit it’s hardly surprising that a developer wants to build high density apartments on land zoned high density.

Chewy14, you are just wrong on this point.
I cannot post a document here, but if you look at the SLA sales reports you will see that every residential block has a Maximum Dwelling Unit number attached to it, and in this case that number was 44. Look at the top of page 7 of this document:

https://suburbanland.act.gov.au/uploads/ckfinder/files/pdf/3_Commercial/Commercial_Industrial_Sales_Results/SLA%20Sales%20results%20list_Last%20update%2020200115.pdf

Furthermore if you look at the Coombs Housing Development Guide you will again see that every block has an MDU, and the additional words: “The maximum number of dwelling units indicated for each block is not to be exceeded”

https://suburbanland.act.gov.au/uploads/ckfinder/files/pdf/2_Residential/Molonglo_Valley/Ballot2018/1_3_%20Annexure%20A%20Coombs%20Housing%20Development%20Guide%20(A15427590).pdf

It is not unreasonable for purchasers to expect those words to mean something.

Maybe they should have zoned it RZ4, but instead they zoned it RZ5 with a Maximum Dwellings Units number of 44. This is completely consistent with what was done with other RZ5 sites across Coombs and Wright. On most of these sites the developer has complied with the original MDU. In some cases they have gained a slight increase and in others they stayed below it.
The developer bought the site knowing the number was 44. It is there right to apply for an increase, but it is also reasonable for residents to expect that number of 44 to mean something and give them some idea of what they could expect to be built on that site, particularly if they have bought into an adjacent site.
Residents have bought into what they were told was a “planned suburb” with lovely glossy maps to tell them what they can expect.

I agree that the neighbouring residents have a right to know what is potentially going to go up next to them, and it really is a shame that these things happen. I guess what I’m saying though is it the government who have misrepresented to the community what is possible on these blocks, not the developer. The developer is simply exercising their right as a leaseholder to develop their block in accordance with the zoning.

The government have sold to other residents with in your words their glossy maps, but without regard to the actual planning framework. If they wanted the yield restricted on these blocks it’s as simple as putting a development control in the precinct code (precinct codes take precedence over the multi unit code) to restrict the yield. Then, regardless of what is allowed on an RZ5 site it would never be able to exceed that number regardless of what takes place in ACAT (unless the Territory Plan is varied, which is a lengthy process that goes through the legislative assembly and is open to the general public to have input on).

Don’t get me wrong JohnH I’m not disagreeing with you, I think it is a shame what is happening. I just think the blame should go to the government for not applying appropriate controls on the site, instead of imposing a control on the Crown Lease which is well within a leaseholder’s right to vary.

John,
Sorry but you are mistaking how this works.

Any developer can apply to change their lease which is exactly what has happened here. There is no “maximum” amount of dwellings, people just don’t know how our leasehold system works.

Like some others, I’m not necessarily opposed to a development of this size, providing the block was zoned for it.

I am opposed to a block being “rezoned” in a way like this one was.

There is an election coming up.

When the local candidates come knocking at your door, ask them what they will do about this type of situation. Even if you are not from the Molonglo area, this type of practice will spread to blocks being redeveloped in other areas.

I seem to recall we have some aspiring politicians on this forum, and I’m sure other parties have people who pay attention to it.

Why are they so quiet?

Here is your opportunity. Speak up. Tell us what you will do about this type of development if you are elected.

It would be good to see representatives from all the parties provide us with their views.

We are waiting.

The point is, in this situation the land wasn’t “rezoned”, they simply applied to vary their lease. The land is zoned high density.

This Zapari/ACTPLA agreement, like the earlier POD/ ACTPLA agreement, clearly demonstrates the Orwellian double-speak used by ACTPLA. When we, as Coombs residents, read the Maximum Dwelling Unit number for a block – we think that is a planning maximum. Whereas the developer effectively reads the number as a starting point or minimum! Because the developer knows that there is no legally enforceable planning maximum for the block. Coombs looks like the Wild West for developers – and ACTPLA just rode off into the sunset.

The ACTPLA spokesman says that “The planning and land authority will only agree to resolution through mediation if the reasons for refusal are appropriately addressed”.

Yet the number of units was a major reason this application was refused, and has not been addressed.
Why does ACTPLA not talk about this and explain why they caved in on the number of units? Is it the case that the Maximum Number of Units specified in a lease is completely meaningless and totally unenforceable?

This decision has disastrous implications for the remaining undeveloped high density blocks in Coombs.

This is yet another planning failure of the ACT Government. A site designed for 44 units will now have 149 apartments. The desire of the Labor-Greens Government for revenue at all costs has meant that the Molonglo Valley community will have more over-sized ugly apartment buildings. Wright and Coombs still do not have any shops; yet we do have a plethora of ugly structures which dominate the horizon, blocking out views; increasing population density leading to social problems and placing strains on infrastructure not designed for such numbers. Time for an overhaul of the planning authorities and time for an overhaul of this Government.

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