Case Notes ~ Retrospective Approval Slammed

STARK v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2023] ACAT 15

The case was a merits review of a decision made by the ACT Planning and Land Authority (ACTPLA) under section 205 of the Planning and Development Act 2007 (PD Act) to give retrospective approval of the unapproved conversion of a non-habitable Class 10a garage or shed structure into a secondary residence.

Ultimately, the case turned on the narrow question of whether it could be demonstrated that the conversion complied of the Residential Zones Development Code requirements for “Adaptable Housing” for people with a disability. The Tribunal determined it did not and set aside the decision by ACTPLA to approve the development and substituted a decision refusing approval.

However, the Tribunal noted that several other issues were raised at the hearing, including (a) non-compliant front and side setbacks; (b) encroachment of structures onto the easement; (c) parking for the existing residence and secondary residence located in the front zone; (d) location of an appropriately dimensioned adaptable parking space; (e) siting of the carport on the front boundary; (f) the encroachment of the boundary fence onto public land; (g) whether the conversion of the class 10a structure complied with the BCA requirements for a class 1 structure; (h) whether this was a relevant consideration when deciding whether to grant development approval or the conditions upon which development approval should be granted; (i) whether a lease variation was required to permit a free-standing secondary residence where the Crown Lease arguably restricted the kind of secondary residence that was permissible.

The Tribunal found that where a development which required development approval has been undertaken without approval, an application for retrospective development approval may be made under section 205 of the PD Act. Pursuant to section 205(4) the application must be treated as if the development had not been undertaken, subject to section 139(2)(o), which provides that a development application under section 205 must be accompanied by a plan of the development prepared by a registered surveyor that sets out the dimensions of the development.

Of general significance is the fact that section 119(1) of the PD Act prohibits development approval being given where the proposal is not consistent with all relevant codes. Accordingly, the correct or preferable decision was to set aside the decision to approve the development and substitute a decision to refuse approval. The Tribunal considered it was unnecessary to decide the other issues canvassed at the hearing.