Common-law principles say you can do whatever you like on your own land, provided you let nothing escape from it. You can build as high as you like. You can shut out the light and you can block out the views of others, and it is just too bad.
But that is the common law. Obviously, in towns and cities that would be unworkable. So we have invented town planning. Governments have given power to departments, authorities and councils to regulate building so we can be confident that the places in which we live are not made unbearable.
And therein lies a tension: the desire of a landowner to do whatever he or she wants and the desire of those who live nearby to ensure that any building or activity does not make their living conditions worse. Added to this tension is an over-arching public good in renewal, efficiency and aesthetics of the built form.
In Canberra, we have a further ingredient to the tension: the conflict between the desires of the local residents and the desires of the people of the nation as a whole who have an interest in the creation and upkeep of an excellent national capital. In theory, the national interest is looked after by the National Capital Authority, which was created by the National Parliament, plus the parliamentary committee on the territories and the overriding authority of the federal minister and the Parliament itself.
Every now and then these tensions bubble to fury, and elected representatives, governments and planning authorities despair of resolving the differences.
Often the tension involves money: the money to be made on a new development against the value lost on a dwelling that is now next to an apartment block.
This week we saw an example of this as the National Capital Authority approved a development of 57 apartments where there was once five houses in State Circle by Becton Property Group. Another example of bubbling fury has been the decision to allow a $90 million 18-storey development of 207 apartments by the Molonglo Group close to the northern shore of Lake Burley Griffin’s West Basin between Edinburgh Avenue and Parkes Way including Acton House.
In parts of Canberra the NCA’s writ runs exclusively. It determines what can be built where, subject to parliamentary oversight. The State Circle site is an example. In other parts of Canberra both the NCA’s writ and the writ of the Territory Government run. The Acton Hotel site is an example.
In the State Circle case, adjoining residents condemned the NCA for changing the National Capital Plan and approving the development without what they thought was adequate consultation. The residents got some concessions: fewer units; more on-site parking; development tiering away from boundaries. But the NCA rejected a recommendation by the parliamentary joint committee on the territories that development on State Circle be kept to two storeys, and that was that.
The Acton House site involved more radical change: not two storeys to three, but three storeys to 18. The proposed development will block out part of the panoramic views now enjoyed by the residents of Capital Towers. They, needless to say, are ropable. The views are not only enjoyable, but are worth money. Some of the residents are wealthy and influential.
The amount of money at stake on the other side is also large – very large. The Molonglo Group paid $3.3 million for the 2.1 hectare site in 1998. After the change of use and new storey limit the new square meterage of developable space would suggest an unimproved value of up to $25 million, according to some estimates based on other values in the area. Even if it was only half that and allowing for a change of use charge of about $1.2 million the developer stands to do well. There is a high responsibility for planning decision makers.
What can the residents do in the face of this? Well, the common law gives them no joy. You have no legal right to a view. But they can argue that the planning processes that allowed the 18-storey approval were somehow defective.
The NCA says it is satisfied the works are consistent with the National Capital Plan.
When Capital Towers was built, the then planning limit between the tower and the lake was three storeys. Many people bought in the expectation that that would not change. But in 1999 it was — by an amendment to the National Capital Plan. Any new height would be determined by a Conservation Management Plan. One was drawn up and then revised after the NCA put out its Griffin Legacy in 2004 that sought to bring vibrancy in the city, among other things. The revised conservation plan allowing for 18 storeys was endorsed by the NCA in July 2005 and the Department of Environment and Heritage was consulted – it is a moot point whether that is sufficient.
The members of the NCA (the board) were briefed separately on the proposal and the final decision was made by an NCA officer as required by federal law. Perhaps that is unusual in that you would expect such a significant proposal to be put before the whole board, but it is probably not defective procedure.
Interestingly enough, the NCA was not required by law to consult anyone on this development, but it did so anyway — earlier this year. The residents of Capital Towers say that this came too late in the process given the conservation plan was endorsed in July 2005 and that the Territory Government “called in” the development to prevent third party objections in late 2005.
The residents have sought reasons for decision under the Administrative Decisions (Judicial Review) Act which can be a prelude to legal action.
The NCA argues that the development will enliven the area and connect the city to the lake – which is a national aim given its Griffin Legacy plan. It says that using the heritage buildings of Acton House ensures a good conservation outcome.
The question is whether present arrangements strike the right balance between the expectations of existing residents and the need for renewal and development – especially given the amounts of money at stake.