ACAT calls for planning laws review after Coles' attempt to quash Dickson car park redevelopment appeal

In a decision handed down late on Thursday, ACAT overturned ACTPLA's decision to approve the controversial mixed-use development in Dickson, finding it broke too many planning rules to go ahead.

But it can be revealed Coles tried to narrow the scope of appeal by arguing ACAT didn't have the power to review discretionary aspects of the ACT Planning and Land Authority's decision, because of ambiguous wording in the legislation.

The wording related to the right of review for development applications in the merit track stream, one of three assessment tracks the ACT's planning system uses to approve developments.

Depending on which track the application falls in, it attracts a higher level of scrutiny and requires more public notification.

Like most multi-unit and commercial developments, the Coles development was assessed in the merit track, which requires planning officials to assess the proposal against the objectives of the zone it's in, and its probable impact on the surrounding area.

But because of the way the legislation was written, it was unclear whether the tribunal had the power to review ACTPLA's whole decision, or only part of it.

Coles' lawyers dug up five different decisions previously made by ACAT that interpreted the law slightly differently.

The tribunal noted in Thursday's ruling during the time it was considering the appeal, ACAT delivered a slightly different decision on the meaning and effect of the clause in another case.

"It is on any view an entirely unsatisfactory state of affairs that, more than a decade after the Planning Act was enacted, there is no certainty as to what is involved in review by the tribunal of decisions on merit track applications," the tribunal said.

"Review of this aspect of the Planning Act should be given the highest priority."

A spokesman for Planning Minister Mick Gentleman said: "We regularly review planning and related legislation to make sure they support the best possible decisions for Canberra and we'll take this ACAT ruling into account as part of that ongoing process."

Thursday's decision means Coles will have to re-submit a revised development proposal for the site. A Coles spokesman would not say whether they planned on appealing the decision or if they would go back to the drawing board, but said they would read the judgement carefully.

ACT chief planner Ben Ponton said his agency would look at the decision to determine what lessons could be learnt and if further planning reforms were required.

But Greens crossbencher and former Downer resident Caroline Le Couteur, who was was one of the original objectors to the development, said the "planning system was broken".

She said she was disappointed ACTPLA could approve something that had been "so completely demolished by the tribunal" and this case was one of the reasons the Legislative Assembly's planning committee had announced an inquiry into development applications.

"I do regret that it's taken the commitment of the community to get this action. It's not fair on the community or on the commercial developers," Ms Le Couteur said.

"If Woolworths wasn't indirectly involved there's no way the community could have funded this."

Dickson resident Jane Goffman said they did not face a level playing field in the appeal, with a transcript of the proceedings alone costing $20,000.

"We couldn't have pooled the resources unless Charter Hall backed us up," she said.

Coles bought the car park on the corner of Antill and Badham streets in March 2014, and signed a deed to turn the site into more car parking and two supermarkets.

The deed also allowed Coles to build other commercial tenancies and residential units.

In December 2014, Coles lodged an application to build a seven-storey development, with 155 units, several commercial tenancies, two supermarkets, a podium-level car park and two levels of basement parking.

However the development attracted criticism that it was out of character with the rest of Dickson and the ramps to the basement car park would hamper pedestrian movement.

Coles then scaled back the number of units to 140 and changed its floor plans and building elevations.

It told the tribunal the development was constrained by the requirements in the deed to place access to the basement car parking on the service road that runs from Badham to Antill Street.

However ACTPLA refused the application in May 2015, saying saying "the proposal in its current form cannot be approved or conditionally approved".

In March 2016, Coles asked ACTPLA to reconsider its refusal, but the development again was criticised for its design, impacts on traffic and pedestrians, as well as the impact on the heritage-listed Dickson Library next door.

However in June 2016 planning officials approved the amended development application, with conditions.

Woolworths' landlord Charter Hall filed an appeal against the approval in July 2016, with the North Canberra Community Council and Downer Community Association as joined parties.