242 WEST COAST HIGHWAY PTY LTD and CITY OF STIRLING
[2011] WASAT 83
•27 MAY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: 242 WEST COAST HIGHWAY PTY LTD and CITY OF STIRLING [2011] WASAT 83
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 17 MAY 2011
DELIVERED : 27 MAY 2011
FILE NO/S: DR 43 of 2011
BETWEEN: 242 WEST COAST HIGHWAY PTY LTD
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning Development application Building height Preliminary issue Whether there is discretion to approve the height of the proposed building, including the number of storeys proposed, under the applicable local planning scheme Buildings in specified part of special control area (including the site) subject to eight storey and 32 metre maximum building height development standard under scheme Exception to maximum building height development standard in scheme in relation to the site where public access thoroughfare is provided in which case 'a height bonus to a maximum building height of 44 metres above natural ground level or 12 storeys (whichever is the lesser) may be allowed on that site' General provision of scheme allowing variation of development standards prescribed in scheme Whether provision in relation to the site where public access thoroughfare is provided is a special provision, subject to limitations and qualifications, which excludes the general provision allowing variation of development standards Whether provision in relation to the site where public access thoroughfare is provided prescribes a building height development standard or alternatively provides a power to vary the building height development standard applicable to the specified part of the special control area that includes the site Principle of statutory interpretation in Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 Incentive zoning Development bonus Words & phrases: 'bonus'
Legislation:
City of Melville Community Planning Scheme No 5, cl 5.19
City of Stirling Local Planning Scheme No 3, cl 5.5.1, cl 6.9, cl 6.9.2, cl 6.9.8.b, cl 6.9.8.b.i, cl 6.9.11, cl 6.9.11.a, cl 10.2
City of Subiaco Town Planning Scheme No 4, cl 42(1), cl 42(1)(b)
Planning and Development Act 2005 (WA), s 252(1)
Residential Deisgn Codes of Western Australia (2002)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
There is discretion to approve the height of the proposed short stay accommodation building, including the number of storeys proposed, under cl 5.5.1 of the City of Stirling Local Planning Scheme No 3
Category: B
Representation:
Counsel:
Applicant: Mr PJ McQueen with Ms RA Somerford
Respondent: Mr A Roberts
Solicitors:
Applicant: Lavan Legal
Respondent: McLeods
Case(s) referred to in decision(s):
Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
BGC (Australia) Pty Ltd and Town of Kwinana [2011] WASAT 71
Crystal Lakes Pty Ltd and City of Subiaco [2006] WASAT 15
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Tuscom Subdivison Consultants Pty Ltd and City of Melville [2009] WASAT 25; (2009) 61 SR (WA) 187
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal was called upon to determine, as a preliminary issue, whether there is discretion under the City of Stirling Local Planning Scheme No 3 to approve the height of a proposed 13 storey building at No 242 West Coast Highway, Scarborough. The preliminary issue turned on the proper interpretation of a sitespecific provision stating that, where a 7 metre public access thoroughfare is provided through the site, 'a height bonus to a maximum building height of 44 metres above natural ground level or 12 storeys (whichever is the lesser) may be allowed on the site'.
The developer argued that this clause prescribes a maximum building height development standard of 44 metres above natural ground level or 12 storeys (whichever is the lesser) in respect of the site, whereas the City of Stirling argued that the clause confers a special power, subject to limitations and qualifications, to vary the maximum building height development standard that applies to the SubArea in which the site is located. It was common ground that if the clause prescribes a maximum building height development standard, then there is discretion to approve a one storey exceedance of that standard under a general variation provision in the Scheme. It was also common ground that if the clause confers a special power of variation, subject to limitations and qualifications, then under the principle of statutory interpretation stated in Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7, the special power of variation would exclude the general variation provision.
The Tribunal determined that the developer's proposed interpretation was correct. The Tribunal found that the clause in question is an incentive zoning provision which involves the practice of offering a development bonus for urban public goods. The development bonus conferred by the clause provided an increased benefit over what was normally allowed in terms of height in exchange or as an incentive for the redevelopment of the site with the provision of the public access thoroughfare. The Tribunal found that the clause in question was therefore different in character to the general variation clause. As the developer submitted, there may well be other legitimate reasons for allowing an increase in height above 12 storeys on the site.
Introduction
On 13 September 2010, 242 West Coast Highway Pty Ltd (West Coast) sought development approval from the City of Stirling (City or Council) for a mixed use development at No 242 (Lot 1) West Coast Highway, Scarborough (site) comprising:
a)two apartment buildings with a total of 170 multiple dwellings;
b)a building of 13 storeys and a numerical height not exceeding 44 metres above natural ground level with 71 short stay accommodation dwellings (short stay accommodation building);
c)five townhouses; and
d)commercial offices, shops, a restaurant and food market.
The site is located in the streetblock bounded by West Coast Highway to the west, Scarborough Beach Road to the north, Hastings Street to the east and Brighton Road to the south. The principal part of the site fronts West Coast Highway but the site also includes a narrow section fronting Hastings Street. The site is the only property in the streetblock that has dual access to West Coast Highway and Hastings Street.
The site is zoned partly Mixed Use and partly Residential with a residential density coding of R160 under the City of Stirling Local Planning Scheme No 3 (LPS 3 or Scheme). The site is located in the Scarborough Special Control Area under cl 6.9 of LPS 3. The principal part of the site is located within the Mixed Use West Coast Highway SubArea of the Scarborough Special Control Area and the part of the site proximate to Hastings Street is located within the Residential Inner SubArea of the Scarborough Special Control Area, under cl 6.9.2 of LPS 3.
Clause 6.9.11 of LPS 3, which is entitled 'New Access Ways', states, in part, as follows:
a)A new 7 metre public access thoroughfare (5.5 metre two-way vehicle access, 1.5 metre pedestrian access) shall be provided for in accordance with the Scarborough Design [Guideline Area] Access and Parking Map contained within the Scarborough Design Guidelines and in accordance with clause 6.9.8.b 'Building Height' for the Mixed-Use West Coast Highway Sub-Area of the Scheme;
Note:Such access may take the form of either a public road or an easementingross and is intended to be provided in conjunction with the redevelopment of the land on which it is situated. Where ceded free of cost to the Crown by the owner/developer the area of land so ceded shall be deemed to remain part of the original development site for the purposes of determining the site's development potential (plot ratio and residential density).
…
The Scarborough Design Guideline Area Access and Parking Map contained in the Scarborough Design Guidelines shows the new 7 metre public access thoroughfare required by cl 6.9.11.a of LPS 3 traversing the northern part of the site and connecting West Coast Highway and Hastings Street. Clause 6.9.11 of LPS 3 is, therefore, a site-specific provision requiring West Coast to provide a new 7 metre wide public access thoroughfare traversing the northern part of the site as part of the redevelopment of the site.
The proposed development includes the new 7 metre wide public access thoroughfare connecting Hastings Street and West Coast Highway required by cl 6.9.11.a of LPS 3. As is apparent from the extract from cl 6.9.11 of LPS 3 above, that clause requires the provision of the 7 metre public access thoroughfare 'in accordance with clause 6.9.8.b "Building Height" for the MixedUse West Coast Highway SubArea of the Scheme'. Clause 6.9.8.b of LPS 3 states, in part and relevantly, as follows:
In the Mixed-Use 'Lower Scarborough Beach Road' and Mixed-Use 'West Coast Highway' Sub-Areas, the following building height requirements apply:
i)Subject to clause 6.9.8.b.ii below [which is not relevant for present purposes], the maximum building height of any building shall be limited to 8 storeys or 32 metres above natural ground level or 47 metres AHD (whichever is the lesser), except:
…
-where a 7 metre public access thoroughfare is provided connecting Hastings Street and West Coast Highway as designated on the 'Scarborough Design Guideline Area Access and Parking Map' contained within the Scarborough Design Guidelines, and is provided in accordance with clause 6.9.11.a 'New Access Ways' of the Scheme, a height bonus to a maximum building height of 44 metres above natural ground level or 12 storeys (whichever is the lesser) may be allowed on that site.
…
The short stay accommodation building is proposed on the part of the site that is within the Mixed Use West Coast Highway SubArea of the Scarborough Special Control Area under the Scheme. Like cl 6.9.11.a of LPS 3, the part of cl 6.9.8.b.i of the Scheme following the dash in the extract above is a sitespecific provision in relation to the site. In these reasons, the part of cl 6.9.8.b.i following the dash in the quotation above is referred to as the 'sitespecific part' of cl 6.9.8.b.i and the rest of the extracted portion of cl 6.9.8.b.i in the quotation is referred to as the 'introductory part' of cl 6.9.8.b.i.
Clause 5.5.1 of LPS 3 states as follows:
Except for development in respect of which the Residential Design Codes apply, if a development is the subject of an application for planning approval and does not comply with a standard or requirement prescribed under the Scheme, the Council may, despite the non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit.
Preliminary issue
On 10 January 2011, the Council approved the proposed development subject to conditions including the following condition (a):
The Short Stay accommodation tower is to be reduced by 1 (one) storey, or the applicant is to modify the ground floor so as not to be defined as a storey, in order to comply with the requirements of the Guidelines for the Lower Scarborough Beach Road and West Coast Highway sub zone of the Scarborough Special Control Area to the satisfaction of the Manager Approvals;
On 8 February 2011, West Coast sought review by the Tribunal, pursuant to s 252(1) of the Planning and Development Act 2005 (WA), of the decision of the City to grant conditional development approval. In particular, West Coast contested eight conditions of approval, including condition (a). At the first directions hearing held on 25 February 2011, the matter was referred to mediation on 5 April 2011. Following mediation on that date, West Coast was directed to provide additional supporting information to the City by 11 April 2011 and the Council was invited to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) at its meeting on 21 June 2011. The matter was also listed for a directions hearing on 15 April 2011 in order to make programming orders in relation to a preliminary issue concerning condition (a).
At the directions hearing on 15 April 2011, following discussion with the parties' representatives, the Tribunal formulated the following preliminary issue and made programming orders for its determination:
Whether there is discretion to approve the height of the proposed short stay accommodation building, including the number of storeys proposed, under LPS 3.
The preliminary issue turns on whether the sitespecific part of cl 6.9.8.b.i of LPS 3:
a)prescribes a maximum building height development standard of 44 metres above natural ground level or 12 storeys (whichever is the lesser) in respect of the site (as contended by West Coast); or, alternatively,
b)confers a special power, subject to limitations and qualifications, to vary the maximum building height development standard prescribed in respect of all land (including the site) located in the Mixed Use West Coast Highway SubArea of the Scarborough Special Control Area by the introductory part of cl 6.9.8.b.i of LPS 3 (as contended by the City).
It is common ground that if, on the proper interpretation of cl 6.9.8.b.i of LPS 3, the site-specific part of that clause prescribes a maximum building height development standard in respect of the site, then there is discretion to approve the height of the proposed short stay accommodation building, including the number of storeys proposed, under cl 5.5.1 of LPS 3. It is also common ground that if, on the proper interpretation of cl 6.9.8.b.i of LPS 3, the sitespecific part of the clause confers a special power, subject to limitations and qualifications, to vary the maximum height development standard prescribed by the introductory part of the clause, then the special power of variation excludes the operation of the general power to vary the applicable maximum building height development standard under cl 5.5.1 of the Scheme. This follows from the principle of statutory interpretation stated by Mason J in Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 (Leon Fink Holdings) at 678, with whom Barwick CJ and Aickin JJ agreed at 674 and 680, respectively, and the principle as expressed by Gavan Duffy CJ and Dixon J in Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 (Anthony Hordern) at 7 which was endorsed in Leon Fink Holdings at 678. Justice Mason said the following in Leon Fink Holdings at 678:
… It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power. …
In Anthony Hordern, Gavan Duffy CJ and Dixon J held at 7 as follows:
… When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power. …
The Tribunal has applied these principles in the interpretation of planning schemes in a number of cases, including Crystal Lakes Pty Ltd and City of Subiaco [2006] WASAT 15 (Crystal Lakes) at [52] [53] and [55] and, most recently, in BGC (Australia) Pty Ltd and Town of Kwinana [2011] WASAT 71 at [15] [16].
Parties' submissions
Mr A Roberts, counsel for the City, submitted that the introductory part of cl 6.9.8.b.i of LPS 3 specifies 'a maximum building height of eight storeys or 32 metres above natural ground level or 47 metres AHD (whichever is the lesser)' in respect of the site and the sitespecific part of that clause provides 'a discretion … to allow "a height bonus to a maximum building height of 44 metres above natural ground level or 12 storeys (whichever is the lesser)" if the access thoroughfare is provided'. Relying on Tuscom Subdivison Consultants Pty Ltd and City of Melville [2009] WASAT 25; (2009) 61 SR (WA) 187 (Tuscom) at [45] [48], and referring to the expression 'a height bonus' in the sitespecific part of cl 6.9.8.b.i of LPS 3, Mr Roberts submitted that '[a] provision which provides the power to allow a height bonus to a prescribed maximum is a dispensing provision'. Furthermore, Mr Roberts submitted that:
The character of [the sitespecific part of cl 6.9.8.b.i of LPS 3] as a dispensing or special variation provision is also reflected by the words 'a height bonus to a maximum building height … may be allowed' (emphasis added). The provision operates to allow a height bonus (in storeys) of 1 to 4 storeys, thereby providing the discretion to approve buildings between 9 and 12 storeys (inclusive).
Mr Roberts suggested that, in addition to the maximum building height referred to in the sitespecific part of cl 6.9.8.b.i of LPS 3, namely, 44 metres above natural ground level or 12 storeys (whichever is the lesser):
[t]he other limitations or qualifications in the special variation power in [the sitespecific part of cl 6.9.8.b.i of LPS 3] are that:
(a)a 7 metre public access thoroughfare must be provided on the subject site connecting Hastings Street and West Coast Highway; and
(b)the public access thoroughfare must be provided in accordance with [cl 6.9.11.a of LPS 3], which requires the thoroughfare to provide a 5.5 metre twoway vehicle access and a 1.5 metre pedestrian access.
Mr Roberts also relied on the decision of the Tribunal in Crystal Lakes in which, he submitted, the Tribunal analysed 'comparable provisions' to the sitespecific part of cl 6.9.8.b.i of LPS 3.
Finally, Mr Roberts submitted that, if discretion were available to vary the applicable maximum height development standard under the general variation provision in cl 5.5.1 of LPS 3, 'it would defeat the purpose' of the sitespecific part of cl 6.9.8.b.i of the Scheme, namely, to ensure the provision of a 7 metre wide public access thoroughfare through the site. Mr Roberts suggested that, if cl 5.5.1 were available in relation to the site, 'developers would be able to achieve heights in excess of the height referred to in [the sitespecific part of cl 6.9.8.b.i of LPS 3] … by not providing a thoroughfare than by providing it'. Mr Roberts submitted that this could not have been the intention of the Scheme.
Mr Roberts, therefore, submitted that the sitespecific part of cl 6.9.8.b.i of the Scheme is 'a special power, subject to limitations and qualifications' that excludes the application of the general variation power in cl 5.5.1 of LPS 3, applying the principle of interpretation stated in Anthony Hordern and Leon Fink Holdings.
In contrast, Mr PJ McQueen, who appeared with Ms RA Somerford on behalf of West Coast, advanced as his primary submission that:
The power to vary [maximum building height] is in clause 5.5.1 [whereas] clause 6.9.8.b.i is not a dispensating provision but is a specific provision with respect to a building height standard and therefore Leon Fink does not apply in this instance.
Mr McQueen submitted that, on its proper interpretation, the sitespecific part of cl 6.9.8.b.i of LPS 3 prescribes a maximum building height development standard which is a 'height bonus' as a compensation for having to provide the public access thoroughfare through the site. Mr McQueen contrasted the expression of the sitespecific part of cl 6.9.8.b.i with the expression of the general power of variation in cl 5.5.1 of the Scheme and with the special power of variation, subject to limitations and qualifications, considered in Crystal Lakes, and submitted that the sitespecific part of cl 6.9.8.b.i is 'a fundamentally different type of clause' than cl 5.5.1 of the Scheme.
Finally, Mr McQueen submitted that the City's suggested interpretation would have the 'perverse outcome' that development of the site would be limited to an absolute maximum building height of 44 metres above natural ground level or 12 storeys (whichever is the lesser), even though the development must provide a public access thoroughfare through the site, whereas a development on an adjoining property, while subject to a maximum building height development standard of eight storeys or 32 metres above natural ground level or 47 metres AHD (whichever is the lesser), could be approved under cl 5.5.1 of the Scheme with a height exceeding 44 metres above natural ground level and 12 storeys, without having to provide a thoroughfare. Mr Roberts replied that Mr McQueen's argument would fall away if cl 6.9.8.b of LPS 3 were 'a selfcontained provision in relation to building height' and, therefore, if a development of an adjoining property to the site could not be approved under the general variation provision in cl 5.5.1 of the Scheme with a height in excess of eight storeys or 32 metres above natural ground level or 47 metres AHD (whichever is the lesser), as prescribed in the introductory part of cl 6.9.8.b.i of the Scheme.
Is there discretion to approve the height of the proposed short stay accommodation building, including the number of storeys proposed?
The Tribunal considers that there is discretion under cl 5.5.1 of LPS 3 to approve the height of the proposed short stay accommodation building, including the number of storeys proposed, because the principle stated in Anthony Hordern and Leon Fink Holdings is not applicable in relation to the sitespecific part of cl 6.9.8.b.i of the Scheme. For the reasons that follow, using the words of Mason J in Leon Fink Holdings, whereas cl 5.5.1 of LPS 3 is certainly 'a general power [to vary development standards prescribed by the Scheme] not subject to limitations and qualifications', the sitespecific part of cl 6.9.8.b.i is not 'a special power [to vary a development standard prescribed by the introductory part of the clause] subject to limitations and qualifications'. Further, to use the words of Gavan Duffy CJ and Dixon J in Anthony Hordern, the sitespecific part of cl 6.9.8.b.i and cl 5.5.1 of LPS 3 do not confer 'the same power [to vary a development standard prescribed by the Scheme in relation to building height]', one 'which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed' and the other 'of general expressions … which might otherwise have been relied upon for the same power'.
Rather, it is apparent from the expression of cl 6.9.8.b.i of LPS 3 that the sitespecific part of the clause prescribes a maximum building height development standard for the site, as an exception to the maximum building height development standard that would otherwise apply in the Mixed Use West Coast Highway SubArea under the introductory part of the clause, because redevelopment of the site is uniquely subject to a mandatory requirement under cl 6.9.11.a of the Scheme to provide a new 7 metre public access thoroughfare through the site. The fact that the sitespecific part of cl 6.9.8.b.i prescribes a sitespecific maximum building height development standard as an exception to the otherwise applicable maximum building height development standard in the SubArea is apparent from the use of the word 'except' at the end of the introductory part of the clause, the use of the term 'height bonus' and from the fact that the site-specific part of the clause does not, expressly or by implication, refer to 'variation' of the maximum building height development standard applicable to the SubArea.
Contrary to the City's submission, the use of the term 'height bonus' does not indicate a power of variation. Indeed, on the proper understanding of this term in a town planning context, it indicates the prescription of a development bonus standard. It appears that the term 'bonus' in a town planning context has a specialist or technical meaning. In Principles of Planning Law (Oxford University Press, 2008), Professor Leslie Stein referred to the concept of 'incentive zoning' which involves '[t]he practice of offering a development bonus for urban public goods' (page 78). The development 'bonus' is 'in the sense that the developer receives an increased benefit over what is normally allowed' (pages 77 78). Professor Stein noted at page 78 that:
New York City was perhaps the first place to allow bonuses in height and floor space ratio for the provision of public services, such as open squares, affordable housing, or the building of a theatre. These types of benefits that are provided in exchange for bonuses are referred to as 'urban public goods'.
Incentive zoning by a provision (such as cl 6.9.8.b.i of LPS 3) conferring a development bonus in return for a development providing a specified urban public good, such as a public access thoroughfare, is different in character to a provision (such as cl 5.5.1 of LPS 3) enabling a development standard or requirement to be varied or departed from or enabling a development to be approved despite noncompliance with a development standard or requirement. The purpose of an incentive zoning clause is to obtain the provision of a specified urban public good by prescribing a development bonus standard. In contrast, the purpose of a dispensing or variation provision is to be beneficial for the carrying out of development by providing flexibility in the application of development standards or requirements.
It is recognised that cl 5.5.3 of LPS 3 may be said to somewhat merge these concepts. Clause 5.5.3 states:
Where:
a)[a]n application for planning approval requires the exercise of Council's discretion under clause 5.5.1; and
b)[i]n the opinion of Council, there is significant non-compliance with the standard or requirement;
Council may impose conditions on it's [sic] approval requiring the provision of specified community facilities at the applicant[']s cost.
…
However, there are clear differences between cl 5.5.3 and cl 6.9.8.b.i of the Scheme. Whereas cl 6.9.8.b.i is an incentive zoning provision that contemplates the provision of a specific public good, the need for which is recognised in the planning framework, cl 5.5.3 enables the opportunistic imposition of conditions requiring the provision of specified community facilities on a casebycase basis where an application proposes a significant non-compliance with a standard or requirement. Furthermore, it is apparent from para (a) of cl 5.5.3 that the purpose of the clause is to be beneficial for the carrying out of development, even though a significant noncompliance with a standard or requirement gives rise to the opportunity to obtain specified community facilities. Finally, it appears that whereas cl 6.9.8.b.i involves 'proactive' planning (in that the Scheme has identified the need for a specific facility), cl 5.5.3 involves 'reactive planning' (in that the facility to be provided is determined in the assessment of a development application).
Furthermore, Tuscom is not authority for the proposition that the word 'bonus' indicates a power of variation. In Tuscom, the Tribunal noted, at [43], that the City of Melville argued that cl 5.19 of the City of Melville Community Planning Scheme No 5 conferred a discretion on the Council 'to grant a "bonus" plot ratio of 0.2 above 0.6 for a mixed use development in the [relevant] precinct and that there is no discretion in the Scheme to approve a greater plot ratio than 0.8'. However, at [45], the Tribunal observed that, '[c]ontrary to the City's argument, cl 5.19 of CPS 5 does not, expressly or by implication, identify the 0.2 plot ratio referred to as a "bonus"'. The Tribunal did not decide that the term 'bonus', whether in the scheme in question or more broadly, indicates a power of variation as opposed to the prescription of a development standard. Rather, the Tribunal's decision in Tuscom was, relevantly, that the clause in question prescribed a mixed use plot ratio development standard (at [44]) and, having referred to the statement of principle in Anthony Hordern (at [47]), that (at [48]):
While cl 5.19 of the Scheme restricts the application of the mixed use plot ratio by requiring that at least 50% of a mixed use development must be residential, it is not a provision to which this statement of principle applies; contrast, for example, Mainbush Pty Ltd [and Shire of Mundaring [2007] WASAT 272; (2007) 58 SR (WA) 320] at [27] - [28]. Clause 5.19 of the Scheme and the dispensing provisions in cl 4.2(b) and cl 4.3 of the Scheme do not confer the same power. Rather, cl 5.19 establishes a maximum mixed use plot ratio of, relevantly, 0.8, whereas cl 4.2(b) and cl 4.3 enable development standards such as those established by cl 5.19 to be varied.
So too, in this case, while the sitespecific part of cl 6.9.8.b.i of LPS 3 applies where the new 7 metre public access thoroughfare is provided through the site, it is not a provision to which the statement of principle in Anthony Hordern and Leon Fink Holdings applies. The sitespecific part of cl 6.9.8.b.i and the variation provision in relation to development standards prescribed by the Scheme in cl 5.5.1 of LPS 3 do not confer the same power. Rather, the sitespecific part of cl 6.9.8.b.i establishes a maximum building height development standard in respect of the site of 44 metres above natural ground level or 12 storeys (whichever is the lesser) and cl 5.5.1 enables development standards such as those established by the sitespecific part of cl 6.9.8.b.i to be varied. As Mr McQueen submitted, a maximum height development standard in respect of the site conferring a 'height bonus' over the otherwise applicable maximum building height development standard in the SubArea is 'compensation' for or, in terms of the discussion above, an 'incentive' for the redevelopment of the site subject to the mandatory obligation under cl 6.9.11 of the Scheme to provide a substantial urban public good in terms of a new 7 metre public access thoroughfare across the entire width of the site from Scarborough Beach Road to Hastings Street. However, as Mr McQueen also submitted, there may well be 'other legitimate reasons for increasing height' in relation to the site. Those reasons may be considered under cl 5.5.1 of the Scheme.
As noted earlier, Mr Roberts emphasised the words that the 'height bonus' referred to in cl 6.9.8.b.i of LPS 3 is 'to a maximum building height' that is specified and 'may be allowed' on the site. However, the use of the words 'maximum' and 'may' in the sitespecific part of the clause do not lead to the interpretation contended for by the City. A development standard, such as a building height standard, is usually expressed as a maximum. Subject to the availability of a power to vary the development standard under the relevant instrument, the maximum must be complied with by development that is governed by the standard. Furthermore, unless the relevant scheme provides to the contrary, a consent authority is not under an obligation to approve a development that meets a development standard, such as a maximum building height development standard. The use of the word 'may' in the sitespecific part of cl 6.9.8.b.i of the Scheme simply reflects the fact that the consent authority has a discretion as to whether to approve a building height up to the maximum specified in that part of the clause. Having regard to any of the 27 matters for consideration by the Council listed in cl 10.2 of the Scheme that are relevant to a particular development application, the Council (and the Tribunal on review) may, in the exercise of planning discretion, refuse to approve a building height at the maximum specified in the sitespecific part of cl 6.9.8.b.i of the Scheme. The function of this part of the clause is to prescribe a maximum building height development standard under which a building of 44 metres above natural ground level or 12 storeys (whichever is the lesser) 'may be allowed on [the] site'.
The decision of the Tribunal in Crystal Lakes does not support the City's suggested interpretation of the relevant clause in this case. In Crystal Lakes, the Tribunal considered cl 42(1) of the City of Subiaco Town Planning Scheme No 4 which was in the following terms (see at [13]):
(a)Notwithstanding any provisions of the [Residential Design Codes of Western Australia (2002)] to the contrary, buildings on land within the Residential Zone having an R Code density of R15 or R20 shall not exceed 6.5 metres overall height and 3.6 metres wall height[.]
(b)The Council may permit a variation to subclause (a) and permit buildings of up to 9 metres overall height and 6 metres wall height, where the Council is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality.
As Mr McQueen observed, there are two fundamental distinctions between cl 42(1)(b) of the City of Subiaco Town Planning Scheme No 4 that was the subject of consideration in Crystal Lakes and the sitespecific part of cl 6.9.8.b.i of LPS 3. First, cl 42(1)(b) of the Subiaco Scheme expressly provided for and permitted 'a variation to subclause (a)'. The sitespecific part of cl 6.9.8.b.i of LPS 3 does not use the term 'variation' or any synonymous term. Second, cl 42(1)(b) of the Subiaco Scheme set out 'limitations and qualifications' (to quote Mason J in Leon Fink Holdings) and 'the conditions and restrictions which must be observed' (to quote Gavan Duffy CJ and Dixon J in Anthony Hordern), namely, that 'the Council is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality'. As the Tribunal determined in Crystal Lakes at [55]:
The principle of interpretation stated by Mason J in Leon Fink v Australian Film Commission has the consequence contended by Mr Tsaknis. The maximum buildings heights prescribed by the Scheme in relation to land zoned 'Residential' and coded 'R15' or 'R20' are the heights stated in cl 42(1)(a), not in cl 42(1)(b). The heights referred to in the latter subclause form part of the limitations and qualifications to the special power to vary the building heights prescribed by the former. …
While the sitespecific part of cl 6.9.8.b.i of LPS 3 specifies the maximum building height of 44 metres above natural ground level or 12 storeys (whichever is the lesser), that specification is of a maximum building height development standard, rather than a limitation or qualification or a condition or restriction which must be observed in exercising a power of variation. Furthermore, while the site-specific part of cl 6.9.8.b.i specifies that it operates where a 7 metre public access thoroughfare is provided connecting Hastings Street and West Coast Highway, this is not relevantly a limitation or qualification, or a condition or restriction imposed by this clause, because there is a mandatory obligation under cl 6.9.11 of the Scheme to provide the public access thoroughfare in conjunction with the redevelopment of the site.
For this reason, also, contrary to the City's submission, the interpretation contended for by West Coast and accepted by the Tribunal would not defeat the purpose of the sitespecific part of cl 6.9.8.b.i of LPS 3. It is not the case, as submitted by Mr Roberts, that if the general power of variation in relation to development standards under cl 5.5.1 were available in relation to the maximum building height development standard applicable to the site, developers would be in a position to achieve more in terms of building height by not providing a thoroughfare than by providing it. Any developer of the site is obligated to provide the thoroughfare by cl 6.9.11 of the Scheme.
Finally, the City's suggested interpretation would give rise to the 'perverse outcome' referred to by Mr McQueen. Under the City's suggested interpretation, whereas the development of the site would be subject to an absolute maximum building height of 44 metres above natural ground level or 12 storeys (whichever is the lesser), even though the development must provide a public access thoroughfare through the site, a development of an adjoining property, while subject to a maximum building height development standard of eight storeys or 32 metres above natural ground level or 47 metres AHD (whichever is the lesser) under the introductory part of cl 6.9.8.b.i of LPS 3, could potentially obtain an approval for a development in excess of 44 metres above natural ground level or 12 storeys under the general variation provision in cl 5.5.1 of the Scheme. Indeed, the developer of an adjoining site could seek to rely on cl 5.5.3 of the Scheme and offer the Council community facilities in return for a significant non-compliance with the maximum building height development standard prescribed by the introductory part of cl 6.9.8.b.i. Mr Roberts' suggested solution to this argument, namely, that cl 6.9.8.b is a selfcontained provision in relation to building height, does not provide a satisfactory response. There is nothing in the text or context of cl 6.9.8.b of the Scheme to indicate that it is a self-contained provision in relation to building height and, in particular, that the general power of variation of development standards under cl 5.5.1 of the Scheme would not be available in relation to the maximum building height development standard applicable to the Mixed Use West Coast Highway SubArea. It could not be the intention of the Scheme to potentially allow a higher building on an adjoining property than on the site when the site is uniquely burdened with the obligation to provide the public access thoroughfare.
Conclusion
The answer to the preliminary issue is:
There is discretion to approve the height of the proposed short stay accommodation building, including the number of storeys proposed, under cl 5.5.1 of the City of Stirling Local Planning Scheme No 3.
Order
The Tribunal makes the following order:
1.The preliminary issue for determination is answered as follows:
There is discretion to approve the height of the proposed short stay accommodation building, including the number of storeys proposed, under cl 5.5.1 of the City of Stirling Local Planning Scheme No 3.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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