APP CORPORATION PTY LTD and CITY OF PERTH - [2011] WASAT 132

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: APP CORPORATION PTY LTD and CITY OF PERTH [2011] WASAT 132

MEMBER: MR M SPILLANE (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 16 AUGUST 2011

FILE NO/S: DR 372 of 2010

BETWEEN: APP CORPORATION PTY LTD
Applicant
AND
CITY OF PERTH
Respondent

Catchwords:

Town planning - Development application - Wind turbine - Installation and operation of single vertical access turbine on roof of commercial building - Inner city - Visual amenity - Orderly and proper planning - Effect on birdlife - Consistency in decisionmaking - Officer recommendations

Legislation:

City of Perth Planning Scheme No 2, cl 6(3)(c), cl 6(3)(d)(i)
Environmental Protections (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Development approval granted subject to conditions

Category: B

Representation:

Counsel:

Applicant: Mr Earnshaw
Respondent: Ms Raphael

Solicitors:

Applicant: Corrs Chambers Westgarth
Respondent: Minter Ellison

Case(s) referred to in decision(s):

APP Corporation Pty Ltd and City of Perth [2008] WASAT 291
Aydogan and Town of Cambridge & Anor [2006] WASAT 122
Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4
Driscoll and Shire of Augusta-Margaret River [2008] WASAT 219
Forsyth and City of Fremantle [2006] WASAT 361; (2006) 48 SR (WA) 86
Franolich and Western Australian Planning Commission [2006] WASAT 349; (2006) 47 SR (WA) 302
Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282
Murphy & Anor and Town of Vincent [2006] WASAT 322; (2006) 46 SR (WA) 122
Newbury District Council v Secretary of State for the Environment [1981] AC 578; [1980] 1 All ER 731
Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140
Tran and Town of Vincent [2009] WASAT 123 (S)
WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

APP Corporation Pty Ltd applied to the City of Perth for approval to locate a single wind turbine on the roof of the Durack 2 building on the corner of Victoria Avenue and Terrace Road, Perth.
In 2008, this Tribunal had granted APP Corporation Pty Ltd approval to install and operate three slightly smaller wind turbines at the same location. The City of Perth refused development approval for the single wind turbine and APP Corporation Pty Ltd applied to the Tribunal for a review of that decision.
The City of Perth raised several issues to be considered including visual amenity, adverse effects on health, inconsistencies with planning policy, risk to birdlife and that solar technology was a better alternative.
The Tribunal considered each of the issues, but was not satisfied on the evidence before it, or convinced by the arguments raised by the City of Perth that the application should be refused.
The Tribunal determined that, based on the similarity of the proposal approved in 2008, the fact that, if anything, the limited visual amenity impact that may be caused would be reduced from what was previously approved, there had been no material change to the circumstances and the City of Perth's planning framework had not changed, the correct and preferable decision was to approve the application, particularly in light of the need for consistency of decision-making by government planning authorities.
Approval was therefore granted subject to conditions.

Background

On 9 December 2008, APP Corporation Pty Ltd (applicant) was granted conditional development approval by this Tribunal (see APP Corporation Pty Ltd and City of Perth [2008] WASAT 291 (2008 decision)) to install and operate three 'Turby' vertical axis wind turbines on the roof of a recently completed five storey office development known as Durack 2 erected on the southern portion of a site located on the southern end of Adelaide Terrace, Perth, with frontages to Terrace Road and Victoria Avenue (Turby approval).
Following the Tribunal's approval in December 2008, the applicant attempted to source the Turby wind turbines. However, the inverter unit had not been certified and as it was proposed to connect the turbine to the electrical grid, certification was necessary.
As a result, the Turby model was considered no longer suitable for the project and a new wind turbine was sourced.
The Turby approval allowed the placement of three wind turbines, each of which was to be of 9.2 metres tall with a blade diameter of 2 metres on the roof of the Durack 2 building.
What is now proposed as an alternative to that is a single vertical axis wind turbine known as the Quietrevolution 5 (QR5) to be located in approximately the same position on the roof of the Durack 2 building as the approved Turbys. However, the height of the QR5 will be 12.3 metres above the building parapet rather than 9.2 metres for each of the Turbys with an overall external blade diameter of 3.1 metres rather than 2 metres for the Turbys.
The main differences between the Turby approval and the proposed development therefore are:
1)the QR5 wind turbine is 3.1 metres taller than the Turby model;
2)the blade diameter of the QR5 wind turbine is 1.1 metres wider than the Turby model; but
3)there will only be one QR5 wind turbine installed instead of three Turbys.
The applicant submitted a development application to the City of Perth (City, Council or respondent) dated 16 August 2010 and submitted plans on 17 August 2010.
The development application was considered by the respondent at its meeting on 26 October 2010 when Council resolved to refuse the development application for the reason that:
The proposed installation of the turbine would have an undue adverse effect on the amenity of the area and on the inhabitants of the locality.
The applicant then submitted an application for review to this Tribunal on 18 November 2010.
Following mediation, the respondent was invited to reconsider its decision to refuse the development application and on 14 December 2010, the respondent reconsidered the development application and again refused it for the following reasons:
1.the Council has maintained consistency in its decision[]making having regard to the undue adverse affect [sic] that the proposed installation of the turbine would have on the amenity of the area and on the inhabitants of the locality;
2.the proposed use of one wind turbine does not provide a significant contribution in offsetting the energy consumption of the building;
3.alternatives such as solar panels, which have a reduced visual impact and a higher potential to generate energy, should be considered;
4.the Council's initial approval for the commercial building to be developed within the residential zoned R160 area was given with the consideration to the proposed height of the adjacent residential buildings so as to preserve the visual amenity of the area.
Following that decision, the matter was programmed by the Tribunal to be determined on the documents and in addition to the parties' submissions, the following evidence was filed:
For the applicant:
a)a statement by Hugh Richardson, acoustics engineer, dated 11 February 2011;
b)a statement by Lee Sin Yang, electrical engineer, dated 15 February 2011;
c)a statement by John-Paul Davis, architect, dated 15 February 2011; and
d)a statement by Ray Haeren, town planner, dated 16 February 2011.
For the respondent:
a)a statement by Professor Victor Sreeram, electrical engineer, dated 16 February 2011;
b)a statement by Professor David Martin Hunt, vision scientist in animals, dated 16 February 2011; and
c)a statement by Joe Algeri, town planner, dated 17 February 2011.

Site and locality

The site is located on the southern side of Adelaide Terrace with frontages to Terrace Road and Victoria Avenue. Durack 2 was constructed on the southern half of the site with the northern half comprising a two level heritage listed building known as Johnston House which fronts Adelaide Terrace, and a 13 level commercial building known as the Durack Centre which is located on the corner of Adelaide Terrace and Victoria Avenue between Johnston House and Durack 2.
To the west of the site, across Victoria Avenue are the Commonwealth Law Courts and the Duxton Hotel, and further to the west is the Perth Concert Hall and Government House. To the northwest across the intersection of Victoria Avenue and St Georges Terrace/Adelaide Terrace is a residential apartment building, hotel and commercial building. To the north, across Adelaide Terrace, there are commercial buildings and further to the north on Hay Street, some residential buildings. To the east, is an 18 level residential apartment building known as Altair Apartments. To the south, across Terrace Road, are Langley Park, Foreshore Drive and the Swan River Foreshore.
The site is located within the local government area of the City and development on the site is subject to the City of Perth City Planning Scheme No 2 (CPS 2 or Scheme). The site is located within, but at the western edge of, the Adelaide Precinct under CPS 2.
Office development is generally prohibited under CPS 2 and the Adelaide Precinct Plan on properties fronting Terrace Road between Victoria Avenue to the west and Plain Street to the east. However, the site is specifically zoned to allow 'office and business services' as a permitted use.
The site is also located within, but at the western edge of, the area subject to the Terrace Road Design Policy (TRD Policy) which the City has made under the Scheme.

Issues

As the matter is dealt with by the Tribunal de novo, the parties were required to file statements of issues, facts and contentions (SIFC). In its SIFC dated 18 January 2011, the respondent set out eight issues it believed were relevant in considering the matter, namely:
1.Would the installation and operation of one wind turbine, known by the model name 'Quiet Revolution', on the roof of an office building (Proposal) located at 259 - 263 (Lot 5) Adelaide Terrace, Perth (Site) have an undue adverse effect on the visual amenity of the locality?
2.Will the Proposal have an undue adverse effect on the amenity and health of the inhabitants of the locality and the general public?
3.Is the Proposal inconsistent with the provisions of the Respondent's Terrace Road Design Policy (TRD Policy)?
4.Is the Proposal inconsistent with the provisions of the Respondent's City of Perth City Planning Scheme No. 2 (Scheme)?
5.Will the Proposal establish an undesirable precedent for similar or other types of development within the 'Terrace Road Precinct' or the Respondent's local government area generally?
6.Is the Proposal contrary to orderly and proper planning?
7.Will the Proposal provide a significant contribution in offsetting the energy consumption of the office building?
8.Will the Proposal have an adverse effect on wildlife?
In the applicant's SIFC dated 1 February 2011, the applicant accepted issues (1) - (8) set out above as an accurate statement of the issues involved in the matter and also raised an additional issue for consideration which for ease of understanding will be dealt with as issue (9) which stated:
Is it appropriate for the Respondent to refuse the applicant's application for approval to install one QR5 wind turbine on the roof of the Durack 2 building (QR5 proposal) in light of the decision of APP Corporation Pty Ltd and City of Perth [2008] WASAT 291 which gave conditional approval for the installation of three 'Turby' wind turbines on the roof of Durack 2 (Turby proposal)?

Proposal

The current proposal is for a single QR5 wind turbine which will extend to a height of 12.3 metres above the parapet of the Durack 2 building.
It will have an overall external blade diameter of 3.1 metres and an overall blade height of 5.1 metres.
The QR5 will be powder coated red in colour and will be located on the southwest corner of the roof of the Durack 2 building, 6.5 metres from the Terrace Road boundary and 9.4 metres from the Victoria Avenue boundary.
As stated earlier, the principal differences between the earlier approved development and the current proposal are that:
a)the single QR5 is 3.1 metres taller than the approved Turbys;
b)the blade diameter of the QR5 will be 1.1 wider than the approved Turbys; but
c)there will only be one QR5 as against three previously approved Turbys.

Issue 1 - Will the proposal have an undue adverse effect on the amenity of the locality?

In its SIFC dated 18 January 2011, the respondent contended:
The height of the Proposal, being greater than that of the Approved Development, will negatively impact the visual amenity from other developments, land uses and the public realm.
When the Tribunal approved the previous development for three Turby wind turbines, the same issue of 'undue adverse effect on the visual amenity' was fully argued.
On that occasion, at [45] through to [59] of the 2008 decision, the Tribunal considered all of the evidence put before it on that occasion and having followed the four step assessment set out in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140, stated at [60] to [63] of its decision:
The Tribunal therefore considers that the proposed development would have only limited visual impact on a small number of units in the adjoining building. To the extent that they could be seen from some units, the turbines would form a minor aspect of the view and would not be visually distracting.
In relation to visual impact from the public domain, Mr Algeri expressed the opinion that Durack 2 is a prominent building because of its exposure to the street corner and to Langley Park. He said that there is some potential for the development to negatively impact on the visual amenity at street level. Mr Algeri referred to cl 2.4.5 of the TRD Policy which states that:
New developments, and particularly the taller components of developments, should incorporate well designed roof tops which add visual interest to the city skyline. Roof level service structures shall be integrated into the building design.
However, the visual impact of the proposed wind turbines from Langley Park and adjoining streets would be limited. The proposed structures would be largely obscured by buildings from the same side of the road. When viewed from Langley Park and Terrace Road to the south, the proposed wind turbines would generally be viewed against buildings, rather than against the sky.
To the extent that the proposed wind turbines could be seen from the public domain, the visual impact would be entirely acceptable and appropriate. As Mr Davies said, the Turbys would add to the 'overall visual language of the building' and, by their character, location and colour, 'strengthen the environmentally sustainable intent of the development' in conjunction with other visible elements. This is consistent with the State and local planning framework identified in relation to orderly and proper planning below.
And at [68] - [69] stated:
The proposed wind turbines are both sensitive and innovative. They are not overly prominent, but to the extent to which they could be seen, they accentuate the built character of the area and reflect the application of environmentally sustainable development principles in a tangible way.
It follows that the proposed wind turbines would not have an undue adverse affect on the visual amenity of the locality.
In the current application, the planning evidence put forward by the respondent to support its contentions was again given by Mr Algeri.
He stated at para 6.6 of his statement of evidence:
Whilst I acknowledge and accept the findings of the Tribunal in the Original Decision, I question the suitability of the proposed wind turbine, relative to the Original Application, predominantly due to its enhanced size and its prominent location on the Durack 2 building and, therefore, I now question the conformity of the Proposed Development with the objectives of CPS2.
And at paras 7.2 - 7.4 stated:
It is my view that the currently proposed QR5 turbine will have a greater visual impact on the amenity of the locality than the Original Application when viewed from both the public realm and from other developments (predominantly, the Altair Apartments).
It was considered by the Tribunal, at paragraph 64 of the Original Decision, that the proposed Turby turbines remained consistent with the above vision of the TRD Policy as 'they would generally be read against other buildings and not as part of the city skyline'.
However, while this finding was made in relation to the Turby wind turbines, it is my opinion that [...] the extra size and height of the proposed QR5 turbine will have a more pronounced effect on visual amenity when viewed from the surrounding locations. ...
Under the heading 'Aesthetic appeal' at para 10.1 of his evidence, Mr Algeri stated:
... I accept that there are other rooftop structures on top of buildings in the City, such as satellite dishes, chilling towers and telecommunication facilities. However, these structures are currently more common place [sic] in an urban environment compared to a wind turbine.
And in his conclusion at para 13.2 stated:
More specifically, in my view, the proposed QR5 turbine has the potential to look more like an artificial add-on to [the] Durack 2 building to the comparatively more integrated look proposed by the, previously approved, lower Turby turbines. The increased height of the turbine, albeit minor, has the potential for it to be more prominent and, in this regard, I believe it has the potential to erode the amenity of the Adelaide Precinct.
Mr Ray Haeren, a town planner who had also given evidence in the previous hearing, furnished a statement of evidence for the applicant and at para 16 and para 17, stated:
I have formed a clear view that the installation of the QR5 would not have an undue adverse effect on the visual amenity of the locality. It is my view that the QR5 will complement the overall urban landscape and have a substantially lesser impact than the many items of infrastructure which are located on building rooftops that are within the Perth CBD, including the three previously approved Turbys.
The proposed QR5 turbine will:
a.[h]ave less visual prominence than the previous Turby Proposal, despite being larger by 3.3m (height) [sic] and 1.1m (blade diameter width) due to the number of turbines being reduced from 3 to 1; [and]
b.[n]ot be visually prominent in the context of surrounding buildings and the broader urban landscape of the Perth CBD, including associated infrastructure.
The application was advertised to landowners of adjoining properties in accordance with Council policy and 56 letters of objection were received including 33 proforma objections. All of the issues raised by the objections were summarised in the Planning Officers' report to Council for both the October 2010 and December 2010 Council meetings with the officers recommending approval on both occasions.
Under the heading 'Appearance', the officers stated:
Many of the objections received raise concerns over the appearance of the wind turbine and its appropriateness in an inner city location adjacent to residences and the foreshore. In contrast, the applicants have indicated that they are endeavouring to make a feature of the turbine as an environmental innovation complementary to the urban landscape.
In contrast to the traditional propeller wind turbine seen in country locations, the proposed vertical axis turbine is specifically designed for use within urban environments. It has a slender structure which will have a similar visual impact upon the skyline to other rooftop building infrastructure such as telecommunications equipment and satellite dishes. It is likely to blend into the cityscape when viewed from the foreshore and while it may impact to some extent upon views from adjacent residences, the impact is considered to be limited in comparison to the three turbines previously proposed.

And in the final paragraph stated:
Furthermore, it can be argued that the impact of the current proposal will be less as only one turbine is now proposed and the distance from the adjoining residences has been maximised. ...
And under the heading 'Conclusion' stated:
... It is considered that the single wind turbine now proposed would have the same (if not reduced adverse amenity impacts) subject to appropriate conditions being applied. The turbine is consistent with other roof top structures within the city in terms of appearance and can be supported subject to satisfactory resolution of noise issues to ensure that they do not create a disturbance to adjacent residences.
The Tribunal agrees with the officers' reasoning and conclusions in this regard.
Furthermore, all of the other professional planning evidence before the Tribunal acknowledges the impact of rooftop infrastructure.
Mr Haeren stated:
The QR5 will ... have a substantially lesser impact than the many items of infrastructure which are located on building rooftops that are within the Perth CBD, including the three previously approved Turbys.
Mr Algeri, stated:
I accept that there are other rooftop structures on top of buildings in the City, such as satellite dishes, chilling towers and telecommunication facilities. However, these structures are currently more common place in an urban environment compared to a wind turbine.
And later stated:
… The increased height of the turbine, albeit minor, has the potential for it to be more prominent and, in this regard, I believe it has the potential to erode the amenity of the Adelaide Precinct.
It is noted that Mr Algeri describes the new height as 'albeit minor' and the effect the turbine may have as 'potential'.
On the evidence before it, the Tribunal is satisfied that the difference between the two proposals, being the earlier Turby approval for three wind turbines and the current application for a single QR5 turbine, will mean an overall reduction in infrastructure on the roof of the Durack Centre which in turn will lead to an overall reduction in the limited visual impact that the Tribunal referred to in its 2008 decision in respect of the Turby approval.
As Mr Haeren stated at para 26 of his evidence:
... The urban landscape of the CBD is hardly static, with neon lights, flags, vegetation, traffic and people being prominent and constant moving elements within this context.
And, as stated by the respondent's officers:
The turbine is consistent with other roof top structures within the city in terms of appearance ...
The factual situation being all but identical to that considered in the 2008 decision, the Tribunal acknowledges and adopts the reasoning of the Tribunal in 2008, at [60] - [63] set out above in respect to the limited visual impact of the proposal.
The Tribunal therefore finds that the proposed QR5 wind turbine, like the approved Turbys, will only have a limited visual impact on a small number of units in the Altair Apartments which forms only a minor aspect of their view and will not be visually distracting. Furthermore, it will not have an undue adverse affect on the visual amenity of the locality generally.

Issue 2 - Would the proposal have an undue adverse effect on the amenity of the inhabitants of the locality and the general public?

The respondent's contention in respect of this issue was:
The Proposal may have an adverse effect on the health of adjacent residents and the public in general due to the flickering of the blade of the wind turbine, which may cause photosensitive epileptic fits in susceptible people.
At the hearing of the Turby approval in 2008, the issue of acoustic amenity (and in particular, the noise emissions of the three Turby wind turbines) was raised as an issue and dealt with by the Tribunal. However, in the current application, the issue of noise has not been raised as an issue by the respondent and no evidence was led in respect of it.
At para 12.1 of its submissions, the respondent stated:
The Respondent has formed the view that the level of noise is not of such an intensity to refuse the application. Accordingly, this issue was not raised in the Respondent's Statement of Issues, Facts and Contentions dated 18 January 2011. However, should the application be approved by the SAT, the Respondent submits that appropriate conditions be imposed to ensure that noise levels remain within reasonable levels.
Rather, in respect of this issue, the respondent contends that there may be an adverse effect on the health of adjacent residents and the public due to the flickering of the blade of the wind turbine.
The issue of flickering was also raised in the 2008 hearing where the Tribunal stated at [50] of the 2008 decision:
... The Tribunal agrees with Mr Davies that, when operating, the Turbys would produce a stable visual outline, rather than a distracting flicker. When not operating, the Turbys would be slimline and rather innocuous.
In the current proceedings, Mr Algeri, the respondent's planning witness, did not comment on the issue of flickering, nor did Professor Sreeram who gave evidence regarding electrical output or Professor David Hunt whose evidence related to birdlife only.
Therefore, although the respondent identified it as the second issue to be dealt with by the Tribunal, it led no evidence in respect of it, yet it stated at para 5.1 and para 5.2 of its submissions:
The Respondent is concerned that the QR5 may cause adverse effects to the health of adjacent residents and the public due to the flickering of the blades of the wind turbine.
Despite the limited evidence on photosensitive epilepsy caused by the flickering of wind turbines, given the importance of human health, it is reasonable to adopt the low risk approach to this issue.
The applicant, through Mr Yang, an electrical engineer, produced a fact sheet produced by the manufacturer entitled 'Comment on "shadow flicker" and photosensitive epilepsy'; and through Mr Haeren, a planner, produced a report from the National Health and Medical Research Council (NHMRC), dated July 2010, titled 'Wind turbines and health: a rapid review of the evidence'.
The first paragraph of that report stated:
The purpose of this paper is to present findings from a rapid review of the evidence from current literature on the issue of wind turbines and potential impacts on human health. In particular[,] the paper seeks to ascertain if the following statement can be supported by the evidence: There are no direct pathological effects from wind farms and that any potential impact on humans can be minimised by following existing planning guidelines. This statement is supported by the 2009 expert review commission by the American and Canadian Wind Energy Associations (Colby et al. 2009).
At page 6 of that report, under the heading 'Effects of Shadow Flicker and Blade Glint on Human Health', it stated:
...
In summary, the evidence on shadow flicker does not support the health concern (Chatham-Kent Public Health Unit, 2008) as the chance of conventional horizontal axis wind turbines causing epileptic seizure for an individual experiencing shadow flicker is less than 1 in 10 million (EPHC, 2009). As with noise, the main impact associated with shadow flicker from wind turbines is annoyance.
In regards to blade glint, manufacturers of all major wind turbine blades coat their blades with a low reflectivity treatment which prevents reflective glint from the surface of the blade. According to the Environment Protection and Heritage Council (EPHC)[,] the risk of blade glint from modern wind turbines is considered to be very low (EPHC, 2009).
In an attempt to support its contention, the respondent commented in some detail in its submissions on the NHMRC report. However, the Tribunal notes that that report deals with horizontal axis wind turbines situated on wind farms rather than the vertical axis wind turbines seen in urban settings and being applied for in the present application.
The only evidence before the Tribunal on this issue came from the applicant which the Tribunal finds does not support the respondent's contention.
On the evidence before it the Tribunal cannot be satisfied that the proposal will, or even may, have an adverse affect on the amenity of the health of adjacent residents and the public in general due to the flickering of the blade of the wind turbine.

Issue 3 - Is the proposal inconsistent with the provisions of the TRD Policy?

In respect of this issue, the respondent contended:
1)The Proposal is inconsistent with the height and setback requirements outlined in the TRD Policy; and
2)Approval of the Proposal would be contrary to the purpose and intent of the TRD Policy.
Mr Algeri, on behalf of the respondent, at paras 7.1 to 7.4 of his evidence stated:
Clause 2.4.5 of the TRD Policy provides:
'New developments, and particularly the taller components of the developments, should incorporate well designed roof tops which add visual interest to the city skyline. Roof level service structures shall be integrated into the building design.'
It is my view that the current proposed QR5 turbine will have a greater visual impact on the amenity on the locality in the Original Application when viewed from both the public realm and other developments (predominantly, the Altair Apartments).
It was considered by the Tribunal, at paragraph 64 of the Original Decision, that the proposed Turby turbines remained consistent with the above provision of the TRD Policy as 'they would generally be read against the other buildings and not as part of the city skyline'.
However, while this finding was made in relation to the Turby wind turbines, it is my opinion that the extra size and height of the proposed QR5 turbine will have a more pronounced effect on visual amenity when viewed from surrounding locations. ...
Later at para 7.11, when commenting on a number of 3D photographs of the proposed development Mr Algeri stated:
This illustration emphasises to me that the QR5 turbine will exacerbate the forward height of the Durack 2 building when other taller structures along Terrace Road are setback [sic] in accordance with the TRD Policy requirements. In my mind, this further breach to the prescribed forward height of buildings in the Adelaide Precinct is now beyond an acceptable threshold where it could be considered consistent with orderly and proper planning.
Paragraph [64] and [65] of the Tribunal's previous decision, as referred to by Mr Algeri, was where the TRD Policy, and in particular cl 2.4.5 of that policy, was dealt with and stated:
The provisions of the TRD Policy relied on by the City do not assist its case. Clause 2.4.5 of the TRD Policy has little bearing on the location of the proposed Turbys, because they would generally be read against other buildings and not as part of 'the city skyline'. By their nature, these proposed structures would not be integrated into the building design. However, as discussed, it is appropriate, and consistent with the planning framework, for the structures to demonstrate the sustainable intent of the development and also to provide visual interest at the corner of the streetblock.
Contrary to the City's contention, the proposed wind turbines are consistent with the following objectives of the TRD Policy:
•To encourage built form of a moderate scale which, while making a coherent contribution to the city-scape of Perth, also establishes an appropriately scaled edge to Langley Park, and minimises wind and overshadowing affects on Langley Park and adjoining land.
•To ensure that where development sites extend from Terrace Road to Adelaide Terrace the more intensive elements of development proposals are located towards Adelaide Terrace rather than Terrace Road.
Council officers, in their report to Council, also dealt with the TRD Policy under the heading 'Height and Set Backs' which stated:
The Terrace Road Design Policy applicable to the site specifies that buildings be built up to the street boundary with setbacks only required for the portions of building beyond ten metres from the street boundary. The Policy also requires that within ten metres of street boundaries, a maximum building height of 14 metres above Terrace Road will apply. The turbine is intended to be set back 6.5 metres and 9.4 metres from Terrace Road and Victoria Avenue respectively, and when combined with the height of the building, extend to a height of 30.5 metres above Terrace Road.
The strict application of the Scheme requirements to building infrastructure such as wind turbines is not intended or appropriate. These requirements are intended to apply to buildings to achieve acceptable scale, bulk and massing, appropriate to the streetscape and the cityscape. Under the Terrace Road Design Policy, the objectives of the height provisions for the podium buildings along Terrace Road are to ensure that Langley Park is not overshadowed and views from the rear of the site will not be unacceptably infringed. The wind turbine is a slender structure which will have minimal impact in terms of bulk and massing. The likely overshadowing is considered to be negligible whilst the impact on views is considered to be minimal compared to the previous three turbines approved by the SAT.
The variations to the height and setback provisions proposed are a result of the applicants' [sic] attempt to locate the turbine as far from adjacent residences as possible (to address any concerns in regard to noise and views). Furthermore, the turbine is significantly less imposing than a building of up to 52 metres in height which could potentially be constructed over a large proportion of the site under the Terrace Road Design Policy provisions.
Accordingly, it is considered appropriate that the proposed height and setback variations be permitted under Clause 47 of the City Planning Scheme No. 2.
The Tribunal is of the view that the officers' comments are well reasoned, balanced and correct. As stated by the Tribunal on the last occasion, contrary to the City's contention, the proposed wind turbines are not inconsistent with the objectives of the TRD Policy but rather are consistent with the objectives of the policy as outlined at [65] of the Tribunal's reasons on the last occasion.
Mr Haeren, at para 33 of his evidence, stated:
The TRDP is relevant to the QR5 Proposal as the Durack 2 site is contained within the policy area. However, the Durack 2 site is located on the edge of the policy area (which extends to the east). The TRDP has reduced application to the QR5 Proposal given the TRDP's focus on residential as opposed to commercial land use. ...
Mr Haeren is also correct. The proposed QR5 wind turbine will be read against the City's skyline which at the location of the Durack 2 is on the edge of the residential precinct and is in transition to more commercial land uses.
As noted by the respondent's officers, Langley Park will not be overshadowed in any way by the proposed wind turbine and the view from the rear of the site will not be unacceptably infringed.
As on the previous occasion, the Tribunal remains of the view that provisions of the TRD Policy relied on by the City do not assist its case and the proposal will not be inconsistent with the provisions of the TRD Policy.

Issue 4 - Is the proposal inconsistent with the provisions of the Scheme?

In respect of this issue, the respondent contended that:
The Proposal would have a detrimental effect on the streetscape and amenity of the surrounding locality and would therefore be inconsistent with clause 6(3)(c) and clause 6(3)(d)(i) of the Scheme.
Clause 6(3)(c) outlines one of the general objectives of the Scheme as being to:
... protect and enhance the health, safety and general welfare of the City's inhabitants and the social, physical and cultural environment of the City.
Clause 6(3)(d)(i) states that it:
... recognises the individual character and needs of the locality within the Scheme area;
It is therefore important where the site is located and dealt within the context of the Scheme.
Mr Algeri at paras 6.4 - 6.6 of his evidence states:
Although the Site is zoned specifically for office use and falls within a 'diverse urban environment' it may still be inferred from CPS2 that landuse [sic] within the Adelaide Precinct should be complementary and always seek to contribute to residential amenity.
In other words, in my view, whilst the locality surrounding the Site may be varied, it is still inherent that it is exists within a precinct that prescribes a desired 'residential amenity'. With this in mind, consideration of the above stated objectives from clause 6(3) of CPS2 should take cognisance of this 'individual character' and the expectations of the residents who live there.
Whilst I acknowledge and accept the findings of the Tribunal in the Original Decision, I question the suitability of the current proposed wind turbine relative to the Original Application, predominantly due to its enhanced size and its prominent location on the Durack 2 building and, therefore, I now question the conformity of the Proposed Development with the objectives of CPS2.
At [22] - [23] of the original decision, the Tribunal stated:
Mr Algeri and Mr Haeren disagreed in relation to the predominant land use character of the locality. Mr Algeri considered that the site is within a predominantly residential precinct. Mr Algeri referred in this regard to the intent expressed in the Precinct Plan for the Adelaide Precinct and in the TRD Policy that the area including the site and the properties to the east will be developed as a residential quarter with high density residential development.
In contrast, Mr Haeren considered that the site is located in a diverse urban environment. His characterisation was based on a review of the land uses and built form character of the properties surrounding the site.
In the present case, Mr Haeren holds a similar view and describes the location as diverse and dynamic.
The Tribunal, in dealing with the difference between Mr Algeri and Mr Haeren in relation to the predominant land use character of the locality in the 2008 decision, went on to find at [26] and [27]:
In light of the relevantly limited and confined locality for the purposes of the proposed wind turbines, the Tribunal prefers the opinion of Mr Haeren that the site is located in a diverse urban environment.
However, even if the site were located within a predominantly residential precinct, the Tribunal would not have come to a different view to the conclusion expressed below that the proposed wind turbines warrant approval. As Dr Willey conceded, subject to amenity considerations, there is no reason why wind turbines cannot be appropriately located on residential buildings in residential precincts. In terms of relevant amenity considerations, for reasons discussed below, the Tribunal considers that the proposed wind turbines would have limited visual impact on both the private and public domain, and compliant and generally no discernible acoustic impact on the residents of the Altair Apartments building.
The principal difference between the current proposal and the previous one is that the overall number of wind turbines has decreased from three to one, although the height and the blade width have increased in a minor way.
There is no evidence in front of the Tribunal on this occasion which either encourages or assists it to come to a different view than that held by the Tribunal in 2008 and the Tribunal is not satisfied on the evidence put forward by the respondent that the proposal will have a detrimental effect on the streetscape or amenity of the surrounding locality or would be inconsistent with cl 6(3)(c) and cl 6(3)(d)(i) of the Scheme.

Issue 5 - Will the proposal establish an undesirable precedent?

Although the respondent initially put this matter forward as an issue in its SIFC and made certain contentions in respect of it, no evidence to support the proposition was put forward by the respondent and in its submissions dated 25 February 2011, at para 8.1, stated:
Having considered the evidence relating to this issue, the Respondent no longer wishes to argue that the Proposed Development will establish an undesirable precedent.

In the circumstances, the Tribunal will not comment further on this issue.

Issue 6 - Is the proposal contrary to orderly and proper planning?

In respect of this matter, the respondent contended that:
The Proposal outside the considerations made under the Scheme and the TRD Policy would be inconsistent with orderly and proper planning.
Mr Algeri, who gave the planning evidence for the respondent, did not address this issue specifically outside of his consideration of the matter under the Scheme, the TRD Policy and amenity issues generally. The only mention was in the final paragraph of his statement under the heading 'Conclusion' where he stated:
13.8Accordingly, this adverse impact that the proposed wind turbine will have on the amenity of the area, in my view, would be contrary to orderly and proper planning.
Mr Haeren, when dealing with the matter on behalf of the applicant, stated at para 40 and para 41 of his statement:
For the QR5 Proposal to be considered contrary to orderly and proper planning it must:
a.be contrary to a planning requirements [sic];
b.impact on the locality in relation to the use or function of the site or its surrounds; or
c.limit the ability for the preferred outcome to be achieved on the site or its surrounds.
The QR5 Proposal would not cause such impact and therefore could not be considered to be contrary to orderly and proper planning. ...
And at paras 55 and 56, Mr Haeren stated:
I consider that the need to improve the environmental performance of our cities is at least equal to the community's need for existing urban infrastructure (eg mobile phone antennae) and therefore the QR5 Proposal should not be judged by standards more stringent than the standards applied to other urban infrastructure. Put simply, development needs to conform to reasonable standards of amenity[,] however[,] structures such as the QR5 should not be subject to higher standards or expectations due to their delivery of green energy.
I have reviewed the officer reports presented to the Perth City Council in relation the QR5 Proposal matter and concur with their assessment in determining the QR5 Proposal to be suitable in relation to scheme and policy requirements.
The issue of orderly and proper planning was also a matter that was fully ventilated at the original hearing in 2008 and on that occasion, having considered all of the issues, the Tribunal stated at [90] and [91]:
In the circumstances of this case, while wind turbines are not specifically referred to in the planning framework, they are reasonably contemplated by a purpose of the PD Act, an objective of the Scheme, the Development and Design Policy and SPP 2. The current absence of wind turbines from urban locations is arguably due to visual and acoustic amenity consequences of traditional horizontal axis or propeller-type wind turbines, rather than to wind turbines not being contemplated as a means of achieving ecologically sustainable development through utilisation of renewable energy.
It follows that the proposed wind turbines are consistent with orderly and proper planning.
In the present application, the Tribunal is dealing with an overall reduction in the number of turbines from three to one, while recognising that the single turbine has a larger blade diameter and is taller by 3.1 metres.
The officers for the respondent, when preparing their report to Council, concluded with the following paragraph:
The applicant's endeavour to achieve a building with low energy consumption through a range of technologies is consistent with the City's aim to promote environmental innovation and sustainable development, and should be encouraged. Notwithstanding this, any endeavours need to be balanced against the City's responsibility to maintain a level of amenity appropriate to the inner city having particular regard for adjacent residential areas. The State Administrative Tribunal determined that the previously proposed three wind turbines would have acceptable visual and acoustic amenity impacts. It is considered that the single wind turbine now proposed would have the same (if not reduced adverse amenity impacts) subject to appropriate conditions being applied. The turbine is consistent with other roof top structures within the city in terms of appearance and can be supported subject to satisfactory resolution of noise issues to ensure that they do not create a disturbance to adjacent residences.
The Tribunal agrees with the respondent's officers' conclusions and is satisfied that the proposed development is not contrary to planning requirements and does not impact unduly on its locality.
Therefore, having considered all of the evidence and all of the relevant planning instruments, the Tribunal adopts and reiterates the findings outlined in the 2008 decision at [90] and [91] as set out above, and is satisfied that the current proposal is also consistent with orderly and proper planning and should be approved.

Issue 7 - Will the proposal provide a significant contribution in offsetting the energy consumption of the office building?

In respect of this issue, the respondent contended:
•The Respondent accepts the need to promote environmental innovation and sustainable development. However, the environmental benefits of the wind turbine must be balanced against the intrusion the turbine will cause on the visual amenity of the locality.
•The inclusion of the wind turbine does not significantly contribute to offsetting the energy consumption of the building or address the energy needs of the Site.
•Alternatives, such as solar panels, which have a reduced visual impact and a higher potential to generate energy would be more appropriate at the Site.
•Because the wind turbine will not generate sufficient energy to outweigh the significant impact that it will have on the amenity of this locality, the Proposal is contrary to order and proper planning.
To support its contentions, the respondent filed a statement of evidence from Professor Victor Sreeram, who is an electrical engineer and a professor at the school of Electrical, Electronic and Computer Engineering at the University of Western Australia.
At para 14 of his statement of evidence, Professor Sreeram sets out the purpose of his evidence to be:
…
(a)whether the proposed wind turbine will significantly contribute to offsetting the energy consumption of the Durack 2 Building or address the energy needs of the Site; and
(b)whether alternatives, such as solar panels, would have a higher potential to generate energy.
At para 10.25 and para 10.26 of its submissions, the respondent stated:
If the inclusion of the QR5 turbine on the Durack 2 building produces a truly environmentally sustainable development, then it is accepted that the public should bear some burdens. However, where the environmental sustainability of the development is questionable, it should have no adverse impact on the amenity of the neighbouring residents and the locality. (Original emphasis)
Ultimately, it is submitted to the adverse impact on the amenity of outweighs the inconsequential environmental benefit that may be obtained by the operation of the QR5 wind turbine.
In getting to those remarks, the respondent discussed the evidence given by both the applicant's witnesses and Professor Sreeram, for the respondent, in respect of the electrical output of the wind turbine and solar panels.
Mr Davies, the project architect for the Durack 2 project, stated at para 27 of his statement:
...
a.Solar panels were explored when the design team was investigating alternative renewable energy systems for Durack 2 and found not to be viable due to overshadowing.
b.Wind turbines were considered to be the most suitable form of renewable energy for Durack 2 because the only naturally occurring and commonly available resource on the Durack 2 site is the prevailing winds.
Mr Yang, an electrical engineer who gave evidence on behalf of the applicant, stated at para 12 and para 13 of his statement:
...
a.The performance of Durack after the first full year of operation shows that Durack 2 has achieved results that are actually 20% better than the results required for a 5 star NABERS rating. The actual rating has not yet been conferred as the results are yet to be submitted.
b.Durack 2 achieved a 6 star Green Star 'Design' rating.
c.Durack 2 will not be able to achieve a 6 star Green Star 'As Built' rating as some of the sustainable design features were unable to be achieved in construction. Instead, we are aiming for a 5 star Green Star 'As Built' rating for Durack 2. We are still waiting for further information before we can submit this application.
d.There are no 5 or 6 star Green Star 'As Built' rated buildings in Perth.
e.Durack 2 has won the following awards:
•Engineers Australia - 2009 WA Engineering Excellence Awards - Category Winner - Environment;
•Property Council of Australia - WA Innovation and Excellence Awards 2010 - Winner Sustainable Development Category;
•Property Council of Australia 2010 - WA Innovation and Excellence Awards - Overall Winner; and
•IES, The Lighting Society - Lighting Design - Award of Commendation (Durack 2 External Façade).
f.Durack 2 is currently fully occupied.
Other types of renewable energy, other than wind energy, were explored in designing Durack 2. Photovoltaic (solar) technology was investigated but due to the building's location, the roof top overall percentage of sunlight throughout the year was not sufficient. We also considered the position of the panels potentially causing glare issue to the adjacent Altair Apartment [sic].
When discussing the issue of shadowing, Professor Sreeram stated at para 36 of his statement:
... It appears from the NearMap pictures that shadowing issues on the southwest corner of the roof of the Durack 2 Building (that is, the corner of Victoria Street and Terrace Road) may not exist. However, it cannot be guaranteed that there are no shadowing issues by merely looking at only [a] finite set of pictures from monthly updates of NearMap.com.
And at para 44:
In my view, apart from the southwest corner, no other part of the roof space of the Durack 2 Building is suitable for installing solar panels as they have significant shadowing issues. To minimise the shadowing issues in the early morning, care must be taken in choosing the right solar panel, which offers protection against damage from partial shadows, and in choosing the correct location on the roof.
In respect of possible glare from solar panels, Professor Sreeram stated at para 46 of his evidence:
Furthermore, as the plant room lies between the southwest corner of the roof of the Durack 2 Building and the Altair [A]partments, any solar panels would remain hidden from most of the balconies, keeping any glare issues to a minimum. However, the solar panels will be visible from some of the balconies on higher floors.
Although Professor Sreeram concludes that in his opinion a solar panel would be a better alternative than the QR5 in offsetting the energy consumption of the Durack 2 building, he reaches that conclusion with the caveats outlined above in respect of shadowing and glare.
The applicant has applied to put a single wind turbine on the roof of the Durack 2 building and in bringing the application to the Tribunal, significant work has been done in respect of issues such as impact on the amenity of the locality and surrounding residents.
It may be that solar panels on the roof of the Durack 2 building could have a better electrical output than the wind turbine proposed by the applicant. However, on the evidence presently before it, particularly with uncertainties around the question of shadowing, the Tribunal cannot be satisfied that this would be the case.
More importantly, however, placing approximately 25 square metres of solar panels in the southwest corner of the Durack 2 building (para 34 of Professor Sreeram's evidence) would clearly raise questions regarding visual amenity and in particular, issues of glare which would have to be carefully addressed, and which have not been in the present application.
Therefore, offering, or indeed suggesting, as the respondent does at para 10.16 and para 10.17 of its submissions, that solar panels would be a better alternative than the QR5 in offsetting the energy consumption of the Durack 2 building, when such a suggestion is no more than a hypothesis with no certainty that it would or should be approved, is of little benefit in assisting to resolve the matter.
It was recognised by the Tribunal in the 2008 decision at [88] that:
... While the Turbys would generate only a tiny fraction of the overall energy requirements of Durack 2, they utilise a source of freely available, renewable energy to achieve an actual net reduction in carbon dioxide emissions; ...
And as Mr Davies stated at para 37 of his statement:
... The QR5, along with other sustainable initiatives of Durack 2, will demonstrate the way buildings can respond to their site and context using current technology.
The Tribunal is satisfied the proposed QR5 wind turbine will contribute in offsetting the carbon footprint of the building and as stated by the respondent's officers:
The applicant's endeavour to achieve a building with low energy consumption through the range of technologies is consistent with the City's aim to promote environmental innovation and sustainable development, and should be encouraged ...
It may well be that solar panels or some other form of renewable energy could produce a better result in terms of offsetting the energy consumption of the building. However, a single wind turbine is what has been applied for and solar panels as proposed by the respondent may have real issues in respect of visual amenity in the form of glare and production of electricity due to shadowing.
It cannot, therefore, be said with certainty, based on the evidence before the Tribunal that solar panels would be more appropriate, as contended by the respondent.

Issue 8 - Will the proposal have an adverse effect on the wildlife?

The respondent contended that:
The proposal is likely to cause bird injuries and fatalities as a result of birds flying into the spinning blade of the wind turbine.
The applicant furnished information from the manufacturer of the wind turbine which under the heading 'Effects on Wildlife and Nature Conservation', stated:
•When spinning the rotor appears like a semi solid object (see image in Appendix 04). At our test site we witnessed birds flying towards the turbine who altered course and simply fly around the turbine.
•quietrevolution turbines have a safety system to detect impacts on the rotors. We have had no impacts from birds on any turbine to date despite aprox. 180,000 hours of turbine operation.
•Following a bird study we have a precedent of planning permission being granted for a qr5 following a bird study at a wild life conserve at Westport Lake where the Bird impact assessment by ARUP concluded that the 'helical design is thought to be less potentially dangerous to birds than a fastmoving rotor blade mechanism, with a significantly reduced surface area.' (Original emphasis)
The respondent furnished a witness statement from Professor Martin Hunt who is a vision scientist with experience with research in animals and is the current Winthrop professor at the University of Western Australia. Professor Hunt is also a resident of the Altair Apartments, the large residential development to the east of the site from where a large number of objections were received.
Professor Hunt raised in particular the danger the proposed wind turbine might cause to parrots. In commenting on the information from the manufacturer, Professor Hunt stated:
... Quietrevolution will probably not have encountered parrots with their erratic flight patterns when in large flocks, as it is unlikely that these observations were made in Australia. ...
And later stated:
From personal experience and observations, I am aware that the area of Langley Park and Victoria Avenue immediately adjacent to the Durack 2 building is occupied for significant periods of the year by large flocks of corellas, a type of cockatoo/parrot. These birds show erratic flying behaviour - they will suddenly rise into the air in large numbers and wheel around over the adjacent buildings, which include Durack 2. This makes them particularly vulnerable to flying into objects ...
At para 3.4, Professor Hunt stated:
Birds do not fly into objects that they can see. ...
In its 2008 decision at [50], the Tribunal found '... that, when operating, the Turbys would produce a stable visual outline, rather than a distracting flicker ...' This Tribunal is satisfied that the QR5 will provide a similar visual outline.
Professor Hunt also produced four academic papers, one of which was titled 'Bird Collisions with Powerlines: failing to see the way ahead?' by GR Martin and JM Shaw. This dealt with three bird species known to be subject to high levels of mortality associated with powerlines.
The Tribunal accepts that bird fatalities may from time to time be caused by coming into contact with manmade objects including powerlines. It may also be that infrastructure on the roofs of buildings, such as stabilising wires for large antennae or other installations may be a hazard to birds from time to time. However, on the evidence put forward in this matter, the Tribunal is not satisfied that a single vertical axis wind turbine on the roof of the Durack 2 building (which is a reduction in the overall roof infrastructure compared to the previously approved Turbys) will be such a risk to wildlife that it should result in a refusal of the development application.
The Tribunal notes that a study carried out at a wildlife conserve for this particular type of wind turbine concluded that, 'helical design is thought to be less potentially dangerous to birds than a fastmoving rotor blade mechanism, with a significantly reduced surface area' and that no impacts have been recorded on any turbine at the manufacturer's test site over 180,000 hours of operation.
In the circumstances, the Tribunal is not satisfied on the evidence before it that the proposal will have an adverse effect on wildlife as contended by the respondent.

Issue 9 - Is it appropriate for the respondent to refuse the QR5 proposal in light of APP Corporation Pty Ltd and City of Perth [2008] WASAT 291 and other authorities?

This issue was raised by the applicant who contended:
•The Respondent did not give appropriate weight to the determination of SAT in APP Corporation Pty Ltd and City of Perth [2008] WASAT 291 (whereby SAT conditionally approved the Turby Proposal) contrary to SAT's comments regarding the need for consistency in decisionmaking in Tran and Town of Vincent [2009] WASAT 123 (S).
•The Respondent has, in error, not given proper, genuine and realistic consideration to the substantial merits of the case and has instead] inappropriately elevated community opposition to the sole criteria of refusal of the QR5 proposal: J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282.
In responding to the applicant's contentions, the respondent submitted:
... that J&P Metals can be distinguished from the present case in that:
(a)the Respondent has lead planning evidence which demonstrates that it was open to the Respondent, having considered all the relevant planning considerations, to refuse the Proposed Development on the basis that it would have, amongst other reasons, an undue adverse effect on the amenity of the area and the inhabitants of the locality; and
(b)while it is accepted that there is large community opposition to the Proposed Development, there is no evidence to suggest that these objections have been elevated to the sole criterion for refusal of the Proposed Development.
The Proposed Development is a new application, which is different structurally from the Original Application (both in footprint and scale) and, as a result, produces different planning and environmental outcomes.
This is not a case where an 'identical' development application has been lodged by the Applicant due to the lapsing of an earlier approval and, on that basis, the decision in Tran can be distinguished. While there is a need for consistency in decisionmaking, in circumstances where a new application is lodged, that application must be considered on its merits and the Respondent is under a duty to assess whether the new application would adversely impact the surrounding amenity to a greater degree than the Original Application.
It can be inferred from the Respondent's reasons for refusal on the reconsideration of the application, that the Respondent considered the differences between the Proposed Development and the Original Application and formed the view:
(a)having considered photographic comparisons provided by the Applicant, that the visual impact of the one QR5 turbine would be greater than the three Turby turbines that were previously approved by the SAT and would, therefore, have an adverse affect on the amenity or the area and the residents; and
(b)that the QR5 would be less energy efficient.
It was reasonably open to the Respondent to refuse the Proposed Development and it is submitted that the SAT should affirm the Respondent's decision.

To put this issue into context, one must first look very briefly at the history of the application before the respondent.
In December 2008, the applicant was granted conditional development approval by this Tribunal to install and operate three Turby wind turbines on the roof of a five storey office development known as Durack 2, but for the reasons outlined earlier, those turbines were later found to be unsuitable.
In respect to the new 2010 application, the officers, in their report to Council dated 26 October 2010 under the heading 'Details', explained:
The applicant has now submitted an application to install a single vertical axis wind turbine on the roof of the 'Durack 2' building located at the southeast corner of Victoria Avenue and Terrace Road as it has proven difficult to obtain the previously approved wind turbines from the Dutch manufacturer. The turbine now proposed is to be supplied by an English manufacturer.
The main differences between the two applications have also been outlined earlier but principally, there is now an application for one turbine instead of three, with that one turbine being 3.1 metres taller with a blade diameter 1.1 metres wider than the previously approved turbines.
The officers' report to Council of 26 October 2010, under the heading 'Legal Advice', stated:
Recent proceedings in the SAT have highlighted the need for consistency in decision making by government authorities. Where a planning determination has been made on an application, the Tribunal's view is that this determination should be applied to future applications unless the planning scheme framework and applicable policies or provisions have changed, local circumstances have significantly changed or the new application is significantly different. The previous application for three wind turbines on the subject property was determined as acceptable and approved by the Tribunal. The applicable policies and provisions under the City Planning Scheme No 2 have not changed since that determination and the likely impact of the single wind turbine now proposed is not greater than the previous proposal.
And under the heading 'Conclusion', stated:
The applicant's endeavour to achieve a building with low energy consumption through the range of technologies is consistent with the City's aim to promote environmental innovation and sustainable development, and should be encouraged. Notwithstanding this, any endeavours need to be balanced against the City's responsibility to maintain a level amenity appropriate to the inner city having particular regard for adjacent residential areas. The State Administrative Tribunal determined that the previously proposed three wind turbines would have acceptable visual non-acoustic amenity impacts. It is considered that the single wind turbine now proposed would have the same (if not reduced adverse amenity impact) subject to appropriate conditions being applied. The turbine is consistent with other roof top structures within the city in terms of appearance and can be supported subject to satisfactory resolution of noise issues to ensure that they do not create a disturbance to adjacent residences.
In October 2010, in the face of that professional advice, Council refused the application for the following reason:
The proposed installation of the turbine would have [undue adverse effect] on the amenity of the area and on the inhabitants of the locality.
The applicant then applied to this Tribunal for a review of that decision and following mediation, the respondent was invited to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA).
As a result, the matter again came before Council on 14 December 2010.
In the Council's officers' report on that occasion, details of the Tribunal's 2008 decision were again set out together with many of the same issues that were in the report to the October meeting. The principal of consistency in decisionmaking by government authorities, as set out above, was again repeated with a paragraph added that stated:
As suggested by the SAT, the City has obtained legal advice on the matter. Confidential Schedule 2 detailing that advice would be distributed to Elected Members under separate covers.
And then under a new heading 'Weight to Be Afforded to Public Objections', it stated:
As detailed in the legal advice, consideration of public objections is a vital part of the planning process, however, these alone, should not be the determining factor. And as such, consideration of the weight that can be afforded the objections should be balanced against the merits of the proposal.
The officers then went on to conclude in the same manner they had in the previous report but added as a final paragraph in the conclusion:
In consideration of consistency of decision making by government planning authorities, it is recommended that the application be approved subject to the proposed conditions.
And under a final heading of 'Alternative Recommendation', the officers stated:
Taking into consideration the matters highlighted in this report and the obtained legal advice, should the Council consider that the application for the wind turbine at 259 - 263 Adelaide Terrace, Perth, be refused, consideration should be given to the need to give clear reasons for refusal on planning grounds, in addition to the following:
Following consideration of the matter, Council again refused the application on the following grounds:
•[T]he Council has maintained consistency in its decision making having regard to the undue adverse affect that the proposed installation of the turbine would have on the amenity of the area and on the inhabitants of the locality;
•[T]he proposed use of one wind turbine does not provide a significant contribution in offsetting the energy consumption of the building;
•[A]lternatives, such as solar panels, which have a reduced visual impact and a higher potential to generate energy, should be considered;
•[T]he Council's initial approval for the commercial building to be developed within the residential zoned R160 was given with the consideration to the proposed height of the adjacent residential buildings so as to preserve the visual amenity of the area.
In Franolich and Western Australian Planning Commission [2006] WASAT 349; (2006) 47 SR (WA) 302, the Tribunal considered the issue of consistency in decision-making as approval had previously being granted (in that case, in 1993) to a similar subdivision of the land in question. The Tribunal observed at [35] [36]:
… As Malcolm CJ observed in Dilatte v MacTiernan [2002] WASCA 100 at 61:
'Inconsistency has a potential to bring the decision-making process into disrepute because it suggests that the decision is arbitrary rather than one made in accordance with a disciplined approach reflecting the application of sound town planning principles and consistent with commonly accepted notion of justice.'
In order to determine whether there has been inconsistency between successive decisions Malcolm CJ, in Dilatte, considered that it depended upon a comparison of the circumstances in each case and, in particular, to those relevant to each decision. The test being 'that ordinarily there would need to be a similarity, if not a virtual duplication of circumstances and conditions to establish the basis for a complaint of inconsistency'.
In Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71 at [54] the Tribunal stated:
In circumstances where the planning framework is the same and the circumstances have not changed in any substantial way, it is in the interests of orderly and proper planning that planning decisions in relation to a site are made in a consistent way.
In J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 at [50], the Tribunal made it clear that the original decisionmakers position in SAT cases must be based on genuine planning issues supported by necessary evidence and stated:
… Community opposition cannot of itself be a determinative matter ... To elevate this consideration to the sole criterion is an error.
The Tribunal recognises that the elected members of local authorities who make decisions are often not professionally qualified in planning or legal matters and therefore local authorities employ professional planners to give decisionmakers the necessary advice and as has happened in the present case, legal advice is also available if required.
As to the weight to be afforded to the officers' recommendations, the Town Planning Appeal Tribunal as it then was in Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4 (Dalla Riva) stated at [35] [36]:
Whilst it is true that that is what they are, namely recommendations, it is equally true that they represent the considered recommendations of professionally trained and engaged employees.
It is accepted, without demure, that of course the decision at all times remains the Respondent's. When, however, the matter is addressed by the Tribunal on appeal there is proper scope to consider the reflective advice provided to the Respondent in the course of its consideration on and deliberations about the relevant application. It is in no way determinative of the matter before the Tribunal but nevertheless represents a matter to which regard should be had as matter to be considered in the determination of this appeal. To the extent to which there is discretion and therefore an element of judgment, the views expressed on such matters by qualified planners are of assistance to the Tribunal.
That approach has been followed in a number of SAT decisions including: Aydogan and Town of Cambridge & Anor [2006] WASAT 122; Murphy & Anor and Town of Vincent [2006] WASAT 322; (2006) 46 SR (WA) 122; Forsyth and City of Fremantle [2006] WASAT 361; (2006) 48 SR (WA) 86 and Driscoll and Shire of Augusta-Margaret River [2008] WASAT 219.
In Tran and Town of Vincent [2009] WASAT 123 (S) (Tran), the Tribunal stated at [36]:
... it is important for the process of orderly public sector decisionmaking that original decisionmakers pay careful attention to consistency in that decision-making process; that they also pay regard to the advice of their professional officers; and that they avoid the need for the rearguing of cases where there are in fact no material changes to the circumstances where an earlier identical planning approval had been given. (Original emphasis)
In the present case, all of the professional planning advice the respondent received in making its decision, on both occasions, ran clearly against what it ultimately decided.
The first of the four reasons the respondent gave for refusing the application on reconsideration on 14 December 2010 was:
The Council has maintained consistency in its decision making having regard to the undue adverse affect that the proposed installation of the turbine would have on the amenity of the area and on the inhabitants of the locality;
This shows a wholly misconceived approach to the issue of consistency as it had been explained in the officers' report. Consistency is not simply reaffirming the same refusal that Council had made on previous occasions but rather it is 'consistency of decision making [sic] by government planning authorities', including being consistent with previous decisions of other decisionmakers such as this Tribunal.
It would appear that apart from the individual objections that had been lodged during the public consultation process and which were summarised in the officers' report, there was no planning or professional advice before Council that supported Council's decision.
What was meant by consistency in decisionmaking had been clearly pointed out to Council on more than one occasion, but Council either misunderstood it or chose to ignore it.
As for the other three reasons for refusal given by Council, there was again no evidence seen by this Tribunal which Council could have relied on to formulate those reasons as valid reasons for refusal.
Even the evidence of Professor Sreeram, which was prepared after Council made its decision, did not satisfy the Tribunal in respect of Council's reasons 2 and 3 which were essentially put forward as issue 7 before this Tribunal.
The statement by Council officers in the conclusion to their report to Council stated:
It is considered that the single wind turbine now proposed would have the same (if not reduced adverse amenity impact) subject to appropriate conditions being applied. The turbine is consistent with other roof top structures within the city in terms of appearance and can be supported subject to satisfactory resolution of noise issues to ensure that they do not create a disturbance to adjacent residences.
This was the correct and preferable decision, and should have been supported by Council.
Furthermore, Council was specifically advised as to the weight to be afforded to public objections and the importance of consistency in decisionmaking by government planning authorities.
In the circumstances, the guiding principles set out in Tran at [36] are relevant and appropriate in this case. It was not appropriate for the respondent to refuse the QR5 proposal in light of the Tribunal's earlier decision when no change to the local circumstances had taken place; what was 'proposed had only minor differences which would have the same (if not reduced adverse amenity impacts)' than that already approved; and the planning framework and appropriate policies had not changed.

Conclusion

For the reasons outlined in respect of each of the nine issues, the Tribunal is satisfied that the application for planning approval should be approved.
As this Tribunal concluded in the 2008 decision, 'sustainability or ecological sustainability is now recognised as an important objective of orderly and proper urban and regional planning': WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260 at [37], although the promotion of such should not override other objectives, in particular, 'to protect and enhance the health, safety and general welfare of the City's inhabitants and the social, physical and cultural environment of the City' (cl 6(3)(c)).
However, the Tribunal finds that the proposed wind turbine would have an acceptable impact on the amenity of the locality and agrees with Mr Haeren's comments that 'the QR5 will compliment the overall urban landscape and have a substantially lesser impact than the many items of infrastructure which are located on building roof tops within the Perth CBD, including the three previously approved Turbys'.
The decision of the respondent to refuse the applicant's application for a single QR5 wind turbine will therefore be set aside and the application will be approved.

Conditions

As with all applications before this Tribunal, the respondent furnished, without prejudice, draft conditions to be considered in the event that the application was approved.
Although the respondent did not raise noise as an issue to be considered by the Tribunal it stated at para 12.1 of its submissions that:
The Respondent has formed the view that the level of noise is not of such an intensity to refuse the application. ... However, should the application be approved by the SAT, the Respondent submits that appropriate conditions be imposed to ensure that noise levels remain within reasonable levels.
The following are the conditions proposed by the respondent. Numbers 1 to 5 relate to noise, number 6 relates to glint from the blades, number 7 to flickering and number 8 to the issue of birds.
1.on-site testing being undertaken with the turbine in place, in consultation with the City, with the results of the testing being submitted and approved by the City prior to the turbine being commissioned and put into operation to confirm that, in combination with the associated plant equipment, it will comply with the relevant assigned noise levels under the Environmental Protection (Noise) Regulations 1997;
2.the wind turbine operating only between 7.00am and 7.00pm, Monday to Saturday, excluding public holidays;
3.the wind turbine incorporating a braking feature which brakes the turbine at wind speeds in excess of ten metres per second limiting the maximum revolutions of the turbine, to avoid disturbance to adjacent residents;
4.upon commencement of the operation of the wind turbine, the applicant implementing an on-going noise monitoring program incorporating the submission to the City of Perth of a monthly acoustics report prepared by an appropriately qualified acoustics engineer to confirm that the wind turbine and plant are operating within the relevant assigned noise levels under the Environmental Protections (Noise) Regulations 1997. The noise monitoring program is to continue until a noise report confirms that the wind turbine and plant operate within the relevant assigned levels at wind speeds in excess of ten metres per second experienced at the site;
5.the wind turbine and all associated equipment being removed from the site within 180 days after the date of the City's written notification if the City determines that the operation of the wind turbine is not able to achieve the assigned noise levels under the Environmental Protection (Noise) Regulations 1997 unless the applicant or operator makes adjustments to the turbine or to its operation which satisfy the City that the turbine, in combination with the associated plant equipment, can comply with the relevant assigned noise levels;
6.the blades of the wind turbine being treated to minimise glint and reflectivity off the rotating blades, with evidence thereof being submitted to the City prior to installation;
7.shadow flicker from the wind turbine must not exceed 30 hours per annum at any residence within the locality; and
8.the applicant must make a financial contribution of $200 to the Darling Range Wildlife Shelter Inc for each death of a Corellas that has reasonably been attributed to the carrying out of the development. The financial contribution must be paid by the applicant within one month of the applicant becoming aware of the death. The contribution must be adjusted to take account of any increase in the Consumer Price Index over time, commencing at the July 2011 quarter.
The applicant, in responding to those conditions, accepted conditions 1 to 5 dealing with noise but objected to conditions 6, 7 and 8 relating to glint, flickering and birds.
In respect to conditions 1 to 5 relating to noise, the Tribunal placed similar conditions on the approval in the 2008 decision. Although it is expected that noise will not be a problem with the QR5, the Tribunal is satisfied that conditions 1 to 5, as proposed, are reasonable to ensure that any noise that may emanate from the turbine will comply with relevant standards and they will be imposed as conditions on the approval.
In respect to conditions 7 and 8, dealing with flickering and birds, the Tribunal notes that it has not been satisfied by the respondent in respect of either of those issues.
In respect to condition 6, dealing with 'blade glint', that was not even raised as an issue and no evidence was put before the Tribunal in respect to it. Indeed, the only reference to blade glint was found at page 6 of the NHMRC July 2010 report under the heading 'Effects of Shadow Flicker and Blade Glint on Health' which stated:
In regards to blade glint, manufacturers of all major wind turbine blades coat their blades with a low reflectivity treatment which prevents reflective glint from the surface of the blade. According to the Environmental Protection and Heritage Council (EPHC) the risk of blade glint from modern wind turbines is considered to be very low (EPHC, 2009).
In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57] McHugh J in the High Court of Australia endorsed the tests for the validity of a condition of planning approval articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578; [1980] 1 All ER 731 (Newbury decision) in the following terms:
... A condition attached to a grant of planning permission will not be valid therefore unless:
(1)The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
(2)The condition reasonably and fairly relates to the development permitted.
(3)The condition is not so unreasonable that no reasonable planning authority could have imposed it.

This test has been applied by this Tribunal in a number of decisions.
It is not for this Tribunal to impose conditions in respect to issues that the respondent has been unable to persuade the Tribunal on the evidence, but thinks 'might' be a problem.
Besides general submissions and conjecture that glinting or flickering may occur, there is no evidence to support the suggested conditions. Without something more, it would not, in the Tribunal's view, be reasonable to impose conditions 6 or 7.
As to proposed condition 8, the Tribunal was not persuaded that the proposed wind turbine would have an adverse impact on wildlife, but even if it had been so persuaded, the condition proposed does not appear to have any planning purpose whatsoever and certainly would not meet the test in the Newbury decision as endorsed by McHugh J. Condition 8 will therefore not be imposed.
In the circumstances, only conditions 1 to 5 as proposed will be imposed as conditions.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent on 14 December 2010 to refuse development approval under the City of Perth City Planning Scheme No 2 and the Metropolitan Region Scheme for the installation of a single Quietrevolution wind turbine on the roof the Durack 2 building at the corner of Victoria Avenue and Terrace Road, Perth is set aside and a decision is substituted that development approval is granted subject to the following conditions:
i)On-site testing being undertaken with the turbine in place, in consultation with the City of Perth, with the results of the testing being submitted and approved by the City of Perth prior to the turbine being commissioned and put into operation to confirm that, in combination with the associated plant equipment, it will comply with the relevant assigned noise levels under the Environmental Protection (Noise) Regulations 1997 (WA).
ii)The wind turbine operating only between 7 am and 7 pm, Monday to Saturday, excluding public holidays.
iii)The wind turbine incorporating a braking feature which brakes the turbine at wind speeds in excess of 10 metres per second limiting the maximum revolutions of the turbine, to avoid disturbance to adjacent residents.
iv)Upon commencement of the operation of the wind turbine, the applicant implementing an on-going noise monitoring program incorporating the submission to the City of Perth of a monthly acoustics report prepared by an appropriately qualified acoustics engineer to confirm that the wind turbine and plant are operating within the relevant assigned noise levels under the Environmental Protections (Noise) Regulations 1997 (WA). The noise monitoring program is to continue until a noise report confirms that the wind turbine and plant operate within the relevant assigned levels at wind speeds in excess of 10 metres per second experienced at the site.
v)The wind turbine and all associated equipment being removed from the site within 180 days after the date of the City of Perth's written notification if the City of Perth determines that the operation of the wind turbine is not able to achieve the assigned noise levels under the Environmental Protection (Noise) Regulations 1997 (WA) unless the applicant or operator makes adjustments to the turbine or to its operation which satisfy the City of Perth that the turbine, in combination with the associated plant equipment, can comply with the relevant assigned noise levels.

I certify that this and the preceding [182] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, SENIOR MEMBER