APP CORPORATION PTY LTD and CITY OF PERTH - [2008] WASAT 291

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: APP CORPORATION PTY LTD and CITY OF PERTH [2008] WASAT 291

MEMBER: MR D R PARRY (SENIOR MEMBER)
MS M CONNOR (MEMBER)

HEARD: 25 NOVEMBER 2008

DELIVERED : 9 DECEMBER 2008

FILE NO/S: DR 322 of 2008

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

Catchwords:

Town planning - Development application - Wind turbines - Installation and operation of three vertical axis wind turbines on roof of commercial building - Inner city - Adjoining residential building - Visual amenity - Visual distraction - Interruption of view - Acoustic amenity - Whether compliance with Environmental Protection (Noise) Regulations 1997 (WA) is adequate - Orderly and proper planning - Ecologically sustainable development - Energy efficient building design - Alternative energy generation - Renewable energy

Legislation:

City of Perth City Planning Scheme No 2, cl 2.4.5, cl 6(3)(c), cl 43(4)(b), cl 43(4)(d), cl 43(4)(h)
Environmental Protection (Noise) Regulations 1997 (WA)
Planning and Development Act 2005 (WA), s 3(1)(c), s 252(1)

Result:

Development approval granted subject to conditions

Category: A

Representation:

Counsel:

Applicant: Mr N Ellery with Ms H Simpson-Zucal
Respondent: Dr S Willey and Mr M Gregory

Solicitors:

Applicant: Corrs Chambers Westgarth
Respondent: Minter Ellison

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

Adam and City of Fremantle [2008] WASAT 226
Adbooth Pty Ltd and City of Perth [2007] WASAT 76
Del Giacco and City of Melville [2008] WASAT 134
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140
WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned a proposal by Stockland Development Ltd to install and operate three wind turbines on the roof of a commercial building in the City of Perth. Unlike most wind turbines in use in Australia, which are horizontal axis or propeller-type wind turbines, the proposal involves vertical axis wind turbines known by the model name 'Turby'. The Turby has a vertical axis with a height of about 3 metres and a diameter of 2 metres above a narrow mast. The proposed development involves the first Turby in Australia, the first wind turbine in an urban location in Western Australia and one of the first wind turbines in an urban location in the country. The proposed wind turbines can be seen on Attachment A and Attachment B.
The Tribunal observed that Australia is a land that abounds in nature's gifts of renewable energy. Ecologically sustainable development is now recognised as an important objective of orderly and proper town planning. The Tribunal accepted town planning evidence that the proposal 'strongly reflects the application of [ecologically sustainable development] principles in a tangible way, providing a new benchmark for office development in Western Australia and reflecting current best practice'.
While the Turbys would generate only a tiny fraction of the overall energy requirements of the building, they utilise a source of freely available, renewable energy to achieve an actual net reduction in carbon dioxide emissions; in combination with other energy efficient initiatives incorporated in the design of the building, they provide a significant reduction in the carbon footprint of the building and achieve a 6 star Green Star Environmental Rating for the building, which is considered to be 'World Leadership'; and increase public awareness of the pressing need for environmentally sustainable development and the availability of renewable energy options.
The Tribunal said that environmental considerations do not override other objectives and matters for consideration in the planning framework. However, the Tribunal found that the proposed wind turbines would have acceptable visual and acoustic amenity impacts.
The most directly affected residential units in the adjoining building would be subject to minor or negligible visual impacts. The operation of the Turbys would not involve detrimental visual distraction, because the blades would establish a visual profile, rather than a distracting flicker. Furthermore, the urban environment is not static.
The acoustic evidence and the strict conditions of development approval satisfied the Tribunal that the proposed wind turbines would comply with applicable noise regulations during the proposed hours of operation from 7 am to 7 pm Monday to Saturday, excluding public holidays. Furthermore, the acoustic evidence showed that the noise generated by the operation of the building, including the wind turbines, is not likely to be generally discernible at the closest residential units, because it would be masked by background noise of traffic and general activity.
The Tribunal granted conditional development approval for the installation and operation of the three wind turbines.

Introduction

Stockland Development Ltd (Stockland) is currently constructing a five‑level commercial building known as 'Durack 2' on the southern half of 259‑263 Adelaide Terrace, Perth (site). APP Corporation Pty Ltd (APP) is the project manager for Durack 2.
Durack 2 incorporates a number of elements of energy efficient building design. In consequence, Durack 2 achieves a 5 star Green Building Council of Australia Green Star Environmental Rating, which is considered to be 'Australian Excellence'.
In these proceedings, APP seeks development approval on behalf of Stockland to install and operate three vertical axis wind turbines on the roof of Durack 2. The proposed wind turbines, which are known by the model name 'Turby', were developed in the Netherlands as a rooftop wind turbine for use in an urban environment. The proposed development would be the first use of Turbys in Australia, the first wind turbine in an urban location in Western Australia and one of the first wind turbines in an urban location in the country.
Unlike most wind turbines in operation in Australia, which are horizontal axis or propeller-type wind turbines, Turbys are vertical axis wind turbines. The Turby consists of a base frame approximately 0.3 metre high, a narrow mast with a height to optimise power generation, a generator approximately 0.25 metre high and three vertical symmetrical airfoil blades, with a helical twist, a height of 2.65 metres and a combined diameter of 2 metres. When the Turby is operating, the mast remains stationary, while the vertical axis, consisting of the generator and the airfoil blades, are turned by the wind.
Mr Lee Sin Yang, an electrical engineer who gave evidence on behalf of APP, explained that the Turby is quieter than horizontal axis wind turbines and consequently well suited to urban locations. Mr Lee also explained that the Turby is designed to utilise 'wind over buildings' to optimise its power generation. Wind passes over a building at an upward angle of 30 degrees to 40 degrees from the leading edge of the roof. The wind speed directly above this line will be 20% to 40% higher than undisturbed horizontal wind flow, equating to two to three times higher power. The Turby's helical twist generates torque particularly well from upward-slanting air flow. Mr Lee explained that the Turby can therefore extract more useful energy than a propeller-type turbine.
Mr Lee said that the proposed siting and height of the masts was selected in order to maximise power generation, having regard to these considerations. The three proposed Turbys would be located on the south-western part of the roof and set back from the edge. The proposed height of each mast is 6 metres and the total height of each Turby would be 9.2 metres.
With the addition of the three Turbys, Durack 2 would achieve a 6 star Green Building Council of Australia Green Star Environmental Rating, which is considered to be 'World Leadership'. There are currently only five 6 star Green Star rated buildings in Australia. There are no 6 star Green Star rated buildings in Western Australia.
The following images are attached to these reasons:
•Attachment A – perspective view of Durack 2 with proposed Turby wind turbines from an elevated position on Victoria Avenue to the south‑west of the site.
•Attachment B – perspective view of Durack 2 with proposed Turby wind turbines from balcony on approximately Level 15 of adjoining Altair Apartments building to the east of the site.
•Attachment C – photograph of Turby wind turbine on a building in the Netherlands.

Site and locality

The site has a rectangular shape with narrow frontages to Adelaide Terrace to the north and Terrace Road to the south and a long frontage to Victoria Avenue to the west. As noted earlier, Durack 2 is currently under construction on the southern half of the site. The northern half of the site comprises a two‑level heritage-listed building, known as 'Johnston House', fronting Adelaide Terrace, and a 13-level commercial building, known as the 'Durack Centre', generally 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, the Perth Concert Hall and Government House. To the north-west across the intersection of Victoria Avenue and St Georges Terrace/Adelaide Terrace is a residential apartment building, a hotel and commercial buildings. 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', and then generally other residential buildings and hotels. To the south across Terrace Road is Langley Park, Foreshore Drive and the Swan River foreshore.
The site is located within the local government area of the City of Perth (City or Council). 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. The Precinct Plan states as follows:
The Adelaide Precinct will be developed as a residential quarter accommodating a wide range of residential uses including short stay accommodation and employment opportunities serviced by activities which support these uses. The Precinct will also accommodate offices, functioning as a secondary, less intensive, general office district and contain a mixture of general commercial activities of a kind that will contribute to residential amenity.
The Precinct Plan also states that the Precinct 'will develop at an intensity markedly lower than the city centre' and 'will be characterised by medium scale buildings'.
Office development is generally prohibited under CPS 2 and the Adelaide Precinct Plan on the 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. The town planning expert witnesses, Mr Joe Algeri, called on behalf of the City, and Mr Ray Haeren, called on behalf of APP, agreed that the TRD Policy is only relevant to the proposed development to a limited extent. Mr Algeri considered that provisions of the TRD Policy which concern reducing adverse impacts on adjoining and adjacent development are relevant. Mr Algeri specifically referred to one provision of the TRD Policy which is considered below. In addition, Dr Willey, who appeared on behalf of the City, referred to certain objectives of the TRD Policy which are also considered below.
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 Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187, the Tribunal stated, at [42], as follows:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case.
The topographic area which is affected by the proposed wind turbines is limited and confined. In terms of, relevantly, potential visual and acoustic impacts of the wind turbines, the locality is limited to the Durack Centre, Duxton Hotel, Commonwealth Law Courts, Altair Apartments, Langley Park between Governors Avenue to the west and Hill Street to the east, and parts of Terrace Road and Victoria Avenue. The Altair Apartments and the Durack Centre would generally preclude view of the proposed wind turbines from other properties in the Adelaide Precinct.
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.

Proposed wind turbines

Mr John-Paul Davies, the project architect for Durack 2, gave evidence that the design of the building incorporates numerous sustainable initiatives to increase its energy efficiency, including:
•building façade design and external building fabric insulation;
•automated operable louvres to the western elevation;
•floor plate design to maximise natural daylight;
•partial natural ventilation to the basement carpark;
•energy efficient lift selection and feature stair to reduce lift usage;
•light fitting selections, perimeter and internal area light zoning, timers to low frequency occupancy areas and tenant sub-metering;
•light modelling to ensure no unintended or light spill beyond the building;
•extended building commissioning, maintenance and fine‑tuning period;
•extensive building management and user guide; and
•mechanical active chilled beam air conditioning system.
Mr Lee noted that solar technology was investigated in the design process. However, overshadowing by the Durack Centre and the Altair Apartments has the consequence that there is inadequate solar access to the roof of Durack 2 for solar power to be a viable option. Mr Lee also noted that solar panels could potentially cause glare to the Altair Apartments building.
Mr Davies explained that the early concept sketches of Durack 2 indicated a series of wind turbines on the roof of the building. However, at the time when the development application for the building was to be submitted, insufficient information was available regarding turbines. Consequently, turbines were not shown on the development application for the building.
Mr Davies gave the following evidence in relation to the selection of the Turby model:
The wind turbine selected was the Turby model which was selected for its power output, operating parameters, minimal noise impact and visually aesthetic merits. The Turby is a slim, elegant looking turbine, with minimal visible components. The other wind turbines were not considered suitable because they were too noisy, had a lower power output and needed to operate for longer hours. The propeller blade turbines were also visually unappealing and intrusive.
Mr Davies explained that the proposed siting of the Turbys:
whilst not providing the maximum power output, was the most appropriate as the Turbys were located the greatest distance from the Altair Apartments and were afforded some visual screening from the Altair Apartments by Durack 2 roof plant, while still capturing the optimum wind exposure.
In addition, Mr Davies gave evidence that:
The location chosen … provided the strongest statement to the corner of the Durack 2 building, strengthening the environmentally sustainable intent of the development.
In order to visually integrate the Turbys with the 'environmentally sustainable intent' of the development, it is proposed to paint the Turbys red to coincide with other sustainable feature elements of Durack 2, including the automated louvre system along the Victoria Avenue façade and the building's horizontal shading devices – see Attachment A.
The Turbys are proposed to operate from 7 am to 7 pm Monday to Saturday, excluding public holidays. The wind turbines would incorporate a braking feature which brakes at wind speeds in excess of 10 metres per second.
Mr Lee gave evidence that, on the basis of the average wind speed of between 4 metres per second and 10 metres per second for the Perth metropolitan area, the three Turbys would generate approximately 2,530 to 7,300 kilowatt hours of energy per year. Assuming an average wind speed of only 4 metres per second, the Turbys would generate enough energy to operate 16 laptop computers for five hours each day or 82 20‑watt light fittings for six hours each day. Larger amounts of energy could potentially be generated by stronger winds.
Based on the lowest power generation of the Turbys estimated by Mr Lee, they would prevent the emission of at least three tonnes of carbon dioxide per year into the atmosphere.
On 24 April 2008, APP applied to the City for development approval for the installation and operation of the Turbys. The City advertised the development application for 14 days. Eighty letters or emails of objection were received in relation to 61 of the 120 apartments in the adjoining Altair Apartments. Of the 80 letters or emails of objection, 54 were pro forma.
On 29 July 2008, the City's Planning Committee considered a detailed report from the City's Acting Director Planning and Development which recommended that the City should grant conditional development approval for the proposal. However, the Planning Committee decided to recommend that the Council should refuse the application.
On 5 August 2008, the Council resolved to refuse the development application under CPS 2 and the Metropolitan Region Scheme for the following reason:
The proposed installation of the turbines would have an undue adverse effect on the amenity of the area and on the inhabitants of the locality.
On 1 September 2008, APP sought review by the Tribunal of the Council's decision under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).

During the hearing on 25 November 2008, the Tribunal viewed the site and locality from adjoining streets and Langley Park and also from the closest apartment to the proposed wind turbines on Level 11 (10th Floor) the Altair Apartments.

Issues for determination

The following three principal issues arise for determination in this review:
1)Whether the proposed wind turbines would have an undue adverse effect on the visual amenity of the locality.
2)Whether the proposed wind turbines would have an undue adverse effect on the acoustic amenity of the inhabitants of the locality.
3)Whether the proposed wind turbines are contrary to orderly and proper planning.
The Tribunal will address each of these issues in turn.

Would the proposed wind turbines have an undue adverse effect on visual amenity?

Mr Algeri considered, and the City argued, that the proposed wind turbines would have an undue adverse effect on the visual amenity of the locality, both from residential units in the Altair Apartments and from the public domain. In particular, Mr Algeri expressed the opinion that the wind turbines could create a 'visual distraction due to their constant spinning'. He said that, while urban skylines are filled with varied objects, they are generally static. Mr Algeri considered that the oscillating effect of the turbines may become distracting and that they are not the type of object people expect or desire to see from a residential apartment.
In contrast, Mr Haeren did not consider that the proposed turbines would impact negatively on the visual amenity of adjoining properties, given that:
•the focus of their outlook is to the Swan River, rather than to the site;
•the turbines are slimline and visually innocuous; and
•the outlook interrupted by the turbines is very limited, generally to a carpark and over private property.
Mr Haeren expressed the opinion that the urban landscape contains many elements which are not static, such as flags that flutter atop nearby city hotels. Having viewed the Turbys in operation on a DVD, Mr Haeren considered that they would not cause distraction associated with the vertical rotation.
Mr Davies also did not consider that the proposed wind turbines would negatively impact the visual amenity of adjoining properties. Mr Davies observed that the wind turbines would be visible from a relatively small proportion of the Altair Apartments building. Having also viewed the DVD, Mr Davies expressed the opinion that:
The vertical axis turbines have a slender blade profile and due to the speed of oscillation, I consider that a stable visual outline is generated rather than a distracting flicker.
Mr Davies also gave evidence that the Turbys are more aesthetically pleasing and visually interesting than other common roof‑mounted building elements, such as building maintenance units, cooling towers, fire tanks, air conditioning condenser units, aerials, communications dishes and telecommunications devices.
Having viewed the DVD showing the operation of Turbys, the Tribunal agrees with Mr Haeren's and Mr Davies' evidence that the proposed turbines would not cause a visual distraction. The Tribunal agrees with Mr Haeren that 'the urban landscape of the CBD is hardly static'. In particular, movement is apparent from the units in the Altair Apartments in the form of traffic, trees swaying in the wind, ferries and other boats, and waves on the river. 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.
Owing to the configuration and orientation of units in the Altair Apartments building, and the approved building envelope of Durack 2, only 14 of the 120 units in the Altair Apartments would have a direct view of the proposed wind turbines. The 14 units are D-type units at Levels 9, 10, 11 and 12, C-type units at Levels 9, 10, 11 and 12, E-type units at Levels 13, 14, 15, 16 and 17 and the penthouse at Level 18. Other units to the east above Level 8 may also have oblique views of the proposed wind turbines from the edge of their balconies but not from internal living areas.
The greatest visual impact of the proposed wind turbines on any residential units in the Altair Apartments is on two units on Level 10 (9th Floor), from which the vertical axis elements of the three turbines would punctuate and, when operating, obscure small parts of the view of the Swan River and Kings Park. However, both of these units would retain substantial, uninterrupted views of water, park and foreshore. The C-type unit has a 180 degree view from the balcony from the Perth Hills in the east to Kings Park in the west. The D-type unit has only a 90 degree view, but this includes a direct view to the Swan River to the south which would not be affected by the proposal.
The visual impact of the proposed wind turbines on the 10 units with a direct view of the proposed turbines above Level 10 would be even less, and would become progressively less moving up the building, as the wind turbines would reduce in perspective and be seen against the car park between Terrace Road and Foreshore Drive. Attachment B shows the perspective view of the proposed wind turbines from approximately Level 15 (14th Floor) of the Altair Apartments. The view in the direction of the photograph is substantially unaffected by the proposal. This unit also has a 90‑degree view from the balcony until the Perth Hills to the east which is not seen in the photograph.
In Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140, Senior Commissioner Roseth in the New South Wales Land and Environment Court adopted, at [26] – [29], the following four‑step assessment in relation to view sharing in a case where the planning framework required development to allow for the reasonable sharing of views:
The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.
The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.
The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.
The four-step assessment adopted by the Land and Environment Court is not strictly in point, as the planning framework in this case does not require development to allow for the reasonable sharing of views. Furthermore, this is not a case of view loss due to substantial solid structures, but rather of interruption of views. Nevertheless, the four-step assessment is of assistance in determining whether the visual impact of the proposed wind turbines is acceptable.
In relation to the first step of the assessment, to identify the views to be affected, two units on Level 10 of the Altair Apartments would have water views interrupted and obscured by the Turbys. Water views are valued more highly than land views. However, as found earlier, the units would retain substantial, uninterrupted water views. Two units below and 10 units above Level 10 would also have a direct view of the proposed wind turbines. However, the views from the two units on Level 9 are already substantially affected by the plant room of Durack 2. The affected views from the units above Level 10 are generally of a carpark.
In relation to the second step of the assessment, to consider from what part of the property the views are obtained, the proposed turbines would be viewed from the 14 units in the Altair Apartments building across the common boundary with the site. As Roseth SC said, '[t]he expectation to retain side views … is often unrealistic'. Similarly, the Tribunal approved a balcony wall in Adam and City of Fremantle [2008] WASAT 226 that removed a water view in part because 'the view is obtained through what is effectively another dwelling's private open space': at [49].
In relation to the third step of the assessment, to determine the extent of impact, assessed qualitatively in light of the foregoing, the effect on views from the living areas and balconies of the two units on Level 10 of the Altair Apartments is minor, and from the other 12 directly affected units is minor, becoming negligible as one moves higher in the building.
In relation to the fourth step of the assessment, to determine the reasonableness of the development that is causing the impact, Durack 2 and the proposed development is generally compliant with the planning framework and, for reasons discussed below, is consistent with orderly and proper planning in terms of ecologically sustainable development. Furthermore, if the site were developed for residential purposes, the planning framework contemplates a more substantial building which would have a significantly greater visual impact on the units in the Altair Apartments building than would the proposed development.
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.
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 effects 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.
Durack 2, with the proposed wind turbines, and the wind turbines viewed in their own right, are of a moderate scale, when viewed in their built context, make a coherent contribution to the cityscape of Perth and establish an appropriately scaled edge to Langley Park. Plainly, more intensive development occurs on the site towards Adelaide Terrace rather than Terrace Road, given that the northern half of the site contains a 13‑level commercial building.
Finally, the proposal is consistent with the City's Development Design Guidelines in its Development and Design Policy which has as an objective:
To enhance the physical quality and character of Perth's built environment through sensitive and innovative design of buildings and spaces.
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 effect on the visual amenity of the locality.

Would the proposal have an undue adverse effect on acoustic amenity?

APP called Mr Hugh Richardson, an acoustics engineer, to give evidence. Mr Richardson said that he was not able to measure the noise impact of an operating Turby, because there is no Turby in operation in Australia. However, Mr Richardson said that manufacture‑provided information regarding the noise emissions of Turbys was sufficient for the purposes of modelling the proposed Turbys' noise emissions. He said that the information provided by the manufacturer was more detailed than is typically provided.
Mr Richardson modelled the noise that is likely to be emitted from Durack 2, including the three Turbys, cooling towers on the roof and mechanical services, and found that the noise generated from the operation of Durack 2 would comply with the assigned levels under the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) at the closest affected unit in the Altair Apartments building. Mr Richardson also found that the ambient noise of traffic and general activity on Terrace Road, Riverside Drive and Victoria Avenue, as heard from the Altair Apartments building, would exceed the noise from Durack 2 by 3 to 5 decibels during the day. Consequently, the noise generated by the operation of Durack 2, including the proposed wind turbines, would be generally inaudible from the closest residential units.
The City did not present any qualified acoustic evidence. Rather, it relied solely on the cross-examination of Mr Richardson. While Mr Richardson was challenged, he effectively answered each issue raised by the City's representative. In particular, Mr Richardson stressed that background traffic noise will act to mask any possible modulation in noise from the Turbys due to changing wind speed in gusty conditions. Mr Richardson also said that while noise emissions from Durack 2 will increase through operation of the Turbys as wind speed increases, the Turbys will be configured to brake at 10 metres per second, and the additional noise at this maximum speed 'will be countered by the fact that the wind itself will generate more noise (ie, whistling around buildings, rails etc) potentially exceeding the noise emissions from Durack 2'.
The City's Development and Design Policy states as follows:
Developments containing uses that are likely to generate a large amount of noise emissions should be designed to incorporate appropriate noise attenuation measures with a view to achieving compliance with the standards prescribed in the Environmental Protection (Noise) Regulations 1997.
Based on Mr Richardson's evidence and the proposed conditions of development approval, the Tribunal finds that the proposed wind turbines are likely to comply with the Noise Regulations and therefore with the Development and Design Policy. However, the City relied on the following statement in Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 (Land Alliance) at [39]:
Compliance with the Noise Regulations does not necessarily mean that the noise does not constitute an adverse impact on the existing amenity of the locality in a planning sense. (See also Del Giacco and City of Melville [2008] WASAT 134 at [37] – [41]).
However, the Tribunal considers that, for the following four reasons, compliance with the Noise Regulations in this case is adequate to ensure that the proposed development does not have an undue adverse effect on the acoustic amenity of the inhabitants of the locality.
First, although it is intended that the Adelaide Precinct will develop at an intensity markedly lower than the city centre, the site is nevertheless in an inner city location, unlike the proposed development sites in Land Alliance and Del Giacco and City of Melville [2008] WASAT 134. The reasonable expectations of residents living in an inner city location are necessarily different to expectations in a suburban location.
Second, while at a wind speed of 10 metres per second, the noise generated by Durack 2 including the Turbys just meets the assigned level in the Noise Regulations, wind speeds of 10 metres per second or above are only experienced 1% of the time and the Turbys will be configured so as to brake at that speed.
Third, even at a wind speed of 10 metres per second, the ambient noise will generally mask the noise generated by Durack 2.
Fourth, while noise emitted by the Turbys will increase as wind speed increases, this will be countered, as Mr Richardson explained, by the fact that the wind itself will generate more noise.
Having regard to Mr Richardson's evidence and proposed conditions of development approval, the Tribunal considers that the proposed wind turbines would not have an undue adverse effect on the acoustic amenity of the inhabitants of the locality. The proposed conditions of development approval include the following:
•On-site testing being undertaken with the turbines in place in consultation with the City prior to the turbines being commissioned and put into operation to confirm that, in combination with the associated plant equipment, they can comply with the relevant assigned noise levels under the Noise Regulations.
•The wind turbines operating only between 7 am and 7 pm Monday to Saturday, excluding public holidays.
•The wind turbines incorporating a braking feature which brakes the turbines at wind speeds in excess of 10 metres per second.
•An ongoing noise monitoring programme incorporating the submission to the City of a monthly acoustics report prepared by an appropriately qualified acoustics engineer to confirm that the wind turbines and plant are operating within the relevant assigned noise levels under the Noise Regulations until wind speeds in excess of 10 metres per second are experienced at the site.
•The wind turbines and all associated equipment being removed from the site within 180 days after the City's written notification if the City determines that the operation of the wind turbines does not achieve the assigned noise levels under the Noise Regulations, unless the operator makes adjustments to the turbines or their operation which satisfies the City that the wind turbines achieve the assigned levels.

Is the proposal contrary to orderly and proper planning?

Mr Algeri considered, and the City argued, that when the adverse impacts of the proposed development in terms of visual and acoustic amenity are measured against the benefit to Stockland and/or the broader community through having the wind turbines installed, 'the net benefit would be negligible and certainly insufficient to justify the support for the proposal in proper and orderly planning terms'. The City also relied on the Tribunal's reasoning in Adbooth Pty Ltd and City of Perth [2007] WASAT 76 (Adbooth) at [91] – [92] to support a submission that wind turbines are not contemplated by the applicable planning framework for the site.
For reasons discussed earlier, the proposed wind turbines would have limited and acceptable visual impacts on both the private and public domain, and compliant and generally no discernible acoustic impacts on the closest residential units. The proposal therefore does not have the adverse impacts argued by the City.
Furthermore, the Tribunal considers that the proposal is consistent with the State and local planning framework in terms of environmental sustainability and also warrants approval for this reason.
One of the purposes of the PD Act is to 'promote the sustainable use and development of land in the State' (s 3(1)(c)). Consistently with this purpose, the objectives of CPS 2 include:
to co-ordinate and ensure that development is carried out in an efficient and environmentally responsible manner which –
(i)makes optimum use of the City's growing infrastructure and resources;
(ii)promotes an energy efficient environment; and
(iii)respects the natural environment; (cl 6(3)(g)) …
Clause 43(4)(b) and cl 43(4)(d) of CPS 2 requires consideration of any relevant planning policy made by the Council and any State planning policy. The City's Development and Design Policy states that:
Development should incorporate ecologically sustainable design principles, while maximising the health, safety, comfort and productivity of people and places by:
…
- aiming to achieve high energy efficiency ratings in an accredited system for energy efficient building design and maintenance, eg. the Green Building Council of Australia's 'Green Star' environmental rating system.
State Planning Policy No 2 – Environment and Natural Resources Policy (SPP 2) states in cl 5.1 that planning decision-making should:
…
(ii)Actively seek opportunities for improved environmental outcomes including support for development which provides for environmental restoration or enhancement.
…
SPP 2 also states as follows in cl 5.10:
There is widespread awareness of the need to increase the efficiency with which energy is used in Western Australia, including the need to reduce our reliance on energy produced from non-renewable resources such as fossil fuels. The primary objective is to reduce greenhouse gas emissions by means including (but not limited to) increasing energy efficiency, decreasing reliance on non-renewable fuels, and increasing usage of renewable energy resources …
Planning … decision-making should –
(i)Promote energy efficient development and urban design incorporating such issues as energy efficient building design
…
(iii)Support the use of alternative energy generation, including renewable energy, wherever appropriate.
The installation and operation of three Turby wind turbines on the roof of Durack 2 promotes an energy efficient environment, achieves the highest energy efficiency rating possible under the Green Star system, representing 'World Leadership', and generally improves environmental outcomes by innovative use of alternative energy generation. 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; in combination with other sustainable development initiatives referred to earlier, in Mr Lee's words, they 'will provide a significant reduction in the carbon footprint of Durack 2' and achieve a 6 star 'World Leadership' environmental rating; and increase public awareness of the pressing need for environmentally sustainable development and the availability of renewable energy options. The proposal appropriately and admirably demonstrates, to quote Mr Davies, that:
Each and every building has the opportunity to minimise its carbon footprint and, moreover, the Turbys demonstrate the only appropriate naturally occurring and commonly available resource to the site – wind.
The passages in Adbooth relied on by the City are distinguishable from the circumstances of this case. Adbooth concerned a proposal to place general commercial advertisements on public telephone booths and pedestals on road reserves at various sites in Perth, East Perth and Northbridge. At [91] and [92] of the decision, the Tribunal found that general commercial advertising is not characteristic of the City in general or of the localities in question and that the applicable planning instruments and policies do not contemplate that general commercial advertising is characteristic or should be characteristic of the City or of any particular part of it. However, a key consideration in Adbooth was a specific policy relating to signage which reflected a difference in character between commercial advertising to identify and promote on-site businesses and buildings, on the one hand, and general commercial advertising, on the other: see at [94].
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.

Conclusion

Australia is a land that abounds in nature's gifts of renewable energy. As the Tribunal has recently said, '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]. The proposal to install and operate three Turby wind turbines on the roof of Durack 2, to quote Mr Haeren, 'strongly reflects the application of [ecologically sustainable development] principles in a tangible way, providing a new benchmark for office development in Western Australia and reflecting current best practice'.
The promotion of ecologically sustainable development is a key purpose of the PD Act, an objective of the City's local planning scheme and a relevant matter for consideration in the exercise of planning discretion as an element of orderly and proper planning. However, environmental considerations do not override other objectives and matters for consideration in the planning framework. In particular, an objective of the Scheme is '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)) and a matter that requires consideration in the exercise of planning discretion is 'the conservation of the amenities of the locality' (cl 43(4)(h)).
The Tribunal has determined that the proposed wind turbines would have acceptable visual and acoustic amenity impacts. The most directly affected residential units in the adjoining property to the east would be subject to minor or negligible visual impacts. While the Turbys' blades would be directly visible from 14 units, the operation of the Turbys would not involve detrimental visual distraction, because the blades would establish a visual profile, rather than a distracting flicker. Furthermore, the urban environment is not static. In addition to the movement of cars and vessels, the wind causes movement of flags and trees, among other objects. The movement of the Turbys to create energy is a variation on this theme.
The Turbys would only be apparent from a limited section of the public domain. To the extent that they could be seen, the Turbys will augment the high architectural quality and character of Durack 2, add appropriate prominence and visual interest at the corner of Victoria Avenue and Terrace Road, and demonstrate the sustainable intent of the development and the opportunity to minimise the carbon footprint of development generally by use of freely available, abundant and renewable sources of energy.
The acoustic evidence and the strict conditions of development approval discussed at the hearing satisfy the Tribunal that the proposed wind turbines would comply with the Noise Regulations during the proposed hours of operation of 7 am to 7 pm Monday to Saturday, excluding public holidays. Furthermore, the acoustic evidence shows that the noise generated by the operation of Durack 2, including the Turbys, is not likely to be generally discernible at the closest residential units, because it would be masked by background noise.
The proposed installation of three Turby wind turbines on the roof of Durack 2 warrants conditional development approval.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent on 5 August 2008 to refuse development approval under the City of Perth City Planning Scheme No 2 and the Metropolitan Region Scheme for the installation and operation of three Turby wind turbines on the roof of the Durack 2 building under construction 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:
(1)The three wind turbines shall be installed as shown on the plans drawn by Woodhead attached to the development application.
(2)On-site testing being undertaken with the turbines in place in consultation with the City of Perth prior to the turbines being commissioned and put into operation to confirm that, in combination with the associated plant equipment, they can comply with the relevant assigned noise levels under the Environmental Protection (Noise) Regulations 1997 (WA).
(3)The wind turbines operating only between 7 am and 7 pm Monday to Saturday, excluding public holidays.
(4)The wind turbines incorporating a braking feature which brakes the turbines at wind speeds in excess of 10 metres per second, to avoid disturbance to adjacent residents.
(5)Upon commencement of operation of the wind turbines, the applicant implementing an on-going noise monitoring programme 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 turbines and plant are operating within the relevant assigned noise levels under the Environmental Protection (Noise) Regulations 1997 (WA). The noise monitoring programme is to continue until a noise report confirms that the wind turbines and plant operate within the relevant assigned levels at wind speeds in excess of 10 metres per second experienced at the site.
(6)The wind turbines 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 determines that the operation of the wind turbines 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 turbines or to their operation which satisfy the City of Perth that the turbines, in combination with the associated plant equipment, can comply with the relevant assigned noise levels.

Attachment A

Perspective view of Durack 2 with proposed Turby wind turbines from an elevated position on Victoria Avenue to the south‑west of the site.

Attachment B - Perspective view of Durack 2 with proposed Turby wind turbines from balcony on approximately Level 15 of adjoining Altair Apartments building to the east of the site.

Attachment C

Photograph of Turby wind turbine on a building in the Netherlands

I certify that this and the preceding [98] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER