Avalon West Pty Ltd and Town Of Victoria Park

Case •

[2006] WASAT 311

•

20 OCTOBER 2006

No judgment structure available for this case.

AVALON WEST PTY LTD and TOWN OF VICTORIA PARK [2006] WASAT 311



STATE ADMINISTRATIVE TRIBUNALCitation No:[2006] WASAT 311
PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:DR:109/20067 AND 8 SEPTEMBER 2006
Coram:MR D R PARRY (SENIOR MEMBER)
MR J ADDERLEY (SESSIONAL MEMBER)		20/10/06
49Judgment Part:1 of 1
Result: Application for review allowed
Conditional development approval granted
B
PDF Version
Parties:AVALON WEST PTY LTD
TOWN OF VICTORIA PARK

Catchwords:
Town planning
Development application
Mixed use commercial/residential development comprising 3
4 storey commercial component and 3
12 storey residential component
Local planning scheme prescribes maximum 15 metre height development standard
Urban design study, adopted by council after considerable public consultation, recommends 12 storey height development standard
Urban design study contemplates need for scheme amendment in relation to height
Urban design study reflected in non-statutory policy and consistently applied
Council amended policy without public consultation to reflect scheme height limit after refusing DA
Council subsequently resolved to advertise changes to policy for public consultation
Council policy position confused
Orderly and proper planning
Whether the development would be consistent with orderly and proper planning of the locality
Urban design study forms part of planning framework recognised in scheme
Whether the development would be consistent with the conservation of the amenities of the locality
Impact on views
Whether development well designed medium scale building
Scale is a product of factors including height, plot ratio, context, siting, setback, building form and design
Density
Whether variation to R100 standards in relation to density should be granted to enable R158 density
Whether development of high standard with acceptable levels of residential amenity
Issues raised by submitter community association
Car parking
Traffic
Setbacks
Development approved subject to conditions

Legislation:
Planning and Development Act 2005 (WA), s 242, s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.1.1, Table 1
Town of Victoria Park Town Planning Scheme No 1, cl 3.1, cl 4.12.1(b) (Policy Manual), cl 4.12.1(c) (Policy Manual), cl 11, cl 11(2), cl 34, cl 36(5), cl 38, cl 38(2), cl 38(3), cl 38(3)(b), Sch 1

Case References:
Nil
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Permanent Trustee Australia Ltd v City of Wanneroo (Unreported, Town Planning Appeal Tribunal of Western Australia, Appeal No 14 of 1993)

Orders
1. The application for review is allowed.,2. Development approval is granted for a mixed use commercial/residential development at No 2 (Lot 100) Hawthorne Place, Burswood pursuant to the Metropolitan Region Scheme and the Town of Victoria Park Town Planning Scheme No 1 subject to the conditions in Attachment A.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : AVALON WEST PTY LTD and TOWN OF VICTORIA PARK [2006] WASAT 311 MEMBER : MR D R PARRY (SENIOR MEMBER)
    MR J ADDERLEY (SESSIONAL MEMBER)
HEARD : 7 AND 8 SEPTEMBER 2006 DELIVERED : 20 OCTOBER 2006 FILE NO/S : DR 109 of 2006 BETWEEN : AVALON WEST PTY LTD
    Applicant

    AND

    TOWN OF VICTORIA PARK
    Respondent

Catchwords:

Town planning - Development application - Mixed use commercial/residential development comprising 3 - 4 storey commercial component and 3 - 12 storey residential component - Local planning scheme prescribes maximum 15 metre height development standard - Urban design study, adopted by council after considerable public consultation, recommends 12 storey height development standard - Urban design study contemplates need for scheme amendment in relation to height - Urban design study reflected in non-statutory policy and consistently applied - Council amended policy without public consultation to reflect scheme height limit after refusing DA - Council subsequently resolved to advertise changes to policy for public consultation - Council policy position



(Page 2)

confused - Orderly and proper planning - Whether the development would be consistent with orderly and proper planning of the locality - Urban design study forms part of planning framework recognised in scheme - Whether the development would be consistent with the conservation of the amenities of the locality - Impact on views - Whether development well designed medium scale building - Scale is a product of factors including height, plot ratio, context, siting, setback, building form and design - Density - Whether variation to R100 standards in relation to density should be granted to enable R158 density - Whether development of high standard with acceptable levels of residential amenity - Issues raised by submitter community association - Car parking - Traffic - Setbacks - Development approved subject to conditions

Legislation:

Planning and Development Act 2005 (WA), s 242, s 252(1)


Residential Design Codes of Western Australia (2002), cl 3.1.1, Table 1
Town of Victoria Park Town Planning Scheme No 1, cl 3.1, cl 4.12.1(b) (Policy Manual), cl 4.12.1(c) (Policy Manual), cl 11, cl 11(2), cl 34, cl 36(5), cl 38, cl 38(2), cl 38(3), cl 38(3)(b), Sch 1

Result:

Application for review allowed


Conditional development approval granted

Category: B


Representation:

Counsel:


    Applicant : Mr MJ Hardy
    Respondent : Mr PL Wittkuhn

Solicitors:

    Applicant : Hardy Bowen
    Respondent : McLeods



(Page 3)

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

Nil

Case(s) also cited:



Nicholls and Western Australian Planning Commission [2005] WASAT 40
Permanent Trustee Australia Ltd v City of Wanneroo (Unreported, Town Planning Appeal Tribunal of Western Australia, Appeal No 14 of 1993)

(Page 4)
REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 These proceedings concerned the review of the refusal of a development application for a mixed use commercial/residential development comprising six commercial units and 71 multiple dwellings in a building ranging from three to 12 storeys. The local planning scheme prescribed a maximum 15 metre height development standard. Although the commercial component and part of the residential component complied with this standard, the maximum height of the proposal was 41.2 metres.

2 However, the proposal was responsive to the recommendations of an apparently competently-prepared and soundly-based urban study, which had been adopted by the Council, formed part of the planning framework under the scheme and had been consistently applied in relation to applications in key areas where the study considered that 12 storey buildings are appropriate. The study was the subject of considerable community consultation and was adopted by the Council on the basis of apparently sound, independent and expert advice, in the knowledge that the community opposed more than three storey development.

3 In consequence, the Tribunal determined that the proposed development would be consistent with the orderly and proper planning of the locality and the conservation of the amenities of the locality.

4 The Tribunal also determined that the development would be consistent with the statement of intent for the precinct that development substantially improve the environment and the built form of the precinct by a well designed medium scale building. The development satisfied this intent and will have a permanent residential population and accommodate commercial uses, thereby increasing vibrancy, on the edge of the city of Perth and within reasonable walking distance to services, employment and public transport.

5 The Tribunal considered that the proposal would not have any undue adverse effects, including in relation to view loss, availability of on-street car parking and traffic generation.

6 The Tribunal determined that the application was capable of approval and warranted approval in the exercise of discretion. The Tribunal found that the proposal involved a bold and innovative architectural design that observed the basic principles of good urban


(Page 5)
    design in respect to its context. It is an attractive and interesting building that will make a positive contribution to the urban environment.

7 The Tribunal allowed the application for review and granted development approval, subject to conditions.


Site and locality

8 These proceedings involve an application for review pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) of the decision of the Town of Victoria Park (Town of Council) to refuse development approval for a mixed commercial/residential development at No 2 (Lot 100) Hawthorne Place, Burswood (site) (DA). The site has a triangular shape, with frontages of 86.5 metres to Hawthorne Place to the west, 103.7 metres to GO Edwards Park to its north and 135.04 metres to an unnamed right-of-way to its south-east, and an area of 4486 square metres. Hawthorne Place ends in a cul-de-sac adjacent to the north­western portion of the site. The location of the site is shown on Attachment B to these reasons.

9 The site is located in an area characterised by a mix of commercial, light industrial and showroom uses. The closest residential area to the site is located approximately 150 – 180 metres to the south-east. This residential area then stretches up a hill to the south-east which has its highest point approximately 400 – 500 metres from the site.

10 The site and immediate locality is zoned "Office/Residential" under the Town of Victoria Park Town Planning Scheme No 1 (TPS 1 or Scheme). The zoning table of the Scheme identifies office and multiple dwelling use as permitted in the zone. The site is located within Precinct 3 – Causeway Precinct under cl 11 of the Scheme. Clause 11(2) states that there is a precinct plan for each precinct. Clause 3.1 of the Scheme states that the Scheme comprises the Scheme text, each of the precinct plans, each planning policy and each Council register. The residential area identified in the preceding paragraph is zoned "Residential" under the Scheme and has residential density codings of "R40" and "R50".




Proposed development

11 According to the evidence of Mr Mark Scott-Jeffs, the lead designer for the proposed development, the design is an adaption of the nautilus shell. Attachment C to these reasons is a computer-generated three­dimensional depiction of the proposed development viewed from an


(Page 6)
    elevated position to the north-west above GO Edwards Park. Attachment D to these reasons comprises reduced copies of the architectural plans.

12 The proposed development comprises six commercial units and 71 multiple dwellings. The commercial units are contained in 3 – 4 storey section of the proposed building which addresses Hawthorne Place. This section has a predominant setback of 4.0 metres increasing to 6.0 metres.

13 The residential section of the proposed building graduates in height from 3 storeys where it adjoins the commercial section to 12 storeys plus a storey containing plant/services and a viewing platform. The northernmost part of the proposed building, which is adjacent to GO Edwards Park, gradually rises from a base of 3 storeys to 12 storeys as it steps away from the park. A central, wedge-shaped component of the building, which has a constant 12 storey plus plant/services storey height, runs south-east to north­west, with the tip of the wedge adjacent to the end of the Hawthorne Place cul-de-sac.

14 Prior to the formal lodgement of the DA, a series of meetings took place between members of the designing firm, the Town's planning officers and the Town's Design Review Committee (DRC). The DRC was established by the Town, pursuant to cl 34 of the Scheme, for the purpose of considering and advising it with respect to applications. The DRC comprises an independent architect, urban designer, building services consultant and landscape architect. Through these meetings, the design concept reached a stage at which both the Town's planning officers and the DRC were generally supportive of the proposal. The DA was then lodged.

15 Public consultation in relation to the DA took place over a 21 day period in January 2006. All owners and occupiers in the area determined by the Town were notified by way of letter and invited to comment, with a photo montage of the proposed development accompanying each letter. In excess of 1300 letters were mailed. A total of 141 submissions were received, 13 in support and 128 objecting to the proposal. 107 of the objections were by pro-forma letter.

16 In detailed assessments of the DA dated 6 March 2006 and 21 March 2006 respectively, the DRC and the Town's officers recommended the granting of conditional development approval under the Metropolitan Region Scheme (MRS) and TPS 1. However, at its meeting on 21 March 2006, the Town refused the DA for the following reason:


(Page 7)
    "The application does not comply with the height, parking and setback provisions of Town Planning Scheme No. 1."

17 The Tribunal undertook a view of the site and of the locality, including the residential area to the south-east of the site, accompanied by the parties' representatives.


The issues

18 The parties identified the following three principal issues for determination in this review:


    1) Whether the proposed development, which involves a non-complying application in consequence of height and setback, is capable of approval under cl 38(3) of TPS 1.

    2) Whether the development is in accordance with the maximum plot ratio development standard prescribed by the Causeway Precinct Plan.

    3) Whether a variation to the R100 standards in relation to density should be granted in respect of the residential component of the proposed development.


19 The Victoria Park Community Association (Inc) (Community Association) was granted leave to make a written submission, pursuant to s 242 of the PD Act, in relation to three issues which had been originally identified by the Town for consideration in the review, but were not ultimately advanced by it. The three issues in relation to which leave to make submissions was granted to the Community Association are car parking, traffic and setback.

20 The Tribunal will address each of the three principal issues identified by the parties, and the issues raised in the Community Association's submission, in turn.




Is the proposed development capable of approval under cl 38(3)?

21 The Causeway Precinct Plan states that a building shall not exceed 15 metres in the Office/Residential zone. The commercial section of the development satisfies this development standard. However, the residential section has a maximum height of 41.2 metres.

22 The Causeway Precinct Plan prescribes the following minimum setback development standards:


(Page 8)
    • first three storeys – minimum setback of 4.5 metres from primary street and 3.0 metres from secondary street;

    • fourth storey – minimum setback of 5.5 metres from primary street and 4.0 metres from secondary street; and

    • fifth and subsequent storeys – minimum setback of 6.5 metres from primary street and 5.0 metres from secondary street.


23 The 3 – 4 storey section of the proposed development which addresses Hawthorne Place, the primary street, has a setback of 4.0 metres ­ 12.0 metres from that street and a setback of 5.5 metres ­ 6.0 metres from the right-of-way. The wedge-shaped portion of the proposed building, which has a maximum width of approximately 10.0 metres, protrudes 12.0 metres to 2.0 metres to the northern end of the Hawthorne Place boundary.

24 The maximum building height and minimum setback development standards prescribed in the Causeway Precinct Plan do not provide for any permitted variation. Consequently, the proposed development comprises a non­complying application for the purposes of cl 38 of TPS 1. Clause 38(2) provides that, subject to sub-clause (3), the Council may refuse or approve a non-complying application. Clause 38(3) provides as follows:


    "The Council cannot grant planning approval for a non­complying application unless –

      (a) if so required by the Council under clause 35(2), the application has been advertised; and

      (b) the Council is satisfied by an absolute majority that –


        (i) if approval were to be granted, the development would be consistent with –

          • the orderly and proper planning of the locality;

          • the conservation of the amenities of the locality; and

(Page 9)
    • the statement of intent set out in the relevant Precinct Plan; and
    (ii) the non-compliance would not have any undue adverse affect [sic] on –

      • the occupiers or users of the development;

      • the property in, or the inhabitants of, the locality; or

      • the likely future development of the locality."

25 The DA has been advertised in conformity with par (a) of cl 38(3). Notwithstanding the significant exceedance of the maximum building height development standard prescribed in the Causeway Precinct Plan, the Tribunal is satisfied of each of the matters set out in par (b) of cl 38(3), with the consequence that the DA is capable of approval.


Consistent with the orderly and proper planning of the locality

26 As Mr MJ Hardy, counsel for the applicant, stated in opening, the DA "unashamedly rests" on the Town of Victoria Park Urban Design Study (UDS), which was adopted by the Town on 12 December 2000, a non-statutory policy PLNG4 (height policy), which was also adopted by the Town on 12 December 2000, and the consistent practice of the Town, since the adoption of the UDS and the height policy, to approve buildings of up to 12 storeys in key areas including the area of the site.

27 TPS 1 was gazetted on 30 September 1998. The Town subsequently commissioned Hames Sharley, architects and urban designers, to undertake the UDS for the Town generally and to focus in particular on key areas. The Town considered a report on the draft UDS, following completion of the first five stages of the study, at its meeting on 22 February 2000. At that meeting, the Town resolved that the draft UDS be subject to community consultation. The community consultation commenced in March 2000 and closed in April 2000. During this period, Hames Sharley conducted a public presentation and a total of 425 submissions were received. A series of councillor workshops then took place conducted by the Executive Manager, Planning and Development Services, to enable consideration of recommended changes to the UDS. At its meeting on 12 September 2000, the Town required certain changes to be made to the draft UDS. On 12 December 2000, the Town adopted the UDS.

(Page 10)



28 The site is located within Key Area 3 – Causeway Precinct identified in the UDS. The UDS considers that buildings of up to 12 storeys in height are appropriate in two parts of the Causeway Precinct. The northern part of the Causeway Precinct in which the UDS recommends buildings of up to 12 storeys adjoins GO Edwards Park and includes the site. The UDS states that buildings of up to 12 storeys in this part of the Precinct would allow for apartments with extensive views at upper levels, providing an incentive for better quality residential development and public and private spaces within developments. The UDS also states that this section is "some distance away from existing residential areas limiting potential conflicts relating to privacy, overlooking and overshadowing".

29 The introduction to the UDS notes that it had "substantial input from both Councillors and Council officers, particularly in relation to building heights in key areas".

30 The report to the Council meeting on 12 September 2000 noted that the preferred height control for key areas expressed in most of the submissions to the draft UDS was three storeys. However, the Council's reporting officer recommended that land on the periphery of the Causeway Precinct adjacent to parklands – which includes the site - "provides an opportunity for taller buildings (up to a maximum of 12 storeys) maximising the benefits of this location and in a context removed from existing residential areas". The Town accepted its officer's recommendation in this respect, and did not require any changes to the maximum building heights contemplated for the area of the site.

31 In relation to statutory context, the UDS states, in part, as follows:


    "It is intended that the urban design vision and guidance that are the outcomes of this study will complement the existing scheme documents and provide a framework for Council decision­making.

    A number of matters addressed in this study will, if accepted, require amendments to the Scheme. Consultation has been undertaken as part of this study and the community will be provided with further opportunity for comment on the changes to the scheme through the formal Scheme amendment process."


32 Section 8 of the UDS specifically recommends that the Town amend TPS 1 "by modifying the existing precinct controls to include the
(Page 11)
    height controls recommended in this study together with additional detail relating to recision plans in appropriate areas".

33 The Town has not sought to amend the Causeway Precinct Plan, which, as noted earlier, forms part of the Scheme, to increase the maximum building height development standard from 15 metres to 12 storeys in the two areas identified as appropriate for 12 storey development in the UDS, as contemplated by the UDS. However, the UDS forms part of the planning framework established by the Scheme. In particular, cl 36(5) of TPS 1 requires consideration to be given, in the exercise of planning discretion, to any planning study approved by the Council. Furthermore, par (b) of cl 4.12.1 of the Town's Policy Manual, which forms part of the Scheme, states that, in order to achieve the objective of the Design Guidelines, "to facilitate appropriate design responses where there are pressures for more intensive development", "the Design Guidelines seek to optimise development potential of properties in appropriate locations as recommended in the Town's Urban Design Study". In addition, par (c) of cl 4.12.1 states that the Design Guidelines provide a generic set of design criteria to be applied to all sites within the Town and are to be read" in conjunction with other documents that provide additional information and/or design controls, often at a more locality or site specific level", including the UDS. Although cl 38(3) of the Scheme is concerned with a threshold matter for consideration, which must be determined in favour of the proposed non­complying application before the Town (and the Tribunal in review) may consider whether to approve the application in the exercise of planning discretion, nevertheless, the fact that the UDS forms part of the planning framework recognised in the Scheme is of significance in determining whether, if approval were to be granted, the development would be consistent with the orderly and proper planning of the locality.

34 Since the adoption of the UDS, the Town has consistently applied its recommendations to assess the height of buildings. In particular, the Town exercised discretion under cl 38 of TPS 1 to approve buildings of 30 metres and 25.8 metres located in Precinct P2 – Burswood Precinct under TPS 1 in circumstances where the UDS recommended taller buildings than the currently applicable maximum 15 metre building height development standard under the relevant precinct plan. Similarly, the Town exercised discretion under cl 38 to approve buildings of 41 metres and 45 metres within the same area as the site on the basis of the recommended 12 storey height limit in the UDS. Mr Alan Stewart, a consultant town planner who gave evidence on behalf of the applicant, correctly characterised the Town's approach of allowing buildings of the


(Page 12)
    height recommended by the UDS, by way of exercising discretion in relation to non-complying applications under cl 38 of the Scheme, as a "long standing practice".

35 As noted earlier, the Town adopted the height policy at its meeting on 12 December 2000. Until it was amended at the Council meeting on 11 April 2006, the height policy stated as follows:

    "Any application for planning approval will be assessed having regard to the height controls and the Design Guidelines contained in the Town of Victoria Park Urban Design Study prepared by Hames Sharley dated October 2000 and approved by Council on 12 December 2000".

36 An interim version of this policy, referring to the draft UDS, was advertised for public comment over four weeks in April and May 2000 and drew 22 submissions.

37 On 11 April 2006, the Town resolved that the height policy be amended to read as follows:


    "Any application for planning approval will be assessed having regard to the height controls contained in the Town of Victoria Park Urban Design Study prepared by Hames Sharley dated October 2000 and approved by Council on 12 December 2000, with the exception of Key Area 3 – Causeway Precinct where the following height controls will apply:

    1. North of Burswood Road shall be subject to the height limits prescribed in the Town Planning Scheme; and

    2. A height limit of 15 metres shall apply to that portion of the Causeway Precinct south of Burswood Road."


38 In a report to the Council meeting on 23 May 2006, the reporting officer expressed the opinion that the resolution of 11 April 2006 to amend the height policy "is ineffective in the absence of any advertising and consideration of submissions and further consideration of [the height policy]". At the meeting of 23 May 2006, the Town resolved that its solicitors be instructed "not to rely on the resolution of 11 April 2006 to amend [the height policy] and to accept that it is not a seriously­entertained proposal that should be given any weight" in regard to these proceedings.

(Page 13)



39 At its meeting on 4 July 2006, the Town resolved as follows:

    "In consideration of [the Town's solicitors'] letter of 14 June 2006 the Council revoke [the resolution referred to in the preceding paragraph], and proceed to advertise the changes to the [height policy] for public consultation. So that the amended Policy could be relied upon at the hearing [of these proceedings] as a seriously-entertained proposal, along with the Precinct Policy. That would enable [the Town's solicitors] to argue the amended Policy and the Precinct Plan should be given more weight than the Urban Design Study in regard to building height" (reproduced as written).

40 The Town sent 1263 letters to owners and occupiers for the purpose of community consultation. According to a report presented to the 5 September 2006 Council meeting, the Town received 999 submissions within the consultation period of which 79% object to the proposed changes to the height policy. The Town's reporting officer recommended as follows:

    "As a result of the objection to the modification of [the height policy] and support for [the height policy] as it existed prior to Council's resolution to amend it of 11 April 2006, it is recommended that the amendments be deleted and [the height policy] revert to the policy adopted by Council prior to its modification on 11 April 2006 … "

41 At the Council meeting on 5 September 2006, the Town deferred the issue pending additional information to be presented to its meeting on 26 September 2006. Following the hearing on 7 and 8 September 2006, the Town has not made any application to adduce further evidence as to what occurred at its meeting on 26 September 2006 or at any subsequent meeting.

42 Mr Stephen Allerding, a consultant town planner who gave evidence on behalf of the Town, and Mr Stewart, agree that the height of the proposed development is consistent with the UDS and that the proposed development is generally consistent with the UDS. However, whereas Mr Stewart, the Town's professional staff and the DRC consider that the proposed development would be consistent with the orderly and proper planning of the locality, substantially because of the UDS, Mr Allerding considers that "on the planning instruments as they currently stand, approval of a building of the height proposed would be contrary to orderly


(Page 14)
    and proper planning". In Mr Allerding's opinion, while the UDS is "fairly well researched" and is "clearly a relevant document which must be considered", it would be "premature and inappropriate" to approve the proposed development under cl 38. Mr Allerding gave evidence that "if the height proposed here is accepted, it would necessarily mean that the [UDS] is treated as overriding the Scheme". Mr Allerding also considers that the extent of variation is so significant in relation to height, when assessed against the currently applicable 15 metre maximum development standard, that discretion should not be exercised under cl 38.

43 As Mr Allerding perceptively observed, the conflict between the height provisions of the Causeway Precinct Plan, on the one hand, and the UDS, on the other, "represents the most significant element to the consideration of the acceptability of the proposal". Notwithstanding Mr Allerding's careful and intelligent analysis of the core planning issue in this review, the Tribunal has ultimately come to the view that the development is capable of approval under cl 38 and warrants approval in the exercise of planning discretion.

44 The Tribunal finds that, if approval were granted, the development would be consistent with the orderly and proper planning of the locality, because:


    (i) the DA is responsive to the UDS which was approved by the Town after considerable community consultation, and in the express knowledge that the community generally opposed buildings greater than three storeys, is an element of the planning framework under the Scheme;

    (ii) the UDS appears to be a competently-prepared and soundly-based strategic plan in relation to the Causeway Precinct;

    (iii) the UDS is an element of the planning framework under the Scheme; and

    (iv) the UDS has been consistently applied in relation to applications in the key areas where the UDS considers that buildings of up to 12 storeys are appropriate, including the rear of the site.


45 Although the UDS contemplated the need to amend the Scheme to implement the recommended height controls, the Town has proceeded by approving the Study, and thereby including it in the planning framework
(Page 15)
    under the Scheme, and then having regard to it in its consideration of developments in the area in question. In these circumstances, the development would be consistent with the orderly and proper planning of the locality.

46 Furthermore, cl 38(3) does not limit the exercise of discretion to variations below a certain percentage. The critical question is not the extent of non-compliance, but rather whether the criteria set out in par (b) are satisfied in the particular circumstances.

47 The Tribunal's finding that the development would be consistent with the orderly and proper planning of the locality does not turn on whether the height policy is currently in its original form or as amended on 11 April 2006. The Tribunal considers that cl 38(3) is satisfied, and that the application warrants approval in the exercise of discretion, even if the height policy is currently as amended on 11 April 2006. However, for completeness, the Tribunal considers that the proper characterisation of the rather confused state of the Town's resolutions recounted above is that on 25 July 2006, the Council, by implication, revoked or suspended the amendment of the height policy which it had made on 11 April 2006. This implication arises, because the Town resolved to advertise the changes to the height policy "for public consultation" and did so, so that it could be relied upon in these proceedings "as a seriously-entertained planning proposal". There would be little point in public consultation if the amended policy remained operative. Moreover, only if the amendment was proposed, rather than operative, would it be a seriously­entertained planning proposal. If the amendment were operative, it would no longer be a planning proposal.

48 The Tribunal accepts that the proposed amendment to the height policy, which was adopted on 11 April 2006, is seriously-entertained, as it has been the subject of community consultation and some consideration by the Town. However, the Tribunal would give little weight to the proposed amendment, in light of the considerable community opposition reflected in the public consultation and the officer's recommendation that the pre-11 April 2006 policy position should remain.

49 Although the Tribunal finds that the development would be consistent with the orderly and proper planning of the locality, irrespective of whether the height policy is currently in its pre- or post­11 April 2006 form, the fact that the height policy is currently in its original terms, and that only little weight should be given to the draft amendment, supports the Tribunal's finding.

(Page 16)



The conservation of the amenities of the locality

50 The term "amenities" is defined in Sch 1 of TPS 1 to include "the expectations of the those living and working in an area about the quality of their environment including its pleasantness, character, beauty, harmony in the exterior design of buildings, privacy and security". Mr Allerding considers that the proposed development would be inconsistent with the conservation of the amenities of the locality, because residents would have a reasonable expectation that they would be consulted before strategic planning changes take place. As he said in oral evidence, "the residents deserve better than that". In terms of residential amenity, Mr Allerding considers that the proposal will impact on views of residents on the hill which overlooks the peninsula. Although he has not attempted a technical view analysis, he considers that, for some dwellings, the proposal will remove views of significance of the city and river.

51 The Tribunal considers that, in light of the considerable community consultation which took place in relation to the UDS, the adoption of the UDS by the Town in circumstances where it was aware of community opposition to heights greater than three storeys in key areas, and the long standing practice of the Town to approve buildings of the height recommended by the UDS in the identified parts of the key areas, the development would be consistent with the conservation of the amenities of the locality. Although a Scheme amendment would involve further community consultation, the community was afforded a real and substantial opportunity to participate in the strategic planning process for the Causeway Precinct in the development of the UDS. Indeed, it voiced strong opposition to 12 storey buildings. However, the Town, as the relevant strategic planning authority, rejected that opposition, on the basis of apparently sound, independent and expert advice. In the circumstances of this case, the conservation of the amenities of the locality does not necessitate an opportunity for further strategic consultation in relation to building height.

52 In relation to residential amenity impact in terms of view loss, having undertaken a view of and from the residential area to the south-east of the site, including from directly in front of one objector's property and from the balcony of another objector's property, we agree with the following analysis of the DRC:


    "The number of properties that would actually have their views affected by the development is limited, and furthermore … those properties have a panoramic view in which case only a

(Page 17)
    portion of their view may be altered as a result of the development.

    In light of the above, it is considered that the extent of properties [that] would have their views affected by the proposal is limited, and for those affected properties the proposed development may reduce or alter their view, but not result in a loss of view. The impact of the development on views is considered reasonable in this context."


53 We note the evidence of three resident witnesses that they have approval or wish to obtain approval to add a second storey, and they fear that the proposed development would detrimentally affect potential views from these additions. We consider that the DRC's analysis is correct in relation to potential views from the additions. We also note that, as Mr Allerding fairly conceded in cross examination, the orientation of the proposed building, with its wedge oriented south-east to north-west, assists in view sharing for the properties in the residential precinct to the south-east.

54 Finally, Mr Allerding referred to the visual impact of the proposed building adjacent to GO Edwards Park and noted that it "may be objectionable to some". The Tribunal does not consider that the proposed building would have an adverse visual impact when viewed from the park. As Mr Malcolm MacKay, an architect and urban designer, who gave evidence on behalf of the applicant, observed, the bulk of the building would generally be perceived from the north-west in medium to long distance views, filtered by tree canopies which match the scale of the building. Moreover, in consequence of its siting, form and design, the proposal would present as an attractive and interesting urban element when viewed from the park itself.




Statement of intent set out in Precinct Plan

55 Mr PL Wittkuhn, counsel for the Town, submits that the development would be inconsistent with the statement of intent of the Causeway Precinct insofar as it states that "development should aim to substantially improve the environment and the built form of the Precinct with well designed medium scale buildings". Mr Wittkuhn relies on Mr MacKay's evidence that, as an architect and urban designer, he would generally regard medium scale in Perth as between five and eight storeys, and "high rise" in Perth as nine storeys and above. Mr Wittkuhn also relies on the evidence of Mr Allerding that, although the term "medium scale" is not particularly helpful, it is informed by the maximum plot ratio


(Page 18)
    development standard of 2.0 and maximum height development standard of 15 metres applicable in the Precinct. Mr Allerding, therefore, considers that medium scale equates to "short and fat".

56 However, as Mr MacKay freely conceded, he is not a statutory planner. As his reference to "high rise" shows, his analysis tends to equate scale with height. Although the development standards prescribed for the Precinct are relevant in seeking to understand what is meant by the expression medium scale, as Mr Stewart pointed out, the expression, "medium scale buildings", is used in the context of a statement of intent that "development should aim to substantially improve the environment and built form of the Precinct with well designed medium scale buildings". Furthermore, as Mr Stewart observed, and as Mr Allerding agreed in cross examination, scale relates not only to height and floor space, but to other criteria as well.

57 The Tribunal considers that scale is a product of a matrix including height, bulk (as measured by plot ratio or in some other way), context, siting, setback, building form, design and articulation. Although the central portion of the proposed building is considerably higher than 15 metres, the bulk, as measured in terms of plot ratio, complies with the maximum plot ratio of 2.0 prescribed in the Precinct Plan. The section of the building which addresses Hawthorne Place is 3 – 4 storeys in height. A portion of the building which addresses the park is three storeys in height and the building then steps up in height gradually in a curved form as setback to the park increases. The tallest, wedge-shaped portion of the building is generally sited centrally within the building and the site is curved in form and is at an angle, rather than square, to the principal boundaries, thereby significantly reducing the scale. Where the wedge is closest to the principal boundaries, it is at its narrowest. Furthermore, as noted earlier, when viewed from the north-west, the building would generally be seen in medium to long distance views, filtered by tree canopies which match the scale of the building. The evidence of Mr MacKay, and a review of the plans in Attachment D, demonstrates that the proposal is clearly a well designed building. It is a high quality development which, in its siting, form and design, is properly responsive to the constraints and opportunities of the site. It contains a mix of uses which are appropriately located on the site, relative to surrounding uses and the park and to one another. It will substantially improve the environment and the built form of the Precinct by accommodating a residential population and commercial uses, with resulting vibrancy, in an attractive and interesting building.

(Page 19)



58 It follows that the proposed development meets the aim of substantially improving the environment and the built form of the Precinct with a well designed medium scale building. The fact that the building is, in part, high rise, in the context of Perth, does not relevantly mean that it is not medium scale. A short fat building accommodating the same floor space, as contemplated by Mr Allerding, might also be medium scale, but because of its footprint and lack of opportunity for setback and varied and curved building form of the nature proposed in the DA, might not substantially improve the environment and built form or be well designed.


No undue adverse effect

59 The non-compliances with the height and setback development standards would not have any undue adverse effect on the occupiers or users of the development, property in, or the inhabitants of, the locality, or the likely future development of the locality. To the contrary, the incorporation of a central, tall element would have a beneficial effect on the occupiers or users of the development, because it would enable views to be obtained and areas of the site to be available for communal open space.

60 Overshadowing impacts would be confined to commercial properties and the street. As noted earlier, impact in terms of views from the residential precinct to the south-east is acceptable. The development does not give rise to any privacy issues. As noted earlier, the orientation of the building assists in view sharing. For reasons discussed below, adequate car parking is proposed and the traffic generated by the development can be accommodated within the road network without entering residential areas.

61 The non-compliances are consistent with the likely future development of the locality, given that the height and setbacks of the proposal are consistent with the UDS. Finally, the setback non­compliance, which is principally in the form of the projecting tip of the wedge, does not have any undue adverse effect, as there are adequate areas of private and communal open space proposed, the projection is adjacent to the head of the cul-de-sac, consistent with the predominant setbacks in the street and adds to the visual interest of the built form.

62 It follows that the proposed development is capable of approval under cl 38(3) of the Scheme.

(Page 20)



Is the plot ratio compliant?

63 Although the Town contends that the applicable maximum plot ratio is 1.25, the Tribunal accepts the joint position of the planning experts that the maximum plot ratio is 2.0 and that the proposed development complies with that maximum.

64 The plot ratio provision of the Causeway Precinct Plan states as follows:


    "(i) The plot ratio of any building shall not exceed 2.0. Where a building is used for both residential and office purposes the plot ratio of the commercial component of a building shall not exceed 1.33. Where a building is used solely for office/commercial purposes it shall not have a plot ratio exceeding 1.33; and

    (ii) Where a building is used solely for residential purposes the plot ratio should not exceed that prescribed in the Residential Planning Codes for a density of R100. However, plot ratio for a residential building, or the residential component of a building, may be varied depending on the Residential Planning Code density approved for the site (refer to point 9 (Residential Density) below)."


65 The proposed building complies with the maximum plot ratio of 2.0. The plot ratio of the commercial component of the development is 0.38 and the plot ratio of the residential component of the development is 1.61. The total proposed plot ratio is 1.99. As the building is proposed to be used for both residential and office purposes, the commercial component is subject to a maximum plot ratio of 1.33, with which it complies. As Mr Stewart explained, it is normal for plot ratio controls in areas planned for mixed commercial/residential development to limit the maximum plot ratio for the commercial component only, to encourage a greater residential component and to ensure any excess plot ratio over and above that allowed for non-residential buildings is utilised for residential purposes.

66 However, the maximum plot ratio prescribed in Table 1 of the Residential Design Codes of Western Australia (2002) (Codes), namely 1.25, does not apply in relation to the proposed development, because the building is not used solely for residential purposes.


(Page 21)
    The building comprises a commercial component which is not a contrived or token element.

67 It follows that the proposed development complies with the applicable maximum plot ratio of 2.0.


Should a variation to the R100 standards in relation to density be granted?

68 Point 9 of the Causeway Precinct Plan states as follows:


    "Residential Density: Residential development shall be in accordance with the Residential Planning Codes R100 standards in relation to density, however, Council will consider variations to residential density where a high standard of development and acceptable levels of residential amenity can be obtained."

69 Clause 3.1.1 and Table 1 of the Codes requires that multiple dwelling development on land coded R100 have a minimum site area per dwelling of 100 square metres. This would allow a maximum of 44 multiple units on the site, whereas 71 units are proposed. Seventy-one units corresponds to a residential density of approximately R158.

70 Mr Allerding considers that it is not easy to form an opinion, based on the plans, as to whether a high standard of development is proposed. However, he is of the opinion that the built form shown on the plans appears to be of a high standard from an architectural perspective. He notes that the proposal comprises a mixture of two and three bedroom units each, with a reasonable floor space and a private courtyard or balcony in accordance with the Codes. He does not know and cannot say positively that the proposal exhibits a noticeably high standard of development, but neither can he say positively that it is not of a high standard. Mr Allerding considers that it is also difficult to say whether acceptable levels of residential amenity will be obtained and how to measure that. In any case, he considers that a 61% increase in residential density, from 44 to 71 dwellings, is inconsistent with orderly and proper planning.

71 However, the Tribunal accepts Mr Stewart's evidence that "the development is of a high standard and will provide occupants with exceptionally high levels of amenity". The Tribunal has made findings earlier in these reasons about the quality of the development. It is an attractive and interesting building which will make a positive contribution to the urban environment. The dwellings range in size from 79 to 119 square metres, and have an average size of 102 square metres.


(Page 22)
    All dwellings are provided with usable private outdoor balconies and the majority are oriented to take advantage of available views of the Swan River and city skyline. Many of the balconies are generously sized. The development includes a swimming pool, outdoor deck, gymnasium, sauna and residents' meeting room/lounge area as well as other communal areas with various water features.

72 Finally, although the proposed variation in residential density is significant, the Precinct Plan does not prescribe a maximum variation. Rather, it prescribes criteria which must be assessed in the circumstances of each case.

73 In light of these findings, and the findings below, it is appropriate, in the circumstances of this case, to allow a variation to residential density to permit 71 multiple dwellings on the site.




Issues raised by Community Association




Car parking

74 The Town's Parking and Access Policy (parking policy), which forms part of the Policy Manual, requires 42 car bays for the commercial component of the development and 134 car bays for the residential component, that is a total of 176 car bays. The development application proposes 43 car bays at ground level (37 internal and six adjacent to the right­of­way) for the commercial component, 109 car bays in the basement for the residential component and 11 external car bays adjacent to the right-of-way for visitors of the residential component, that is a total of 163 car bays.

75 The Community Association is concerned that the 13 car bay shortfall will exacerbate an existing parking problem created by events in the casino precinct and on the foreshore, church activities and Montessori school drop off and pick up.

76 However, cl 5.1.6.6 of the parking policy states that reciprocal parking arrangements may be considered acceptable where the Council is convinced that demand for parking by the uses proposed will not coincide. The DA proposes that 26 of the 43 commercial car bays are to be designated as reciprocal use car bays available for the residential component of the development outside normal business hours.

77 Ms Louise Round, a traffic engineer who gave evidence on behalf of the applicant, considers that the development proposes adequate onsite


(Page 23)
    parking that will, in fact, reduce the amount of on-street parking generated by development of the site.

78 The Tribunal considers that the proposed car parking provision is adequate for three reasons.

79 First, the location and physical characteristics of the proposed commercial units is such that peak use is likely to be within ordinary business hours. It is, therefore, reasonable to allocate 26 car bays to the commercial component during ordinary business hours and to the residential component outside those hours. Outside business hours, with the reciprocal car bays, the residential component of the development would have 135 car bays, one in excess of the minimum number contemplated by the parking policy.

80 Second, as Attachment B to these reasons shows, the site is easy walking distance to the city and is very well served by public transport. It is not surprising, therefore, that the Town has approved previous applications in the locality on the basis of 1.5 car bays per dwelling, rather than 1.9 car bays, as required by the parking policy.

81 Third, whereas the present commercial use of the site requires approximately 79 onsite car bays under the parking policy, only 26 onsite car bays are provided. There is, therefore, presently a net deficiency of 53 car bays. The proposed development would significantly reduce the amount of on-street parking required during business hours and would not increase demand for on-street parking outside business hours.




Traffic

82 The Community Association is particularly concerned about the cumulative effect of traffic generation by development of the site and properties in the vicinity. However, Ms Round gave evidence, which the Tribunal accepts, that the development, both in isolation and cumulatively, will not significantly impact on traffic generation within the locality and will not exceed the road capacity of any relevant road. Furthermore, traffic generated by the development will not need to traverse the residential area to the south-east in order to gain access to or leave the area.




Setbacks

83 The Community Association submits that the exceedance of the setback standards emphasises excessive bulk and scale, contributing to


(Page 24)
    adverse impact on amenity and contrary to previously expressed community views.

84 However, the Tribunal agrees with the following analysis by the DRC:

    "In relation to the site's context, there are four other lots which have a boundary fronting Hawthorne Place. Each of these lots is a corner site, with Hawthorne Place being the secondary street. Three of these four lots have a building with a setback to Hawthorne Place of between nil and 3.5 metres. The remaining lot is the Riverview Church with its car park located adjacent to Hawthorne Place.

    With respect to the 2.0 metre setback to the narrowest part of the residential tower, this is considered acceptable as this part of the building is located at the northern end of the site adjacent to the cul-de-sac head and parkland, in which case there is not streetscape impact.

    Noting the existing character of development along Hawthorne Place and the site's context it is considered that the proposed setbacks to Hawthorne Place will not have any adverse impact upon the street or amenity of the area."





Conclusion

85 The Tribunal has determined that the proposed development, which involves a non-complying application in consequence of height and setback, is capable of approval under cl 38(3) of TPS 1. In particular, the Tribunal is satisfied that, if approval were to be granted, the development would be consistent with the orderly and proper planning of the locality, the conservation of the amenities of the locality and the statement of intent set out in the Precinct Plan, and that the non­compliance with the height and setback development standards would not have any undue adverse effect on the occupiers or users of the development, the property in, or the inhabitants of, the locality or the likely future development of the locality. The Tribunal has also determined that the proposed plot ratio of the development complies with the maximum plot ratio development standard prescribed by the Precinct Plan and that it is appropriate, in the circumstances of this case, to vary the density standard applicable to the R100 code to enable a development which has a residential density of approximately R158.

(Page 25)



86 Clause 36(5) of the Scheme requires the Tribunal to have regard to the provisions of the Scheme, the Precinct Plan, the UDS, the orderly and proper planning of the locality, the conservation of the amenities of the locality, and the design, scale and relationship to existing buildings and surroundings of the proposal. Each of these matters has been addressed in the context of one or more of the issues discussed above. The Tribunal considers that the proposed development warrants approval in the exercise of planning discretion.

87 The Tribunal accepts Mr MacKay's evidence that the "proposed design is an appropriate response to the physical context of the site" and that the proposal involves "a bold and innovative architectural design that observes the basic principles of good urban design in respect to its context". Consistently with the statement of intent of the Causeway Precinct, the proposal will substantially improve the environment and the built form of the Precinct by a well designed medium scale building that will house a permanent residential population and accommodate commercial uses on the edge of the city of Perth and within reasonable walking distance to services, employment and public transport.

88 The site is relatively isolated from existing residential areas to the south­east and will not give rise to any significant residential amenity impacts. In particular, the Tribunal considers that the impact of the proposed development on views and in terms of parking and traffic generation are acceptable.

89 Finally, the Tribunal does not accept the Town's submission that approval of the DA would compromise likely future development. The proposal is responsive to the UDS which appears to be a competently-prepared and soundly-based strategic plan in relation to the Causeway Precinct and which has been consistently applied. The UDS was adopted by the Town, and was thereby incorporated into the planning framework under the Scheme, in the knowledge that the community did not support more than three storey development in the area. The Town did so, as a strategic decision, based on apparently sound, independent and expert advice. Moreover, the Tribunal agrees with the DRC that the characteristics of the site readily allow the creation of a landmark building and that the proposal will meet that description.

90 It follows that the application for review should be allowed and development approval should be granted under the MRS and TPS 1, subject to agreed conditions.

(Page 26)



Orders

91 The Tribunal makes the following orders:


    1. The application for review is allowed.

    2. Development approval is granted for a mixed use commercial/residential development at No 2 (Lot 100) Hawthorne Place, Burswood pursuant to the Metropolitan Region Scheme and the Town of Victoria Park Town Planning Scheme No 1 subject to the conditions in Attachment A.





(Page 27)


Attachment A


    1. The development shall be carried out in accordance with 12 sheets of plans drawn by Campion Design Group for Avalon West Pty Ltd Project No 0512 DA02 Revision B (basement car park), DA03 Revision B (ground floor (podium)), DA04 Revision B (first and second floor plans), DA05 Revision B (third and fourth floor plans), DA06 Revision B (fifth and sixth floor plans), DA07 Revision B (seventh and eighth floor plans), DA08 Revision B (ninth and tenth floor plans), and DA09 Revision B (eleventh and roof plan), each dated 10 February 2006, DA10 Revision A (elevation to Hawthorne Place and GO Edwards Park) dated 6 February 2006, DA11 Revision A (elevation to ROW and long section A-A) dated 9 February 2006, 0512­A5­05 (sketch through ramp and part SW tower elevation) dated 5 January 2006 and 0512­A5-09 Revision A (section through apartments/car park/walkway adj. to parkland) dated 25 January 2006.

    2. This approval is for the use of the residential units as multiple dwellings and does not include approval for use as serviced apartments.

    3. The gymnasium is approved as a residential amenity for the subject development and cannot operate or be used as a separate commercial use.

    4. Provision being made for the ceding to the Crown of a 1.0 metre wide strip of land adjacent to the boundary with the right-of-way, for the length of the common boundary with the right-of-way, such ceding to be undertaken in conjunction with any future subdivision of the lot.

    5. The plot ratio of the development is not to exceed 2.0.

    6. Each multiple dwelling having an enclosed, lockable storage area, with a minimum internal dimension of 1.5 metres and internal area of 4.0 square metres.

    7. Each multiple dwelling above ground floor level, being provided with a private open balcony of a minimum area of 10 square metresand a minimum dimension of

(Page 28)
    2.0 metres in accordance with the requirements of the Codes.
    8. The finished floor level of all buildings and finished ground levels of all external open spaces is not to exceed those finished levels indicated on the approved site plan/ground floor plan.

    9. Full details of all roof top mounted equipment or services on all buildings to be shown in the working drawings for the building licence for the relevant building and all mechanical and service equipment to be screened from view to the satisfaction of the Manager, Planning Services.

    10. Compliance with the Building Code of Australia including the energy efficiency of all buildings.

    11. A final Resource Efficiency Report including a management plan being submitted to the satisfaction of the Building Services Engineer of the Design Review Committee and Manager, Planning Services prior to the issuing of a building licence.

    12. Each multiple dwelling being provided with a clothes drying area screened from view to the satisfaction of the Manager, Planning Services.

    13. Disabled access to be provided to all buildings and open spaces in accordance with AS1428.1 and AS1428.4.

    14. Full schedule of details of materials, finishes and colours to be provided prior to the issue of a building licence for the relevant building, including advice as to how the selection of materials and finishes will minimise glare, to be approved by the Council's Design Review Committee and Manager, Planning Services.

    15. This approval is not for any signage. Signage shall be the subject of a separate application for a signs licence.

    16. A landscaping plan and report is required to be submitted for the entire site, the portion of Hawthorne Place road reserve adjacent to the site and the portion of

(Page 29)
    GO Edwards Park adjacent to the site. It is to include details of plant types, their size, landscape treatment, street furniture, lighting, paving and pedestrian/disabled access. The plan is to be provided to and approved by the Council's Design Review Committee prior to the issue of a building licence.
    17. A landscape maintenance specification for all landscape works being provided for approval prior to the issuing of a building licence.

    18. A detailed lighting plan is to be provided showing all security and safety lighting throughout all public and interior circulation areas to be submitted for the approval of the Manager, Technical Services prior to the issue of a building licence.

    19. Proposed fencing between the courtyards of the ground floor units is to be open style fencing to the satisfaction of the Manager, Planning Services.

    20. All car parking spaces together with their access aisles are to be clearly paved, sealed, marked and drained and thereafter maintained to the satisfaction of the Manager, Technical Services.

    21. All paved accessways and/or turning areas being so arranged that all vehicles may at all times leave or enter the street in a forward gear.

    22. The dimensions of all car parking bays and accessways being approved by the Manager, Technical Services.

    23. The basement car park being secured from the ground floor level car park at all times.

    24. All car parking bays within the lower basement car park being for the exclusive use of the multiple dwellings at all times.

    25. All car parking bays at ground floor level located behind the building façade are to be for the exclusive use of offices during normal business hours. Twenty-six of

(Page 30)
    these car bays are to be for the reciprocal use of the residential units outside normal business hours.
    26. A minimum of 11 car bays located outside the building adjacent to the right-of-way being permanently marked and available for visitor parking for the multiple dwellings at all times.

    27. Disabled car bays are to be provided in accordance with the Building Code of Australia.

    28. 1.5 metre by 1.5 metre sightline truncations being provided at the intersection of the right-of-way and main vehicular access point and adjacent to the car bays accessed directly from the right-of-way. Any solid wall located within the sightline truncation is not to exceed a height of 750 millimetres, with any structure above a height of 750 millimetres being visually permeable.

    29. Submission at the building licence stage of a sample or detail of the open style grille proposed to be used in the wall adjacent to those car bays accessed from the right­of-way to be approved by the Design Review Committee and Manager, Planning Services.

    30. Details to be provided in relation to the bin store area and arrangements for waste disposal and collection to be provided to the satisfaction of the Manager, Technical Services. Those details to ensure that provision is made for the separation of recyclables for waste collection.

    31. All stormwater is to be discharged into the Council stormwater system at the applicant's cost with a gross pollutant trap installed prior to entering into the Council stormwater system. Details are to be provided for the satisfaction and approval of the Manager, Technical Services prior to the issue of a building licence.

    32. The applicant is to provide a management plan outlining the proposed method of disposal of groundwater during the works. The management plan is to be approved by the Manager, Technical Services prior to the commencement of any dewatering of the site.


(Page 31)
    33. The applicant is to provide a management plan outlining the proposed method of disposal of groundwater and floodwater on an ongoing basis from the basement areas to, and be approved by, the Manager, Technical Services.

    34. The applicant is to obtain approval from the Swan River Trust and Department of Environment to discharge groundwater from the site into stormwater drainage system.

    35. Noise modelling analysis to be submitted by an acoustic engineer of noise transmission levels from plant and equipment to meet the noise abatement regulations in accordance with the Environmental Protection (Noise) Regulations 1997 to ensure that all habitable outdoor spaces, either public or private, are protected from the impact of noise from plant and equipment.

    36. Submission of a detailed wind study identifying impact of wind associated with the proposed development and proposed modifications to the development to achieve acceptable levels of wind impact, and to be approved by the Design Review Committee.

    37. Building condition surveys of all neighbouring buildings which may be affected by any works on the site to be undertaken by a practising structural engineer at the owner's/applicant's cost prior to commencement of any works associated with the proposed development. The determination of buildings which may be affected is to be based upon a geotechnical engineer's report.

    38. A geotechnical engineer's report is to be provided at the owner's/applicant's cost prior to the issuing of a building licence for any construction works on site. The geotechnical report is to identify existing soil conditions at the site and is to provide recommendations for piling and footing details to be incorporated in the structural design of the buildings. The geotechnical report is to provide an assessment of the likely impact of dewatering operations at the site on groundwater levels at bore sites on nearby properties and possible impact of dewatering on neighbouring buildings.


(Page 32)
    39. Prior to the issuing of a building licence for any construction works on the site, a detailed Site Assessment Report is to be undertaken to identify the existence of acid sulphate soils. Should acid sulphate soils exist, then an Acid Sulphate Soil Management Plan, prepared in accordance with Department of Environment requirements, is to be submitted for approval by both the Town of Victoria Park and the Department of Environment prior to the issuing of a building licence.

    40. Implementation of the approved Acid Sulphate Soil Management Plan to the satisfaction of the Town of Victoria Park and Department of Environment.

    41. Details being submitted of all proposed ventilation systems, including the location of plant equipment, vents and air conditioning units to the satisfaction of the Design Review Committee. All equipment must be adequately screened to the satisfaction of the Manager,Planning Services.

    42. Compliance with Council's Building, Health and Technical Services requirements.

    43. This approval is valid for a period of 24 months only. If development is not commenced within this period, a fresh approval must be obtained before commencing or continuing the development.

    44. A building licence must be obtained prior to the commencement of any works.





Environmental Health Requirements

    45. The premises and any sanitary facilities are to be ventilated in accordance with AS 1668.2 - 2002 "The use of Ventilation and Airconditioning in Buildings", the Building Code of Australia and the Sewerage (Lighting, Ventilation and Construction) Regulations 1971.

    46. Car park ventilation to be designed to ensure that the carbon monoxide build up in the parking area does not exceed the requirements in accordance with the Health

(Page 33)
    Act (Carbon Monoxide) Regulations 1975 and the Town of Victoria Park Health Local Law 2003.
    47. Mechanical ventilation only – flumed through roof to external air.

    48. Ensuite doors are to be fitted with an approved self­closing device.

    49. The lightweight wall/stud wall between the male and female toilets to be acoustically treated so as to provide sufficient density to blanket sounds.

    50. The laundry to be provided with either:


      (a) not less than 20 metres of clothes line, or

      (b) an electrically powered clothes drying cabinet.


    51. Used dressings, hypodermic syringe needles, etc to be kept in approved sealed impervious receptacles. All medical waste to be collected and disposed of by an approved contractor, and not deposited in Council rubbish receptacles.

    52. Air conditioning condensate discharge is liquid refuse that must be disposed of by discharge into the sewerage system, in accordance with Water Corporation requirements, or an onsite effluent disposal system or other approved liquid waste disposal site.

    53. Stormwater shall discharge clear of the building and disposal must not cause erosion, corrosion or other defects as a result of the method of disposal. Stormwater is not permitted to be discharged onto or over a footpath, street or other property.

    54. All construction work must be carried out between the hours of 7 am and 7 pm Monday to Saturday excluding Public Holidays.

    55. All construction work is to be carried out in accordance with Control of Environmental Noise Practises set out in s 6 of AS 2436 – 1981 – Guide to Noise Control on Construction, Maintenance and Construction Sites.

(Page 34)
    All equipment used on the site must be the quietest reasonably available.
    56. At least 24 hours before the commencement of construction, construction contractor or owner/occupier of the construction site must give written notice of the proposed work to the occupiers of all premises at which noise emissions received were likely to fail to comply with the standard prescribed under Reg 7 of the Environmental Protection (Noise) Regulations 1997.

      All construction work outside the nominated working hours will require an application in the form of a Noise Management Plan.

      A Noise Management Plan is to include, but is not limited to:

      (a) details of and reasons for construction work on the site that is likely to be carried out other than between 7.00 hours and 1900 hours on any day which is not a Sunday or Public Holiday;

      (b) details of and the duration of activities on the construction site likely to result in noise emissions that fail to comply with the standard prescribed under Reg 7 of the Environmental Protection (Noise) Regulations 1997;

      (c) predictions of noise emissions on the construction site;

      (d) details of measures to be implemented to control noise (including vibration) emissions;

      (e) procedures to be adopted for monitoring noise (including vibration) emissions;

      (f) complaint register procedures to be adopted;


        An application form in the form of a Noise Management Plan needs to be lodged with the Town of Victoria Park (attention to the Manager, Environmental Health and Building Services), Locked Bag No 437, Victoria Park WA 6979.

(Page 35)
    57. The pump and filter to the swimming pool/spa pool is to be carefully located so as to ensure that an environmental nuisance is not caused by noise or vibration.

    58. The air conditioning system is to be located in such a position so as not to cause a noise problem to occupants of surrounding properties.

    59. In accordance with the Health Act (Swimming Pool) Regulations 1964,notice must be given to the Executive Director, Department of Health WA, and approval received prior to the commencement of pool construction.


      The notice to the Executive Director, Public Health shall be accompanied by:
      (a) three copies of plans, specifications and a description showing the mode or proposed mode of construction, draining, ventilating and lighting the swimming pool, the quantity of water which the swimming pool is intended to hold and the capacity of the filtration and other water treatment units, and

      (b) a block plan showing the position of the swimming pool in relation to the position and distribution of sanitary conveniences and the lands on which the swimming pool abuts and the purposes for which those lands are used.




Parks Requirements

    60. A landscaping plan, including the verge area, detailing species, location, according to habit size, and existing trees, to be provided and approved by the Parks Co­ordinator.

    Note: All landscaped areas are to be appropriately reticulated and garden beds mulched to a minimum depth of 75 millimetres.

    61. Completed landscaping is to be continually maintained to a standard to the satisfaction of the Parks Co-ordinator.


(Page 36)
    62. Pruning of any verge tree affected by the development on the subject site is to be carried out by the Town, at the applicant's cost, once construction has commenced.

    63. The Town's verge tree(s) are to be protected from damage during all phases of development.





Engineering Requirements

    64. The levels at the street alignment including any driveways shall match the existing footpath levels.

    65. The levels at the property boundary abutting the right­of­way shall match the existing pavement levels.

    66. The levels at the street alignment including any driveways are required to match the existing verge levels. If there is any doubt as to the required levels, please contact the Technical Services section for advice.

    67. Stormwater shall be discharged into the Town's stormwater drainage system as shown on the attached application form. The endorsed copy of the application form must be submitted to the Technical Services division in person together with the deposit fee stated on the stormwater application form.

    68. All stormwater drainage for commercial/industrial and multi residential developments (five or more units) shall be designed by a practising hydraulic consultant.

    69. Car parking bays and vehicle manoeuvring areas are to be designed in accordance with AS2890.1 - 1993 parking facilities Part 1: Off Street Parking. The Town's 85 percentile car turning template standard (Drawing No E9526) can be used to design non standard vehicle manoeuvres.

    70. Construction of internal driveways for commercial/industrial and multi residential developments (five or more units) shall be:


      Brick paving – as per brick paving manufacturer's recommendation based on vehicle movements and potential loading.
(Page 37)
    Asphalt/Concrete: as per practising civil engineer's pavement design based on vehicle movements and potential loading.

    Note: The minimum brick paving thickness shall be 60 millimetres.

    71. All onsite car parking facilities are to be installed and maintained to the satisfaction of the Executive Manager, Technical Services.

    72. Any walls, fences or structures abutting right-of-way boundaries which are adjacent to crossovers are to be provided with a 1.5 metre x 1.5 metre sightline truncation. This area shall be maintained clear of obstructions above a height of 0.75 metres.

    73. Any walls, fences or structures abutting street boundaries which are adjacent to crossovers are to be provided with a 1.5 metre x 1.5 metre sightline truncation. This area shall be maintained clear of obstructions above a height of 0.75 metres.

    74. A 1.5 metre x 1.5 metre sightline shall be provided at the intersection of the right-of-way and the street alignment. This area shall be maintained clear of obstructions above a height of 0.75 metres.

    75. The existing right-of-way adjacent to this property is to be widened by 1.0 metre and the land ceded free of cost to the Town of Victoria Park.

    76. A turning area of a 6.0 metre radius is required for vehicular movements accessing the site from the right­of­way. The 6.0 metre radius includes the width of the right­of­way. Any proposed building is to be set back a minimum of 1.0 metre from the boundary between the right-of-way and the subject property.



(Page 38)


Attachment B










(Page 39)



Attachment C


(Page 40)



Attachment D
(Page 41)

(Page 42)

(Page 43)

(Page 44)

(Page 45)

(Page 46)

(Page 47)

(Page 48)

(Page 49)
    I certify that this and the preceding [91] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

    ___________________________________

    MR D R PARRY, SENIOR MEMBER


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

2

Mandurah Country Club Inc and City Of Mandurah [2012] WASAT 122
Nicotra and Town Of Vincent [2008] WASAT 16
Cases Cited

1

Statutory Material Cited

3

Nicholls v Western Australian Planning Commission [2005] WASAT 40