Cityrun Pty Ltd and Town Of Cambridge
[2007] WASAT 143
•5 JUNE 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CITYRUN PTY LTD and TOWN OF CAMBRIDGE [2007] WASAT 143
MEMBER: MR D R PARRY (SENIOR MEMBER)
MR J JORDAN (MEMBER)
MR P PINDER (SENIOR SESSIONAL MEMBER)
HEARD: 27 APRIL 2007 - WRITTEN SUBMISSIONS FILED 17 MAY 2007, 25 MAY 2007 AND 29 MAY 2007
DELIVERED : 5 JUNE 2007
FILE NO/S: DR 6 of 2007
BETWEEN: CITYRUN PTY LTD
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning - Development application - Mixed use commercial/residential development - Commercial area - Housing density - Minimum site area per dwelling - Single bedroom dwellings - Policy that residential development shall be in accordance with Residential Design Codes at a maximum permitted dwelling density of R80 - Proposed dwelling density R115 - Full four storey presentation to adjoining medium density residential area characterised by one to two storey buildings - Whether variation to minimum site area can be made on account of single bedroom dwellings under Residential Design Codes cl 3.1.3 A3(i) - Non-complying application - Excessive height, bulk and scale to adjoining residential area - Onsite car parking - Interpretation - Whether literal meaning of Acceptable Development car parking provision for Single Bedroom Dwelling accords with legislative intention - Whether it is appropriate to reduce car parking requirement for commercial component because of access to public transport and end of trip facilities - Whether adjustment factors that apply in neighbouring local government area should be used
Legislation:
Interpretation Act 1984 (WA), s 18
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241, s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.1.1, cl 3.1.1 A1.1, cl 3.1.3 A3, cl 3.1.3 A3(i), cl 4.1.3, cl 4.1.3 A3, cl 4.1.3 P3, cl 3.5.1, cl 3.5.1 P1, cl 3.5.1 A1, cl 3.7.1
Town of Cambridge Town Planning Scheme No 1, cl 39
Result:
Application for review dismissed and decision to refuse development approval affirmed
Category: B
Representation:
Counsel:
Applicant: Mr G Rowe (Acting as Agent)
Respondent: Mr S Allerding (Acting as Agent)
Solicitors:
Applicant: Greg Rowe & Associates (Town Planners)
Respondent: Allerding Associates (Town Planners)
Case(s) referred to in decision(s):
Busen Pty Ltd and City of Subiaco [2007] WASAT 49
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant sought review of the refusal of a mixed use commercial/residential development comprising 20 office units, 24 two bedroom residential units and 12 one bedroom residential units. The proposed housing density was approximately R115, whereas the applicable precinct plan contemplated a maximum housing density of R80. The site was in a commercial area, but adjoined a medium‑density residential area. The development presented with four storeys, set back in a common plain, to the adjoining residential area, which was characterised by one to two storey buildings.
The principal issues were:
•whether the housing density was acceptable; and
•whether adequate on‑site car parking was proposed.
The Tribunal determined that the proposed housing density was not acceptable. In particular, the four storey presentation would involve an excessive and unsympathetic building height, bulk and scale to the residential area. A more transitional presentation was required.
The Tribunal determined that although the overall on‑site car parking provision was adequate, more bays were required to be allocated to the commercial component than proposed by the applicants. The Tribunal held that, on its proper interpretation, the expression "not less than 60 sqm of plot ratio area" in the on‑site parking Acceptable Development provision for multiple single bedroom dwellings in the Residential Design Codes of Western Australia (2002) means "not more than 60 sqm of plot ratio area". The word "less" in the provision is clearly a mistake.
The application for review was dismissed and the decision to refuse development approval was affirmed.
Introduction
These proceedings involve an application brought by Cityrun Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Town of Cambridge (Town or Council) to refuse a development application for the demolition of single storey commercial/light industrial buildings and the erection of a commercial/residential development over four levels at No 168 Railway Parade, West Leederville (site). The site has street frontages to both Railway Parade and Nicholson Street, although access is not presently available from the site to Nicholson Street because of the form of existing development. The site currently presents to Nicholson Street with an approximately 6.0 metre high wall directly on the boundary.
The site has a battleaxe shape, a frontage to Railway Parade to the south of approximately 18.4 metres, a width at the rear to the north of approximately 40.8 metres and an area of approximately 3111 square metres. The Nicholson Street frontage occupies approximately 9.9 metres of the site's rear or northern boundary. The remainder of the rear boundary adjoins single storey residential properties fronting Nicholson Street. The site has a fall from Railway Parade to Nicholson Street of approximately 2.7 metres.
The site is zoned "Urban" under the Metropolitan Region Scheme and "Commercial" under the Town of Cambridge Town Planning Scheme No 1 (TPS 1 or Scheme). Adjoining and adjacent properties along Railway Parade between Abbotsford Street to the west and Southport Street to the east are also zoned "Commercial" under TPS 1. The site is located within the West Leederville Precinct under TPS 1 and, in particular, is located within the Southport Street Commercial Area of that Precinct. However, the site adjoins an area to its north which is zoned "Residential" under TPS 1 and which comprises single houses, grouped dwellings and multiple dwellings. In Nicholson Street, these residential buildings are principally single storey, but also include a two storey apartment building on the corner of Nicholson Street and Cambridge Street.
The proposed development occupies the whole of the site and comprises a garage at basement level in the access handle portion and at ground level – because of the fall of the land – in the rear portion, 20 office units over three levels in the access handle portion and 36 residential units over three levels in two building blocks in the rear portion. The development would present to Railway Parade as a three storey building and to the residential area to the north as two four storey buildings separated from one another by a one and a half storey high residential entrance and a landscaped central area at the second level above the car park. The residential buildings would be set back 5.0 metres, in a common plain, from the rear boundary, with four balconies projecting 1.0 metre into the setback on each building. The central landscaped area above the car park and between the two residential building blocks would comprise a lap pool, timber deck, turf, barbecue area and gymnasium.
The proposed garage would accommodate 103 vehicles. It would be accessed via a ramp down from Railway Parade leading directly to the car parking area allocated to the commercial component and two entrances from the driveway off Nicholson Street leading directly to the car parking area allocated to the residential component. Although there is a fire door proposed within the garage, it would have to be kept generally open, as 16 of the car bays proposed to be allocated to the commercial component are on the other side of the fire door from the other 25 car bays allocated to the commercial component and which are located below the office units. Consequently, vehicles accessing the residential component would be able to enter the building from Railway Parade and vehicles accessing the commercial component would be able to enter the building from Nicholson Street. In addition, four visitor car bays for the residential component are proposed between the rear boundary and the garage accessed from Nicholson Street. End of trip facilities, in the form of secure bicycle storage and male and female shower and change rooms, are proposed adjacent to the Railway Parade entrance to the car park.
The development application was twice recommended for approval by the Council's assessing officers. The development application was refused by the Council, essentially for the following reasons:
•non‑compliance with maximum permitted dwelling density;
•adverse impact on residential properties to the north, particularly because of bulk and scale and car parking; and
•undesirable precedent.
Issues for determination
The following two principal issues arise for determination in this review:
1.Whether the proposed housing density is acceptable.
2.Whether adequate on‑site car parking is proposed.
The Tribunal will address these issues in turn.
Is the density acceptable?
Clause 2(l) of the Town of Cambridge Precinct Policy West Leederville P5 (Precinct Policy) provides that, in the Southport Street Commercial Area, "residential development shall be in accordance with the [Residential Design Codes of Western Australia (2002) (Codes)] and the Town of Cambridge Residential Design Guidelines, at a maximum permitted dwelling density of R80". Clause 3.1.1 A1.1 of the Codes provides that development which complies with the dwelling type and site area requirements set out in Table 1 and other provisions is deemed to meet the relevant Performance Criteria. The corresponding Performance Criteria refer to dwellings "of the type and density indicated by the R-Code designated in the Scheme". Table 1 states that the minimum site area per dwelling in the R80 code is 125 square metres. The site area of approximately 3111 square metres divided by 125 square metres equals 24.888. Consequently, the Acceptable Development provision and the corresponding Performance Criteria in cl 3.1.1 of the Codes permit a maximum of 24 dwellings on the site. In contrast, the proposed development comprises 36 dwellings at a dwelling density of approximately R115.
Clause 3.1.3 A3 of the Codes confers the following discretion to vary the minimum site area set out in Table 1:
"For the purposes of … a Single Bedroom Dwelling, the minimum site area may be reduced by up to one-third, in accordance with Section … 4.1.3."
The Acceptable Development provision in cl 4.1.3 states "Single Bedroom Dwellings with a maximum plot ratio floor area of 60 sqm". Of the 36 proposed residential units in the development, 12 have only one bedroom. Although these units are 63 square metres in area, it is common ground, and plainly the case, that the units satisfy the corresponding Performance Criteria in cl 4.1.3 P3 which state "dwellings that provide limited accommodation, suitable for one or two persons". The 12 one bedroom units are "Single Bedroom Dwellings" for the purposes of the Codes.
However, cl 3.1.3 A3 of the Codes does not allow a variation to be made to the minimum site area of 125 square metres to the extent that would be required to permit the housing density proposed in the development. This is because, given that 24 two bedroom units are proposed requiring aggregate site areas of 3000 square metres, only a site area of approximately 111 square metres remains as the aggregate site area for 12 Single Bedroom Dwellings. The power to reduce minimum site area for a Single Bedroom Dwelling by up to one‑third would enable the exercise of discretion as to whether to permit one Single Bedroom Dwelling (at a site area of 111 square metres rather than 125 square metres), not 12 Single Bedroom Dwellings. Given the number of two bedroom units proposed, there is no site area left to accommodate 11 of the Single Bedroom Dwellings in accordance with the variation discretion under cl 3.1.3 A3 of the Codes. The proposed development is not, therefore, in accordance with the Codes at a maximum permitted dwelling density of R80, as required by cl 2(l) of the Precinct Policy.
Clause 39 of TPS 1 provides that the Council cannot grant development approval for an application that does not comply with a standard or requirement of the Scheme (including a standard or requirement set out in a planning policy) (referred to as a "non‑complying application") unless it is satisfied that:
"(a)if approval were to be granted, development would be consistent with:-
(i)the orderly and proper planning of the locality;
(ii)the conservation of the amenities of the locality; and
(iii)the statement of intent set out in the relevant Precinct Planning Policy; and
(b)the non‑compliance would not have any undue adverse affect [sic] on:-
(i)the occupiers or users of the development;
(ii)the property in, or the inhabitants of, the locality; or
(iii)the likely future development of the locality."
The term "amenity" is defined in TPS 1 to mean "the expectation of 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".
As the proposed development is not in accordance with the Codes at a maximum permitted dwelling density of R80, it does not comply with a requirement set out in a planning policy and is, therefore, a non‑complying application. Absent cl 39 of the Scheme, a requirement of a planning policy is not mandatory, although, if relevant, it is a fundamental element in, or a focal point of the decision-making process: Busen Pty Ltd and City of Subiaco [2007] WASAT 49 at [33]. While the existence of a policy cannot replace the discretion of the decision-maker in the sense that it is to be inflexibly applied regardless of the merits of the particular case, the relevant consideration in many applications would be why the policy should not be applied: Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24]. In this case, the terms of cl 39 of TPS 1 materially guide the consideration as to whether the density provision in the Precinct Policy should not be applied.
The locality of the site relevantly includes the residential area immediately adjoining to the north. As noted earlier, this area comprises generally single storey and one two storey building on Nicholson Street. As this area has a residential density coding of "R60" under TPS 1, likely future built form will be no higher than two storeys: see Codes cl 3.7.1.
In Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187, the Tribunal considered the concept of locality and observed, 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 the proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case."
The residential area to the north of the site is plainly affected by the appearance of the proposed development on its northern elevation. Moreover, the Precinct Policy states that "careful control will be exercised over the nature of the uses, and their design and layout in all commercial areas, to minimise the impact on any adjacent residential uses and to ensure a high standard of design appropriate to such locations".
The elevation of the proposed development facing the adjoining residential area is reproduced at Attachment A to these reasons. The Tribunal accepts the following evidence given by Mr Stephen Allerding, a town planner who gave evidence on behalf of the Council:
[I]n regard to the section of the building fronting Nicholson Street, it is considered that the form would present with an excessive and unsympathetic building bulk and scale to a predominantly single and two storey environment and would thereby significantly and detrimentally affect the streetscape, visual amenity and character of Nicholson Street in relation to its bulk and scale.
This is particularly significant because even though the single residential area in Nicholson Street is zoned R60, the building height, which applies to this area under the Codes, limits development to effectively two storeys as per the Residential Design Codes.
Having regard to Clause 39 of the Scheme (non‑complying applications) it is not considered that the form of the development meets the requirements under sub-clause (a) or (b) having regard to the prospective impact on Nicholson Street."
The Tribunal considers that the four storey presentation of the development, in a common plain, to the adjoining residential area, would involve an excessive height, bulk and scale when viewed from Nicholson Street and residential properties on Nicholson Street. The significant mass of the proposed built form would not be materially reduced by the limited articulation provided by the projecting balconies.
Mr Matthew Turnbull, a town planner who gave evidence on behalf of the applicant, considers that the proposed housing density is acceptable for essentially five reasons.
First, Mr Turnbull notes that the development satisfies the maximum plot ratio of 1.5:1 prescribed by cl 2(a) of the Precinct Policy and considers that "it is therefore logical that if the overall bulk and scale of the development meets the requirements of the Scheme and Policies it should be supported". However, the fact that the development complies with the maximum plot ratio or that a building of comparable bulk and scale could be designed to accommodate a smaller number of units with larger floor areas in compliance with the maximum permitted dwelling density does not mean that, if approval were to be granted, the development would be consistent with the conservation of the amenities of the locality or that the significant non‑compliance with the maximum permitted dwelling density in this case would not have any undue effect on the property in, or the inhabitants of, the locality. Clause 39 of TPS 1 requires the assessment of the impact of the proposed development irrespective of what other development could have been proposed. Moreover, the Precinct Policy prescribes a maximum plot ratio of 1.5:1 and also a maximum permitted dwelling density of R80. It is not at all logical that simply because the development satisfies the maximum plot ratio, the significant exceedance of maximum dwelling density should be supported. If this were the case, then the housing density provision would have no purpose.
Second, Mr Turnbull undertook a study of high density development within 200 metres of the site and considers that "the proposed density reflects existing densities in the area that are of an inferior design and scale when compared with the proposed development". Mr Turnbull also considers that the Council has set a "recent precedent" by supporting a variation to the prescribed density requirements of the Precinct Policy in relation to a mixed use development of an office and 10 multiple dwellings at No's 135‑139 Cambridge Street. However, we do not consider that these matters make the proposed density acceptable for four reasons. First, as Mr Allerding pointed out, the developments identified by Mr Turnbull, of which the Council has records, date from 1968, 1976 and 1981, well before current planning controls. Second, the only developments cited by Mr Turnbull which have a comparable density to the proposal are in an area which is subject to a residential density coding of R160 under TPS 1. Third, none of the examples are in Nicholson Street. Finally, the Tribunal is not aware of the facts and circumstances associated with the approval of the mixed use development at No's 135‑139 Cambridge Street, although it is noted that that development appears to be considerably smaller than the proposal.
Third, Mr Turnbull relies on Development Control Policy 1.6 – Planning to Support Transit Use and Transit Oriented Development (DC 1.6) which was published by the Western Australian Planning Commission in January 2006. DC 1.6 is a provision of State Planning Policy 1 – State Planning Framework Policy (SPP 1). The Tribunal is required by s 241 of the PD Act to have regard to a State planning policy which may affect the subject matter of an application for review. It is common ground that the site is within a "transit oriented precinct" for the purposes of DC 1.6. Clause 4.2.2 of DC 1.6 states that, in reviewing town planning schemes and proposed scheme amendments that include transit oriented precincts, the Commission "will expect local governments to identify and promote opportunities for residential development at a minimum density of 25 dwellings per hectare, and will expect the application of densities substantially higher than 25 dwellings per hectare where sites have the advantage of close proximity to a rail station, major bus interchange or bus route that provides service frequencies equivalent to rail". However, in this case, the Precinct Policy contemplates a density of 80 dwellings per hectare. While the site is within 500‑600 metres of three train stations, and within 400 metres of several bus stops, it is not clear whether this means that the site is in "close proximity to a rail station … or bus route that provides service frequencies equivalent to rail". Furthermore, DC 1.6 contemplates review and amendment of local planning schemes over time. It does not prescribe a development standard in substitution for or in addition to the Precinct Policy.
Fourth, Mr Turnbull considers that the proposed development would have a positive impact on the amenity of the residential properties to the north, because of:
•the removal of the approximately two storey high boundary wall along the northern boundary;
•the articulation and visual interest provided by the balconies;
•enabling of rubbish trucks in Nicholson Street to turn around; and
•the creation of a residential interface with Nicholson Street.
However, although the removal of the boundary wall would have a positive impact on residential amenity, two four storey high buildings set back in a common plain 5.0 metres from the northern boundary would have a detrimental impact on residential amenity. As noted earlier, the balconies would provide only limited articulation. At present, garbage trucks cannot turn around in Nicholson Street and must back out of Nicholson Street into Cambridge Street, which is a major road. This is plainly undesirable. While a positive aspect of the proposed development is that it would facilitate garbage trucks entering and exiting Nicholson Street in a forward direction, the Tribunal considers that the significant height, bulk and scale of the buildings to the residential area means that the overall impact of the development on the amenity of the area to the north is negative. Finally, although the traffic impact of the development would be acceptable on a merit assessment, the proposal would introduce significant traffic which would, to some extent, counteract the positive aspect of creating a residential interface.
Fifth, Mr Turnbull notes that, other than in relation to density, the development satisfies each standard or requirement in cl 2 of the Precinct Policy. In particular, it satisfies the building height requirement in cl 2(b) that buildings have a minimum of 6.0 metres wall height and the setback requirement in cl 2(e) which states that "to promote a strong urban form, buildings shall be built to the street alignment and the side boundaries" and that "there is no requirement for a rear setback". Although the setback provision requires no rear setback, the Tribunal considers that, as the rear boundary of the site is located at the zone and density code interface, that provision should be departed from in the particular circumstances of the case. It is noted that the development application in fact proposes a departure from this provision. Although a 5.0 metre setback is adequate for the lowest two levels of the proposal, the third level requires a further setback so that the buildings would present as substantially two storeys in height to the north, with any fourth storey element set back sufficiently so as to not be apparent at all from the residential area. The location of the site at the zone/code interface and the existing and likely future character and built form in the residential area to the north requires a more transitional building form in the northern part of the site.
For these reasons, the Tribunal is not satisfied that, if approval were to be granted, the development would be consistent with the conservation of the amenities of the locality or that the non-compliance with the requirement in cl 2(l) of the Precinct Policy – that the development shall be in accordance with the Codes at a maximum permitted dwelling density of R80 – would not have any undue adverse effect on the property in, or the inhabitants of, the locality. It follows that the development application should be refused under cl 39 of TPS 1.
Is the proposed on‑site car parking adequate?
The applicant proposes that 41 car parking bays are to be allocated to the commercial component of the development and that 66 car parking bays, including the four visitor car bays between the rear property boundary and the building, are to be allocated to the residential component.
Clause 3.5.1 of the Codes contains the following Acceptable Development provision:
"Development that complies with the following is deemed to meet the relevant Performance Criteria:
A1On-site parking spaces provided in accordance with the following:
…
iii.Multiple Dwellings
•0.35 spaces per dwelling plus 0.015 spaces per sqm of plot ratio area, to a maximum of 2 spaces per dwelling; and
•at least one space per dwelling provided for the exclusive use of each dwelling and where two or more spaces are provided, two may be in tandem; or
•in the case of Single Bedroom Dwellings of not less than 60 sqm of plot ratio area or Aged or Dependant Persons' dwellings of not more than 80 sqm of plot ratio area - 0.75 spaces per dwelling; … and
•not less than 10 per cent of the required spaces provided for exclusive use of visitors where more than four dwellings are provided;" (Emphasis in bold added.)
The corresponding Performance Criteria in cl 3.5.1 P1 states as follows:
"Adequate car parking provided on-site in accordance with projected need related to:
•the type, number and size of dwellings;
•the availability of on-street and other off‑site parking;
•the location of the proposed development in relation to public transport and other facilities."
The Council has raised an issue as to whether, on the proper interpretation of the third bullet point in the Acceptable Development provision, the words "not less than" in fact mean "not more than". Nothing relevantly turns on this issue in this case, because, on either view, the number of car bays proposed to be provided for the residential component of the development exceeds the Acceptable Development provision, other than in relation to visitor car bays. Ms Louise Round, a traffic engineer who gave evidence on behalf of the Council, and Mr Behnam Bordbar, a traffic engineer who gave evidence on behalf of the applicant, agree that, given proximity to public transport, four visitor car bays, rather than five or six visitor car bays, satisfies the Performance Criteria that adequate car parking be provided on‑site. However, as Mr Allerding observed, the question of interpretation raised by the Council is of wide significance in relation to the application of the Codes to Single Bedroom Dwellings and this case provides an appropriate vehicle to determine the proper interpretation of the provision.
In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, Mason and Wilson JJ said, at 320, that:
"The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole."
In referring to the propriety of departing from the literal interpretation, Mason and Wilson JJ said, at 321:
"It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions."
In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, McHugh JA held, at 423 and 424, as follows:
"A purposive and not a literal approach is the method of statutory construction which now prevails … In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act. …
Once the object or purpose of the legislation is delineated, the duty of the court is to give effect to it insofar as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object."
Similarly, s 18 of the Interpretation Act 1984 (WA) states that, in the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law shall be preferred to a construction that would not promote that purpose or object.
The apparent purpose or object underlying the third bullet point in cl 3.5.1 A1 of the Codes is to provide an incentive for the construction of small residential units that contain "limited accommodation, suitable for one or two persons" (Single Bedroom Dwellings Performance Criteria in cl 4.1.3 P3), in the contemplation that not all occupants of such units own a motor vehicle. The fact that the Acceptable Development provision for Single Bedroom Dwellings in cl 4.1.3 A3 states "Single Bedroom Dwellings with a maximum plot ratio floor area of 60sqm" indicates that "limited accommodation" is generally in the order of 60 square metres or less. The literal meaning of the words "not less than" in the third bullet point does not give effect to the object or purpose of the provision, because it removes the incentive to construct Single Bedroom Dwellings with a plot ratio area of less than 60 square metres and encourages the construction of large Single Bedroom Dwellings, even though the larger the dwelling the more likely that it will accommodate two persons, rather than one, and the greater its value, with the result that the occupants are likely to have one or two motor vehicles, rather than zero or one. The literal interpretation of the provision would also lead to the absurd result that, whereas a Single Bedroom Dwelling which has a plot ratio area of 59.9 square metres would require approximately 1.25 car bays in accordance with the first bullet point of the Acceptable Development provision so as to be deemed to meet the relevant Performance Criteria, a Single Bedroom Dwelling of 60 square metres or more would require only 0.75 space under the third bullet point of the Acceptable Development provision in order to be deemed to meet the relevant Performance Criteria. Finally, it is noted that the corresponding Acceptable Development on-site parking provision in relation to single houses and grouped dwellings states "in the case of a Single Bedroom Dwelling of not more than 60 sqm plot ratio area … – one space" (emphasis in bold added).
Clearly, therefore, the word "less" in the third bullet point of the Acceptable Development provision in relation to on-site parking for Single Bedroom Dwellings in the form of multiple dwellings is an error. On the proper interpretation of the provision, the words "not less than 60 sqm of plot ratio area" mean "not more than 60 sqm of plot ratio area".
In relation to the commercial component of the development, the Town of Cambridge Town Planning Scheme No 1 – Off‑street Parking Policy 6.1 (Parking Policy) states that parking bays should be provided at the rate of one car bay for every 30 square metres of net floor area with a minimum of three car bays for each tenancy for office developments, unless otherwise approved by the Council. One bay for every 30 square metres of net floor area proposed in the commercial component of the development translates to 55.7 (rounded up to 56) car bays. As at least three car bays are required per tenancy, the Parking Policy requires 60 car bays to be provided for the commercial component, unless otherwise approved by the Council. As noted earlier, the applicant proposes that only 41 car bays are to be allocated to the commercial component.
Mr Bordbar considers that 41 car bays are adequate to cater for the commercial component of the development, essentially for four reasons.
First, Mr Bordbar considers that the Parking Policy is out of date and onerous. He notes that the requirement of one car bay for every 30 square metres of net floor area is greater than was the requirement of the East Perth Redevelopment Authority (one space per 70 square metres of gross floor area) and is greater than the requirement of the Town of Vincent under the Town of Vincent Parking and Access Policy (Town of Vincent Parking Policy) (one space per 50 square metres of gross floor area). The Town of Vincent is located, at its closest point, approximately 400 metres from the site. Mr Turnbull gave evidence that, as an employee of the Council for two years at the time of its incorporation and as a consultant for the past four years, he understands that the Parking Policy is in the same terms as the policy developed by the City of Perth in 1994 and has not been updated since. In contrast, the Town of Vincent Parking Policy was last amended on 26 October 2004.
Second, Mr Bordbar notes that there are parking restrictions in the area limiting parking to four hours on the southern side of Railway Parade and to one to two hours elsewhere, and considers that "people will work that out pretty quickly and adjust their behaviour". He pointed out, from experience, that the Town's parking officers are active at issuing infringement notices.
Third, Mr Bordbar gave evidence that "the distinctive attribute of the subject site is the availability of excellent public transport facilities within walking distance including three rail stations, comprehensive bus facilities along Cambridge Street, continuous footpath and bicycle facilities". Mr Bordbar notes that, in consequence of this distinctive attribute, if the site were located within the Town of Vincent, the on‑site parking requirement, which would already be less on the basis of one space per 50 square metres of gross floor area, would be further reduced by adjustment factors of 15% for being within 800 metres of a rail station, 15% for being within 400 metres of a bus stop and 10% for providing end of trip facilities for bicycle users (up to a maximum aggregate adjustment of 35%). He notes that the shortfall in the provision of car bays for the commercial component of the development under the Parking Policy (approximately 32%) is less than the aggregate adjustment factor that would apply within the Town of Vincent.
Finally, Mr Bordbar notes that the site is within a "transit oriented precinct" for the purposes of DC 1.6, as it is within about 10 to 15 minutes' walking time, or an 800 metre distance, from not only one rail station, but three rail stations, and about 5 to 7 minutes' walking time, or 400 metres, from a number of bus stops. As noted earlier, the development incorporates end of trip facilities in the form of secure bicycle storage and male and female shower and change rooms.
In contrast, Ms Round considers that the development proposes too much of a shortfall in on-site parking provision with the result that it will have an adverse impact on the area in terms of circulating traffic and abuse of resident and time‑restricted on‑street parking. Ms Round considers that, given the site's proximity to public transport, a minimum on‑site parking provision of 50 to 55 car bays for the commercial component would be acceptable. Although Ms Round accepts that the site is within a transit oriented precinct for the purposes of DC 1.6 and that it should be designated at the local level as a transit oriented precinct, she considers that DC 1.6 should be applied by the Council at a strategic level in developing its planning instruments and policies, rather than to a particular development on a particular site.
The Tribunal considers that, in the circumstances of this case, a shortfall of approximately 32% in on‑site parking provision for the commercial component is unacceptable. The fact that the Parking Policy has not been reviewed since 1994 and that the Town of Vincent's policy requires fewer car bays and prescribes specific adjustment factors for proximity to public transport and provision of end of trip facilities, does not mean that the Council or the Tribunal on review is entitled to treat the Parking Policy other than as a focal point of the decision‑making process, much less to determine the application on the basis of a policy control which applies in an adjoining local government area. Although DC 1.6 is a relevant matter for consideration, it is principally directed towards strategic change facilitated by discussion between the Commission and relevant local governments in terms, among other things, of parking requirements for development within transit oriented precincts. Policy DC 1.6 does not prescribe a development standard for on‑site parking provision.
However, the Parking Policy permits the Council to approve a lesser parking provision in the circumstances of a particular case. The Tribunal accepts Ms Round's evidence that, in light of the proximity to public transport, 50‑55 car bays, rather than 60 car bays, would be appropriate. A reduction of another nine bays is not appropriate, given that, although the site is within 500‑600 metres of three train stations and within 400 metres of a number of bus stops, it could not be described as being very close to any of these facilities. Further, the specific adjustment factors in the Town of Vincent Parking Policy cannot be mechanically applied in a different local government area, although the fact that the adjustment factors exist supports the traffic engineers' evidence that proximity to public transport permits a reduction in on‑site parking provision.
The Tribunal considers that the incorporation of end of trip facilities (in addition to proximity to public transport) properly allows a reduction in on‑site parking provision for the commercial component at the upper end of Ms Round's range of five to ten spaces. A reduction of ten spaces, or approximately 17%, in on-site parking provision for the commercial component is, therefore, appropriate in the circumstances of the case. If the development application otherwise warranted approval, the Tribunal would impose a condition requiring that 51 car bays be allocated to the commercial component and that, to this end, the fire door within the car park must be kept open, except in emergencies. The remaining 56 car bays satisfy the Acceptable Development provision in cl 3.5.1 A1 of the Codes for the residential component other than in relation to visitor car bays. However, as noted earlier, it is common ground that four visitor car bays for the residential component satisfies that corresponding Performance Criteria.
Conclusion
The Tribunal has determined that the development application warrants refusal because it does not comply with the requirement of the Precinct Plan that the residential component shall be in accordance with the Codes at a maximum permitted dwelling density of R80 and the Tribunal is not satisfied that:
•if approval were to be granted, the development would be consistent with the conservation of the amenities of the locality; and
•the non-compliance would not have any undue adverse effect on the property in, or the inhabitants of, the locality (TPS 1 cl 39).
In particular, the full four storey presentation in a common plain to the medium density residential area to the north would involve an excessive and unsympathetic building height, bulk and scale to a predominantly single and two storey environment and would thereby significantly and detrimentally affect the streetscape, visual amenity and character of Nicholson Street and residential properties fronting Nicholson Street. Having regard to the terms of cl 39 of the Scheme, and in particular its statement that "the Council cannot grant planning approval for a non‑complying application" in consequence of the earlier findings, the application should be refused.
Although the site obviously has significant potential for mixed commercial/residential development and may well be able to accommodate a residential component with a density in excess of R80, a more transitional presentation to the adjoining medium density residential area is warranted. In particular, the building or buildings should present as two storeys to the north, with a third storey set back sufficiently so as to maintain a predominantly two storey presentation, and any fourth storey element set back further so as not to be apparent from the residential area.
The application for review should be dismissed and the decision of the Council to refuse development approval should be affirmed.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent to refuse development approval for a mixed use commercial/residential development at No 168 Railway Parade, West Leederville is affirmed.
I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
Attachment A – Northern elevation
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