GEORGIOU PROPERTY 2 PTY LTD and PRESIDING MEMBER OF THE METRO WEST JOINT DEVELOPMENT ASSESSMENT PANEL - [2017] WASAT 138

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: GEORGIOU PROPERTY 2 PTY LTD and PRESIDING MEMBER OF THE METRO WEST JOINT DEVELOPMENT ASSESSMENT PANEL [2017] WASAT 138

MEMBER: MS D QUINLAN (MEMBER)

HEARD: 27 AND 29 SEPTEMBER 2017

DELIVERED : 25 OCTOBER 2017

FILE NO/S: DR 173 of 2017

BETWEEN: GEORGIOU PROPERTY 2 PTY LTD
Applicant
AND
PRESIDING MEMBER OF THE METRO WEST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

Catchwords:

Town planning application to extend time within which development approval substantially commenced - Relevant considerations - Whether planning framework had substantially changed - Whether likely to receive approval today - Whether applicant had actively pursued the implementation - Whether a further extension of time should be granted

Legislation:

Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 17, reg 17(1)(a), reg 17(4), reg 18
Planning and Development Act 2005 (WA), s 77(1)(b), s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 27(2)
State Planning Policy 3.1 Residential Design Codes, cl 2.4, cl 6.1.1, cl 6.1.2, cl 6.1.4, cl 6.4, Pt 6
The Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 3, cl 3(3), cl 3(5), cl 43, cl 67, cl 67(zb), cl 71(a)(i), Sch 2
Town of Cambridge Local Planning Scheme No 1, cl 19, cl 19(3), cl 39, cl 39(3), cl 42(2), cl 56(1), cl 59, Pt 3, Pt 7

Result:

Review allowed
Decision set aside and an extension of two years granted

Summary of Tribunal's decision:

The proceedings arose in the Tribunal following a refusal by the respondent of an application, pursuant to reg 17 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regulations), seeking to amend an approval by extending the period by a further two years within which the development approved may be substantially commenced.
The Tribunal found that the following three considerations were each relevant matters to be considered and balanced in the exercise of discretion under reg 17(4) of the DAP Regulations:
(a) whether the planning framework had changed substantially since the
development approval was granted;

(b) whether the development would likely receive approval now; and
(c) whether the holder of the development approval had actively and
relatively conscientiously pursued the implementation of the
development approval.

See Kapila and City of Stirling [2016] WASAT 59 at [38]-[40] following Claymont Westcapital Pty Ltd and East Perth Redevelopment Authority [2008] WASAT 77 at [51]-[53].
The Tribunal also found that a further consideration was relevant in these proceedings as to whether, in the circumstances which exist in this particular case that it is almost three years since a full merits assessment of the proposed development had occurred, a further extension of time should be granted.
A preliminary issue arose as to what the relevant time period was for consideration as to whether the planning framework had changed substantially since the 'approval' was granted. In these proceedings a local planning policy had been substantially amended 12 days after the original approval was granted on 12 February 2015, however an amended approval was granted on 5 May 2015 and an extension of one year was granted on 20 June 2016 with both decisions cognisant of the now amended local planning policy. The Tribunal found that the commencement of the relevant time period for consideration was from 20 June 2016 when the most recent decision was granted.
In conclusion, the Tribunal found as follows:
a) There had been no substantial change in the planning framework
since the approval to extend time on 20 June 2016;

b) Moreover, there had also been no substantial change in the planning
framework since the original approval on 12 February 2015;

c) It was likely that the development would be approved today;
d) The applicant had actively and relatively conscientiously pursued
implementation of the development; and

e) The circumstances which arise in relation to this particular
development are reasonable and justify a further extension of time,

that, when considered together, in the exercise the Tribunal's discretion to make the correct and preferable decision upon review, the balance weighs in favour of amending the approval so as to extend the period by a further two years within which the development must be substantially commenced.

Category: B

Representation:

Counsel:

Applicant: Mr P McQueen & Mr A McGlue
Respondent: Ms C Ide & Ms E O'Keefe

Solicitors:

Applicant: Lavan Legal
Respondent: State Solicitor's Office

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

Claymont Westcapital Pty Ltd and East Perth Redevelopment Authority [2008] WASAT 77
Clive Elliot Jennings & Co Pty Ltd and Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Drive by Developments (Perth) Pty Ltd and City of Perth [2017] WASAT 75
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Kaizen Property Developments Pty Ltd and City of Armadale [2017] WASAT 123
Kapila and City of Stirling [2016] WASAT 59
McCabe Street Joint Venture and City of Fremantle [2009] WASAT 37; (2009) 61 SR (WA) 9
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
Teimoori v Moreland City Council [2015] VCAT 1969

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings arise in the Tribunal following a refusal on 22 May 2017 by the respondent of an application made by Georgiou Property 2 Pty Ltd (applicant), pursuant to reg 17 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regulations), seeking to amend an approval by extending the period by a further two years within which the development approved may be substantially commenced.
On 26 May 2017, pursuant to reg 18 of the DAP Regulations, the applicant lodged an application in the Tribunal for a review of that refusal by the Presiding Member of the Metro West Joint Development Assessment Panel (respondent).

Background facts

On 3 October 2014, the applicant applied to the respondent for development approval to commence development of Lots 226, 702, 703 and 704 (Numbers 29-33) Northwood Street, West Leederville (subject site).
By amended plans submitted on 15 December 2014 and 19 January 2015, the applicant sought approval to commence development of the subject site into a six storey mixed use development comprising two commercial tenancies and 66 multiple dwellings.
On 12 February 2015 the respondent approved the application for development approval subject to conditions (original approval).
On 24 February 2015, the Town of Cambridge (Town) Council resolved to adopt changes to the Town's Local Planning Policy 6.5 Precinct P5: West Leederville (LPP 6.5), in particular, the introduction of a 'Residential Interface Node' (RIN) and consequential provisions.
On 9 March 2015, pursuant to reg 17 of the DAP Regulations, the applicant lodged an application to amend the original approval and on 31 March 2015 submitted further amended plans. In particular, the applicant sought to have 64 multiple dwellings instead of 66, an increased net floor area and a decreased number of car parking spaces (the development).
On 5 May 2015, the respondent approved the application to amend the original approval, subject to conditions with conditions 9, 13, 18 and 24 of the first approval also being amended (amended approval).
On 26 April 2016, pursuant to reg 17 of the DAP Regulations, the applicant applied to the respondent seeking to amend the second approval by extending the period by a further one year within which the second approval may be substantially commenced (first application to extend time).
On 20 June 2016, the respondent approved the application to amend the second approval by extending the date by which substantial commencement must occur to 12 February 2018 (approval to extend time).
On 23 March 2017, pursuant to reg 17 of the DAP Regulations, the applicant applied to the respondent seeking to amend the existing approval by extending the period by a further two years within which the development approved may be substantially commenced (second application to extend time).
On 22 May 2017, the respondent refused the second application to extend time for the following reasons:
1.The proposal does not respect the Town's current development framework or the statement of intent within the West Leederville Precinct Policy (Policy 6.5), specifically for the Residential Interface Node. An extension to the approval timeframe, for an additional 24 months over the previously granted extension, would result in a development that would not be supported if submitted as a fresh application given the significant inconsistencies with the desired built form outcomes in this area of the precinct.
2.The proponent has not 'actively and conscientiously' pursued the implementation of the development approval, given that no progress has been made with regard to fulfilling the requirements of the original development approval conditions since the previous Form 2 extension of time was granted.
The decision under review in the Tribunal is the respondent's refusal to approve the applicant's second application to extend time for a further two years.

The development

The development consists of a six storey multiuse building, incorporating the following:
a)64 residential units of 53m² to 80m² (comprising a mixture of two bedroom/one bathroom and one bedroom/one bathroom units);
b)two ground floor commercial spaces of 96m² and 204m² respectively;
c)eight dedicated commercial parking bays;
d)two shared commercial/residential parking bays;
e)64 residential parking bays;
f)15 visitor parking bays;
g)shared commercial loading bay; and
h)a bicycle store.
The eastern setbacks to Northwood Street are from 0 metres to 3 metres on levels one to three, 0.4 metres to 3 metres on level four, 0.6 metres to 3 metres on level five and 1 metre to 3 metres on level six. The northern and southern setbacks are 0 metres to 7.8 metres on levels one to three and 3 metres to 7.8 metres on levels four to six. The rear/western setbacks to Pether Lane are 0 metres to 2.58 metres on levels one and two, 1.4 metres to 2.58 metres on levels three and four and 3.28 metres on levels five and six.
The plot ratio is 2.74:1 based on 4,980m² of net floor area.

The subject site and locality

The subject site is in an inner city locality, some 1 to 2 kilometres and only two railway stops from the Perth City centre and within 200 metres of the West Leederville railway station.
The subject site comprises Lots 226, 702, 703 and 704 Northwood Street, West Leederville. The four lots are proposed to be amalgamated into a single lot pursuant to an application approved by the Western Australian Planning Commission on 8 July 2015. The subdivision application was made in response to condition 1 of the approval that requires the amalgamation of the subject site into one lot on the certificate of title prior to the issuing of occupancy permits for the development. The subject site, when amalgamated, would be 1,817m² in area. The subdivision approval expires on 8 July 2018.
The subject site is currently occupied by existing service industry buildings, the applicant's display suite and sales office for the development.
The subject site is bound by commercial uses to the north and south, Northwood Street to the east and Pether Lane to the west. Northwood Street is characterised by residential and commercial land uses.
The land immediately to the south of the subject site appears to comprise a small gymnasium and the next site to the south, at Lot 101 (No 21-23) Northwood Street, is an existing six storey multiple dwelling development with mezzanine. This development was approved by the respondent on 12 November 2014. This development is complete and occupied.
Pether Lane is 6.08 metres wide and forms the rear boundary of single residential lots that front Blencowe Street to the west. Pether Lane is characterised by garages that provide vehicle access to residential properties fronting Blencowe Street. The Blencowe Street residential properties are predominantly single storey detached dwellings.
Pether Lane also provides access to the rear of properties fronting Northwood Street, including sole vehicle access to the six storey multiple dwelling development at Lot 101 Northwood Street referred to above.
Lot 7 Cambridge Street, located to the west of Lot 702, is an existing three storey apartment building from the 1960s.
A six storey mixed use development at No 141 Cambridge Street, located to the north of Lot 702, was approved by the Town in May 2015. This development has not yet commenced.

Site view

During the hearing the Tribunal had the benefit of a view of the subject site as well as the Northwood Street streetscape and the existing built form in the locality.

Planning framework

DAP Regulations

Regulation 17 of the DAP Regulations provides for the option to amend or cancel a development approval granted by a Development Assessment Panel (DAP). Regulation 17 provides for amending an approval to include extending the period within which any development approved must be substantially commenced, to amend or delete any condition and to amend an aspect of the development approved which, if amended, would not substantially change the development approved.

Scheme

The subject site is zoned Mixed Use under the Town of Cambridge Local Planning Scheme No 1 (Scheme). This zoning was effected through Amendment No 27 to the Scheme which was gazetted on 24 June 2016. At the time of the Approval on 12 February 2015, the subject land was zoned Commercial.
Under the Scheme, multiple dwellings are permitted on the subject site within all building levels other than street level. Commercial uses are also permitted providing the use complies with the relevant development standards and requirements of the Scheme.
The residential properties on Blencowe Street that back on to Pether Lane are zoned Residential R30 on the Scheme Map.
Part 3 of the Scheme sets out the development requirements for the six Precinct Planning Policies within the Scheme area. The subject site is within Precinct 5 West Leederville which is bound to the north by Lake Monger Drive, to the east by Mitchell Freeway and Loftus Street, to the south by Railway Parade and Salvado Road and to the west by Harborne Street and Gregory Street.
Clause 39 of the Scheme sets out a process for the determination of a 'non complying application' for planning approval which does not comply with a standard or requirement of the Scheme (including a standard or requirement set out in a planning policy), where the standard or requirement does not provide for any permitted variation.
Clause 42(2) of the Scheme provides that a planning approval shall lapse if the development has not been substantially commenced before the expiration of two years, or such period as may be determined, from the date on which the application is approved.
Part 7 of the Scheme relates to Special Control Areas. The subject site falls within Special Control Area No. 3 West Leederville Activity Area (SCA No. 3) identified in cl 56(1) and described in cl 59(1) of the Scheme. SCA No. 3 was introduced into the Scheme on 24 June 2016 by Amendment 27.
Clause 56(1) of the Scheme states that:
Special Control Areas have been identified as areas requiring comprehensive planning and for which specific controls to guide and coordinate subdivision and development are needed …
Clause 59(2) of the Scheme states the purpose of SCA No. 3:
To enable the preparation of an Activity Centre Structure Plan to guide planning relating to future development for the West Leederville Activity Centre and facilitate further detailed planning particularly for the Leederville Link Station and Community Node.
No structure plan has as yet been prepared for the West Leederville Activity Area.
Clause 59(3) of the Scheme sets out the objectives for development and planning decision making within SCA No. 3, which relevantly include to provide opportunities for increased commercial and residential developments creating a mixed use area that takes advantage of its inner city location and access to public transport as well as to encourage a gradual 'stepping up' of built form and maintaining a human scale to buildings along street frontages and around public spaces.
Clause 19(3) of the Scheme provides that, unless otherwise provided for in the Scheme, that development of land for residential purposes dealt with by State Planning Policy 3.1 Residential Design Codes (RCodes) is to conform with the provisions of the RCodes.

RCodes

Part 6 of the RCodes relates to design elements for multiple dwellings in areas coded R40 or greater, within mixed use development and activity centres. Pursuant to cl 2.4 of the RCodes, where specific elements of a development proposal do not meet the deemedtocomply provisions of the RCodes, those elements are to be assessed under the relevant design principles.
Design Principle 6.1.1 Building Size P1 of the RCodes provides that a development proposal is to be at a bulk and scale indicated in the local planning framework and is consistent with the existing or future desired built form of the locality.
Design Principle 6.1.2 Building Height of the RCodes provides that building height is to create no adverse impact on the amenity of adjoining properties or the streetscape and, relevantly, that buildings present at a human scale for pedestrians.
Design Principle 6.1.4 Lot Boundary Setbacks of the RCodes provides that, relevantly, buildings are set back from boundaries or adjacent buildings so as to moderate the visual impact of building bulk on a neighbouring property and assist with the protection of privacy between adjoining properties.
The objectives of Design Principle 6.4 Building Design are '[t]o design and locate buildings to provide an appropriate built form that meets the needs of residents and minimises any potential impact of development on adjoining properties'.

Deemed Provisions

The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) provide in Sch 2 a number of deemed provisions which are deemed to be included in the local planning scheme text (Deemed Provisions).
Pursuant to the operation of s 257B(3) of the Planning and Development Act 2005 (WA) (PD Act), if a Deemed Provision is inconsistent with a provision of a local planning scheme, 'the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect'.
The subclauses in cl 67 of the Deemed Provisions that are relevant matters for the Tribunal to have due regard to in these proceedings are (a) aims and provisions of the DPS 2; (b) requirements of orderly and proper planning; (c) any approved State planning policy; (e) any policy of the Commission; (g) any local planning policy; (h) any relevant activity centre plan; (m) the compatibility of the development with its setting; (n) amenity of the locality; (w) the history of the site where the development is to be located; (x) the impact of the development on the community as a whole; (zb) any other planning consideration considered appropriate.
Clause 3 of the Deemed Provisions deals with local planning policies (LPP) and provides that a LPP must be based on sound town planning principles and in making a determination under the local planning scheme the local government must have regard to each relevant local planning policy to the extent that the policy is consistent with the Scheme.

West Leederville Activity Centre Plan 2011

The subject site sits within the West Leederville Activity Centre Plan 2011 (Activity Centre Plan) which was formally adopted by the Town in 2010. The Activity Centre Plan provides broad strategic direction as well as support to future Scheme amendments and assists with the implementation of West Leederville Planning and Urban Design Study.

The Activity Centre Plan is divided into five distinct nodes. The subject site sits within the 'Cambridge High Street Node'. In relation to building height in the Cambridge High Street Node, the Activity Centre Plan refers to a minimum of two storeys, a maximum of four storeys and six storeys being allowed if certain public benefits can be achieved.
The Activity Centre Plan has not been formally endorsed by the Western Australian Planning Commission and does not carry the operational force by virtue of cl 43 of the Deemed Provisions. However, the Activity Centre Plan remains a planning consideration for which due regard can be given under cl 67(zb) of the Deemed Provisions.

Local Planning Policy 6.5 Precinct 5: West Leederville

The introduction to LPP 6.5 states that:
This policy gives effect to the vision for future development of [the West Leederville] area between the Leederville and West Leederville train stations, centred along Cambridge Street, led by the West Leederville Planning and Urban Design Study, adopted by Council in December 2010 and the West Leederville Activity Centre Plan 2011.
At the time of the original approval on 12 February 2015, proposed amendments to LPP 6.5 were known and had been advertised following the Town's decision to adopt the proposed amendments for advertising on 25 November 2014. However, at the time of the decision to grant the original approval, the subject site was wholly within the Cambridge High Street Node under LPP 6.5 (LPP 6.5 (2009)).
On 24 February 2015, some 12 days after the original approval was granted, the Town amended LPP 6.5 (current LPP 6.5). One of the key changes was the introduction of the RIN within the Mixed Use Zone. Under the current LPP 6.5, Lots 226, 703 and 704 are now within the RIN and Lot 702 remains within the Cambridge High Street Node.
Part 2.1 of the current LPP 6.5 provides a statement of intent for the Cambridge High Street Node and RIN as follows:
The Cambridge High Street Node … should have a lively activated street character and accommodate retail, commercial and mixed use development, taking advantage of its proximity to the West Leederville train station.
…
There are restrictions on development in the Residential Interface Node …, where building heights and setbacks are strictly controlled to minimise the impact on adjacent streets and properties. Consideration will be given to the nature of uses, and their design and layout to minimise the impact on adjacent residential uses and to ensure a high standard of design appropriate to such locations.
Part 2.2(iii) of the current LPP 6.5 refers to building height within the applicable nodes. The development was consistent with the maximum six storey building height provided under LPP 6.5 (2009), but is not consistent with the maximum four storey building height provided under the current LPP 6.5 (as determined from the ground floor at the primary street frontage). The development was consistent with the maximum three storey building height (with additional height to be set back further) at the Northwood Street and Pether Lane frontages under LPP 6.5 (2009). However, the development is not consistent with the maximum two storey building height at Pether Lane under the current LPP 6.5. The development has three storeys fronting Pether Lane (with three additional storeys set back further). The portion of the development located on Lot 702 is consistent with the maximum six storey building height provided for the Cambridge High Street Node under the current LPP 6.5.
Part 2.2(iv) of the current LPP 6.5 deals with street setbacks within the applicable nodes. The development's proposed setbacks to Pether Lane do not conform with the current LPP 6.5. The development also proposes a 0.4 metre setback to Northwood Street for the fourth storey which is not consistent with the current LPP 6.5 which suggests a 3 metre setback.

The authorities

The following three considerations are each relevant matters to be considered and balanced in the exercise of the Tribunal's discretion under reg 17(4) of the DAP Regulations:
(a)whether the planning framework has changed substantially since the development approval was granted;
(b)whether the development would likely receive approval now; and
(c)whether the holder of the development approval has actively and relatively conscientiously pursued the implementation of the development approval.
See Kapila and City of Stirling [2016] WASAT 59 at [38]-[40] (Kapila) following Claymont Westcapital Pty Ltd and East Perth Redevelopment Authority [2008] WASAT 77 at [51]-[53] (Claymont).
However, the range of considerations was not closed in Kapila: see [39].
It is also noted that Kapila is not authority for the proposition that each of the three relevant considerations must be satisfied before an extension of time may be given: see for instance Teimoori v Moreland City Council [2015] VCAT 1969 at [2] and [20].
In having due regard to an amended policy, consideration should be given as to how that amendment came about, in particular whether that amendment is purely reactive and whether it is based on sound planning principles: see for instance cl 3 and cl 67 of the Deemed Provisions as well as McCabe Street Joint Venture and City of Fremantle [2009] WASAT 37; (2009) 61 SR (WA) 9 at [87] citing Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 at [35] and Drive by Developments (Perth) Pty Ltd and City of Perth [2017] WASAT 75 at [61].
How policy guides the exercise of discretion was explained in the decision of the Court of Appeal in Clive Elliot Jennings & Co Pty Ltd and Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 (Clive Elliot Jennings) where it was found at [24] that:
In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a 'policy' and which is stated to be relevant to subdivision applications. In such cases, the document is not a 'policy' given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it. If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach.
Also see Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 at [527] and Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [37].

Issue to be determined

The issue to be determined by the Tribunal in these proceedings is whether it is appropriate in the exercise of discretion to grant a further extension of time of two years within which the development may be substantially commenced, having regard to the following relevant considerations which arise in these proceedings:
a)whether the planning framework has changed substantially since the approval was granted;
b)whether the development would likely receive approval now;
c)whether the applicant has actively and relatively conscientiously pursued the implementation of the development approval; and
d)whether, in the circumstances which exist in this particular case in that it is almost three years since a full merits assessment of the proposed development has occurred, a further extension of time should be granted.

The applicant's submissions

The applicant provided written submissions. In summary, the applicant submits that the application for a further extension of time should be approved for the following reasons:
a)The key considerations are those outlined in Kapila, however, the Kapila considerations are not strictly a legal test, they simply inform the exercise of discretion and the failure to satisfy one consideration does not mean that an extension should not be granted.
b)Nothing in reg 17 or reg 18 of the DAP Regulations or Kapila suggests that a further extension of time should be approached any differently from the first request for an extension.
c)An overall implementation period of five years is entirely reasonable for a development of this nature.
d)All three considerations from Kapilacan be resolved in the applicant's favour.

The respondent's submissions

The respondent provided extensive written submissions. In summary, the respondent submits that the application for a further extension of time should not be approved for the following reasons:
a)It is agreed that the key considerations are those outlined in Kapila, however, the range of Kapila considerations are not closed. The respondent submits that a further consideration is relevant, that being, an overall implementation period of five years, which is double the default period contemplated in cl 71(a)(i) of the Deemed Provisions, is akin to an open-ended or longterm planning approval.
b)That the relevant period for consideration as to whether there has been a substantial change in the planning framework since the approval is from 12 February 2015, when the original approval was granted, to the present. There have been two relevant substantial changes to the planning framework, that being the amendments to LPP 6.5 on 24 February 2015 and Amendment 27 to the Scheme which introduced SCA No. 3 on 24 June 2016.
c)Significant weight should be given to the fact that the development does not meet the requirements in relation to height and setbacks in the current LPP 6.5 and that the development may also be considered to be a noncomplying application under cl 39 of the Scheme such that it could be said that the development does not represent the desired future built form of the locality and it is unlikely the development would obtain approval today.
d)The applicant has not actively and relatively conscientiously pursued implementation of the approval.
e)All three considerations from Kapila can be resolved against the applicant.

The evidence

The applicant provided expert town planning evidence from Messrs Peter Simpson and Ray Haeren. The respondent provided expert town planning evidence from Ms Amanda Butterworth.
The applicant also provided factual evidence from Mr Armando Rossi who is a Development Director with Georgiou Developments Pty Ltd. The applicant is a wholly owned subsidiary of Georgiou Developments Pty Ltd. Mr Rossi's evidence is detailed later in these reasons in relation to the Tribunal's findings concerning the third limb arising from Claymont and Kapila.
Ms Butterworth provides detail as to how the planning framework has changed since the grant of the original approval on 12 February 2017. Ms Butterworth provides an opinion that those changes, in so far as assessing this application, primarily include the current LPP 6.5 (including but not limited to the introduction of the RIN provisions), Amendment 27 to the Scheme and the Deemed Provisions.
Ms Butterworth is of the view that, whilst approval of the development would be consistent with the strategic state planning framework, it is not likely that the development would receive approval today as it is not consistent with the current LPP 6.5, the provisions of the Scheme as well as the objectives and design principles of the R-Codes. In particular, Ms Butterworth opines this is because the development is not consistent with the development standards applicable to the RIN in the current LPP 6.5, and further, any variations to those standards would not meet the requirements of cl 39(3) of the Scheme.
Mr Simpson gave evidence it was his opinion that, whilst the planning framework has changed, it has not changed substantially since the original approval on 12 February 2017 and has changed even less since the approvals on 5 May 2016 and 20 June 2016. Mr Simpson was particularly critical of the current LPP 6.5, in particular the introduction of the RIN, which he opined should be given little weight as the amendment was reactionary and not based on sound planning principles. Mr Simpson fairly conceded in crossexamination that the changes to LPP 6.5, in particular the introduction of the RIN, were substantial changes, however his view was that these were substantial changes to the policy and did not amount to substantial changes to the planning framework.
Given the matters for the Tribunal to consider under cl 67 of the Deemed Provisions, Mr Simpson is of the view that the development would likely receive development approval today.
Mr Haeren noted that his witness statement was limited to consideration as to whether the development would likely receive approval today. Mr Haeren conceded that the development is not compliant with all of the provisions of the current LPP 6.5, however there is capacity for discretion to be applied. Mr Haeren is of the view that there is planning merit for the development to be approved today. Mr Haeren's view is influenced by previous approvals of the development, the existing development in the locality as well as the strong alignment and consistency with strategic planning objectives and the principles of orderly and proper planning.

Whether the planning framework has changed substantially

A preliminary point arises for determination by the Tribunal before consideration can be given as to whether the planning framework has changed substantially since the approval was given. The preliminary point is: what period of time, particular to these proceedings, should be considered? Is it since the original approval on 12 February 2015 or since the amended approval on 5 May 2015 or since the approval to extend time on 20 June 2016?
Claymont at [43] refers to the rationale behind the inclusion of time limits on approvals being that if changes occur to the planning framework during the time of the approval, in circumstances where substantive commencement of the development has not yet occurred and an extension of time is being sought, then an opportunity to review the circumstances of the approval could be contemplated. The respondent submits that the Tribunal should compare the planning framework which existed on 12 February 2015 with the current planning framework. The Tribunal is of the view that the respondent's submission is incorrect and relies on the Tribunal ignoring the facts and history of the development.
The Tribunal finds that such a review or assessment as contemplated in Claymont has already occurred on two occasions, that being, on 5 May 2015 when the amended approval was granted and on 20 June 2016 when the approval to extend time was granted.
The approval granted on 20 June 2016 is the present legal authority by which the development may be substantially commenced on or before 12 February 2018. The Tribunal finds that, in exercising a discretion under reg 17(4) of the DAP Regulations, that 'the approval' that is sought to be amended so as to extend the period within which any development approved must be substantially commenced under reg 17(1)(a) of the DAP Regulations, is 'the approval' provided on 20 June 2016.
Accordingly, on the respondent's submissions at hearing, the only substantial change in the planning framework for the Tribunal to consider is Amendment 27 to the Scheme, in particular cl 59 and the introduction of SCA No. 3 into the Scheme.
It is noted that, whilst Ms Butterworth refers to cl 59 in her witness statement as being part of the relevant planning framework and Amendment 27 to the Scheme as being a change to the planning framework, she does not suggest in particular that cl 59 is a relevant change for consideration under the first limb arising from Claymont and Kapila. Similarly, whilst cl 59 of the Scheme was included in the respondent's statement of issues, facts and contentions as being part of the planning framework, it did not form part of the respondent's contentions that cl 59 of the Scheme was a substantial change in the planning framework that had occurred since the approval was given. As to whether cl 59 of the Scheme constituted a substantial change to the planning framework since the approval was given was only raised by the respondent orally at the hearing.
In any event, s 27(2) of the State Administrative Tribunal Act 2004 (WA) requires the Tribunal to produce the correct and preferable decision at the time of the decision upon the review. Therefore, the Tribunal will give consideration as to whether the introduction of cl 59 of the Scheme on 27 June 2016, in particular SCA No. 3, is a substantial change to the planning framework since the approval was given on 20 June 2016 to extend time.
As described above, SCA No. 3 was introduced into the Scheme on 24 June 2016 by Amendment 27. Clause 56(1) of the Scheme stated that Special Control Areas have been identified as areas requiring comprehensive planning and special controls to guide and co-ordinate subdivision and development. Clause 59(2) of the Scheme states the purpose of SCA No. 3 is to enable the preparation of an Activity Centre Structure Plan to guide planning relating to future development for the West Leederville Activity Centre and facilitate further detailed planning particularly for the Leederville Link Station and Community Node.
Importantly, for the purpose of these proceedings and consideration as to whether there has been a substantial change in the planning framework since 20 June 2016, no structure plan has as yet been prepared for the West Leederville Activity Area.
Clause 59(3) of the Scheme sets out the objectives for development and planning decisionmaking within SCA No. 3, which relevantly include to provide opportunities for increased commercial and residential developments creating a mixed use area that takes advantage of its inner city location and access to public transport as well as to encourage a gradual 'stepping up' of built form and maintaining a human scale to buildings along street frontages and around public spaces.
Notably, the relevant objectives of SCA No. 3 in cl 59(3)(a) and (g) of the Scheme that were drawn to the Tribunal's attention in the respondent's statement of issues, facts and contentions, along with a number of other objectives in cl 59(3) are also referred to in the Executive Summary of the Activity Centre Plan which has been in existence since 2011.
Accordingly, as no structure plan has as yet been prepared for the West Leederville Activity Area as referred to in cl 59(2) of the Scheme and the objectives in cl 59(3) are largely replicated in the Activity Centre Plan, the Tribunal finds that the introduction of cl 59, in particular SCA No. 3, does not constitute a substantial change in the planning framework since 20 June 2016.

Whether the planning framework has changed substantially since 12 February 2015

If the Tribunal is incorrect in this regard and the relevant starting date for the purposes of consideration as to whether there has been a substantial change in the planning framework since the approval was granted is actually 12 February 2015, the Tribunal makes the following findings in relation to the current LPP 6.5, in particular the introduction of the RIN.
The Tribunal finds that little weight can be attached to the opinion of Ms Butterworth in determining whether the planning framework has changed substantially since the original approval on 12 February 2015, or the two subsequent approvals on 5 May 2016 or 20 June 2016. The reasons for this arise from Ms Butterworth's witness statement. In Ms Butterworth's witness statement she does not provide an opinion which distinguishes the changes to the planning framework since the original approval on 12 February 2017 and the subsequent approvals on 5 May 2016 and 20 June 2016. Of more significance, however, is that Ms Butterworth does not provide an opinion as to whether any of the changes identified to the planning framework are substantial. Although it is acknowledged that Ms Butterworth does in her summary refer to the changes which 'primarily include', this does not go far enough to equate with a meaning of 'substantial'. This misunderstanding as to the correct relevant consideration for the Tribunal in these proceedings as expressed by Ms Butterworth in her witness statement was not addressed nor cured in her oral evidence and, the Tribunal finds, affects the weight that can be attached to her opinion evidence. The absence of any consideration by Ms Butterworth as to whether any of the changes to the planning framework listed by her were 'substantial' is not really a matter of weight to attach to her evidence, Ms Butterworth simply cannot assist the Tribunal in this regard as she has not expressed an opinion based on a correct factual and legal basis.

The Tribunal finds, in preferring the view of Mr Simpson, that whilst there has been a substantial change in LPP 6.5 since 12 February 2015 by the introduction of a different height and setbacks applicable to the RIN, this change does not amount to a substantial change in the planning framework since 12 February 2015. This is found by the Tribunal for two reasons. Firstly, this change has only been made at the level of a local planning policy to which due regard is to be given in the exercise of a discretion, and secondly (for reasons to be detailed further below) the introduction of the RIN in the current LPP 6.5 appears likely, if a full merits assessment were undertaken today, to be found to not be based on sound planning principles.

Whether the development would likely receive approval today

Both parties agreed that the issue to be determined as to whether the development would likely receive approval today did not, or should not, amount to a full merits assessment that would occur if a development application were lodged today. Such a full merits assessment might involve the decisionmaker being the respondent or the Tribunal upon review.
The Tribunal was greatly assisted by the expert town planning evidence of Messrs Simpson and Haeren and Ms Butterworth in considering the likelihood as to whether the development would receive approval today. However, for the reasons which follow, and for those reasons expressed above in relation to Ms Butterworth's misunderstanding of the relevant consideration concerning whether there has been a substantial change in the planning framework since the approval, to the extent that the planners differ in their opinions, the Tribunal prefers the evidence of Messrs Simpson and Haeren over that of Ms Butterworth.
The Tribunal notes that the likelihood of the development in these proceedings receiving approval today is markedly different to the development proposed in Kapila. In Kapila the original approval was for nine multiple dwellings and there had been a subsequent scheme amendment which limited the maximum number of multiple dwellings allowed to three. This scheme amendment was clearly a substantial change in the planning framework and, more importantly, the change now rendered the development in Kapila prohibited under the scheme.
Consideration by the Tribunal in these proceedings of the likelihood that the development would receive approval today would involve the exercise of discretion under the Scheme (noting in particular the provisions concerning SCA No. 3 and the RCodes), with such an exercise being guided by having due regard to the Activity Centre Plan and the current LPP 6.5.
The predominant component of the local planning framework that the respondent relied upon to submit to the Tribunal that the development is not at a bulk and scale as indicated in the local planning framework is the current LPP 6.5.
The RCodes define 'local planning framework' as follows:
Comprises all strategic, statutory and policy planning documents which collectively outline the planning for an area and development requirements for sites, of the decision-maker and generally include a scheme, local planning strategy (including any housing component), local structure plans, activity centre plans, local development plans and local planning policies.
The applicant's case in response was that the current LPP 6.5, in particular the introduction of the restrictions to development in the RIN, did not comply with cl 3(3) and cl 3(5) of the Deemed Provisions in that it was not based on sound planning principles and this negatively affected the weight that should be given to the current LPP 6.5.
The Tribunal agrees with the respondent's submission that there exists a clear distinction to be drawn between an assertion that a policy is not sound because it is not based on sound planning principles, or for other reasons associated with the preparation of the policy, and an assertion that the policy ought not be applied to a particular site for good planning reasons which warrant a departure from that policy. However, in considering whether the development would likely receive approval now, the Tribunal is of the view it is likely that the current LPP 6.5 would fall into the former category not the latter.
The Tribunal has formed the view that it is likely that the current LPP 6.5, in particular the introduction of the RIN, when properly considered as part of full merits assessment, would be found to not be based on sound planning principles and therefore by virtue of cl 3(3) and cl 3(5) of the Deemed Provisions, not be consistent with the Scheme. It is noted for completeness that the Tribunal is not formally making findings in this regard in these proceedings, only making findings as to the likelihood of such a finding being made if the development was under a full merits assessment seeking approval today.
Mr Haeren when giving his oral evidence opined that the current LPP 6.5 with its introduction of the RIN, appeared 'counter intuitive' to the strategic direction of planning at a regional and State level in that it effectively sought to change the direction of strategic planning by restricting the density in a location that was only 200 metres from the West Leederville railway station which itself is only two railway stops from the Perth City centre. The Tribunal finds that Mr Haeren's opinion in this regard is logical, coherent and persuasive. Mr Simpson was also particularly critical of the changes introduced by the RIN which he was of the view were reactionary (in a negative sense) and not based on sound planning principles.
The Tribunal finds it is likely that the current LPP 6.5, in particular the introduction of the RIN, would be considered not to be based on sound planning principles because the Town is clearly seeking to take a significant strategic change in direction however this change has only been done at the planning framework level of a local planning policy and is not reflective of the West Leederville Activity Centre Plan. The current LPP 6.5 introduces the RIN which deviates from the five nodes introduced in the West Leederville Activity Centre Plan. The RIN operates to split the subject site (which has current approval to develop) into two different nodes with two different sets of requirements.
The use of prescriptive language in both LPP 6.5 (2009) and the current LPP, such as 'building heights and setbacks are strictly controlled' and 'maximum', is noted by the Tribunal on the understanding that a local planning policy cannot prescribe by the use of such language what the maximum height or setbacks will be in any given development that involves the exercise of discretion. In following the oft quoted principle from Clive Elliot Jennings, policy can only guide the exercise of discretion, not replace the discretion to be exercised.
Therefore, the Tribunal finds, if the development was considered today as part of a full merits assessment, that the current LPP 6.5, in particular the introduction of the RIN, after giving it due regard would be given little weight in determining an application.
The respondent referred the Tribunal to cl 39 of the Scheme which delineates relevant to these proceedings that an application that does not comply with a standard or requirement of a planning policy is labelled a 'non-complying application' and can only be approved if Council is satisfied by an absolute majority of the matters listed in cl 39(3) of the Scheme.
The Tribunal finds that cl 39 of the Scheme is inconsistent with the Deemed Provisions, in particular the way that an application is to be assessed as found in cl 3 and cl 67 of the Deemed Provisions. In accordance with s 257B(3) of the PD Act, the Deemed Provisions prevail and cl 39 of the Scheme is of no effect. This is to be distinguished from the Tribunal's decision concerning incorporation of the RCodes into a scheme (as is done here in cl 19 of the Scheme): see Kaizen Property Developments Pty Ltd and City of Armadale [2017] WASAT 123 at [61] and also see s 77(1)(b) of the PD Act which allows a State planning policy to be incorporated into a scheme.
Design Principle 6.1.1 Building Size P1 of the RCodes provides that a development proposal is to be at a bulk and scale indicated in the local planning framework and is consistent with the existing or future desired built form of the locality. Design Principle 6.1.2 Building Height of the RCodes provides that building height is to create no adverse impact on the amenity of adjoining properties or the streetscape and, relevantly, that buildings present at a human scale for pedestrians.
At the site view the Tribunal was able to observe the existing built form in the immediate locality along Northwood Street and Cambridge Street, in particular the recently constructed six storey development to the south of the subject site which also sits within the RIN introduced into the current LPP 6.5 post approval of that development, and the continuing ability to build to six storeys to the north of the subject site (where an approval has recently lapsed without being implemented). Having had the benefit of that site view, as well as consideration of all of the locality evidence, the Tribunal finds that the development is consistent with the existing built form of the locality. Moreover, the Tribunal finds, if the development was considered at a full merits assessment upon detailed consideration of the current LPP 6.5 in the context of the whole planning framework, it is likely that there would also be a finding the development is consistent with the desired future built form of the locality.
The Tribunal also finds that it is likely that a merits assessment today would find that the building height would create no adverse impact on the amenity of adjoining properties or the streetscape and, relevantly, that the development presents at a human scale for pedestrians.
The Tribunal finds, it is likely that in a detailed merits assessment of the development today all of the relevant design principles of the RCodes, in particular cl 6.1.1 (Building Size), cl 6.1.2 (Building Height), cl 6.1.4 (Lot Boundary Setbacks) and cl 6.4 (Building Design) would be found to be satisfied.
Whilst not determinative, the Tribunal however notes in support of a finding that it is likely the development would receive approval today is that there have been two instances of an exercise of discretion, that being on 5 May 2015 and 20 June 2016, which have occurred subsequent to the introduction of the RIN to the current LPP 6.5. Moreover, the proposed changes to LPP 6.5 (2009) were known at the time of the full merits assessment of the development when the original approval was granted on 12 February 2015.
Therefore, in accordance with the reasons explained above and in balancing all of the relevant factors in exercising a discretion whether to approve the development, the Tribunal finds that the development would likely receive approval today.

Whether the applicant has actively and relatively conscientiously pursued implementation of the development

Mr Rossi provided an extensive witness statement and was crossexamined at the hearing. Mr Rossi gave evidence as to why, despite approval being in place since 12 February 2015, the development has not been substantially commenced and the lengths to which the applicant has gone in order to get closer to the point that a commercial decision can be taken to substantially commence the development. These actions have included expending a large amount of money on marketing the development, progressing clearance of the conditions of approval and achieving a significant number of signed contracts.
The Tribunal finds that Mr Rossi was an impressive witness who provided evidence that was both reliable and credible. The evidence of Mr Rossi was clear and cogent. Whilst there were moments that the Tribunal observed Mr Rossi noticeably pause before answering a question in crossexamination, the Tribunal finds that this did not adversely affect Mr Rossi's reliability or credibility as a witness. The Tribunal considers it is appropriate to draw an inference favourable to Mr Rossi that these pauses in testimony were due to the fact that Mr Rossi was genuinely trying to be careful to be truthful as well as provide fulsome answers to questions whilst also being conscious that irrelevant and commercially sensitive information was not provided. The veracity of Mr Rossi's evidence was not undermined by crossexamination and the Tribunal accepts the evidence of Mr Rossi in its entirety.
Mr Rossi also gave oral evidence that if the application for a further two years extension was not granted that the applicant may still take a commercial decision, though not a preferred commercial decision at this time, to commence work in order to satisfy the requirements of substantial commencement. Mr Rossi's testimony in this regard further supports a finding that the applicant has a genuine desire to commence the development and its actions to date have been directed to achieving that end result.
Therefore, based on the evidence of Mr Rossi which the Tribunal accepts in its entirety, the Tribunal finds that the applicant has actively and relatively conscientiously pursued implementation of the development.

Another relevant consideration whether the overall period of implementation warrants refusal

The Tribunal agrees, in the circumstances of these proceedings, that the overall length of time granted for implementation is a relevant separate or additional consideration. The Tribunal is of the view that it is readily conceivable that there may be a 'tipping point' where the overall implementation time period may, of itself, warrant refusal of an extension and necessitate a full merits assessment of a new development application.
However, the Tribunal does not accept the respondent's submission in the circumstances of this case that an overall implementation period of five years, which is double the default period contemplated in cl 71(a)(i) of the Deemed Provisions, is akin to an open-ended or long-term planning approval.
The Tribunal finds, in all of the circumstances of this particular development, that the further extension of time is justified and reasonable. It is noted that it is difficult to envisage the circumstances that would allow any further extension of time in the future, however no findings are made in this regard.

Conclusion

In conclusion, the Tribunal finds in accordance with these reasons as follows:
a)There has been no substantial change in the planning framework since the approval to extend time on 20 June 2016;
b)Moreover, there has also been no substantial change in the planning framework since the original approval on 12 February 2015;
c)It is likely that the development would be approved today;
d)The applicant has actively and relatively conscientiously pursued implementation of the development; and
e)The circumstances which arise in relation to this particular development are reasonable and justify a further extension of time,
that, when considered together, in the exercise the Tribunal's discretion to make the correct and preferable decision upon review, the balance weighs in favour of amending the approval so as to extend the period by a further two years within which the development must be substantially commenced.

Orders

Accordingly, the Tribunal orders as follows:
1.The review is allowed.
2.The decision of the respondent on 22 May 2017 to refuse the application to extend time is set aside.
3.The application to amend to extend the period for a further two years within which the approved development at Nos 29-33 Northwood Street, West Leederville, as detailed in the Form 2 dated 23 March 2017 and accompanying plans dated 5 May 2015, is approved subject to the following conditions:
(a)This decision constitutes an extension to the original planning approval timeframe, as extended on 20 June 2016. If the subject development is not substantially commenced by 12 February 2020, the approval shall lapse and be of no further effect.
(b)All other conditions remain as per the original approval on 12 February 2015, as amended on 5 May 2015.

I certify that this and the preceding [117] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D QUINLAN, MEMBER