IRIS 2015 NO. 2 PTY LTD and PRESIDING MEMBER OF THE METRO WEST JDAP

[2019] WASAT 114

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   IRIS 2015 NO. 2 PTY LTD and PRESIDING MEMBER OF THE METRO WEST JDAP [2019] WASAT 114

MEMBER:   MS L EDDY, SENIOR MEMBER

MS M CONNOR, MEMBER

HEARD:   8, 9 AND 11 JULY 2019

DELIVERED          :   18 NOVEMBER 2019

FILE NO/S:   DR 242 of 2018

BETWEEN:   IRIS 2015 NO. 2 PTY LTD

Applicant

AND

PRESIDING MEMBER OF THE METRO WEST JDAP

Respondent

Catchwords:

Town Planning - Development - Mixed use development - Town of Claremont North East Precinct - North East Precinct Structure Plan - North East Precinct Guidelines - Status of detailed area plans - Safety of proposed vehicular access - Height bulk and scale - Sustainability gains - Whether excessive parking

Legislation:

National Construction Code 2013
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 10(4), Sch 2, cl 5, cl 27, cl 28, cl 29, cl 56, cl 67, cl 67(g), cl 79, cl 79(2)
Planning and Development Act 2005 (WA), s 257(B), s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 31(3)
State Administrative Tribunal Rules 2004 (WA)
State Planning Policy 7.3 - Residential Design Codes Volume 2, cl 1.2.1(a), cl 3.8, Pt 3
Town of Claremont Local Planning Scheme No 3, cl 36(6), cl 36(6)(b), cl 75B, cl 75B(2), cl 75C, cl 75D ­ cl 75E to cl 75L, cl 75M, cl 75P, cl 75P(1)(i), cl 75P(1)(ii), cl 75P(8), cl 82, Pt III, Div VII, Sch 1, Table 1

Result:

Application allowed.

Category:    B

Representation:

Counsel:

Applicant	:	Mr M Hotchkin
Respondent	:	Ms C Ide

Solicitors:

Applicant	:	Hotchkin Hanly
Respondent	:	State Solicitor's Office

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

Amherst Developments Pty Ltd and City of Gosnells [2017] WASAT 16

Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119

Puma Energy Australia and City of Cockburn [2016] WASAT 36

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. An application was lodged in June 2018 with the Town of Claremont (Town) seeking approval under the Town of Claremont Local Planning Scheme No 3 (LPS 3 or Scheme) to construct an eight storey mixed use development (original proposal) on Lot 508 (No 3) Shenton Road, Claremont (site).  Based on the value of the original proposal, the application was referred to the Metro West Joint Development Assessment Panel (JDAP).  In September 2018, the JDAP refused to approve the original proposal.  '[TRGP] Iris 2015 No 2 Pty Ltd' (applicant), the owner of the land, lodged an application for review of the JDAP's decision on 15 September 2019 (Certificate of title attached to the Tribunal application).  That application was made within the time allowed by the State Administrative Tribunal Rules 2004 (WA).

2. Following an invitation from the Tribunal to reconsider its decision based on amended plans (amended proposal), the JDAP determined to refuse the amended proposal on 19 December 2018 for the following reasons:

   1.The proposed vehicular access from Shenton Road is inconsistent with the Claremont North East Precinct Structure Plan, Design Guidelines and Detailed Are Plan requirements for vehicular access to be restricted to Tiger Way.  The proposed vehicle access location may also contravene Clause 36(6), has potential to cause disruption to traffic flow for west bound traffic in Shenton Road, is inconsistent with orderly and proper planning and will also result in inadequate site line distances on the western and eastern approaches to the crossover.

   2.The proposed eight storey height is inconsistent with Claremont North East Precinct Structure Plan and Detailed Area Plan requirements for five to six storey maximum building height. The additional height will have an adverse impact on the streetscape amenity along Shenton Road, overshadowing at 12.00 noon on 21 June on the lower levels of the adjacent development site on Lot 512 Shenton Road and also reducing morning light access for the upper level dwellings on Lot 509, and restricting views from communal amenity facilities on Lot 509 which were specifically approved in this location to provide a high level of amenity to the residents of the development with commanding city views.

   3.The proposed open built form fronting Claremont Football Oval is inconsistent with Claremont North East Precinct Structure Plan, Design Guidelines and Detailed Area Plan requirements for a hard built edge.  This proposed development is inconsistent with the first and primary Design Principle for the Design Guidelines which aims to emphasis the oval as a key feature of the site by providing a strong, framed building edge and sense of containment to the oval.

3. Pursuant to s 31(3) of the State Administrative Tribunal Act 2004 (WA), it is this decision of the JDAP, in relation to the amended proposal, that is taken to be the decision the subject of review in these proceedings.

4. At the commencement of the hearing, the applicant's counsel handed up an amended set of plans, which were identical to the amended proposal other than some changes to provide additional bicycle storage (Exhibit 1).  The applicant was granted leave to amend its application for development approval to include the changes depicted in the plans that are Exhibit 1 and it is the development as depicted in those plans that is the proposal that this application for review relates to (proposed development).

Site and locality

1. The following facts about the site and its surroundings are taken from the respondent's statement of issues facts and contentions, being facts that are agreed by both parties (Exhibits 2 and 9):

   The Site

   9.Lot 508 is approximately 7,418m².  The applicant has excluded a portion of Lot 508 from the application area (approximately 25%) (identified as 'future development'), which reduces the total development site to approximately 5,500m².

   10.The site is mostly regular in shape, is oriented generally along the north­south axis and with frontage to Shenton Road to the south, and abutting Shenton Walk to the west, Claremont Oval to the north, and Tiger Way to the east.

   11.The proposed development is within walking distance of the Claremont Train Station and in close proximity to the Claremont Town Centre.

   The Surroundings

   Adjoining properties

   12.The land to the north, being Reserve R8002, is a reserve for recreation and is commonly referred to as 'Claremont Oval'.

   13.The land to the south-west, being Lot 512 Shenton Road, is currently vacant.  The remaining land to the south is Reservation R52229 for railway purposes and commonly referred to as the 'Fremantle Line'.

   14.Land to the west, being lot 509 (No. 1) Davies Road, is a mixed use development, under construction.  The site has two levels of basement parking accessible from Davies Road and includes retail and commercial uses on the ground level.  Residential apartments are included at the various levels above the ground floor.  The development consists of three buildings with varying heights as follows:

   (a)Building A fronts Davies Road is six stories (including the ground floor) and largely maintains a nil setback, with the exception of the two vehicle access points.

   (b)Building B positioned on the corner of Shenton and Davies Road, is seven stories in height (including the ground floor) and largely maintains a nil setback.  The seventh story occupies approximately 40% of the Building B footprint and is approximately 466m² in area.

   (c)Building C fronts Claremont Oval in six stories (including the Mezzanine) and has a varying setback ranging from nil to 5.9 metres to boundary.

   15.The land to the east, being Lot 506 (No. 2) Graylands Road, is vacant.  The MWJDAP on the 13 December 2018 approved an 'Intergenerational development' which includes residential accommodation (assisted living apartments), residential care and childcare uses on Lot 506.  The development has one level of basement parking accessible from Tiger Way and includes child care, residential accommodation and other allied commercial uses on the ground level.  The development does not have direct frontage to Claremont Oval.  The development consists of two buildings with varying heights as follows:

   (d)Building 1 extends along Tiger Way, Shenton and Grayland's roads, is six stories in height (including the ground floor) and largely maintains a nil setback.

   (e)Building 2 fronts Tiger Way, is two stories in height (including the ground floor) and largely maintains a nil setback.

   Properties surrounding Claremont Oval

   16.Lot 601 (No. 3) Davies Road, accommodates the Claremont Football club facilities and pavilion.  The site was previously known as Lot 510 Davies Road, however has since been subdivided to create Lots 600 & 601 (No 3 & 5) Davies Road. The club site development includes two levels of basement parking accessible from Davies Road, three story building including tiered stadium seating to Claremont Oval.

   17.Lot 600 (No. 5) Davies Road is vacant however has a temporary viewing platform in place.  Approval has been granted for a development including 2 basement levels accessible from Davies Road, six stories in height (including the ground floor) and largely maintains a nil setback to the balconies in the main building line having varying setbacks between nil and 7.7 metres.

   18.Lot 503 (No. 7) Davies Road was the first of the surrounding sites to be developed and is now occupied.  The development includes one basement level with access off Kyle Way, is 5 stories in height to Davies Road and 6 stories to Claremont Oval.

   19.Lot 801 (No. 1) Kyle Way, was previously known as Lots 504 & 505 (No. 13) Davies Road.  Lot 801 has formal access through 'The Race' to Claremont Oval.  The development has been completed and is now occupied.  The development consists of two buildings with varying heights as follows:

   (a)Building 1 (located on former Lot 504) fronts Graylands Road and extends around Kyle Way.  The development height varies from five stories to Kyle Way to six stories along Graylands Road.  The building fronting Claremont Oval is at five stories to the west (near Kyle Way) increasing to six stories as it meets 'The Race' to the southeast.

   (b)Building 2 (located on former Lot 505) fronts Graylands Road and extends around Tiger Way.  The development maintains a height of six stories to Graylands Road and Claremont Oval.

   20.Development on land abutting Claremont Oval has been progressing incrementally since 2014, with Lot 508 being one of the few remaining sites within the precinct to develop.

   21.Shenton Road, west of Graylands Road to the intersection with Davies Road is classified as a District Distributor B Road in the Main Roads Functional Roads Hierarchy.  It is constructed as a single carriageway two lane road with on street embayment parking.  This differs to the remainder of Shenton Road which has low to mid density residential development and is not provided with dedicated on street parking bays.  However, pursuant to Appendix XI of LPS 3, Shenton Road is a street that is 'deemed'" to carry high volumes of traffic.

   22.There are currently 29 parking bays located within the Shenton Road Reservation between Shenton Walk and Tiger Way.  These bays are affected by parking restrictions, which limits used to a maximum period of 2 hours between 8:30 am and 5:30 pm Monday to Friday and 8:30 am to 12 noon Saturday unless in possession of a parking permit.

Applicant's development proposal

1. The following description is taken from the respondent's statement of issues facts and contentions, and are agreed by the applicant:

   23.The proposed development consists of an eight story mixed use development (including ground floor) as follows:

   (a)One level of basement car parking, storerooms and plant infrastructure

   (b)The ground floor proposed 635.5m² commercial space (9 tenancies) and 156.4m² retail space, refuse area, end of trip facilities, two multiple dwellings, residential stores and 86 car bays.

   (c)Level 1 proposed 65 residential car parking bays, 14 multiple dwellings, communal gym, landscaped podium gardens and storerooms

   (d)Level 2 proposed 23 multiple dwellings, communal facilities, and podium gardens; and

   (e)Level 3 ­ 7 proposes 115 multiple dwellings

   24.The proposed development proposes 137 multiple dwellings in total.

   25.The proposed building, as viewed from Shenton Road and Shenton Walk, presents as eight stories.  The development presents as seven stories to Claremont Oval.

   26.The proposed development contemplates a single full­movement access via Shenton Road.

Planning framework

1. The parties are not in dispute in relation to the relevant planning framework that applies to this case.  It includes:

   •LPS 3;

   •Claremont North East Precinct Proposed Structure Plan dated August 2010 (NEP Structure Plan);

   •Claremont North East Precinct Structure Plan Addendum dated 10 October 2014 (NEP Addendum);

   •Local Planning Policy LV128 ­ NEP Design Guidelines last modified in December 2016 (LPP LV128);

   •Claremont NEP Design Guidelines, Revision 8, dated 25 June 2015 (NEP Guidelines);

   •Western Australian Planning Commission's (Commission) Development Control Policy 1.6 ­ Planning to Support Transit Use and Transit Oriented Development (DCP 1.6); and

   •State Planning Policy 7.3 ­ Residential design Codes Volume 2 ­ Apartments (SPP 7.3 Vol 2).

2. Clause 86 of LPS 3, which lists matters to which regard is to be had when determining a development application, has been replaced by cl 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations): s 257B of the Planning and Development Act 2005 (WA) (PD Act) and reg 10(4) of the LPS Regulations and see Puma Energy Australia and City of Cockburn [2016] WASAT 36, at [36] ­ [47]. The relevant matters for the purposes of this application are contained in paragraphs (a), (b), (c), (e), (g), (h), (m), (n), (p), (s), (t), (u), (y), (za) and (zb) of cl 67 of Sch 2 of the LPS Regulations.

3. The site is zoned 'Development' under LPS 3.  Table 1 ­ Land Use Table, contained on page 20 of the Scheme states that '[u]se class permissibility to be determined with reference to the designations in the approved Structure Plan'.

4. Clause 26(3) of LPS 3 provides:

   Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those codes.

5. Division VII of LPS 3 applies to the Development Zone.  Clause 75B of LPS 3 specifies the purpose of the Development Zone as being to identify areas requiring comprehensive planning and coordinate subdivision and development in those areas.  Clause 75C provides:

   (1)The development of land within a Development Zone is to comply with any provisions relating to the land set out in Schedule 1.

   (2)Where a Structure Plan exists the subdivision and development of land within a Development Zone is to generally be in accordance with any Structure Plan that applies to that land.

6. Clause 75D of the Scheme provides that the Town is not to consider recommending subdivision or approve development of land in the Development Zone unless there is a Structure Plan in place. 

7. The requirements in relation to the preparation, advertising, adoption endorsement by the Commission and notification of a structure plan are specified in cl 75E to cl 75L.  Clause 75M of LPS 3 provides:

   (1)A Structure Plan comes into effect:    

   (a)where the Structure Plan proposes the subdivision of land, on the day on which it is endorsed by the Commission pursuant to clause 75K; or

   (b)on the day on which it is adopted by the Town under clause 75J in all other cases.

   (2)If a provision of a Structure Plan is inconsistent with the provision of the Scheme, then the provision of the Scheme prevails to the extent of the inconsistency.

8. The NEP Addendum states that the NEP Structure Plan, which applies to the site, was endorsed by the Town in 2008 and by the Commission in June 2010. The NEP Structure Plan does propose the subdivision of land, therefore it came into effect in June 2010. As a structure plan that was approved prior to the commencement of the LPS Regulations, the NEP Structure Plan continues in force as if it were a structure plan made in accordance with the LPS Regulations: cl 79 of the LPS Regulations. It is also taken to have been approved when the LPS Regulations commenced and therefore has effect for 10 years from 19 October 2015: cl 28 of Sch 2 of the LPS Regulations. As a structure plan made in accordance with the LPS Regulations, the effect of the NEP Structure Plan is specified in cl 27 of Sch 2 of the LPS Regulations as being something the decision­maker is to have regard to, but is not bound by. In the Tribunal's view, for similar reasons as explained in Amherst Developments Pty Ltd and City of Gosnells [2017] WASAT 16, this provision is inconsistent with the effect given to a structure plan by cl 75B(2) of LPS 3 that development must be 'generally in accordance with' the structure plan. Accordingly, cl 27 of Sch 2 of the LPS Regulations overrides cl 75B(2) of LPS 3.

9. Schedule 1 of LPS 3 relevantly provides:

Location	Particulars of Land	Purpose and Requirements
1	Claremont North East Precinct AMD 130 GG 17/01/17	Claremont North East Precinct Structure Plan area as shown as Development zone on the Scheme Map and generally bounded by Lapsley Road, Davies Road, Shenton Road, Claremont Crescent, railway line and Graylands Road	… 2.  Car parking requirements under Table 2 of TPS No. 3 do not apply.  Car parking requirements shall be as per the approved Claremont North East Precinct Structure plan[.]

1. Clause 36(6) of LPS 3 provides:

   The provision or use of:

   (a)A car parking area (whether a garage, carport or dedicated uncovered area) at the front of a property; and

   (b)Any crossover from the primary street,

   will not be permitted where a practical alternative vehicle access point exists (such as from a secondary street, rear laneway or similar).  This prohibition will apply notwithstanding a proposed development involves the use of a pre-existing crossover from the primary street, except where the proposed development:

   (a)Is considered by the Council to be a renovation of an existing dwelling which retains the pre-existing car parking area without facilitating additional car parking, and provided the requirement to remove the crossover and provide an alternative car parking area is considered by the Council to be unreasonable; or

   (b)Involves only the upgrading of an existing car parking area, provided that the proposed upgrading does not facilitate any additional car parking.

   To facilitate the use of rear laneways or similar practical alternative access points, the Council may consider approving a reduced front setback for the dwelling where private open space to the rear would be significantly compromised by the requirements of this clause, having regard to the applicable design principles of the Residential Design Codes.

2. The relevant provisions of the remaining applicable planning instruments will be referred to where necessary in the course of the determining the issues before the Tribunal.

Issues

1. The overarching issue is, having due regard to the relevant matters specified in cl 67 of Sch 2 of the LPS Regulations, is the correct and preferable decision in the circumstances of this matter to refuse, approve or conditionally approve the proposed development. Determination of this overarching issue relies upon determination of more specifically identified sub­issues, which, as framed by the respondent and agreed by the applicant, are (Exhibits 2 and 9):

   [1].Whether the proposed full movement vehicular access across Shenton Road:

   (a)Is safe; and

   (b)Is consistent with appropriate pedestrian access along the frontage of Shenton Road; or

   (c)Alternatively, ought to be deleted and vehicular access to the development via Tiger Way provided.

   [2].Whether height, bulk and scale of the proposed development is acceptable having regard to:

   (a)The character of the locality and the prevailing heights of constructed and approved developments within the North East precinct;

   (b)The North East Precinct Design Guidelines and Detailed Area Plan for Lot 508; and

   (c)Any amenity impacts on the streetscape, particularly the Shenton Road streetscape.

   [3].Whether the provision for residential bike storage is acceptable.

1. Due to the amendment of the plans to what is now the proposed development, the parties agree that this third issue falls away.

Proposed Shenton Road access

1. In essence, the respondent submits that vehicular access to the proposed development should come from Tiger Way and not from Shenton Road as is proposed by the applicant.  This is because it is not sufficiently safe, implementing the access will cause loss of existing street car parking bays and street trees, it will be a cause of conflict with pedestrian traffic in the vicinity, which is not appropriate in this location, and it is inconsistent with the Detailed Area Plan (DAP), which provides for access to the site to be from Tiger Way only.

Safety

1. Three witnesses gave evidence in relation to safety issues with the vehicular access for the proposed development (proposed access). Mr Stace Emery Rogers and Mr Stephen Gilbert Charles Yapp are Civil Engineers and road safety auditors.  Mr Jacob Martin is a Mechanical Engineer with experience in traffic engineering, transport planning, strategic urban transport policy development and transport modelling.

2. Mr Rogers conducted a road safety audit of the proposed access and determined that the available sight line distance to the west is 52 metres and to the east is 45 metres.  Mr Rogers said that the minimum sight distance for this access under the Australian Standard AS/NZS 2890.1 – Parking Facilities ­ Off-street car parking (AS/NZS 2890.1) is 45 metres.  Mr Rogers stated that to the west the site line is obscured by vehicles that may park in existing parking bays in that part of Shenton Road and he recommended that some of those bays be removed to allow for unobstructed views.  He also recommended pruning or removal of some of the street trees to the east and west of the proposed access way.  Mr Martin and Mr Yapp agreed that the minimum required sight line distance is achieved at the proposed access, however Mr Yapp disagreed in relation to how many car parking bays and street trees would need to be removed to keep the sight lines sufficiently unobstructed.  The witnesses all agreed that it is not possible to achieve the desirable sight line distances in accordance with AS/NZS 2890.1 at the proposed access way. However, it is only Mr Yap who considered that this renders the proposed access way insufficiently safe.

3. Mr Yapp considered that the forecast trip generation of in excess of 1,000 vehicles per day and 130 - 140 vehicle trips in the peak hour is higher than the desirable level of traffic onto Shenton Road, which is a District Distributor B road.  With only the minimum sight line distance provided, Mr Yapp considered that the proposed access way has an increased risk of both rear end and right-angle crashes due to visibility issues, which in light of the traffic volumes envisaged, renders the proposed access unsafe.

4. When the experts conferred, they agreed that the proposed access way, in its currently proposed form, 'cannot be regarded as completely safe': Exhibit 7, at [3] on 4.  They also agreed that the removal of some parking bays and the under pruning of the existing street trees, as recommended by Mr Rogers, would improve visibility and make the proposed access safer.  In addition, they agreed that if the proposed access were to be relocated 30 metres further to the east, then visibility would be improved and the separation from Tiger Way would remain acceptable.  Mr Yapp considered that moving the proposed access in this way would achieve the desirable sight line distance of 69 metres in both directions. 

5. Mr Rogers and Mr Martin considered that the geometry of Shenton Road in this location is such that it is predominantly a low speed environment.  As such, the minimum sight line distance is appropriate.  Mr Yapp considered the desirable sight line distances should be achieved unless it is not possible, in which case minimum sight line distances must be achieved: ts 47, 8 July 2019.  Mr Yapp considered that it is necessary to have regard to the posted speed limit; the actual travel speed is used only if vehicles are generally travelling more than five kilometres above the posted speed limit: ts 48, 8 July 2019. 

6. Mr Yapp considered that one needs to ensure that there is not a collection of more than one minimum aspect of the road design in one location.  In the relevant location, Shenton Road has two quite sharp bends and these bends are not designed for a 60 kilometre per hour speed limit, which would be desirable.  The bends require a lower speed to safely navigate and as such, the road geometry is at, or below the minimum standard.  In addition, the parking bays are at, or below, minimum standard as they are not wide or long enough.  This makes it harder to pull into or out of the parking bays, which makes those processes take longer.  In Mr Yapp's view, to add a third minimum standard, in relation to sight line distances, to this scenario is undesirable.  Mr Rogers agreed with Mr Yapp in part, although he noted that the removal of the parking bays near the proposed access will remove one of the existing minimum standard aspects: ts 50, 8 July 2019.  In addition, although the bends referred to by Mr Yapp are below the minimum standard for the relevant design speed, Mr Rogers and Mr Martin noted that drivers will drive at a speed appropriate for the geometry of the road, and not necessarily at the posted speed.  This results in the lower traffic speed in the area meaning, in their view, that the minimum sight line distance at the proposed access is appropriate.

7. In Mr Yapp's view, 'one should always make the design as safe as - as one can. It's quite clear in here that if you can achieve desirable visibility then you should do so':  ts 81, 8 July 2019.

8. Mr Yapp was shown some information about speed measurements taken in September 2016 on Shenton Road near the site, which reflected speeds generally lower than 50 kilometres per hour.  However, in Mr Yapps' opinion, as these were taken not long after the realignment of Shenton Road was carried out, he considered the figures to be meaningless.  He said that '[i]t usually takes a few months at least before traffic patterns emerge after major works like that.  So … I would doubt that these are really relevant to be honest:  ts 91, 8 July 2019, at 91.  Mr Martin agreed that you would see changes in actual operating speeds in the period after major changes to a road occur, over a period of up to 12 months; with speeds being either lower or higher than initially recorded:  ts 97, 8 July 2019.  In any event, Mr Yapp did not consider that the figures caused him to change his view of the relevant speed to be used for calculations of sight line distances using AS/NZ 2890.1, which is the posted speed limit unless the 85^th percentile speed is more than 5 kilometres above the limit in which case the higher speed should be adopted:  ts 93­94, 8 July 2019.  Mr Rogers agreed that this is the correct approach according to AS/NZ 2890.1, however he considered that the actual lower operating speeds recorded showed that the calculations in relation to sight distance using the approach from AS/NZ 2890.1 will result in a conservative outcome:  ts 94­95, 8 July 2019.

9. In relation to the concept of an access off Tiger Way, Mr Rogers advised that there is a future building planned within Lot 506 Tiger Way which will reduce the sight distance for vehicles existing the site via a crossover on Tiger Way, possibly to 35 metres, which is below the minimum required, namely 45 metres:  Exhibit 2, at [2.5].  The sight lines would also be obstructed to some extent by cars parked in existing car parking bays on Tiger Way and also by existing street trees. 

10. Mr Rogers considered that the same risks relating to sight line distances and potential pedestrian conflict exist at the proposed access as well as at any access provided off Tiger Way:  ts 61, 8 July 2019.  He accepted that the risk is slightly higher for the proposed access than for an access off Tiger Way because of the much lower volume of existing traffic on Tiger Way.  However, an access off Tiger Way would be in close proximity to the intersection of Tiger Way and Shenton Road, which is another risk location:  ts 61-62, 8 July 2019.  Mr Yapp disagreed.  In his view, the lower traffic volume on Tiger Way means that an access from that road has less associated risks. 

11. Mr Martin's uncontradicted evidence was that there is no way to provide an access off Tiger Road that meets the minimum sight line distances.  This means that, despite the lower traffic volume on Tiger Road, an access off it is less safe than the proposed access:  ts 64­65 8 July 2019.

12. An access from Tiger Way would then require cars to either travel north or south on Tiger Way. If travelling to the South, one very quickly encounters the intersection with Shenton Road. According to Mr Rogers, the minimum sight line distance for this intersection is 97 metres. In order to remove obstructions from the sight line, it would be necessary to remove some car parking bays on Shenton Road near the intersection with Tiger Way, as well as some existing street trees: Exhibit 2, at [17].

13. Mr Yapp accepted that 'there are similar issues at the Tiger Way/Shenton Road intersection to those at the proposed access, in terms of visibility being restricted by street trees and parked vehicles' (Exhibit 5, at [50]) but he seems to think that because this is an existing issue it is not relevant to the consideration of the appropriateness of providing access to the site via Tiger Way. In relation to the access off Tiger Way itself, Mr Yapp said '[i]n terms of safety, there are no immediate issues with the access being on Tiger Way, and it is understood that this access will be provided regardless of whether or not an additional access is approved onto Shenton Road': Exhibit 5, at [49].

14. In oral evidence, neither of the other experts disagreed with Mr Martin's statement that an access way off Tiger Road could not meet minimum sight line distances as required by AS/NZ 2809.1.

15. The Tribunal finds, based on Mr Martin's uncontradicted evidence, that an access from Tiger Way cannot achieve minimum sight line distances in accordance with AS/NZ 2890.1.  The Tribunal also finds, based on the agreed evidence of all three experts, that the proposed access is able to achieve the minimum sight line distance.  One the same basis the Tribunal is satisfied that if the proposed access was moved 30 metres to the east the sight line distances are improved and the desirable sight line distance can be achieved in one direction.  However, the Tribunal has no evidence before it as to whether the proposed access can be moved 30 metres to the east without adversely impacting on other aspects of the design, including the alignment of the internal access routes.

16. Mr Yapp's preference for the access off Tiger Way seems largely based on the fact that there will need to be such an access provided in any event.  However, the proposed development involves considerable traffic flows.  It is not presently clear what sort of traffic volumes would be required to access the undeveloped portion of the site off Tiger Way, but we note that that portion of the site is much smaller in size than the part of the site on which the proposed development is to occur.  It may be that an access off Tiger Way would have to be obtained in order to access the remainder of the site, but the Tribunal is not persuaded that this, in itself, is sufficient justification for allowing a high volume of traffic to have use an access way that cannot achieve minimum sight line distances.

17. The Tribunal accepts, as did all of the experts, that if one can achieve desirable sight lines, then that is preferable.  If it were possible to modify the proposed development to move the access some 30 metres so as to achieve the desirable sight line distances, this would be preferable.  As indicated above, the Tribunal has no knowledge about whether this can be achieved without otherwise adversely impacting on the proposed development so we have no basis to require that this be done.

18. In any event, although the experts agree that the proposed access is not completely safe, the Tribunal prefers the opinions of Mr Rogers and Mr Martin in relation to the acceptability of the proposed access from a safety perspective for two reasons.  Firstly, the preference of Mr Yapp for access off Tiger Way seems to us to be unsupported on a safety perspective because it involves high traffic volumes utilising an access that cannot achieve minimum sight line distances.  Secondly, the reasoning of Mr Rogers and Mr Martin that minimum sight line distances are acceptable in this situation because of the low traffic speeds caused by the geometry of the roads makes sense to us.  In fact, it is clear from the NEP Structure Plan that one of the reasons why this road geometry was introduced into Shenton Road was to reduce traffic speeds in the area:  Exhibit 3 at 921.

Parking bays and street trees

1. The experts differ on the number of car bays that would need to be removed in order to ensure the proposed access has sufficiently unobstructed sight lines.  Three bays will need to be removed to allow for the construction of the crossover to the proposed access.  Mr Rogers, Mr Martin and Mr Yapp agreed that removal of an additional three bays will provide unobstructed minimum site line distance.  In order to achieve desirable sight line distance in at least one direction, it is necessary to remove one, two or three more parking bays:  ts 54-55, 8 July 2019.

2. Mr Yapp also considered that it will be necessary to remove street trees planted in the vicinity of the proposed access because they have the potential to obstruct the sight line once the trunks become larger:  ts 56 and 59, 8 July 2019.  Mr Rogers and Mr Martin considered that some under pruning of the trees would be adequate as sight lines will remain unobstructed from before, and after, the line in which the trees are planted, which is sufficient:  ts 58-59, 8 July 2019.  The relevant bays were identified by Mr Yapp and are shown in Exhibit 16.  The red crosses show the car bays that all three experts agreed would need to be removed and the blue cross shows the additional bay that Mr Rogers and Mr Yapp agreed need to be removed in order to achieve unobstructed minimum sight line distances at the proposed access.  The green crosses mark the car bays that the experts agreed would need to be removed in order to achieve the desirable sight line distance in that direction:  ts 53-55, 8 July 2019.

3. As indicated above, the Tribunal accepts Mr Rogers' and Mr Martin's opinion that the minimum sight line distance is acceptably safe at this location.  Having said that, based on the agreed position of the experts that if desirable sight lines can be achieved that is preferable, the Tribunal finds that it would be appropriate, from a safety perspective, to require the removal of all nine existing car bays shown on Exhibit 16.

4. Having reached that conclusion, there are two issues that arise.

5. Firstly, there is a practical issue arising out of the fact that the existing car parking bays are not located on the applicant's property.  They are within the road reserve.  The applicant has no control over whether or not those car bays can or will be removed.  While we have no evidence of the ownership or management arrangements for the Shenton Road road reserve, we presume that it is likely that the Town has either ownership or management responsibility over that land.  The Tribunal has no evidence from any person from the Town as to whether it would agree to removal of those car parking bays. 

6. Unfortunately, the decision­maker in this instance is not the Town.  If it were, the Tribunal, standing in its shoes, may have considered it reasonable to consent to the removal of car parking bays from the road reserve.  As the decision­maker is the JDAP, and the Town is not a party to these proceedings, this is not possible.

7. From the Responsible Authority Report (RAR) prepared by the Town's planning officers prior the JDAP's reconsideration of the proposed development, it is apparent that the officers were aware of the need to remove car parking bays if the proposed access were to be approved:  Exhibit 3 at 72­76.  The planning officer commented (at 76):

   With regard to sight distances, despite the differences of opinion between the consulting engineers, it is the Town's responsibility to determine that appropriate safety standards are employed for the proposed access from the local government controlled road, and for the general public.  On this basis it is clear that appropriate sight lines, particularly to the west are required through the parking embayment's [sic] which would all need to be removed, in addition to at least three street parking embayment's [sic] to the east.

8. Given the Town's responsibilities, it seems likely that the Town would act reasonably in determining whether safety concerns require the removal of car parking bays in light of the Tribunal's decision concerning the proposed development.  In addition, as the removal of car parking bays is necessary whether access to the site is obtained from Shenton Road or from Tiger Way (which it seems from the RAR is the Town's preferred option), the Town must have been expecting to have to remove some car parking bays whatever the access to the site. 

9. Secondly, the respondent submits that removal of existing car parking bays is inconsistent with the NEP Structure Plan, which contemplates that the loss of existing car parking within the precinct will be compensated for by providing parking elsewhere in the precinct and particularly on-street parking along Shenton Road:  Exhibit 3 at 946.

10. Mr Joe Algeri, a consultant town planner engaged by the respondent, says that the transport study incorporated into the NEP Structure Plan notes that car parking supply in transit oriented development locations must be carefully controlled: Exhibit 6 at [65]. The quote Mr Algeri cites goes on to specify that the control is needed because an oversupply of car parking can induce vehicle trips which in turn can increase congestion and reduce ease and safety of movement for pedestrians and cyclists. Having regard to this statement, we are not persuaded that the removal (rather than addition) of nine on-street car parking bays is necessarily inconsistent with the NEP Structure Plan.

11. Mr Algeri raised a concern that removal of car parking bays near the proposed access will reduce the most convenient car parking bays for the proposed commercial uses on the ground floor of the proposed development: Exhibit 6, at [141].

12. Mr Aaron Thomas Lohman, a consultant town planner engaged by the applicant, says that because he has not seen any analysis of the car parking demand versus supply in the area, he is not able to comment on the significance of any loss of existing parking bays:  ts 189-199, 8 July 2019.  In his view, any loss of on-street car parking is offset by the generous provision of visitor car parking bays within the proposed development:  Exhibit 15, at 184; ts 198, 8 July 2019.  We note that in the RAR, the Town's planning officer's comments that the provision of addition residential bays in the proposed development 'will ensure less pressure for on street and public car parking in the locality'.

13. At cl 9.5 of the NEP Structure Plan, it is stated that loss of previously existing car parking facilities near the train station would be compensated for by parking elsewhere, particularly on-street parking provided along Shenton Road.  This clause also identifies that the development the subject of the structure plan should be based on reduced dependence on and use of cars and recommends limitation on the number of both private and public car parking spaces.

14. Overall, we are not satisfied that the removal of nine on-street car parking bays is inconsistent with the NEP Structure Plan.  We are also not satisfied that the removal of these bays will result in a shortfall in public car parking bays in the locality because there is insufficient evidence before us to come to any such conclusion.  Mr Algeri and Mr Lohman agree that there will be less on-street car parking bays if some are removed - how could they say otherwise?  However there is no evidence in relation to how much public car parking is needed in the locality, nor how much exists, nor are we clear on who are the people who might be expected to use these car parking bays or the extent to which car parking bays within the proposed development may be used instead.

1. In relation to the street trees, we are not able to find whether or not the Town may consider it necessary to remove street trees in order to ensure appropriate safety is maintained at the proposed access.  From the site view it was apparent to us that this is by no means a unique situation, with many of the existing crossovers having existing street trees located nearby.  Given the ability of the driver to see from points before and points after any existing vegetation, we are not persuaded that any trees will necessarily have to be removed.  To the extent that they may have to, the issue is the same at both Shenton Road and Tiger Way where there are also existing street trees.  Shenton Road may be more of a focal point in the locality, but we are not persuaded that the removal of a limited number of trees will have any significant impact on the streetscape of the locality.  This is because there are significant amounts of vegetation on both sides of Shenton Road as well as landscaped pathway on the railway side and a small reduction in the number of trees will not be significant in this context.

Conflict with pedestrians

1. In his transport study, Mr Martin identified that the pedestrian movements would be (Exhibit 11, annexure JM3, at 21):

   Pedestrian traffic is likely to be very low along the frontage of the site vehicular access, as pedestrian demand will be split among the three available footpaths/shared paths along Shenton Road (the two footpaths along the edge of Shenton Road and the PSP aligning the railway).

   The two lobby locations of the proposed development are not in the vicinity of the proposed vehicular access point and there are no existing or proposed destinations on the south side of Shenton Road, opposite the access.  As such, there are no feasible desirelines for pedestrians that would interact with turning vehicles accessing the proposed access.

   Furthermore, formalised pedestrian crossing points are provided at Tiger Way (curb ramps and tactile), Davies Road (signal controls) and Graylands Road (central median refuge).  These points facilitate pedestrian crossing at specific points in a safe and controlled manner.  It is noted that cycling connections to the Principal Shared Path are restricted to Graylands Road and Davies Road. 

   Relocation of the access to Tiger Way would put it directly adjacent to the proposed aged care facility, with a consequentially higher impact on local pedestrian amenity.

2. Mr Yapp was of the opinion that the presence of an access on Shenton Road will necessitate pedestrians crossing an additional driveway.  While Mr Yapp accepted that driveways are not uncommon along pedestrian routes, he disagreed with Mr Martin's statement that pedestrian traffic is likely to be very low along the frontage of the site access.  In his view the nearby public transport facilities will cause a significant number of pedestrian trips between the proposed development, and other nearby developments, and the public transport facilities.  Some of these pedestrians will need to cross the access way and also cross Shenton Road.  Mr Yapp believes consideration should be given to providing a safe crossing point in the vicinity of the proposed development, possibly with a median island for pedestrian refuge.

3. Ultimately, the Tribunal was not satisfied that any of the experts had any basis for their opinions in relation to where and how pedestrians might cross the proposed access and/or Shenton Road other than pure speculation. 

4. All of the experts agreed that the provision of an access into the site introduces a point of conflict between vehicles and pedestrians using the footpath on the same side of the road as the access way.  The Tribunal accepts this to be correct. 

5. Mr Yapp considered that the proposed access introduces a second access and therefore a second point of conflict, and it would be preferable to remove this second point of conflict.  Mr Yapp did not consider what impacts, if any, a large difference in the number of vehicles using the Tiger Way access to the site might have to pedestrians using Tiger Way, particularly in light of the proposed use of the adjacent land for child care and aged care residential purposes.  We accept Mr Martin's opinion that allowing a large volume of vehicles to use the Tiger Way access to the site is problematic in light of the likely presence of children and elderly people in the vicinity of that access because this seems a reasonable conclusion to us.

Consistency with DAP

1. Both the NEP Addendum and the NEP Guidelines, which include the DAPs, show access to the site from what is now called Tiger Way: Exhibit 3 at 1079 and 1143.  Neither the NEP Structure Plan, the NEP Addendum nor the NEP Guidelines suggest access to the site should be obtained from Shenton Road.  The proposed access is not consistent with what is envisaged in relation to access in any of these documents.

Conclusion in relation to access

1. In addition to the matters considered above, it is also relevant to have regard to cl 36(6) of LPS 3, cited above

2. Mr Algeri says that it is not clear whether cl 36(6)(b) of LPS 3 is applicable to the proposed development because in his view it seems to be aimed at residential development rather than mixed use or large multiple dwelling complexes.  However, he says the same principle arises under the 'R-Codes' and preferring vehicular access from a minor street is, in any event, a sound town planning principle:  Exhibit 6, at [52]­[55].

3. Clause 36 is within Part III of LPS 3 which contains 'Development Requirements'.  While we tend to agree with Mr Algeri that the wording used in cl 36 seems to be more focused on single dwellings, group dwellings and multiple dwellings and is not particularly apposite to a large mixed use development, we are not persuaded that there is any sufficient basis to read the clause as not applying to the proposed development.  Schedule 1 of LPS 3 removes the car parking provisions in Part III from applying to the Claremont North East Precinct, but it does not otherwise prevent the provisions of LPS 3 from applying to the precinct.

4. The Tribunal has already found that it is not possible to provide an access to the site from Tiger Way that complies with the minimum sight line distances prescribed under AS/NZ 2890.1.  On this basis, and because the proposed access does provide minimum sight line distances, we are not satisfied that a practical alternative access exists in the circumstances of this proposed development.

5. Turning to SPP 7.3 Vol 2, it provides the following in relation to vehicular access:

   Intent

   Vehicle access points are essential connections between the street and parking or delivery areas within the development.  Well-designed access and circulation areas improve safety and functionality for users, whereas poorly considered vehicle access may compromise the safety of pedestrians, residents and traffic, as well as having a detrimental effect on the appearance and amenity of the streetscape.  Design needs to balance the need for safe and efficient vehicle access and egress with the needs of pedestrians, other road users and impacts on the public realm

   ELEMENT OBJECTIVES

   Development is to achieve the following Element Objectives:

   O 3.8.1Vehicle access points are designed and located to provide safe access and egress for vehicles and to avoid conflict with pedestrians, cyclists and other vehicles.

   O 3.8.2Vehicle access points are designed and located to reduce visual impact on the streetscape.

   ACCEPTABLE OUTCOMES

   Acceptable Outcomes are likely to assist in satisfying the objectives but are not a comprehensive 'deemed-to-comply' list.  In order to achieve the Element Objectives, proposals may require additional and/or alternative design solutions in response to the site conditions, streetscape and design approach.

   A 3.8.1Vehicle access is limited to one opening per 20m street frontage that is visible from the street.

   A 3.8.2Vehicle entries are identifiable from the street, while being integrated with the overall façade design and/or located behind the primary building line.

   A 3.8.3Vehicle entries have adequate separation from street intersections.

   A 3.8.4Vehicle circulation areas avoid headlights shining into habitable rooms within the development and adjoining properties.

   A 3.8.5Driveway width is kept to a functional minimum, relative to the traffic volumes and entry/egress requirements.

   A 3.8.6Driveways designed for two way access to allow for vehicles to enter the street in forward gear where:

   -         the driveway serves more than 10 dwellings

   -the distance from an on-site car parking to the street is 15m or more OR

   -the public street to which it connects is designated as a primary distributor, district distributor or integrated arterial road.

   A 3.8.7Walls, fences and other structures truncated or reduced to no higher than 0.75m within 1.5m of where walls, fences, other structures adjoin vehicle access points where a driveway meets a public street and where two streets intersect (refer Figure 3.8a).

   DESIGN GUIDANCE

   Potential alternative solutions to satisfy the Element Objectives will be considered on a performance basis.

   DG 3.8.1         Good design can reduce the visual impact of vehicle access at the street frontage.  Consider:

   -providing access from a secondary street where possible

   -keeping the width to a minimum and avoiding vehicle standing areas within the street setback

   -in built passing points but not the full driveway length

   -positioning ramps, gates and roller doors behind the main building frontage

   -selecting materials and colours that identify the access point while integrating with the built form and streetscape

   -minimising voids in the building façade through the use of doors or gates at entries or returning the façade detailing along exposed sides/ interior of driveways

   -concealing building services, pipes and ducts within visible parking areas.

   DG 3.8.2Locate and design vehicle access to minimise impacts on pedestrians, in particular ensuring that vehicles exiting the site have adequate visibility of oncoming pedestrians, cyclists and vehicles.

   DG 3.8.3Visitor bays are readily accessed from the primary vehicle entry.  Where located inside security gates, provide intercom controls to facilitate visitor access.

   DG 3.8.4Consider design solutions to reduce the impact of vehicle entries and circulation areas within the site accommodating appropriate sightlines and safety considerations, such as:

   -using changes in materials, colour, levels or landscaping to delineate pedestrian and vehicle circulation areas and define pedestrian paths in shared areas

   -locating vehicle entries to minimise ramp lengths and excavation

   -where required, incorporating aesthetically pleasing traffic calming devices that are integrated into the design such as changes in paving material or textures

   -reducing parts of the driveway to single lane (3m width) to allow for the incorporation of deep soil areas

   -minimising the visual impact of unavoidable long driveways through changing alignments and screen planting.

   DG 3.8.5Minimise the need for large vehicles to enter and manoeuvre within the site.  Where it is required, ensure a well-planned path of travel with sufficient clearance distances and site lines.  This requires consideration of building servicing requirements, including waste collection, during the preliminary design

6. As these provisions are within Pt 3 of SPP 7.3 Vol 2, the 'Design Guidance' is aimed at designers and development assessors:  SPP 7.3 Vol 2, at iv.  As can be seen above, one of the Design Guidance points does, as Mr Algeri suggests, indicate a preference for providing access from a secondary street where possible:  DG 3.8.1.  However, the relevant intent, which is the statement that explains the intended outcome and why it is important, focuses on well­designed access and circulation areas that improve safety and functionality for users as well as the amenity of the streetscape.  There needs to be a balance between the needs of vehicle users, pedestrians and impacts on the public realm.

7. It is proposed that there be only the one crossover to the site along Shenton Road, and it appears from the plans of the proposed development that the proposed crossover will be visible and well integrated into the overall design.  The traffic experts agreed that the proposed access will have adequate separation from nearby intersections.  The proposed access has two way access and an internal circulation so as to allow vehicles to enter the street in forward gear. 

8. We are not able to find the degree to which pedestrians will be impacted by the proposed access.  The experts agreed that there will be a degree of conflict between vehicles and pedestrians at the proposed access.  We are satisfied that, as there are pathways on both sides of Shenton Road, and traffic lights control the intersections on either side of the proposed access, it will be possible for pedestrians to avoid the proposed access should they wish to do so.  We are satisfied that providing an access for large numbers of vehicles on Tiger Way near to an adjacent site at which potentially vulnerable pedestrians are likely to be, causes a greater impact on pedestrians than the proposed access.  We are satisfied that, balancing the need for safe vehicle access and egress with the need to minimise impacts on pedestrians, the proposed access achieves the appropriate balance.  We are satisfied that the proposed access is consistent with the intent of cl 3.8 of SPP 7.3 Vol 2, meets the relevant acceptable outcomes, and having regard to the design guidance we find that the proposed access is consistent with SPP 7.3 Vol 2, cl 3.8.

Height, bulk and scale

1. The respondent submits that the applicant seeks to persuade the Tribunal that the advantages in terms of sustainability features of the proposed development balance out the extra building height and the relocation of the building mass to the south side of the site.  The respondent submits that this is not the correct approach.  Instead, the respondent submits that the NEP Structure Plan, the NEP Addendum and the NEP Guidelines reflect the most up­to­date and relevant provisions that should be applied to the proposed development.  These documents exemplify an iterative strategic planning process that has carefully balanced the needs and desired outcomes for this specific precinct.  The respondent submits that these documents should be given more weight that compliance with SPP 7.3 Vol 2 for these reasons.

2. The respondent submits that the proposed development is inconsistent with the NEP Guidelines, and DAPs contained within that document, because it exceeds the maximum height limit set by the DAP, provides excessive building mass to the south of the site rather than using building bulk to frame the Claremont oval and provides excessive car parking.  In addition, the excess height and bulk of the proposed development adversely impacts on the amenity of Shenton Road.

3. In the alternative, if the Tribunal is to enter into a balancing exercise, it should determine that the merits of the proposed development do not outweigh its negative aspects in terms of height and bulk.

4. The applicant submits that the Tribunal should give the NEP Guidelines and the DAPs within them, less weight than the text of the NEP Structure Plan because it is a higher order document, needing the Commission's approval, than the NEP Guidelines, which have only be adopted by the Town.  In addition, Mr Andrew James Howe was a co­author of the NEP Guidelines and his evidence indicates that the planning contained within that document is somewhat dated.

5. In addition, the applicant relies on the evidence of Mr Kristjan Donaldson, the lead architect for the proposed development, in support of the proposition that the relocation of the building mass is necessary to achieve the sustainability objectives of the NEP Structure Plan and for the proposed development to comply with SPP 7.3 Vol 2.

6. The applicant submits that the NEP Structure Plan focuses on the Claremont Oval itself and the need to ensure that height and bulk did not dominate the oval village green and to address overshadowing of it. It is not focused on the Shenton Road frontage, which contains no residential development opposite: applicant's outline of written submissions, at [5].

What is the correct approach?

1. As discussed, the Tribunal is required to have due regard to the NEP Structure Plan in determining the correct and preferable decision in relation to the proposed development.

2. However, the NEP Guidelines LV128 (LV128) says that the NEP Guidelines were initially adopted pursuant to cl 82 of LPS 3 as a planning policy and have been amended in accordance with cl 5 of Sch 2 of the LPS Regulations, as is required for a local planning policy. In the discussion about Part B of the NEP Guidelines in LV128 the following statements are made (Exhibit 3 at 1083):

   It is noted that as part of the NEP Design Guidelines document approved by Council on 9 December 2014, Part B contains Detailed Area Plans (DAPs) which outline the mandatory fundamental development controls to address specific requirements of development site and its local context.  The DAPs are adopted as a variation to [sic] in accordance with Clause 75P of the Scheme.  All developments will be assessed against the requirements and intent of the DAPS.  Where there is inconsistency between the Residential Design Codes and DAPs, the requirements of the DAP shall prevail.  Where there is inconsistency between the Scheme and the DAP, the Scheme shall prevail.

   The DAPS are structured in two parts:

   •General Provisions – Outlines key requirements and considerations that apply to all lots within the Claremont NEP

   •Site specific provisions – Articulate the mandatory criteria that must be met for all development on a site by site basis.

3. The reference to cl 75P of LPS 3 is presumably meant to be to paragraph (8) of that clause, which provides that once a DAP has been approved by the Town, it constitutes a variation of the Structure Plan applicable to the area the subject of the DAP and has effect as such. 

4. The Scheme provisions in relation to DAPs provide for the Town, when considering a development application, or the Commission when considering a subdivision proposal to, by notice in writing, request an owner of land to prepare and submit a DAP:  cl 75P(1)(i).  Alternatively an owner may at any time prepare and submit to the Town a DAP:  cl 75P(1)(ii).  There is no provision for the Town to initiate DAPs on its own initiative.  Therefore, while Part B of the NEP Guidelines is entitled 'Detailed Area Plans', and LV128 describes this part of the NEP Guidelines as DAPs and as having the effect of a DAP provided for by LPS 3, there is no evidence before us to support any conclusion other than that they are in fact part of a local planning policy.

5. Even if Part B of the NEP Guidelines had been adopted as a DAP under LPS 3, it is our view that cl 75P(8) of LPS 3 is inconsistent with the deemed provisions contained in Sch 2 of the LPS Regulations.

6. Clause 29 of Sch 2 of the LPS Regulations provides that a structure plan may be amended by the Commission, with or without advertising, at the request of the local government or a landowner in the structure plan area. It does not contemplate the amendment of a structure plan occurring by adoption of an amendment by the local government only. If they were DAPs, Part B of the NEP Guidelines would, pursuant to reg 79(2) of the LPS Regulations, be taken to be a local development plan. A local development plan, as that term is used in the LPS Regulations, is approved at local government rather than by the Commission, consistently with the approval process for a DAP under LPS 3. Clause 56 of Sch 2 of the LPS Regulations provides that a decision­maker for an application for development approval in an area that is covered by a local development plan must give due regard to the local development plan but is not bound by it. We find that cl 75P(8) is inconsistent with the deemed provisions incorporated into LPS 3 by the LPS Regulations, because it purports to amend a structure plan inconsistently with how deemed provisions require such an amendment to be made, and it is inconsistent with the effect of a local development plan as provided by the deemed provisions. If they were DAPs, Part B of the NEP Guidelines would be matters to which due regard must be had. The same due regard must be given to a local planning policy: cl 67(g) of Sch 2 of the LPS Regulations.

1. We are satisfied that the proposed development is consistent with the objectives for height contained in the NEP Guidelines.  We find that although the proposed development is not consistent with the provisions of the NEP Structure Plan as amended by the NEP Addendum and is not consistent with the DAP for the site contained in the NEP Guidelines in terms of building height, we are satisfied that the proposed development is consistent with the objectives of the NEP Structure Plan and the NEP Guidelines.

2. In relation to the provision of residential car parking bays, we have already noted that the maximum requirements specified in the NEP Guidelines have generally been departed from in relation to other sites in the precinct.  The Tribunal notes, however, that the number of additional car parking bays in the proposed development is 90, whereas the number of additional bays in the developments referred to above is between 7 and 35, when considering the NEP Guideline requirements.  The 35 additional car parking bays is in a development with 141 units, so it is not dissimilar to the proposed development.

3. We are somewhat concerned that the anticipated level of residential car parking in the NEP Guidelines has already been well exceeded.  However, we also note that the NEP Addendum contemplates increased lot yield within the precinct in order to assist the Town to meet is future housing needs.  We accept that an increase in parking must be expected in light of this.

4. The relevant objectives in relation to vehicle parking in the NEP Guidelines are (Exhibit 3 at 1109):

   •Provide sufficient and safe car parking.

   •Ensure that on site vehicle parking and access are appropriately located to ensure functionality and to minimise adverse visual impacts on the streetscape.

5. There is no suggestion that the car parking provided in the proposed development is in any way inconsistent with second of those objectives.  The first objective refers to 'sufficient' and safe car parking.  Again there is no suggestion that the car parking provided in the proposed development is unsafe in any way.  The question is whether it is 'sufficient'.  We think read in context, sufficient means enough to meet the needs of the people who will be using the sites, having regard to the maximum numbers provided for.  We are not persuaded that the residential car parking provided for in the proposed development is consistent with the first objective because it is significantly more than 'sufficient' parking.

6. As stated above, the NEP Structure Plan is based on reduced dependence on and use of cars.  The car parking policy described limits residential car parking to a maximum of 1.2 car parking bays per apartment and two per townhouse.  The reason to the approach taken given in the NEP Structure Plan is described as being aimed at maximising the percentage of public short­term car parking while limiting non-residential private parking, which enables car parking to be shared between residential, office and retail visitors:  Exhibit 3 at 945.  The focus seems on achieving a balance of parking in the available space, rather than on specifically limiting residential car parking per se.

7. While the level of additional residential car parking bays provided in the proposed development is not desirable having regard to the NEP Structure Plan, we are not persuaded it is entirely inconsistent with it.

8. As with the requirements of the NEP Guidelines, the objectives in the NEP Structure Plan have generally been departed from in approved developments within the precinct.  The additional parking bays for the approved lots referred to above, when referring to the NEP Structure Plan requirements is between 17 ­ 44 bays.

9. If we were looking at the residential car parking bays in isolation, we would be inclined to require reduction in the number of bays.  However, the proposed development has been designed as a whole, and we are not able to determine what effect a reduction on residential car parking bays might have on other aspects of the design. 

10. We are persuaded that, having regard to the proposed development as a whole, and having regard to the degree to which it, as a whole is compliant with the requirements of the relevant planning framework, together with the extent to which, where it is not compliant it is still consistent with relevant objectives, other than in relation to car parking, on balance we are persuaded that the correct and preferable decision is that the proposed development should be approved.

Conclusion

1. For all of the reasons above, the Tribunal is persuaded that the correct and preferable decision in all of the circumstances of this case, is to set aside the respondent's decision and to substitute a decision to approve the development application. 

2. The respondent filed Amended Without Prejudice Conditions of Approval dated 5 July 2019:  Exhibit 8.  The applicant did not object to any of those without prejudice conditions.  The Tribunal therefore considers it appropriate to approve the proposed development subject to those conditions.

Orders

The Tribunal orders:

1.The application is allowed.

2.The decision of the respondent made on 18 December 2018 to refuse the application to develop Lot 508 (No 3) Shenton Road, Claremont in accordance with the plans shown on drawings by Hassell for Iris Residential labelled DA-001-DA-0700, as amended by the plans that are Exhibit 1, labelled DA-0100-DA-0108, is set aside and instead the development application is approved subject to the following conditions (as per Attachment A to these orders) set out below:

1.This approval is valid only if the development is substantially commenced within 36 months of the date of approval.

Material and finishes

2.Prior to the application for a Building Permit, final details of the proposed materials, colours and finishes of the proposed development to be submitted and approved by the Town of Claremont.

3.All facades of commercial tenancies on the ground floor facing the public realm, as indicated on the approved plans, are to be provided with an open glazed front in order to maintain street activation of the commercial frontages and a high level of pedestrian interface to the satisfaction of the Town of Claremont. Facades are not to be obscured with obscure glazing/film other than approved signage.

4.Prior to application for a Building Permit, details of the proposed vehicle entry and exit is to be provided inclusive of high quality finishes for the crossover, driveway and walls to be submitted and approved by the Town of Claremont.

Access and parking

5.Vehicle crossovers are to be designed, constructed and maintained in accordance with the Town of Claremont crossover requirements and are to be provided at the same grade as the adjoining footpath to ensure continuity for pedestrians to the satisfaction of the Town of Claremont.

6.Provision of a minimum of 19 residential visitor parking bays to be provided, are to be located in front of security gates to the satisfaction of the Town of Claremont.

7.Provision of 13 commercial and retail car parking bays for the proposed commercial and retail tenancies are to be marked as tenant and visitor bays, and nine of the 13 retail and commercial parking bays are to be provided in front of security to the satisfaction of the Town of Claremont.

8.The dimensions of all car parking bays, aisle widths and circulation areas are to comply with the Australian Standard AS/NZS 2890.1/2004.

9.Prior to the occupation of the development a Parking Management Plan shall be submitted to and approved by the Town.  The Plan is to include but is not limited to addressing allocation of tandem parking bays and the operation of vehicular entry gates, The Management Plan shall be implemented and thereafter maintained in accordance with the plan, to the satisfaction of the Town of Claremont at the expense of the owners/occupiers.

10.Bicycle racks to accommodate 137 residential bicycles shall be provided within the basement, ground and first floor car parking areas.  Details are to be provided at the time prior to application for a Building Permit to the satisfaction of the Town of Claremont.

Wind screening

11.Transparent glass screening with a minimum height of 1.5m shall be incorporated at the south and west edge of the seating areas at the corner of Shenton Road and Shenton Walk to prevent adverse impacts from wind.  Details to be provided prior to application for a Building Permit to the satisfaction of the Town of Claremont.

Energy rating

12.Prior to the application for a Building Permit, design details are to be provided with the building application indicating compliance with the Design Guideline requirements for a 6 Star individual and 7 Star collective average rating under Section J of the National Construction Code 2013 to the satisfaction of the Town of Claremont.

13.Prior to the application for a Building Permit, details are to be provided with the building application indicating compliance with the Design Guideline requirements for tap ware and showers to exceed the National Construction Code 2013 for WELS star ratings by one star per fixture to the satisfaction of the Town of Claremont.

Public art

14.Prior to the application for a Building Permit for the proposed development, details of the proposed public art work, to the valued 0.75% of the total construction costs of the development is to be submitted and approved by the Town of Claremont.  All approved art work on site is to be installed prior to occupation to the satisfaction of the Town of Claremont.

Acoustic report

15.Prior to the application for a Building Permit for the proposed development, a detailed Acoustic Report shall be provided, to be submitted to the satisfaction of the Town of Claremont.

Signage

16.Prior to the occupancy of the commercial tenancies in the proposed development, details of the proposed signage are to be submitted and approved by the Town of Claremont.  All signage on site is to be installed to the satisfaction of the Town of Claremont.

17.All signage is to be kept clean, intact and free of graffiti/vandalism at all times and any such graffiti or vandalism being removed within 48 hours.

Lighting Plan

18.Prior to the application for a Building Permit, a Lighting Plan is to be prepared and approved to the satisfaction of the Town of Claremont.  The Lighting Plan shall cover all public areas of the building including stairwells, entry points and the building perimeter, showing suitable levels and types of lighting to ensure maximum visibility and safety for pedestrians and users of the site in accordance with the Australian Standards.

Screening

19.All servicing areas and other parts of the land or building which are likely to be untidy in appearance are to be completely screened from public view and from view from adjoining properties.  Details are to be provided to the satisfaction of the Town of Claremont with an application for a Building Permit.

20.Prior to the application for a Building Permit for the proposed development, details of screening to all external Mechanical Services visible from the public realm shall be submitted and approved by the Town of Claremont.

21.All air conditioning equipment is to be screened to the satisfaction of the Town of Claremont, with all details being provided at the time of lodging for a Building Permit.

Ventilation

22.Prior to the application for a Building Permit, information regarding glazing and window types to maximise cross ventilation is to be submitted and approved by the Town of Claremont.

Landscaping

23.Prior to commencement of development, a Landscaping and Reticulation Plan for the development is to be submitted and approved by the Town of Claremont.  The approved landscaping shall be installed prior to occupation of the development and maintained thereafter to the satisfaction of the Town of Claremont.

24.Prior to the commencement of development, a plan is to be submitted and approved by the Town of Claremont identifying a Tree Protection Zone around the trees to be retained on the Shenton Road verge fronting the development site in accordance with AS 4970­2009.  The Tree Protection Zone shall be provided with a fixed barrier prior to the commencement of any construction works and the fixed barrier shall remain until the development is completed to the satisfaction of the Town of Claremont.

Construction

25.Prior to the commencement of site works, a Site, Traffic and Noise Management Plan for the construction of the proposed development is to be provided and approved by the Town of Claremont and implemented for the duration of construction.  The Plan is to also include details on the 2m wide construction zone, along the sites boundary adjoining the oval, being provided for temporary use by the developer to facilitate the construction process and to ensure all rubbish is contained on site and dust is minimised so that rail operations are not compromised.

Stormwater

26.All stormwater is to be contained on site and re-used where possible.  Prior to application for a Building Permit the applicant shall submit detailed Stormwater Drainage Plans to the satisfaction of the Town of Claremont and be thereafter implemented and maintained.

Waste Management Plan

27.Prior to the occupation of the development, a Waste Management Plan shall be submitted and approved by the Town of Claremont.  The Plan is to include but is not limited to ensuring suitable arrangements being entered into for waste collection on private property.  The Management Plan shall be implemented and thereafter maintained in accordance with the plan, to the satisfaction of the Town of Claremont at the expense of the owners/occupiers.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS L EDDY, SENIOR MEMBER

18 NOVEMBER 2019