JMC PROPERTY GROUP PTY LTD and PRESIDING MEMBER METRO CENTRAL JOINT DEVELOPMENT PANEL
[2017] WASAT 155
•12 DECEMBER 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: JMC PROPERTY GROUP PTY LTD and PRESIDING MEMBER METRO CENTRAL JOINT DEVELOPMENT PANEL [2017] WASAT 155
MEMBER: MR M SPILLANE (SENIOR MEMBER)
MR P DE VILLIERS (MEMBER)
HEARD: 6 AND 7 JUNE 2017
SUBMISSIONS ON 11 AND 22 SEPTEMBER 2017
DELIVERED : 12 DECEMBER 2017
FILE NO/S: DR 132 of 2016
BETWEEN: JMC PROPERTY GROUP PTY LTD
Applicant
AND
PRESIDING MEMBER METRO CENTRAL JOINT DEVELOPMENT PANEL
Respondent
Catchwords:
Town planning - Development application Multiple dwellings Land reserved for 'Public Purposes Car Parking' Reserve not used for designated purpose 'Ultimate Purpose' of reserve Weight to be given to strategic planning Weight to be given to Draft Structure Plan Acceptability of proposed land use Density, plot ratio, height, bulk and scale of development Compliance with scheme and Draft Structure Plan Orderly and proper planning
Legislation:
City of Bayswater Town Planning Scheme No 13
City of Bayswater Town Planning Scheme No 24, cl 1.6, cl 3.6.1, cl 6.3, cl 6.4, cl 8.3.1.3, cl 8.5.2.2, cl 8.5.2.3, cl 8.5.3.2
City of Bayswater District Zoning Scheme No 21
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 60, cl 67, cl 67(b), cl 67(m), cl 67(zb)
Planning and Development Act 2005 (WA), s 252(1), s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 27(2)
State Planning Policy 3.1 Residential Design Codes, cl 6.2.3, cl 6.3.5, cl 6.46, Table 4
Result:
Application for review dismissed
Decision of respondent affirmed
Summary of Tribunal's decision:
On 15 January 2016 JCM Property Group Pty Ltd made a planning application for the development of nineteen multiple dwelling units at 1 Foyle Road, Bayswater.
At a meeting on 19 April 2016 the Metro Central Joint Development Assessment Panel resolved to refuse that development application.
On 29 April 2016 the Tribunal received an application under s 252(1) of the Planning and Development Act 2005 (WA) seeking a review of that decision.
Following a hearing at the Tribunal on the 6 and 7 June 2017 and further submissions from the parties on 11 and 22 September 2017, the Tribunal considered the matter and found as follows:
i) that the use of the land for the proposed development was not objectable in terms of the principles of orderly and proper planning; however
ii) the density of the proposed development was excessive and the proposed plot ratio was well in excess of the provisions of both the City of Bayswater Town Planning Scheme No 24 and the Draft Bayswater Town Centre Structure Plan;
iii) the proposed height of the development did not comply with City of Bayswater Town Planning Scheme No 24 and was unlikely to comply with the recently adopted Draft Bayswater Town Centre Structure Plan; and
iv) the proposed development would be inconsistent with the existing and proposed development on adjoining land in terms its bulk and scale.
Therefore, on the evidence before it, the Tribunal determined that the application for review should be dismissed and the decision of the respondent dated 19 August 2016 be affirmed.
Category: B
Representation:
Counsel:
Applicant: Paul McQueen
Respondent: Hayley Richardson
Solicitors:
Applicant: Lavan Legal
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 552; (1991) 74 LGRA 68
Jones and Shire of Kalamunda [2017] WASAT 78
Marshall -v- Metropolitan Redevelopment Authority [2015] WASC 226
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Poynter Primary School P&C Association Inc and City of Joondalup [2010] WASAT 90
Terra Sprei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
Timberline Nominees Pty Ltd and Shire of Dandaragan [2007] WASAT 150
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 15 January 2016 JCM Property Group Pty Ltd (applicant) made an application to the City of Bayswater (City/Council) for the development of 19 multiple dwelling units at 1 Foyle Road, Bayswater. In doing so, the applicant elected to have the development application determined by a development assessment panel.
At its meeting on 19 April 2016 the Metro Central Joint Development Assessment Panel resolved to refuse the development which it described as a five storey residential development comprising 19 multiple dwellings for the following reasons:
1.The development is not considered to meet or be relevantly incidental or ancillary to the purpose intended for the reserve of car parking.
2.The development is considered to obstruct the reserve from facilitating its intended purpose.
3.The development does not sufficiently address the following factors set out in cl 67 of the Planning and Development (Local Planning Schemes) Regulations 2015:
(a)The aims and provisions of this Scheme and any other planning scheme operating within the scheme area;
(b)The requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)In the case of land reserved under the scheme, the objectives for the reserve and the additional and permitted uses identified in this scheme before the reserve;
(d)The compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the developments; and
(e)The potential loss of any community services or benefit resulting from the development other than potential loss that may result from economic competition between new and existing businesses.
4.Approval would set an undesirable precedent for development to be considered on an ad hoc basis and on a founding of a projected future purpose and zoning without the required strategic planning framework and rezoning.
5.Approval would undermine and prejudice the Bayswater Town Centre Structure Plan.
On 29 April 2016 the Tribunal received an application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking a review of that decision.
Site and locality
The subject site is located at 1 Foyle Road, Bayswater (Lot 661). The site is located within the Bayswater Town Centre, approximately 6.4 kilometres northeast of the Perth CBD. It is located approximately 2 kilometres northeast of the Maylands Town Centre and 1.6 kilometres southeast of the Morley Town Centre.
The subject site is approximately 1170m² in area. It is roughly triangular in shape and is vacant. It falls from the street boundary on Foyle Road approximately 4 metres to the right of way on the south western boundary. It has an area of hardstand along the eastern edge and is bordered on both its east and southwest boundaries by rights of way.
The subject land has residential properties to the north, north-west and to the south. The residential development in the area generally comprises single storey residences, although a number of two storey multiple dwelling developments have been approved in the locality.
Immediately to the east of the subject land are commercial properties which face on to Beechboro Road. The locality contains a mixture of residential dwellings and commercial businesses which include licensed premises, cafes, restaurants, supermarkets, hairdressers, offices and a hardware store. The property is approximately 225 metres to the north of the Bayswater railway station.
The proposed development
The proposed development comprises a block of 19 multiple dwellings situated in the south-west portion of the subject land. The block contains a basement car park partially sunk below the natural ground level of the site, and four levels of apartments above the carpark.
The basement contains 19 car parking bays accessed off the right of way to the east, storage facilities for each of the apartments and the provision of bicycle parking and a bin storage area. The ground floor contains five apartments. The site planning includes landscaping treatments along the boundaries to both rights of way and five visitor carparks towards the northern end of the site accessed from the eastern right of way. The first and second floors contain five apartments each, while the third floor contains four apartments and a roof garden on the western corner of the block.
The setbacks are 3 metres from the eastern boundary, 2.65 metres from the south-west boundary and 2 metres and 3.5 metres from the northwest boundary. The height of the building varies from approximately 13.2 metres above natural ground level at the northern corner to approximately 15.1 metres at the south-east corner.
Planning framework
The subject land is zoned as 'Urban' under the Metropolitan Region Scheme (MRS) and reserved for 'Public Purposes Car Parking' under the City of Bayswater Town Planning Scheme No 24 (TPS 24 or Scheme).
The general objectives of the Scheme are set out in cl 1.6 and include the following:
a)To zone the Scheme Area for the purposes described in the Scheme so as to strategically promote the orderly and proper development of land by making suitable provisions for the use of land within the Scheme Area;
…
g)To promote aesthetic control and design guidelines at all levels of land use and development;
…
i)To protect coordinated development proposals from ad hoc and inconsistent development proposals[.]
Development on reserves under TPS 24 is specifically addressed in cl 6.3 and cl 6.4 as follows (Western Australian Planning Commission (WAPC) website updated to August 2017 is the source):
6.3DEVELOPMENT OF LOCAL RESERVES
Subject to clause 6.4, a person shall not commence or carry out any development on a local reserve, other than the erection of a boundary fence, without first applying for and obtaining Council's planning approval.
6.4MATTERS TO BE CONSIDERED BY COUNCIL
In deciding whether or not to grant its planning approval under clause 6.3 above, Council shall in addition to the matters specified in clause 3.6.1, have regard to the ultimate purpose intended for the reserve and shall in the case of land reserved for the purposes of a public authority confer with that authority.
It should be noted that under s 257B(3) of the PD Act, cl 67 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) prevails over cl 3.6.1 referred to in cl 6.4 of TPS 24 above.
Building height restrictions are established in cl 8.3.1.3 of the Scheme as follows:
For all other development within land zoned or reserved no person shall construct a building of more than two storeys being 6.0 metres in wall height and no more than 9.0 metres from the ground level to the top of the roof pitch, within the Scheme Area unless the Council considers the building will not negatively affect the amenity of the surrounding area.
Clause 8.5.2.2 of the Scheme provides that:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform with the provisions of those Codes.
Finally, cl 8.5.2.3 of the Scheme addresses the density applicable to land in the following terms:
The Residential Design Codes density applicable to land within the Scheme area is to be determined by reference to the Residential Design Codes density number superimposed on the particular areas contained within the borders shown on the Scheme Map or where such an area abuts another area having a Residential Design Code density, as being contained within the area defined by the centreline of those borders.
Clause 60 of the deemed provisions in the LPS Regulations establishes the requirement for development approval as follows:
A person must not commence or carry out any works on, or use, land in the Scheme area unless
(a)the person has obtained the development approval of the local government under Part 8[.]
Clause 67 of the LPS Regulations sets out matters to which local government (or the Tribunal on review) is to have due regard in considering an application for development approval. In this review the following matters are relevant to the development the subject of the application:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
…
(e) any policy of the Commission;
…
(g)any local planning policy for the Scheme area:
(h)any structure plan, activity centre plan or local development plan that relates to the development;
…
(j)in the case of land reserved under this Scheme, the objectives for the reserve and the additional and permitted uses identified in this Scheme for the reserve;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development[.]
Strategic planning framework
A number of strategic documents were referred to by the parties in the proceeding. These included:
•Directions 2031 and Beyond: Central Metropolitan Perth sub regional strategy;
•Draft [email protected];
•Draft Central Sub-regional Planning Framework: Towards Perth and [email protected];
•City of Bayswater: Local Housing Strategy;
•City of Bayswater: Bayswater Town Centre Structure Plan: Scenario Development Workshop;
•Draft Bayswater Town Centre Structure Plan; and
•City of Bayswater: Rights of Way Study.
State Government policy
In addition the parties made reference to the following policies:
•State Planning Policy 3: Urban Growth and Settlement;
•State Planning Policy 4.2: Activity Centres for Perth and Peel;
•Liveable Neighbourhoods (WAPC Operational Policy);
•Development Control Policy 1.6: Planning to Support Transit Use and Transit Oriented Development;
•Development Control Policy 2.6: Residential Road Planning; and
•Draft State Planning Policy 7: Design of the Built Environment.
Finally, reference was also made to:
•Planning Bulletin 113/2015: Multiple dwellings in R40 coded areas and variation to RCodes multiple dwelling development standards.
Evidence before the Tribunal
The applicant called three witnesses namely:
• Mr Scott Vincent, a town planner;
•Mr Malcolm MacKay, an architect and urban designer; and
•Mr Jonathan Riley, an expert in respect of traffic.
The respondent called one witness, Ms Amanda Butterworth, a town planner.
The issues
The issues put forward by the applicant were framed substantially as follows:
1)Whether there is discretion to consider and approve the development application under the planning framework?
2) If so, whether the development application is consistent with the planning framework and should be approved, subject to conditions?
In responding to those issues, the respondent:
a)agrees that there is discretion in the planning framework to consider the proposed development; and
b)agrees the ultimate question for consideration by the Tribunal is whether the proposed development ought to be approved.
In the respondent's Statement of Issues, Facts and Contentions (respondent's SIFC), the respondent submitted that in considering the ultimate question, regard is to be had to the following:
(a)Is the proposed development consistent with the reservation for the subject land?
(b)What is the ultimate purpose of the reservation?
(c)What regard ought to be had to the strategic planning applicable to the locality?
(d)Is the proposed development premature and thereby inconsistent with orderly and proper planning?
(e)Is the proposed development compatible with its setting, in terms of height, bulk and scale[?]
(f)Does the proposed development comply with the applicable provisions of the R[-]Codes?
The applicant in its Statement of Issues, Facts and Contentions (applicant's SIFC) had also contended that there is discretion to consider the proposed development under the planning framework.
The Tribunal accepts there is discretion under TPS 24 to consider the proposed development thus the substantive issue for the Tribunal to decide is whether, given the particular circumstances of this case, discretion should be exercised, and if so, on what basis.
Without in any way seeking to narrow the issues identified by the parties, but in the context of the submissions advanced by the parties at the hearing, the Tribunal sees two substantive issues for determination, namely:
Issue 1:Whether the proposed land use is acceptable having regard to the matters specified in cl 67 of the LPS Regulations and the ultimate purpose intended for the reserve; and
Issue 2:Whether the proposed development is consistent with the planning framework?
The Tribunal will deal with each of those issues in turn.
However, prior to addressing them, it is necessary to first address the Draft Bayswater Town Centre Structure Plan.
Draft Bayswater Town Centre Structure Plan
Following the oral hearing in this matter which concluded on 7 June 2017 and during the preparation of its reasons for decision, the Tribunal became aware that the Draft Bayswater Town Centre Structure Plan (Draft Structure Plan) had been 'adopted' for public advertising by the City at its Planning and Development Services Committee meeting held on 18 July 2017, subject to the inclusion of the final traffic modelling information.
Therefore, in keeping with the provisions of s 27(2) of the State Administrative Tribunal Act2004 (WA) which states:
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(Tribunal emphasis)
the Tribunal contacted the parties and invited them to provide submissions as to the effect, if any, the now 'adoptive' Draft Structure Plan may have on:
a)the land use of the site, the subject of the review;
b)the nature of development on the site and the subject of the review; and
c)what weight the Draft Structure Plan should be given.
Applicant's submissions in respect of Draft Structure Plan
In submissions filed 11 September 2017 following the Tribunal's invitation, the applicant submitted in regard to land use:
The land use provisions of the draft Structure Plan offer the most detailed guidance yet on the range of suitable uses, and the ultimate purpose intended for the land. [Para 30]
and:
In respect of land use, the identification of multiple dwelling residential as a preferred land use for the site in the draft Structure Plan should be given moderate weight, as it is consistent with other strategic documentation and is relatively certain. [Para 47]
In regard to the nature of development on the site the applicant submitted:
… it is probable that the densities proposed in the draft Structure Plan will be required to be modified higher by the Western Australian Planning Commission[.] [Para 17]
This uncertainty is further compounded by the fact that the draft Structure Plan relies heavily upon built form outcomes identified in the WAPC's Draft Apartment Design Policy (ADP). The draft ADP was released for public comment in October 2016, received over 1000 public submissions during the public advertising period, has not been finalised, and has been subject of intense industry lobbying. [Para 18]
and:
Final approval of the ADP cannot be regarded as either certain or imminent, and so we have a situation where there is compounding uncertainty, as the draft Structure Plan cannot be finalised until the ADP has first been finalised. [Para 19].
Finally, the applicant submitted:
… in this respect, the draft Structure Plan should be given little weight. [Para 48]
Respondent's submissions in respect of the Draft Structure Plan
In its submissions in reply filed on 22 September 2017, the respondent drawing on Terra Sprei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 (at [206]) (Terra Sprei Pty Ltd) submitted that the Draft Structure Plan 'cannot at this stage be characterised as a planning instrument that the City of Bayswater is seriously considering adopting or approving as per cl 67(b) of the Deemed Provisions' and '… it is arguable that the Structure Plan is not a matter to which due regard is required to be had' under that provision [para 8].
In addition, the respondent expressed the view that 'it is a matter for the Tribunal to determine what weight it gives to the Structure Plan having regard to the criteria outlined in Nicholls and Western Australian Planning Commission [2005] WASAT 40.
The respondent concluded by submitting at para 29:
The Structure Plan assists to inform generally the future intended land use and nature of the development of the locality. However no comment is site specific. Furthermore, the Structure Plan's ultimate approval cannot be regarded as certain of imminent. Accordingly the Structure Plan so should be given little to no weight.
Tribunal's considerations in respect of the Draft Structure Plan
In regard to the applicant's submissions, no evidence was provided to support the contention that the WAPC is likely to require increases in density in dealing with the Draft Structure Plan. The Central Metropolitan Perth SubRegional Strategy of 2010 suggested a projected dwelling yield of 700 dwellings in the Bayswater Transit Orientated Development (Bayswater TOD), while the Draft Structure Plan identifies a potential increase in the number of dwellings within the Structure Plan area of potentially 2,500 dwellings.
Given that the Bayswater Town Centre has not been designated as an activity centre, the recent draft central subregional planning framework does not establish dwelling yields for station precincts, and the Draft Structure Plan provides increased infill potential over the 2010 SubRegional Strategy proposals, the Draft Structure Plan appears to be consistent with the current strategic planning framework of the WAPC.
While the Draft Structure Plan references the nomenclature of the draft Apartment Design WA (Medium Density Detached D2a) in dealing with the subject site, the provisions introduced generally reflect the provisions included in Table 4 of the State Planning Policy 3.1 - Residential Design Codes (R‑Codes). It is difficult therefore to contend, as the applicant does, that the Draft Structure Plan cannot be finalised until the draft Apartment Design WA is finalised (see para 19 of applicant's submissions).
The Tribunal accepts the respondent's submission that the Draft Structure Plan is not a matter to which due regard is required to be had under the provisions cl 67(b) of the LPS Regulations. However, given the extensive work undertaken on the Draft Structure Plan, in terms of both the Scenario Workshop outcomes available at the time of the hearing and the subsequent 'adoption' of the much more detailed Draft Structure Plan, the Tribunal believes that these endeavours cannot be entirely dismissed and finds that orderly and proper planning requires that the weight to be given to the Draft Structure Plan should be assessed under cl 67(zb) of the LPS Regulations, that is, any other planning consideration the local government, or the Tribunal on review, considers appropriate.
In Terra Spei Pty Ltd at [205] [206] the Tribunal articulated the Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls) criteria following the gazettal of the LPS Regulations as follows:
… in Nicholls at [45] ('the weight to be accorded to the consistency or otherwise between the application and the draft'), having reviewed authorities in Western Australia and New South Wales, the Tribunal said in Nicholls at [59] that the authorities 'together identify the four principal criteria which should be utilised to determine the weight which should appropriately be given to a draft planning instrument or policy or a draft amendment to such an instrument or policy in a planning assessment or appeal'. The Tribunal then said:
These criteria are:
(1)The degree to which the draft addresses the specific application.
(2)The degree to which the draft is based on sound town planning principles.
(3)The degree to which its ultimate approval could be regarded as 'certain'.
(4)The degree to which its ultimate approval could be regarded as 'imminent'.
These four criteria have been referred to and applied in many decisions of this Tribunal in the decade since Nicholls. The four criteria remain the principal criteria to be applied when the planning consent authority or the Tribunal on review is required under cl 67(b) of the deemed provisions to have 'due regard' to a proposed local planning scheme or amendment to the applicable local planning scheme that has been advertised under the LPS Regulations or to any other proposed planning instrument that the local government is seriously considering adopting or approving. However, the list of criteria or considerations in relation to weight is not closed. Other considerations may be relevant in a particular case.
In respect of those criteria in the present case, the Draft Structure Plan addresses the specific application, in that it provides specific provisions for the subject site relevant to this review. Further, as the Draft Structure Plan accords with the principles established in the strategic planning documents and the policy provisions of both the State and local planning authorities and due to the extent of the technical work undertaken in its development, the Tribunal finds that the Draft Structure Plan is based on sound town planning principles.
In regard to whether the Draft Structure Plan is certain and imminent, there is little doubt that a Structure Plan will eventually be adopted. It is the outcome of a lengthy and comprehensive process of strategic planning by the local authority which accords with the strategic intentions of the state planning authority.
While its precise final form may not be definitive and amendments may be made, these are, given the lengthy genesis and extent of technical and community input involved in its development, likely to be of detail rather than substance and the planning approach which it adopts must be regarded as highly likely to be brought in force within the reasonably foreseeable future.
The Tribunal in Nicholls at [45] observed, in particular:
… the authority or tribunal must consider the extent to which the application before it is consistent with the planning objective or planning
approach embodied or reflected in the draft. In particular, the authority or tribunal must consider whether the approval of the application is likely to impair the effective achievement of the planning objective or planning approach embodied or reflected in the draft or is likely to render more difficult the ultimate decision as to whether the draft should be made or its ultimate form.
Finding on the Draft Structure Plan
The development of the Draft Structure Plan involved considerable technical and community input which included the establishment of technical and community advisory groups, councillor workshops, stakeholder meetings, and both visioning and scenario development workshops.
Therefore, given these extensive technical and consultative processes involved in preparing the Draft Structure Plan and the fact that it accords with the principles established in both the strategic planning documents and policy provisions of the state planning framework, the Tribunal finds that the Draft Structure Plan should be given some weight in the deliberations of both the land use and the development on the site.
Turning then to the issues for determination identified earlier:
Issue 1:Whether the proposed land use is acceptable having regard to the matters specified in cl 67 of the LPS Regulations and the ultimate purpose intended for the reserve?
The applicant's submissions in respect of Issue 1
The applicant submits that cl 6.4 of TPS 24 must be understood as contemplating development other than for the public purpose of 'car parking' otherwise the clause 'would be emasculated'.
In properly applying the clause, the applicant submits consideration would require having regard to:
•all of the relevant documents, policies, and considerations of cl 67 of the Regulations; and
•the 'ultimate purpose' intended for the reserve.
The applicant further submitted that 'One cannot look simply at the public purpose imposed today but the future planning of the area'.
The respondent's submissions in respect of Issue 1
The respondent contends that TPS 24 does not identify any ultimate purpose for the reserve other than the current designation of 'Public Purpose Car Park' and that the proposed development is not consistent with the ultimate purpose not being temporary in nature, or readily modifiable to be made suitable for such purpose. In addition, it submitted that the historical origins of the reservation are not relevant and the inconsistency of the proposed development with the reservation is a sufficient basis of itself to refuse the proposed development (respondent's SIFC).
It is agreed by the parties however that there is discretion to consider the proposed development. In terms of the proposed land use on a reserve, that discretion being established by cl 6.4 of TPS 24.
Expert evidence
The planning experts, Mr Vincent called by the applicant and Ms Butterworth called by the respondent, agreed that 'the development is not consistent with the local reservation for Public Purposes: Car Parking …' (Joint Witness Statement para 20).
Ms Butterworth considers that approval of the application would not be consistent with the ultimate purpose of the reservation which is 'to accommodate parking for the benefit of the public at large and/or possibly for the benefit of a number of other lots in the locality which have historically had some form of commercial use' (Butterworth Witness Statement para 49).
Mr Vincent, however argues that 'in the absence of any demonstrated intent by - the local government to ultimately acquire or develop the land for public car parking purposes, an assessment of the strategic planning framework offers the most useful guidance for the Subject Land's ultimate purpose' and considers that 'the ultimate purpose intended for the reserve is not for a public car park' (Joint Witness Statement para 18).
On this basis Mr Vincent considers that '… the nomination of the reserve for Public Purposes: Car Parking on the LPS 24 Scheme Map be given little or limited weight when considering the ultimate purpose of the reserve' (Joint Witness Statement para 18).
Tribunal considerations of Issue 1
In Poynter Primary School P&C Association Inc and City of Joondalup [2010] WASAT 90 (Poynter) at [32] the Tribunal stated:
… Furthermore, irrespective of whether the issue was formally raised or not, in the circumstances of this case involving the proposed use of a primary school reserve for a market, the Tribunal would have due regard to the ultimate purpose intended for the reserve under cl 2.3.4.1 of DPS 2.
In Timberline Nominees Pty Ltd and Shire of Dandaragan [2007] WASAT 150 (Timberline) the Tribunal found, at [40] as follows:
The use of Reserve 31303 for beach refuelling is inconsistent with the purpose of the reservation, both because it precludes or inhibits access to part of the Reserve for a substantial period during the crayfishing season and because the beach refuelling use is not for recreational or ancillary purpose, but rather is for a private, commercial purpose. It matters not that there are other, more attractive sections of the Reserve for people to swim, walk or otherwise recreate. The beach is available for recreational purposes and the Shire's Strategic Plan aims to enhance its attraction.
The present case can be differentiated from both Poynter and Timberline as those cases involved reserves in active use for the purposes for which they were reserved while the subject site is in private ownership and has never been used for public car parking.
In Jones and Shire of Kalamunda [2017] WASAT 78 the Tribunal at [39] observed:
Further, as articulated by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [180], in order to be able to identify the 'proper' use of land you need to have regard to a broad range of planning legislation and instruments to inform the exercise of discretion. Pritchard J further opines at [181] that:
… there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case.
The City's records indicate that the site was zoned 'Parking' under the former City of Bayswater Town Planning Scheme No 13 gazetted on 17 November 1972, and was subsequently reserved for 'Public Purposes' with the intended use of car parking in the City of Bayswater District Zoning Scheme No 21 gazetted on 16 September 1988. This status was maintained in the current Scheme, TPS 24 gazetted on 26 November 2004.
The applicant in its statement of issues, facts and contentions noted that the subject land has not been used for public car parking purposes for over 30 years. This was not contested by the respondent.
The applicant further submits that 'the ultimate purpose can only be established through an assessment of the strategic planning framework' (applicant's SIFC para 41) and relies on the following strategic planning documents.
Central Metropolitan Perth Sub-Regional Strategy (2010)
The Central Metropolitan Perth Sub-Regional Strategy provides information about the level of expected growth in each local government area through the housing targets identified in Directions 2031. The report identifies the Bayswater TOD as a major growth area with a projected dwelling yield of 700 dwellings.
Draft Central Sub-regional Planning Framework: Towards Perth and [email protected] (May 2015)
The more recent Draft Central Sub-regional Planning Framework: Towards Perth and [email protected] notes that station precincts, which includes the Bayswater Train Station precinct, are areas surrounding train stations and major bus interchanges with the potential to accommodate transit orientated development but which are not identified as activity centres.
The framework identifies such precincts as having the potential to accommodate increased development and seeks to ensure that such development is to include a mix of housing, office, retail and/or other amenities integrated into a walkable neighbourhood.
Nominal areas of 400 metres in diameter around train stations are identified for urban consolidation within the central sub-region. As stated earlier, this site is 225 metres from the Train Station.
City of Bayswater Local Housing Strategy (2012)
The Local Housing Strategy adopted by the City in 2012 identifies Bayswater Town Centre as a key focus area for change and a suitable location for residential density increases.
Table 1 of the strategy, which addresses key priority actions, identifies the need to undertake a detailed area planning study and the preparation of design guidelines for the Bayswater Town Centre.
Table 6 identifies the need to further address the vision for the centre, future zonings and built form guidelines including character and/or heritage protection and implement appropriate zonings to encourage a mix of land uses. Table 10 suggests the Bayswater Town Centre Study will provide detail on how additional development will be incorporated while taking into consideration the existing heritage places.
Each of these strategic initiatives promotes increased residential densities in the Bayswater Town Centre. They are, however, high level strategic documents within the existing state and local planning framework and while they contain broad strategic objectives, principles and provisions they do not address the land the subject of this review.
The expert planners agree 'that the regional and/or sub-regional strategic planning framework documents cannot be relied upon in isolation to determine the suitability of site specific development outcomes' (Joint Witness Statement para 25).
For these reasons, while these strategic documents need to be considered, they cannot be given significant weight in the factors to be weighed in coming to a conclusion on the land use question in this review.
Development Control Policy 1.6: Planning to Support Transit Use and Transit Orientated Development (DPC 1.6)
The policy provisions of DPC 1.6 include encouraging residential development close to transit facilities generally and more specifically stated at cl 4.2.2:
Higher density residential development, in particular, places greater numbers of residents close to transit services, increasing the potential for those residents to look to transit as a travel option, with a corresponding increase in patronage. In reviewing town planning schemes and proposed scheme amendments that include transit precincts as defined by this policy, the WAPC will expect local governments to identify and promote opportunities for residential development at a minimum density of 25 dwellings per hectare, and will expect the application of densities substantially higher than 25 dwellings per hectare where sites have the advantage of close proximity to a rail station[.]
The land the subject of this review falls within the indicative area of application of the policy map, that is, within about 10 - 15 minutes walking time of a railway station.
For the same reasons that the strategic documents addressed above cannot be given significant weight DPC 1.6 is a policy that would be accorded limited weight in this review.
The Bayswater Town Centre Structure Plan: Scenario Development Workshop
The Bayswater Town Centre Structure Plan: Scenario Development Workshop was undertaken by the Council in November 2016 as part of the process of developing a structure plan for the Bayswater Town Centre.
The presentation provided at the Scenarios Workshop emphasised that a structure plan is a guiding document which provides a vision for an area; that it sets out principles and strategies to achieve that vision and guides the future zoning and overall development (built form) of the area.
The presentation identified a proposed structure plan boundary and identified movement and connectivity, built form and character, open space and public realm and activity and land use as areas of investigation.
It provided two options for consideration. For the Brake Precinct, within which the site the subject of this review falls, Option 1 proposed four storey development while Option 2 proposed six storeys. The Scenario Development Workshop in putting forward options of four storeys and six storeys for the subject land clearly implied that the site was no longer required for public parking.
The Draft Bayswater Town Centre Structure Plan
The Draft Structure Plan discussed earlier, identifies considerable potential for an increase in the number of dwellings within the structure plan area from approximately 500 up to 3,000. Multiple dwellings are identified as a preferred use in the Centre Core within which the land the subject of this review falls.
The Draft Structure Plan also clearly envisages residential development on the subject land.
More specifically, the subject land is designated as Streetscape Type D2a (Medium Density Detached) with a residential density of R60, building heights of three to four storeys and a Plot Ratio of 0.7 with potential increases, subject to specific performance criteria, to a maximum of 0.9.
Furthermore, none of the extensive technical work or wide ranging consultation involved in the preparation of the draft structure plan identified any need for public parking on the subject land.
Conclusions in respect of Issue 1
Although the subject site is in private ownership and it has been reserved in a local planning scheme for 'Public Purposes: Parking' for almost 30 years no evidence was provided that the land had, during that period, been used for public parking.
While the strategic planning documents and DCP 1.6 relied on by the applicant all promote increased residential densities in the Bayswater Town Centre, these are high level strategic documents within the existing state planning framework and while they contain broad strategic objectives, principles and provisions they do not address the land the subject of this review. They cannot therefore in any sense be determinative in coming to a conclusion on the land use question.
The Bayswater Town Centre Structure Plan: Scenario Development Workshop (2016) in putting forward options of four storeys and six storeys for the subject land clearly implies that the site is no longer required for public parking.
The more recent Draft Structure Plan clearly envisages residential development on the subject land.
None of the extensive technical work or wide ranging consultation involved in the preparation of the Draft Structure Plan identified any need for public parking on the subject land.
The Tribunal accepts the applicant's submission that the land use provisions of the Draft Structure Plan offer the most detailed guidance yet on the range of suitable uses, and the ultimate purpose of the land.
In weighing all of the evidence before it in this review, the presumption implicit in the current scheme provisions that the subject site is required for public car parking cannot be sustained and on that basis the Tribunal finds that the contention of the respondent that the ultimate purpose of the reserve is for public car parking cannot be supported.
While the Tribunal does not lightly depart from the explicit provisions of a town planning scheme, it is required to give proper, genuine and realistic consideration to the merits of the case (Falc Pty Ltd v State Planning Commission (1991) 5 WAR 552; (1991) 74 LGRA 68).
Therefore, for the reasons set out above, and under the discretion provided by cl 6.4 of TPS 24, the Tribunal finds that in the exceptional circumstance of this particular case the use of the subject site reserved for 'Public Purposes Car Parking' for residential land use is not objectionable in terms of the principles of orderly and proper planning.
Issue 2 ‑ Whether the proposed development is consistent with the planning framework
The applicant's submissions
In putting forward its case, the applicant addressed relevant matters in cl 67 of the LPS Regulations and made the following submissions:
•The proposed development is consistent with the strategic planning framework applicable to the subject land and is also consistent with both published development scenarios for the Draft Bayswater Town Centre Structure Plan (Bayswater Town Centre Structure Plan: Scenario Development Workshop in evidence at the time of the hearing).
•There are no listed objectives for the reserve, or additional or permitted uses identified in the scheme for the reserve.
•The development application has been designed to take account of the relationship with surrounding development. The height, bulk and scale is consistent with the strategic planning framework.
•The development application will significantly improve passive surveillance of the right of way and improve the perception of safety in the immediate environment.
•The development will improve the general amenity of the locality to the benefit of the community as a whole.
The respondent's submissions
The respondent submits that the proposed development is incompatible with the locality which is characterised by single storey residential development due to its bulk, height and scale. It says wall heights are equivalent to between an R100 and R160 density requirement under the deemed-to-comply provisions of the R-Codes.
In addition the respondent submits that the plot ratio for the proposed building is 1.26 (subsequently agreed by the planning experts as 1.23) which is equivalent to the 1.25 plot ratio allowed under the deemed-to-comply provisions of the R100 density in the R-Codes.
The respondent also raises issues in regard to sightlines (cl 6.2.3), vehicular access (cl 6.3.5), dwelling size (cl 6.4.3) and utilities and facilities (cl 6.4.6) of the RCodes.
Tribunal considerations in respect of Issue 2
The applicant adopted a somewhat contradictory position in respect of the weight to be given to the Draft Structure Plan. It submitted that limited weight should be placed on the Draft Structure Plan in support of the proposed land use, but little weight should be placed on it in respect of the nature of development.
The difficulty with taking such a position is that if its submission in regard to placing little weight on the Draft Structure Plan in support of the proposed land use is accepted, the logical outcome would be to apply the current provisions of the TPS 24 which are far more restrictive than the provisions of the Draft Structure Plan.
However, putting that issue to one side, the Tribunal considers that there are a number of substantive concerns with the proposed development in any event which include:
• the density;
• the plot ratio;
• the height; and
• the bulk and scale.
In the Tribunal's view, the extent of departures from the planning framework, under either the provisions of TPS 24 or the Draft Structure Plan, result in cumulative impacts which suggest that the proposed development constitutes an overdevelopment of the subject site which, for the following reasons, does not accord with the principles of orderly and proper planning.
Density
Density is addressed by cl 8.5.2.3 in TPS 24 in the following terms:
The Residential Design Codes density applicable to land within the Scheme area is to be determined by reference to the Residential Design Codes density number superimposed on the particular areas contained within the borders shown on the Scheme Map or where such an area abuts another area having a Residential Design Code density, as being contained within the area defined by the centreline of those borders.
Mr Vincent is of the view that this clause does not apply to the review site, that the strategic planning framework should be used to demine the most applicable density coding, and a density coding in the R80 to RAC3 range should be applied to the review site.
In his witness statement Mr Vincent suggests:
It is my opinion that the proposed development is generally compliant with the design principles and/or deemed-to-comply provisions of Part 6 of the R-Codes, at a nominal density coding in the range of R80-R160.
(Vincent Witness Statement para 12.25)
In the joint witness statement of the planning experts Mr Vincent suggests a density coding in the R80 to RAC3 range should be applied to the review site.
Ms Butterworth, on the other hand, drawing on cl 8.5.3.2 of TPS 24 and the fact that the coding on land both to the west and south is zoned R40 says that a R40 coding should apply.
In this regard, the Tribunal prefers the evidence of Ms Butterworth that based on cl 8.5.2.3 of TPS 24 it is appropriate to apply an R40 coding to the subject site. However, there is potential to consider the provisions of the Draft Structure Plan which identifies an R60 coding for the site.
Consistent with these findings, the Tribunal is of the view that, the density coding of the development as proposed would be excessive.
Plot ratio
The planning experts agreed that the plot ratio for the proposed building is 1.23. This figure Ms Butterworth submits is equivalent to the 1.25 plot ratio allowed under the deemed-to-comply provisions of the R100 density in the RCodes while Mr Vincent suggests a nominal density coding in the range of R80 ‑ R160.
The R40 coding under TPS 24 and the R-Codes establishes a maximum plot ratio of 0.6.
The structure plan designates the subject land R60 and the application of the R60 coding and the additional provisions suggested in the Draft Structure Plan establishes a plot ratio maximum of 0.7 with a potential increase of up to 0.9 with bonuses applied.
The Tribunal therefore finds that the proposed development with a plot ratio of 1.23 is well in excess the provisions of either the R40 coding based on the provisions of TPS 24 or those set out in the Draft Structure Plan even if the full extent of bonuses potentially available under the latter was granted.
Building height
Clause 8.3.1.3 of TPS 24 establishes that:
… within land zoned or reserved no person shall construct a building of more than two storeys being 6.0 metres in wall height and no more than 9.0 metres from the ground level to the top of the roof pitch, within the Scheme Area unless the Council considers the building will not negatively affect the amenity of the surrounding area.
The Draft Structure Plan establishes a height limit of three storeys on the subject site with an upper building height limit with bonuses of four storeys.
It was the evidence of Mr MacKay, the urban design expert called by the applicant, that the building presents as a four storey building to Foyle Road to the north and 'a four and five storey building to the rear lane to the south' (MacKay Witness Statement para 6.15).
The Tribunal therefore finds that the proposed development would not comply with the building height provisions set out in TPS 24 and is unlikely to comply with the Draft Structure Plan, even if the full extent of bonuses was granted.
Bulk and scale
The planning experts agree that the proposed development is not consistent with the existing established character of the locality which they consider consists of one and two storey buildings (Joint Witness Statement para 31).
Mr Vincent is, however, of the opinion that the proposed development is compatible with its setting in terms of height, bulk and scale given:
•the sloping topography of the site;
•the lack of any substantive privacy or overshadowing issues;
•the presence of retail/commercial premises on properties immediately east of the right of way; and
•the workshopped scenarios contemplated development forms of between 4 and 6 storeys.
(Vincent Witness Statement para 12.36)
Mr MacKay, an architect and urban designer argued that 'in the absence of statutory planning constraints, the proposal makes perfect sense' (MacKay Witness Statement para 6.2). He suggested the area was ripe for redevelopment and that it is common practice to 'frame' activity centres with higher density residential density.
As stated above, Mr MacKay's evidence is that the 'building presents as a four storey building to Foyle Road to the north and a four and five storey building to the rear lane to the south'. He argues that 'the height of the building at the rear does not contribute to any streetscape impact of any significance' (MacKay Witness Statement para 6.16) and 'there are no detrimental impacts associated with building height or overshadowing' (MacKay Witness Statement para 6.18). Finally he argues that the building bulk has been 'modulated to create deep recesses that ensure that the building does not appear monolithic' (MacKay Witness Statement para 6.21.1) and on this basis Mr MacKay argues 'the proposed building presents no detrimental issues in regard to height, overshadowing setbacks, scale or bulk' (MacKay Witness Statement para 6.22).
Ms Butterworth on the other hand is of the view that the proposal is not consistent with the existing or future desired built form of the locality as adopted by the Council.
More specifically, Ms Butterworth argues that the proposed building height will impact on the amenity of the adjoining properties and the setbacks proposed 'will not moderate the visual impact of building bulk on the neighbouring property' (Butterworth Witness Statement para 99).
The viewing of the subject site by the Tribunal established that the sloping topography of the site and the substantive setback from Foyle Street will mitigate the height bulk and scale of the development when viewed from Foyle Road.
In addition no evidence was provided to suggest the proposed development would generate any adverse amenity impacts on the commercial uses to the east of the subject site.
While the Tribunal has no reason to question the expert evidence put forward by Mr MacKay in regard to streetscape impacts, the lack of overshadowing and the articulation of the built form, it does not accept either his underlying premise that the proposed development can be evaluated 'in the absence of statutory planning constraints' or his view that there are no detrimental impacts associated with the proposed building height.
While the experts agree that the proposed development is not consistent with the existing established character of the locality, the Tribunal also received in evidence plans of recently approved developments for six multiple dwellings at 3 Foyle Road and six multiple dwellings at 13 Foyle Road. The latter development is reaching completion and was inspected during the viewing which preceded the hearing. Both of these approved developments are two storeys high.
The Tribunal broadly accepts the evidence of Ms Butterworth that when viewed from the adjoining properties the scale of the development does not reduce the perception in height. This would in the Tribunal's view be particularly evident in the interface of the 'four and five storey building to the rear lane' as discussed by Mr MacKay and the potential impacts of the western wall (approximately 12.8 meters high set back 2.0 metres off the boundary) on the approved two storey development to the north-west.
Conclusions in respect of Issue 2
For the reasons outlined therefore, the Tribunal finds that the proposed development will be inconsistent with the existing and proposed development on adjoining land in terms of the height, bulk and scale (cl 67(m) of the LPS Regulations) and does not comply with the provisions of either TPS 24 or the Draft Structure Plan (cl 67(zb) of the LPS Regulations) in terms of the proposed density, plot ratio, and building height.
Additional matters
Traffic
The applicant called Mr Jonathan Riley, a traffic expert, to respond to the issues raised by the respondent in regard to traffic. These issues were that the proposed development did not comply with the sightline provisions of cl 6.2.3 and the vehicular access provisions of cl 6.3.5 of the RCodes.
In regard to sightlines Mr Riley noted that the traffic report required a speed hump either side of the proposed access to the carpark and argued this would obviate the need to meet visibility standards for a 40 kilometres per hour design speed. It was his view that the 24 metres visibility provided was sufficient at this location.
In regard to vehicular access provisions Mr Riley argued that with peak hour, flows well below 30 or more movements in a peak hour, a two-way operation of a single width access would be acceptable.
Given the credible responses to questions provided by Mr Riley under cross‑examination and the fact that the respondent chose not to call a traffic expert to challenge his findings the Tribunal accepts Mr Riley's evidence in respect of traffic.
Submissions of support
It is to be noted that the application submitted for the proposed development included a number of letters of non-objection from landowners/occupants in the locality of the subject site.
In Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79 at [48] the Tribunal recognised that:
… residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity. This can include visual amenity.
The submissions included letters from three commercial properties on the western side of Beechboro Road, four residential properties on the southern side of Foyle Road to the north‑west of the subject site and one residential property on Drake Street to the south of the subject site.
However, the submissions from properties in Foyle Road were from premises not immediately adjacent to the subject site. In addition the property at 4a Brake Street is located opposite the landscaped southern corner of the subject site rather than opposite the proposed building. This suggests that other than minor overshadowing of the property at 4a Brake Street each of these premises are unlikely to be directly impacted by the development. For these reasons the submissions should not be accorded substantial weight in terms of the issues the subject of this review.
Summary of findings
In Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 Pritchard J set out the parameters to be applying the in exercise of discretion within a planning context at [179]:
The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
The development of the Draft Structure Plan has involved extensive technical and consultative processes and accords with the principles established in both the strategic planning documents and policy provisions of the state planning framework. In considering the emphasis on the methodical and systematic integration of the planning processes involved in its development, the Tribunal finds that the draft should be given some weight in its deliberations of the matters under review.
In regard to whether the proposed land use is acceptable, the Tribunal finds that in the exceptional circumstance of this particular case the use of the current reserve reserved for 'Public Purposes Car Parking' for residential land use is not objectionable in terms of the principles of orderly and proper planning given that the site is in private ownership, it has not been used for public car carking in the past 30 years and the strategic planning undertaken by the City identifies the site for residential purposes.
However, in regard to whether the proposed development is consistent with the planning framework the Tribunal finds that the density of the proposed development is excessive, the proposed plot ratio is well in excess of the provisions of both the scheme and the Draft Structure Plan and the proposed height does not comply with TPS 24 and is unlikely to comply with the Draft Structure Plan. In addition, the proposed development will be inconsistent with the existing and proposed development on adjoining land in terms of the bulk and scale.
Conclusion
Weighing all of the facts and those findings, while the Tribunal would support the use of the site for residential purposes, the Tribunal finds that the nature of the proposed development does not accord with either the provisions of TPS 24, the primary controls set out in the Draft Structure Plan or cl 67(m) and (zb) of the LPS Regulations.
Therefore on the evidence before it and for the reasons set out the Tribunal determines that the application for review should be dismissed and the decision of the respondent affirmed.
Orders
1.The application for review is dismissed.
2.The decision of the respondent dated 19 April 2016 to refuse the five storey residential development comprising 19 multiple dwellings at 1 Foyle Road, Bayswater (Lot 661) is affirmed.
I certify that this and the preceding [147] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, SENIOR MEMBER
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