McCabe Street Joint Venture and City Of Fremantle
[2009] WASAT 37
•3 MARCH 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: McCABE STREET JOINT VENTURE and CITY OF FREMANTLE [2009] WASAT 37
MEMBER: MR D R PARRY (SENIOR MEMBER)
MS M CONNOR (MEMBER)
MR A EDNIE-BROWN (SENIOR SESSIONAL MEMBER)
HEARD: 9, 10, 11 AND 12 DECEMBER 2008 - FURTHER DOCUMENT FILED 5 JANUARY 2009
DELIVERED : 3 MARCH 2009
FILE NO/S: DR 218 of 2008
BETWEEN: McCABE STREET JOINT VENTURE
Applicant
AND
CITY OF FREMANTLE
Respondent
FILE NO/S :DR 285 of 2008
BETWEEN :SAS GLOBAL MOSMAN PARK PTY LTD
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Structure plan - Former industrial site - Commercial and residential development - Coastal location - Coordinated development - Whether road or utility connection between sites in development area is warranted - Visual amenity - View loss - Height, bulk and scale - Weight to be given to draft height policy which is responsive to proposal - Whether Liveable Neighbourhoods is applicable to proposed structure plan - Whether 'large urban infill site'
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 2.3.2, cl 4.2.1(h), cl 6.2.1, cl 6.2.2.1, cl 6.2.3, cl 6.2.5.1, cl 6.2.5.2, cl 6.2.9.1, cl 6.2.8, cl 6.2.9.4, cl 6.2.16.1, Sch 11, Table 2
Planning and Development Act 2005 (WA)
Result:
DR 218/08 - Proposed structure plan adopted
DR 285/08 - Proposed structure plan not adopted
Category: B
Representation:
DR 218 of 2008
Counsel:
Applicant: Mr P McQueen with Ms M Palmer
Respondent: Mr A Roberts
Solicitors:
Applicant: Lavan Legal
Respondent: McLeods
DR 285 of 2008
Counsel:
Applicant: Mr P McGowan
Respondent: Mr A Roberts
Solicitors:
Applicant: Hardy Bowen
Respondent: McLeods
Case(s) referred to in decision(s):
APP Corporation Pty Ltd and City of Perth [2008] WASAT 291
Ridge City Holdings Pty Ltd and City of Albany [2006] WASAT 187
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This case concerned separate structure plans proposed by two landowners in relation to their respective adjoining properties in North Fremantle. The properties together occupied approximately 83% of the area of a designated Development Area.
The first structure plan (known as the McCabe Street structure plan) proposed residential development in the form of seven buildings, ranging in height from three to five storeys, at a residential density of approximately R80. The second structure plan (known as the SAS structure plan) proposed the construction of two buildings, a smaller building containing mixed use commercial and residential development and a larger building containing residential apartments, at a residential density of approximately R60. The larger building would have a height of up to 12 storeys and would stretch approximately 150 metres across almost the whole width of the site.
The issues were:
•Whether the structure plans fulfilled the object of the Development Area 'to co-ordinate subdivision and development in areas requiring comprehensive planning'.
•Whether the proposed buildings would have an acceptable visual impact.
•Whether the proposed structure plans were acceptable having regard to a draft height policy.
•Whether the proposed structure plans were acceptable having regard to the Liveable Neighbourhood policy.
The Tribunal determined that the structure plans fulfilled the object of the Development Area. Neither road nor pedestrian connection between the sites is warranted. Effective and efficient public utility services can be provided to the sites separately.
The Tribunal considered that the buildings proposed in the McCabe Street structure plan would have an acceptable visual impact when viewed from both public and private viewing positions. The Tribunal determined that the McCabe Street structure plan is an appropriate urban design response to its site and locality.
In contrast, the Tribunal considered that the larger building proposed in the SAS structure plan would have a significant and detrimental visual impact when viewed from important public viewing positions on the ocean foreshore and at Mount Lyall, and from private viewing positions on the site of the McCabe Street structure plan and an adjoining low density residential area.
The Tribunal determined that little weight should be given to the draft height policy because it was, in substance, responsive to the proposed structure plans. However, even if significant weight had been given to the draft height policy, it would not have altered the Tribunal's decision in relation to either structure plan.
Finally, the Tribunal determined that the Liveable Neighbourhoods policy was not intended to apply to structure plans for areas as small as the sites in this case.
The Tribunal therefore adopted the McCabe Street structure plan and refused to adopt the SAS structure plan.
Introduction
At the northern end of the City of Fremantle (City or Council) local government area, where it adjoins the Town of Mosman Park to the north and east, is an area of approximately 5.5 hectares comprising six allotments. This area was rezoned from 'Industrial' to 'Development Zone' upon the gazettal on 8 March 2007 of the City of Fremantle Local Planning Scheme No 4 (LPS 4 or Scheme). The Scheme also designated this area as 'Development Area 18 – McCabe‑Coventry Street, North Fremantle' (DA 18).
The purpose of the Development Zone is to 'provide for future residential, industrial, commercial or other uses in accordance with a comprehensive structure plan or detailed area plan prepared in accordance with the provisions of the Scheme' (cl 4.2.1(h) of LPS 4).
The purpose of Development Areas is:
(a)to identify areas requiring comprehensive planning, and
(b)to co‑ordinate subdivision and development in areas requiring comprehensive planning. (cl 6.2.1 of LPS 4).
Clause 6.2.2.1 and Sch 11 of the Scheme specifically require, in relation to DA 18, that a '[s]tructure plan is to be adopted to guide subdivision, land use and development prior to approval of development applications'. Clause 6.2.3 of the Scheme states that '[t]he subdivision and development of land is to generally be in accordance with the approved structure plan …'. Similarly, Table 2 ‑ Zoning Table in the Scheme states that development and use of land in the Development Zone 'is to be in accordance with an approved structure plan …'.
Clause 6.2.5.1 of the Scheme authorises a land owner to prepare a structure plan. Clause 6.2.5.2 of the Scheme permits a structure plan to be prepared for all, or part of, a Development Area.
McCabe Street Joint Venture (MSJV), which owns three allotments in DA 18, and SAS Global Mosman Park Pty Ltd (SAS), which owns one allotment in DA 18, each prepared a separate structure plan for its property and applied to the Council for adoption of the structure plan under the Scheme. MSJV's and SAS's landholdings together comprise about 83% of the area of DA 18.
The Council advertised each proposed structure plan in accordance with cl 6.2.8 of the Scheme. The Council refused to adopt MSJV's proposed structure plan (McCabe Street structure plan) on the basis that it does not adequately address the purpose of Development Areas 'to co‑ordinate subdivision and development in areas requiring comprehensive planning'. As the Council did not make a decision as to whether to adopt SAS's proposed structure plan (SAS structure plan) within 60 days of the date for making submissions, it was deemed to have refused the SAS structure plan under cl 6.2.9.4 of the Scheme.
MSJV and SAS each commenced proceedings in the Tribunal seeking review, in accordance with cl 6.2.16.1 of the Scheme, of the Council's refusal or deemed refusal of its structure plan. At the City's request, the Tribunal heard both applications for review together.
Sites and locality
MSJV's landholding comprises Lot 315, Lot 326 and Lot 18 McCabe Street, North Fremantle, which are collectively known as No 9 – No 15 McCabe Street, North Fremantle (McCabe Street site). The McCabe Street site has its sole road frontage to McCabe Street and a combined area of approximately 1.4 hectares. It is located in the central‑eastern part of DA 18. The lots forming the McCabe Street site were previously used as a transport depot and warehouse, and for sail‑making, but are no longer used for any purpose.
SAS's landholding comprises Lot 2 Stirling Highway, North Fremantle, which is known as No 140 Stirling Highway, North Fremantle (SAS site). The SAS site has frontages to both Stirling Highway to the west and McCabe Street to the south and an area of approximately 3.1 hectares. The SAS site was previously used for steel storage, distribution and minor processing. This use has largely ceased, although the site is still used for storage to a limited extent. The SAS site contains a large warehouse building that occupies most of its southern half. The SAS site is the largest allotment and comprises the western half of DA 18. The SAS site adjoins the McCabe Street site to the east.
DA 18 is located on the western slope of Buckland Hill Ridge. It appears that the original landform of DA 18 rose from approximately 20 metres AHD at Stirling Highway to the west to approximately 32 metres AHD or 33 metres AHD to the east. However, the original landform was significantly modified on individual sites to enable former industrial and commercial uses. In particular, the SAS site was levelled at approximately 21.5 metres AHD, resulting in a steep embankment rising up to 7 metres close to the common boundary with the McCabe Street site to the east. Parts of the McCabe Street site also appear to have been levelled for hardstand. The ground level in the western part of the McCabe Street site is 27.2 metres ‑ 28.9 metres AHD. The ground level in the eastern part of the McCabe Street site is at approximately 29.5 metres AHD. The McCabe Street site is, therefore, generally 7 metres to 8 metres higher than the SAS site.
To the west of DA 18, across Stirling Highway, are a strip of properties at 16 metres AHD to 17.5 metres AHD, used for a variety of commercial purposes, and then railway reserve and the ocean foreshore.
To the north of DA 18 is a residential area known as the Buckland Hill Estate, comprising generally two‑storey single houses.
To the south of the SAS site across McCabe Street are properties zoned 'Industrial' under the Scheme and used for a variety of industrial and commercial purposes, including the Matilda Bay Brewery. To the east of this industrial land, and to the south of the McCabe Street site across McCabe Street, is a low‑density residential development known as the Minim Cove Estate which is currently under construction.
To the east of the McCabe Street site are the two other allotments contained within DA 18. These properties are developed and used for commercial purposes.
To the east of DA 18 is a triangular area of public open space rising sharply from approximately 32 metres AHD to about 40 metres AHD towards the Buckland Hill Estate and a strip of commercial properties along McCabe Street.
The visual locality of the sites is broader than described in the previous paragraphs, because of their prominent location on the western slope of Buckland Hill Ridge. The sites, and more particularly the buildings proposed in the structure plans, would be able to be seen from vantage points considerably further afield. The visual impact of the proposals from key vantage points will be discussed in these reasons below.
Proposed structure plans
The McCabe Street structure plan proposes residential development of the McCabe Street site in the form of two five‑storey apartment buildings addressing McCabe Street to the south, three four‑storey apartment buildings in the middle part of the site around a central communal open space area, and two three‑storey grouped dwellings buildings in the northern part of the site adjoining the Buckland Hill Estate. The McCabe Street structure plan proposes a total of 112 dwellings, in the form of 104 apartments and eight townhouses, equating to a residential density of approximately R80. The McCabe Street structure plan does not contain detailed building designs, but rather, shows building envelopes defined by footprints and wall and ridge heights.
The McCabe Street structure plan proposes a single vehicular access point off McCabe Street and internal roads, including a road adjoining the central and northern part of the common boundary with the SAS site to the west and a road that terminates as a sharp cul‑de‑sac at the common boundary with the easternmost allotment in DA 18.
When the McCabe Street structure plan was advertised under the Scheme, the City received a total of 113 written submissions, of which 86 expressed objections to the proposed structure plan and 27 expressed support.
The SAS structure plan proposes commercial and residential development in two buildings. The building designs shown in the SAS structure plan are considerably more detailed than the McCabe Street structure plan.
Building 1 would be located in the western and south‑western part of the site and would address Stirling Highway and the western end of McCabe Street. Building 1 would comprise a basement carpark, ground floor commercial floorspace and one level of residential development above. A small portion of the building, at its southern end, would have two additional residential levels. The City did not raise any concerns in relation to Building 1.
Building 2 would be located in the eastern half of the site and would comprise five interconnected curved sections that would stretch in total approximately 150 metres, generally on a north‑south axis, occupying almost the entire width of the SAS site. Building 2 utilises the historic excavation of the SAS site to accommodate two basement levels below the original ground level. Building 2 would be five storeys high above the basement at its northern end, rising to 12 storeys, and eight storeys high above the basement at its southern end, rising to 12 storeys. In the central part of the building, the height would reduce from 12 storeys to 11 storeys. Relative to the ground level of the adjoining properties in the Buckland Hill Estate to the north and at McCabe Street to the south, the 12‑storey components of Building 2 would have a height of 42 metres to the top of the plant, and the central 11‑storey component would have a height of 33 metres.
The SAS structure plan proposes 3,375 square metres of commercial floor space and 192 residential apartments, equating to a residential density of approximately R60. Approximately 80% of the SAS site would be landscaped open space for use by occupants of the development. Vehicular access to both buildings would be from McCabe Street.
When the SAS structure plan was advertised, the City received a total of 469 submissions, 467 objecting to the proposal, one expressing support, and one from a utility provider containing comments of a technical nature.
Issues for determination
The following four issues arise for determination in relation to each of the proceedings:
1)Whether the proposed structure plan fulfils the purpose of the Development Area 'to co‑ordinate subdivision and development in areas requiring comprehensive planning'.
2)Whether the proposed buildings would have an acceptable visual impact.
3)Whether the proposed structure plan is acceptable having regard to draft Local Planning Policy 3.11 McCabe Street Area, North Fremantle ‑ Height of New Buildings (draft Height Policy).
4)Whether the proposed structure plan is acceptable having regard to the community design element of Liveable Neighbourhoods.
The Tribunal will address each of these issues in turn.
Do the proposed structure plans fulfil the purpose of the Development Area?
As noted earlier, the purpose of Development Areas includes 'to co‑ordinate subdivision and development in areas requiring comprehensive planning' (cl 6.2.1 of the Scheme).
The City argued that the proposed structure plans are inconsistent with this purpose, because they are each self-contained.
However, as Mr Malcolm Mackay, an architect, urban designer and town planner called on behalf of MSJV, said, the McCabe Street site 'is largely self‑contained by virtue of its physical context'. In particular, the substantial difference in levels between the McCabe Street site and the SAS site, and the continuing commercial use of the two other allotments in DA 18 to the east of the McCabe Street site, significantly limit the opportunities for integration within DA 18.
The only evidence presented by the City in relation to this issue was the opinion of Mr Paul Garbett, a town planner and the City's Manager of Planning Projects and Policy, that, while the change in levels presents a challenge, there would be utility in the construction of a loop road connecting the MSJV and SAS sites.
However, as Mr Gregory Rowe, an architect and town planner called on behalf of SAS, said, the contemplated road connection would be a 'road to nowhere', because it is common ground that direct vehicular access to Stirling Highway would not be feasible or appropriate. The Tribunal accepts Mr Rowe's evidence and the evidence of Mr David Caddy, a town planner called on behalf of MSJV, that a road connection between the McCabe Street and SAS sites is not warranted, because each site has appropriate and adequate access to McCabe Street and the proposed form of development would not benefit from a connection.
There was also debate at the hearing as to whether a pedestrian connection between the McCabe Street and SAS sites is warranted. Mr Caddy explained that pedestrian access would be possible between the sites without significant physical works. Mr Rowe considered that pedestrian access by residents of one strata development over another is not an appropriate outcome in terms of security and privacy. The Tribunal does not consider, on the evidence, that a pedestrian connection between the sites is warranted.
Finally, the Tribunal accepts Mr Rowe's evidence that effective and efficient public utility services can be provided to each of the sites separately.
Mr Garbett conceded that, otherwise, the proposed structure plans fulfil the requirements of the Scheme.
The Tribunal, therefore, finds that the proposed structure plans fulfil the purpose of DA 18.
Would the proposed buildings have an acceptable visual impact?
The City argued that the proposed structure plans are each unacceptable in terms of visual impact when seen, in particular, from seven viewing locations. Mr Dennis Williamson, a landscape architect/planner and geographer called on behalf of the City, superimposed a block outline of the buildings proposed in the McCabe Street structure plan and a more detailed depiction of the building envelopes proposed in the SAS structure plan on photographs taken from these locations. The Tribunal will utilise these photomontages in the following analysis.
Buckland Hill Estate
The first viewing location, referred to as 'viewpoint 3', is from the upper rear balcony of No 11 Riversea View, Buckland Hill. Mr Williamson's photomontage shows that approximately 45% of the principal ocean view would be lost from this location as a result of the SAS structure plan and an additional approximately 45% of the principal ocean view would be lost as a result of the McCabe Street structure plan.
In APP Corporation Pty Ltd and City of Perth [2008] WASAT 291 (APP Corporation), the Tribunal recently referred to a four‑stage assessment adopted by the New South Wales Land and Environment Court (Land and Environment Court) as being of assistance in determining the acceptability of the visual impact of a proposed development on a private property. It is useful to refer to the same assessment in determining the acceptability of loss of view from a private property caused by buildings proposed in a structure plan.
In relation to the first step of the assessment, to identify the views to be affected, the affected views are of water, which are valued more highly than land views. However, the affected house would retain substantial and uninterrupted water views of the Swan River and some ocean views.
In relation to the second step of the assessment, to consider from what part of the property the views are obtained, the view in question is across a side boundary and, as the Tribunal noted in APP Corporation, the retention of side views is often unrealistic.
In relation to the third step of the assessment, to determine the extent of impact, assessed qualitatively in light of the foregoing, while the Tribunal was unable to obtain access to this house during the hearing, it is likely that the view is not from a living area.
In relation to the fourth step of the assessment, to determine the reasonableness of the development that is causing the impact, the Tribunal considers that the proposal on the McCabe Street site is reasonable, whereas the proposal on the SAS site is not reasonable.
In relation to the McCabe Street proposal, as Mr Mackay explained, the three‑storey buildings proposed in the northern part of the McCabe Street site are within the range 'of what is generally understood as a domestic residential scale of architecture, and is [an appropriate] single‑storey graduation in height from the predominantly two‑storey suburban residential development to the north'. Mr James Singleton, a landscape architect and town planner called on behalf of MSJV, said, similarly, that the placement of the grouped dwellings adjacent to the Buckland Hill residential area is appropriate and sensitive in that location, and 'represents a valid and quite successful attempt to integrate with this adjacent urban form'. Mr Williamson's photomontage shows that even three‑storey development on the McCabe Street site would result in the loss of ocean view from No 11 Riversea View over the McCabe Street site.
Furthermore, as Mr Mackay explained, the five‑storey buildings proposed in the McCabe Street structure plan along the McCabe Street frontage are an appropriate urban design response to that part of the site. The location of four‑storey buildings in the middle of the McCabe Street site, as a transition between three‑storey buildings to the north and five‑storey buildings to the south, is also sensible.
However, Building 2 proposed in the SAS structure plan is not reasonable, because as Mr Williamson said, Building 2 would have a significant visual impact in terms of excessive bulk and scale when viewed from single houses in the Buckland Hill Estate, and is also likely to adversely affect the privacy of those dwellings. Relative to the ground level of adjoining single houses, Building 2 would rise to a height of 15 metres at a setback of only 7.75 metres (2.87 metres to the balcony) and then to a height of 39 metres at a setback of only 25 metres (20 metres to the balcony). In terms of bulk and scale, the significant height of the proposed building relative to the single houses to the north would be exacerbated by its substantial length.
Furthermore, the Tribunal accepts the evidence of Mr Mackay, Mr Brett Wood‑Gush, an urban designer and town planner called on behalf of MSJV, and Mr Singleton, that the height, bulk and scale of Building 2 in the SAS structure plan would have a detrimental impact on the visual amenity of the McCabe Street site. To quote Mr Singleton, Building 2 proposed in the SAS structure plan would 'create a massive impenetrable visual obstruction affecting a significant number of properties to the east and north‑east of the [SAS] site [which would] experience a significant reduction in visual access westward towards the ocean'. Mr Singleton correctly characterised the degree of impact of the SAS structure plan on the McCabe Street site as 'unreasonable'.
The Tribunal, therefore, considers that the visual impact on viewpoint 3 of the buildings proposed in the McCabe Street structure plan is acceptable, whereas the visual impact on viewpoint 3 of Building 2 in the SAS structure plan is not acceptable.
The second viewing position, referred to as 'viewpoint 4', is the backyard of No 17 Riversea View, Buckland Hill. Mr Williamson considered that the buildings in both proposed structure plans would be 'excessively visually dominant in terms of their height and massing within close proximity to [this and other] residential backyards'.
However, the Tribunal considers that the gradation in scale from three‑storey, to four‑storey, to five‑storey development, from north to south across the McCabe Street site, is appropriately transitional from the generally two‑storey residential area to the north and north‑east. Furthermore, while the buildings proposed on the McCabe Street site would eliminate a sliver of ocean view from viewpoint 4, it appears that even two‑storey development on the McCabe Street site would have this effect.
As the buildings proposed in the McCabe Street structure plan would block most of the view of the buildings proposed in the SAS structure plan from viewpoint 4, the visual impact of the SAS structure plan from this viewing position is acceptable.
Ocean foreshore
The third viewing position, referred to as 'viewpoint 7', is from the Leighton foreshore off Curtin Avenue to the north-west of the SAS site. The fourth viewing position, referred to as 'viewpoint 8', is on the railway footbridge opposite the Matilda Bay Brewery building to the south‑west of the SAS site.
From viewpoint 7, the buildings proposed in the McCabe Street structure plan would be unlikely to be seen at all. From viewpoint 8, the buildings proposed in the McCabe Street structure plan would be seen, but would form a minor element in the view, and would appear lower than the Matilda Bay Brewery building.
However, from both of these important public viewing positions, the combination of the siting, height and length of proposed Building 2 in the SAS structure plan would result in a building of excessive and discordant scale in its context.
As Mr Williamson said:
As viewed from viewpoint 7, the proposed buildings [in the SAS structure plan] would be extremely dominant visually above the existing and potential trees on the skyline, primarily due to the proposed heights and massing of the buildings. The proposed B1 and B2 buildings would set a totally different built form character for the area ‑ not industrial, not medium density residential ‑ but high density, mid-rise residential apartments with quite a corporate office and retail/entertainment precinct appearance.
Mr Garbett gave the following evidence:
In my view, the additional height combined with the width of the proposed SAS building makes it very conspicuous [in the view from the foreshore]. My eyes are immediately drawn to that because, in terms of particularly its height, it's significantly higher than any other built structure in that view. In that sense, I don't think it is in keeping with the general character of the existing urban landscape in that view in terms of the way both the general height and bulk of existing buildings in that view ‑ if you disregard the SAS structure ‑ are generally consistent with one another.
The main façade of the former Ford Motor Company [Matilda Bay Brewery] building in the existing view is the higher structure, but in terms of a sort of proportionate relationship by how much it [is] higher than [any] another building in that view, it's higher by a relatively modest amount. I think the introduction into the view of the SAS proposal, that relationship of how many times higher is that structure than existing buildings in the view is much greater, and that makes it a much more conspicuous building in that view which is not really in keeping with the general character of the existing view.
Mr Singleton made the same point as follows:
The height at 12 or so floors to an excess of RL 58, is a dramatic departure from the maximum height of any structures in the wider urban landscape, let alone nearby, and therefore is considered excessive.
Mr Wood‑Gush described the mass and scale of the SAS proposal as 'more of a hotel than residential apartments'. He said that residential development generally involves floor plans accommodating about six units, with minimum corridor space and a maximum number of corners. He explained that, by their nature, hotels are different, having greater corridor space and greater mass.
Mr Rowe expressed the opinion that the SAS structure plan would 'significantly improve the existing amenity of the locality'. He referred to various aspects of the proposal that, to a lesser or greater extent, are positive elements, such as the removal of unattractive buildings, activating the frontages of the site, increasing the diversity of housing choice, and creating a large landscaped area. However, Mr Rowe did not provide any justification for the height, bulk and scale of the proposal when viewed from the public domain along the foreshore, other than referring to the site as a 'unique' location appropriate for the establishment of a 'landmark' development, and expressing the opinion that 12‑storey development is consistent with a 'trend towards taller developments on the coast in Western Australia'. On the basis of Mr Rowe's evidence, Mr Peter McGowan, counsel for SAS, submitted that his client's proposal is an interesting and exciting response to the challenge created by a unique site.
The Tribunal considers that the SAS site is unusual, if not unique, in Perth, and that the SAS structure plan proposes an imaginative development for that site. However, these factors do not relevantly justify a building of excessive and discordant scale when viewed from an important section of the public domain along the foreshore and from Stirling Highway.
While, as Mr Mackay and Mr Wood‑Gush observed, a tall, slim tower may be appropriate in urban design terms in some location on the SAS site, a building stretching approximately 150 metres across almost the entire width of the site could hardly be described as 'slim'.
Furthermore, as Mr Rowe conceded, the context of a site is important in determining whether a tall building is appropriate in a coastal location. In the circumstance of this case, the visual impact of Building 2 proposed in the SAS structure plan is unacceptable when viewed in its context from the foreshore.
Swan River
The fifth viewing location, referred to as 'viewpoint 12', is from a walking track above a cliff adjacent to the Swan River to the south of the sites. While this view is available to the public, the location is relatively inaccessible, because it is reached via a dirt track which was aptly referred to by Mr McGowan during the hearing as 'the goat track'. A person walking along this track would be more firmly focused on the ground, so as to avoid tripping and falling down the cliff, than on viewing the sites.
The sixth viewing location, referred to as 'viewpoint 18', is from a jetty on the Swan River at East Fremantle. This viewing position is some considerable distance from the sites. The sites are also more likely to be viewed in this area from the adjacent foreshore or café, where trees and other objects interfere with that view. Finally, to the left of the viewer in this location is a four-storey apartment building directly on the water which is of considerably greater bulk, scale and prominence than would be either of the proposals.
Mount Lyall
The final viewing location, referred to as 'viewpoint 20', is from the Mount Lyall lookout to the east of the sites. Mr Williamson estimated that the buildings proposed in the McCabe Street structure plan would obscure most of the currently visible ocean view available over the McCabe Street site, which is 20% or slightly less of the horizontal extent of ocean visible from Mount Lyall. Mr Williamson's photomontage shows that Building 2 in the SAS structure plan would increase the loss of ocean view to the north and would also project notably higher than the buildings in the McCabe Street structure plan for about 70% of the width of the McCabe Street site.
The Tribunal considers that the visual impact of the buildings proposed in the McCabe Street structure plan would be acceptable when viewed from viewpoint 20, but the visual impact of Building 2 proposed in the SAS structure plan would not be acceptable when viewed from this location.
The visual impact of the buildings proposed in the McCabe Street structure plan would be acceptable when viewed from viewpoint 20 for three reasons.
First, Mr Williamson estimated that from the Mount Lyall lookout the horizon on the ocean equates to a height of approximately 38 metres AHD – 39 metres AHD above the McCabe Street site. As the ground level in the eastern part of the McCabe Street site is approximately 29.5 metres AHD, even three‑storey development on the McCabe Street site is likely to result in the loss of ocean view from Mount Lyall over the McCabe Street site. As the Tribunal found earlier in these reasons, three‑storey development in the northern part of the McCabe Street site would have an appropriate relationship in terms of scale to the predominantly two‑storey Buckland Hill residential area.
Second, a loss of no more than 20 degrees of ocean view is consistent with Mr Williamson's recommended visual performance standards for viewpoints at a distance of 500 metres or more.
Third, the view from Mount Lyall is, as Mr Mackay said, a '360 degree experience' in which the viewer would continue to see significant water views, including uninterrupted river views, as well as other interesting and important elements of the urban environment.
While the SAS structure plan would only result in a small additional reduction in ocean view from the Mount Lyall lookout (over the loss of ocean view due to the McCabe Street structure plan), the visual impact of Building 2 in the SAS structure plan would be unacceptable from Mount Lyall, because that building would dominate the western view from the lookout owing to its height and width. In particular, SAS Building 2 would appear to sit notably higher than the buildings proposed in the McCabe Street structure plan, although it would be located further away and at a lower level on Buckland Hill Ridge, and would present as a solid mass stretching across the width of the SAS site, in contrast to the McCabe Street structure plan which would present as a series of separate buildings.
Conclusion on visual impact
It follows that the buildings proposed in the McCabe Street structure plan would have an acceptable visual impact when viewed from each of the viewpoints identified by the City. In contrast, Building 2 proposed in the SAS structure plan would not have an acceptable visual impact when viewed from important locations in the public domain along the foreshore and Mount Lyall, and when viewed from the McCabe Street site and houses in the Buckland Hill Estate.
Are the proposed structure plans acceptable having regard to the draft Height Policy?
At the same meeting at which the Council first addressed the McCabe Street structure plan and resolved that it should be advertised, the Council also commissioned Mr Williamson to conduct a height study in relation to DA 18, the Industrial zoned properties to the south of McCabe Street and the strip of properties to the west of Stirling Highway. As Mr Garbett acknowledged, '[a] catalyst for commissioning the height study was the submission of the [McCabe Street structure plan] and the anticipated submission of a further structure plan for the SAS site'. Mr Garbett also said that the draft Height Policy was 'informed by' the height study.
The draft Height Policy defines a series of building height zones within the area covered by the policy. Clause 4.1.1 of the draft Height Policy states that the maximum height of any new building 'shall not exceed the height above ground level prescribed in the height zone applying to the location of the proposed new building', with certain exceptions. Clause 4.1.2 of the draft Height Policy states that the maximum building height 'will be measured as the vertical distance in metres from ground level to the highest part of the main building structure, irrespective of whether that part of the structure is a wall, parapet or roof'.
The height zones applicable to the McCabe Street site and the SAS site are 10 metres for a 35 metre strip along the northern edge of the sites, 16 metres adjacent to McCabe Street on the McCabe Street site and adjacent to the intersection of Stirling Highway and McCabe Street on the SAS site and then projecting diagonally across the SAS site, and 13 metres for the remainder of the sites.
In evidence given at the hearing, Mr Garbett said that, at its meeting on 17 December 2008, the Council intended to consider whether to adopt the draft Height Policy as a Local Planning Policy under the Scheme. Clause 2.3.2 of the Scheme states as follows:
A Local Planning Policy is not part of the Scheme and does not bind the Council in respect of any application for planning approval but the Council is to have due regard to the provisions of the policy and the objectives which the policy is designed to achieve before making its determination.
Following the hearing and prior to the publication of these reasons, the Tribunal was informed that the Council deferred its decision as to whether to adopt the draft Height Policy. The Tribunal is not aware as to whether the Council has adopted the draft Height Policy as a Local Planning Policy in the interim.
However, in Ridge City Holdings Pty Ltd and City of Albany [2006] WASAT 187 at [35], the Tribunal said the following:
The Tribunal is required by cl 7.8A(f) of the [City of Albany Town Planning Scheme No 1A] to have 'due regard' to any policy adopted under cl 7.21. However, in having regard to a policy, the Tribunal would generally give little weight to a policy which is in substance responsive to a particular pending development application. Self‑evidently, a development application to which a policy is responsive was formulated in the context of a planning regime which did not include the policy. The fact that the development application is capable of amendment, or is subsequently amended, is not in point.
The chronology in this case in relation to the height study, the draft Height Policy and the consideration of the proposed structure plans strongly indicates that the draft Height Policy is, in substance, responsive to the structure plans. Indeed, Mr Garbett said candidly in the conclusions to his reports to the Council meetings on 3 December 2008 and 17 December 2008 that '[f]inal adoption of the policy is likely to support the City's position as respondent [in these proceedings]'.
Consequently, even assuming that the Council has adopted the draft Height Policy as a Local Planning Policy under the Scheme, giving 'due regard' to the policy would, in the circumstances of this case, involve giving it little weight in determining whether or not to adopt the proposed structure plans. This principle would apply, arguably with even greater force, if the Council has not, in fact, adopted the draft Height Policy.
However, even if significant weight were given to the draft Height Policy, the Tribunal would have arrived at the same decisions in relation to the applications for review.
Irrespective of the draft Height Policy, the Tribunal considers that the SAS structure plan should not be adopted, because of the significant and adverse visual impacts of proposed Building 2 when viewed from important locations in the public domain along the foreshore and Mount Lyall, and when viewed from the McCabe Street site and houses in the Buckland Hill Estate.
In the case of the McCabe Street structure plan, it would be appropriate to depart from the strict application of the draft Height Policy (even if it were to be given significant weight) for five reasons.
First, as Mr Garbett agreed, 'the general arrangement of buildings [in the McCabe Street structure plan] follows [the] principles [in the draft Height Policy]'. In particular, the arrangement of the height zones in the draft Height Policy across the McCabe Street site contemplates that the highest buildings should address McCabe Street, mid‑range buildings should be located in the middle part of the site, and the lowest buildings should be located adjacent to the Buckland Hill Estate to the north.
Moreover, while the draft Height Policy uses numerical heights, rather than storeys, it is clear from Mr Garbett's report to the Council meetings on 3 December 2008 and 17 December 2008 that the draft Height Policy contemplates that a maximum building height of 16 metres equates to five storeys. Although, as discussed below, the proposed roof heights exceed the numerical controls under the draft Height Policy, the arrangement of buildings in the McCabe Street structure plan accords with the contemplation of the draft Height Policy of five‑storey buildings adjacent to McCabe Street, four‑storey buildings in the middle part of the site, and three‑storey buildings in the northern part of the site.
Second, the proposed housing density of R80 in the McCabe Street structure plan accords with the Council's resolution made at its meeting on 25 June 2008 that it supports the principle of residential development on the McCabe Street site, in an appropriate built form, at a density of up to R80. The Council received and noted the height study at this same meeting.
Third, the wall heights proposed in the McCabe Street structure plan comply or substantially comply with the height zones. The numerical exceedance of the height zones is due solely or substantially to the proposed inclusion of pitched roof forms.
Mr Fred Zuideveld, the project architect called on behalf of MSJV, Mr Mackay and Mr Caddy all gave evidence that pitched roofs are characteristic of the area and appropriate in urban design terms. As Mr Caddy said, strict application of the maximum height controls under the draft Height Policy would 'compromise good design'. Importantly, as Mr Garbett conceded, the draft Height Policy was created without any urban design input.
The practical achievement of the contemplation of the draft Height Policy of five storeys adjacent to McCabe Street, stepping down to four storeys in the middle of the site, stepping down to three storeys in the northern part of the site, in a manner that also accords with good urban design and good residential amenity, requires maximum wall heights generally in accordance with the height zones in the draft Height Policy and additional ridge heights generally in accordance with the ridge heights proposed in the McCabe Street structure plan.
Fourth, cl 1.2 of the draft Height Policy states that the policy is intended, in particular, 'to help safeguard important views from publicly accessible viewpoints towards and over the Indian Ocean and the Swan River'. The important public view affected by the McCabe Street structure plan is of the Indian Ocean from Mount Lyall. However, as, from that location, the horizon on the ocean equates to a level of approximately 38 metres AHD – 39 metres AHD on the McCabe Street site, and as ground level in the eastern part of the McCabe Street site is 29.5 metres AHD, the proposed exceedance of the height zones substantially to accommodate pitched roofs would not result in any additional loss of ocean view.
Finally, as Mr Garbett conceded, in the context of the 360 degree panoramic view available from Mount Lyall, the visual impact of the proposed exceedance of the height control by the buildings in the McCabe Street structure plan would be 'very limited'.
Are the proposed structure plans acceptable having regard to Liveable Neighbourhoods?
The guide to Liveable Neighbourhoods states as follows:
Liveable Neighbourhoods is an operational policy for the design and assessment of structure plans (regional, district and local) and subdivision, for new urban (predominantly residential) areas in the metropolitan area and country centres, on greenfield and large urban infill sites.
Mr Garbett considered, and the City argued, that the proposed structure plans are inconsistent with aspects of the community design provisions of Liveable Neighbourhoods.
However, it is apparent from Table 1 of Liveable Neighbourhoods that the 'local structure plans' to which this policy is intended to apply are those that relate to land generally well in excess of 20 hectares, and less than 300 hectares, in area. Table 1 contemplates that planning in relation to land generally greater than 20 hectares is in the form of large‑scale subdivision and that planning in relation to land less than 20 hectares is in the form of small‑medium scale subdivision. Plainly, Liveable Neighbourhoods is not intended to apply to structure plans for sites as small as 1.4 hectares and 3.1 hectares.
Furthermore, neither the McCabe Street site nor the SAS site are relevantly 'large urban infill sites' to which Liveable Neighbourhoods is intended to apply. The Tribunal accepts Mr Rowe's following evidence with which Mr Caddy agreed:
Liveable Neighbourhoods is the document, but we've never been asked to apply Liveable Neighbourhoods by any agency to sites of this scale. It's not what Liveable Neighbourhoods contemplates when it's read, and it's not what is our practical experience of Liveable Neighbourhoods. This is not really a brown field or an infill area. We've had experience on those estates as well, and an infill area that might be contemplated by Liveable Neighbourhoods is a project that we carried out several years ago, the entire refurbishment of the Willagee suburb. That's really what Liveable Neighbourhoods contemplates in terms of infill or brown field. So we've got no experience and we don't think the document takes us there. If you look at the examples in Liveable Neighbourhoods of structure plans, the scale of them is simply not comparable. The illustrations take you to that conclusion.
Conclusion
The Tribunal has determined that the McCabe Street structure plan is an appropriate urban design response to its site and locality, whereas the SAS structure plan is not.
In particular, whereas the buildings proposed in the McCabe Street structure plan would have an acceptable visual impact when viewed from both the public and private domains, the SAS structure plan, and particularly Building 2, stretching some 150 metres in length and with a height of up to 12 storeys, would have a significant and detrimental visual impact when viewed from important public viewing positions on the foreshore, from Mount Lyall and from private properties to the east and north‑east. The siting, height and length of SAS Building 2 would result in excessive and discordant bulk and scale when viewed from the foreshore, visual domination of the western view from Mount Lyall, and unreasonable impacts on residential amenity for future dwellings on the McCabe Street site and for existing dwellings in the Buckland Hill Estate.
It follows that the application for review by MSJV should be allowed and the McCabe Street structure plan should be adopted under the Scheme. It also follows that the application for review by SAS should be dismissed and the SAS structure plan not adopted under the Scheme.
Orders
The Tribunal makes the following orders:
DR 218 of 2008 ‑
1.The application for review is allowed.
2.The decision of the respondent made on 25 June 2008 that it is not prepared to adopt the structure plan in relation to Lot 315, Lot 326 and Lot 18 McCabe Street, North Fremantle is set aside and a decision is substituted that the 'Alternative Proposed Structure Plan' dated 25 July 2008 is adopted under cl 6.2.9.1 of the City of Fremantle Local Planning Scheme No 4 subject to the following conditions:
(a)The building in the location referred to as Apartment 1 on the structure plan must not exceed a maximum wall height of 46 metres AHD and a maximum roof height of 50.5 metres AHD.
(b)The building in the location referred to as Apartment 2 on the structure plan must not exceed a maximum wall height of 47.5 metres AHD and a maximum roof height of 52 metres AHD.
(c)The building in the location referred to as Apartment 3 on the structure plan must not exceed a maximum wall height of 44.2 metres AHD and a maximum roof height of 49 metres AHD.
(d)The building in the location referred to as Apartment 4 on the structure plan must not exceed a maximum wall height of 41 metres AHD and a maximum roof height of 45.5 metres AHD.
(e)The building in the location referred to as Apartment 5 on the structure plan must not exceed a maximum wall height of 43.5 metres AHD and a maximum roof height of 48 metres AHD.
(f)The building in the location referred to as grouped dwellings on the structure plan must not exceed a maximum wall height of 39.5 metres AHD and a maximum roof height of 42.5 metres AHD.
DR 285 of 2008 ‑
1.The application for review is dismissed.
2.The deemed refusal by the respondent to adopt a structure plan for Lot 2 Stirling Highway, North Fremantle is set aside and a decision is substituted that the structure plan is not adopted under cl 6.2.9.1 of the City of Fremantle Local Planning Scheme No 4.
I certify that this and the preceding [108] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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