McCabe Street Joint Venture and City Of Fremantle

McCabe Street Joint Venture (MSJV) appealed against the City of Fremantle's decision to refuse a development application for a commercial and residential development on a former industrial site in a coastal location. The appeal was brought under the Planning and Development Act 2005. MSJV sought to develop two sites: the McCabe Street site and the SAS site. The McCabe Street site is a large urban infill site that would be developed with commercial and residential buildings, while the SAS site would be developed with a single building of up to 15 storeys. The City of Fremantle refused the development application on the basis that the McCabe Street proposal would result in unacceptable view loss, and the SAS proposal would have an unreasonable visual impact on the surrounding area.

The legal issues in the case related to whether the McCabe Street proposal was reasonable in terms of view loss and whether the SAS proposal was reasonable in terms of its impact on the surrounding area. The court had to consider the evidence of experts called by both parties on issues such as the appropriateness of the height, bulk, and scale of the proposed buildings, the impact on the visual amenity of the surrounding area, and the reasonableness of the development proposals. The court also had to consider the relevance of the draft height policy, which was responsive to the McCabe Street proposal, and whether the Liveable Neighbourhoods policy applied to the proposed structure plan.

The court found that the McCabe Street proposal was reasonable in terms of view loss, as the three-storey buildings proposed in the northern part of the site were within the range of what is generally understood as a domestic residential scale of architecture, and the five-storey buildings along the McCabe Street frontage were an appropriate urban design response to that part of the site. The court also found that the SAS proposal was not reasonable, as the proposed building would have a significant visual impact in terms of excessive bulk and scale when viewed from single houses in the Buckland Hill Estate, and would also adversely affect the privacy of those dwellings. The court accepted the evidence of experts that the height, bulk, and scale of the proposed building would have a detrimental impact on the visual amenity of the McCabe Street site.

The court allowed the appeal and remitted the development application to the City of Fremantle for further consideration. The court found that the McCabe Street proposal was reasonable in terms of view loss and that the SAS proposal was not reasonable in terms of its impact on the surrounding area. The court also found that the draft height policy, which was responsive to the McCabe Street proposal, was relevant to the assessment of the development application. The court did not find it necessary to consider the applicability of the Liveable Neighbourhoods policy to the proposed structure plan.