North Perth Developments Pty Ltd and Town Of Vincent
[2008] WASAT 169
•29 JULY 2008
NORTH PERTH DEVELOPMENTS PTY LTD and TOWN OF VINCENT [2008] WASAT 169
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 169 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:56/2008 | 3 JULY 2008 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) | 29/07/08 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Development approval refused | ||
| B | |||
| PDF Version |
| Parties: | NORTH PERTH DEVELOPMENTS PTY LTD TOWN OF VINCENT |
Catchwords: | Town planning Eight level mixed use commercial and residential building Housing density Site coded R80, but street block policy contemplates R160 density with possibility of "additional density bonuses ... where affordable housing is proposed" Whether affordable housing is proposed Characteristics of affordable housing in private development Height and massing Whether proposed eight storey component is "within the site" under street block policy |
Legislation: | Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2008), cl 6.1.3 A3i, cl 7.1.3 P3, cl 7.2.1 Town of Vincent Town Planning Scheme No 1, cl 19(1), cl 20(1), cl 20(5), cl 38(5) |
Case References: | Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent made on 18 December 2007 to refuse development approval for an eight level above two basement levels mixed use commercial and residential building at No 152 - No 158 Fitzgerald Street, Perth is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : NORTH PERTH DEVELOPMENTS PTY LTD and TOWN OF VINCENT [2008] WASAT 169 MEMBER : MR D R PARRY (SENIOR MEMBER)
- MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
- Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Eight level mixed use commercial and residential building - Housing density - Site coded R80, but street block policy contemplates R160 density with possibility of "additional density bonuses ... where affordable housing is proposed" - Whether affordable housing is proposed - Characteristics of affordable housing in private development - Height and massing - Whether proposed eight storey component is "within the site" under street block policy
(Page 2)
Legislation:
Planning and Development Act2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.1.3 A3i, cl 7.1.3 P3, cl 7.2.1
Town of Vincent Town Planning Scheme No 1, cl 19(1), cl 20(1), cl 20(5), cl 38(5)
Result:
Development approval refused
Category: B
Representation:
Counsel:
Applicant : Mr MJ Hardy
Respondent : Mr SJ Bain (Acting as Agent)
Solicitors:
Applicant : Hardy Bowen
Respondent : SJB Town Planning & Urban Design (Town Planners)
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 This matter concerned a development application for an eight level above two level basement mixed use commercial and residential building in an inner city location. A design policy adopted for the relevant street block formed a critical and fundamental element in the planning assessment of the proposed development. The principal issues in the proceedings were whether the proposed development complies with the housing density and height and massing provisions of the policy.
2 The policy contemplates development with a housing density of R160 with additional density bonuses where affordable housing is proposed. The proposed development involves a housing density approximately 30% greater than R160. The Tribunal determined that the development does not propose affordable housing because the quality of the units is typical, their size is typical (five units) or greater than typical (30 units), each unit is likely to be provided with at least one onsite car parking space and the total number of dwellings is not so significant, having regard to the other considerations, as to involve the provision of affordable housing.
3 The Tribunal determined that the height and massing of the development does not comply with the policy. It would present substantially as an eight storey building adjacent to the street, rather than as a three storey building adjacent to the street and up to eight storeys within the site, as required by the policy. Furthermore, the site does not occupy a corner location, where the policy envisages the possibility of greater heights, and, in any case, the proposed height and massing is greater than that contemplated by the policy for corner locations.
4 The Tribunal therefore refused to grant development approval.
Introduction
5 These proceedings involve an application brought by North Perth Developments Pty Ltd (applicant) under s 252(1) of the Planning and Development Act 2005 (WA) for review of the decision of the Town of Vincent (Town or Council) to refuse to grant development approval for the construction of an eight level mixed use commercial and residential building above two basement car parking levels at No 152 - No 158 Fitzgerald Street, Perth (site).
(Page 4)
Site and locality
6 The site comprises two allotments with a total frontage of 37.9 metres to Fitzgerald Street to the west, a depth of 37.22 metres, and a total area of 1,411 square metres. The site is separated from Stuart Street to the north by a narrow commercial property currently used as a gallery. To the east of that commercial property there is an approximately 3 metre wide right of way off Stuart Street that provides alternative access to part of the site and to the property to its east.
7 The site forms part of the street block bounded by Fitzgerald Street to the west, Stuart Street to the north, Palmerstone Street to the east and Newcastle Street to the south. This street block is mixed in character and undergoing significant change from industrial, light industrial and commercial uses to mixed residential and commercial uses. Developments that have already taken place include the conversion of the Maltings industrial buildings in the eastern part of the street block to residential use, the construction of six level residential buildings in the central part of the street block and the construction of three level grouped dwellings facing Stuart Street to the east and northeast of the site.
8 To the north of Stuart Street is Robertson Park which is a large area of public open space bounded by Fitzgerald Street to the west, Randell Street to the north, Palmerstone Street to the east and Stuart Street to the south.
Proposed development
9 The proposed development includes:
• Two basement levels comprising a total of 36 car parking bays, 12 motorcycle parking bays, 27 lockable storage bays, residential bin storage and bicycle parking and end of trip facilities;
• Ground floor/level 1 comprising 73 square metres retail space and 83.5 square metres café, separate commercial and residential foyers, toilets, parking area for 18 cars and six motorcycles, six lockable storage units and commercial bin storage;
• Levels 2 and 3 comprising 911 square metres and 943 square metres office space, respectively, plus 67 square metre balconies at each level; and
(Page 5)
- • Levels 4 to 8 comprising a total of 35 residential units each with a private terrace or balcony.
10 The 35 residential units comprise 15 one bedroom units and 20 two bedroom units. The one bedroom units have areas of 68 square metres (11 units), 69 square metres (one unit) and 70 square metres (four units), excluding terrace/balcony. The two bedroom units have areas of 78 square metres (five units), 82 square metres (four units), 84 square metres (one unit), 85 square metres (five units) and 92 square metres (five units), excluding terrace/balcony.
Planning framework
11 The site and the surrounding locality is zoned "Residential/commercial" under the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme). Clause 20(1) of TPS 1 states that:
"The permitted site density per hectare under the [Residential Design Codes of Western Australia (2008) (Codes)] for any land is to be determined by reference to the … Codes density number, as illustrated on the Scheme Map, for that land."
12 The residential density code shown on the Scheme Map for the site and the street block is "R80".
13 Clause 19(1) of TPS 1 states, in the conventional manner, that unless otherwise provided in, or consistent with, the Scheme, "the development of land for any of the residential purposes dealt with by the … Codes is to conform to the provisions of those Codes". However, the Scheme also contains an unusual provision in cl 20(5) which states that "[t]he Council will consider variations to [the] Codes where it considers that acceptable levels of residential amenity can be achieved".
14 The Council has adopted a specific design policy for slightly over half the street block bounded by Fitzgerald Street, Stuart Street, Palmerstone Street and Newcastle Street which is entitled Design guidelines for the half street block bounded by Fitzgerald, Newcastle (all lots between Palmerstone and Fitzgerald Streets) and Stuart Street and Pendal Lane, Perth (street block policy). The street block policy aims:
"[t]o provide developers and land owners with direction to design and construct development of a high calibre and intensity of use befitting the land's location and suitability."
(Page 6)
15 The street block policy states as follows in relation to "Density and Mix":
"The street block is located within a transitional area characterised by a wide variety of uses. The Town of Vincent recognises the opportunity available to develop this area with higher density development, consistent with development occurring south of Newcastle Street. As such, the Town of Vincent is seeking higher density development commensurate with an R160 density. The remaining heavy industrial and intensive commercial service uses are expected to relocate and be replaced by contemporary innercity uses. …"
16 The Tribunal accepts the expert opinion presented by Mr Ken Adam, an architect and town planner who gave evidence on behalf of the applicant, that the street block policy is "the prime instrument for consideration of the present application, because it is devised specifically for the area around and including the subject site".
17 The Tribunal also accepts the joint position of the parties that the residential density contemplated by the planning framework for the site is R160 (with the possibility of additional density bonuses over and above R160 where affordable housing is proposed - see below), in consequence of the street block policy and the unusual discretion conferred by cl 20(5) of the Scheme. The discretion to vary the Codes, including in relation to the minimum site area applicable to the residential coding specified by the Scheme Map, is materially informed by a blockspecific planning policy adopted by the Council. It is plain from the street block policy that the Council considers that acceptable levels of residential amenity in the locality of the site are commensurate with a residential density of R160 on the site.
18 However, the Tribunal considers that it is inconsistent with orderly and proper planning, and undermines the integrity of the residential density coding system, to, in effect, upzone land by means of a planning policy. Orderly and proper planning in the Scheme area requires that "[the] permitted site density per hectare under the [Codes] for any land is to be determined by reference to the [Codes] density number, as illustrated on the Scheme Map, for that land", to quote cl 20(1) of the Scheme. If, as the street block policy states, the Town seeks higher density development commensurate with an R160 density coding, orderly and proper planning requires that it amend the Scheme Map by changing the density coding for the area from R80 to R160.
(Page 7)
Issues for determination
19 The following two principal issues arise for determination in this review:
1. Whether the proposed housing density complies with the street block policy.
2. Whether the proposed height and massing complies with the street block policy.
20 The Tribunal will address each of these issues in turn.
Does the proposed housing density comply with the street block policy?
21 The site can accommodate a maximum of 22 residential units at a density of R160. However, it is common ground between the applicant and the Town that the 15 proposed one bedroom dwellings are "single bedroom dwellings" within the meaning of the Codes, because they "provide limited accommodation, suitable for one or two persons" (cl 7.1.3 P3), and that it is appropriate to exercise the discretion conferred by cl 6.1.3 A3i to reduce the minimum site area for the single bedroom dwellings by onethird. In consequence, it is common ground that the site can accommodate 27 residential units, being 15 one bedroom units and 12 two bedroom units, at a density of R160.
22 However, as noted earlier, the proposed development includes 35 residential units, eight units or approximately 30% in excess of a density of R160. In order to obtain approval, the applicant relies on a discretion available under the street block policy to allow additional density where affordable housing is proposed. The relevant text is as follows:
"Affordability - Affordable housing opportunities are to be encouraged in this location due to the proximity of the central city, access to support services and employment. The Town of Vincent encourages the development of diverse affordable housing opportunities including but not limited to, public housing (including sharedequity arrangements), community housing, boarding houses, public/private development partnerships and private developments.
The Council may consider additional density bonuses over and above Residential R160 where affordable housing is proposed and complies with any Town of Vincent Policy or Strategy relating to Affordable Housing."
(Page 8)
23 This provision clearly contemplates that affordable housing can be provided in private developments. Unfortunately, however, the term "affordable housing" is not defined in the street block policy or in the Scheme, and the Town has not adopted any policy or strategy relating to affordable housing.
24 In the absence of any applicable definition of the term "affordable housing", Mr MJ Hardy, counsel for the applicant, submits that the following four considerations are relevantly the principal determinants of whether affordable housing is proposed in a particular development:
1) The quality of the dwellings.
2) The size of the dwellings.
3) The location in terms of access to public transport.
4) The total number of dwellings in the development.
25 Mr Hardy concedes that the quality of the proposed units is typical and does not, in the circumstances of this case, contribute to a finding that affordable housing is proposed.
26 In relation to the size of the proposed units, Mr Hardy relies on Mr Adam's characterisation of the units as "modest" and the evidence of Mr Brett WoodGush, an urban designer and town planner who also gave evidence on behalf of the applicant, that the development provides "a significant number of smaller apartments".
27 However, when giving concurrent evidence, Mr Adam and Mr Simon Bain, a town planner who gave evidence on behalf of the Town, agreed that typical one bedroom units have an area of 55 60 square metres. For a two bedroom unit, Mr Adam indicated that an additional 20 square metres is required for the second bedroom, additional living area, passageway and walls, whereas Mr Bain considered that an additional 15 - 20 square metres would be required.
28 As noted earlier, the one bedroom units in the proposed development have areas of 68 square metres (11 units), 69 square metres (one unit) and 70 square metres (four units), and the two bedroom units have areas of 78 square metres (five units), 82 square metres (four units), 84 square metres (one unit), 85 square metres (five units) and 92 square metres (five units), in each case excluding terrace or balcony. The proposed one bedroom units are therefore between 8 square metres (15%) and 15 square metres (25%) larger in area than a larger typical one bedroom unit of
(Page 9)
- 60 square metres. Fifteen of the 20 proposed two bedroom units are larger in area by between 2 square metres (2.5%) and 12 square metres (15%) than the size of a larger typical one bedroom unit of 60 square metres plus 20 square metres to accommodate a second bedroom, additional living area, passageway and walls. The other five two bedroom units are each 3 square metres (4%) larger in area than a smaller typical one bedroom unit of 55 square metres plus 20 square metres and 2 square metres (2.5%) smaller than a larger typical one bedroom unit plus 20 square metres. Therefore, 30 of the 35 units are greater than typical in size and five could be regarded as typical in size.
29 The Tribunal accepts Mr Adam's evidence that "at the bottom end of the market, the size of unit is very important" and "size of dwelling: smaller is cheaper, obviously". However, a typical or larger than typical sized unit in a private development is not of a size that involves the provision of affordable housing. In terms of the size of dwellings, affordable housing in a private development requires modestsized units, in the order of 50 - 55 square metres for one bedroom units and 65 70 square metres for two bedroom units.
30 In relation to location, the Tribunal accepts Mr Adam's evidence that proximity to public transport may contribute to affordability where, in consequence, onsite car parking is not required. However, the mixed use development requirements in cl 7.2.1 of the Codes contemplate in the acceptable development provision onsite car parking of at least one bay per dwelling and the proposed development is likely to provide at least one car bay per dwelling. Consequently, the purchase price or rent for the proposed units will include a component for onsite parking even though there is good access to public transport. Furthermore, location in this case may reduce affordability because, as Mr Adam observed, "generally the closer to the city centre, the more expensive the housing".
31 In relation to the total number of dwellings in the development, the Tribunal does not consider that the provision of 35 dwellings, particularly of the sizes proposed and each likely to be provided with at least one onsite car parking space, involves the provision of affordable housing. Certainly, 35 dwellings on the site would increase the availability of housing, but not relevantly affordable housing.
32 Mr Adam also identified, as a positive indicator of affordability, the fact that the locality is mixed in character, still including some industrial activity, and hence "has a certain urbanity, even 'grit', to it, which appeals more to the lower
(Page 10)
- and middle sectors of the market than to the high end". However, the street block policy contemplates that the remaining heavy industrial and intensive commercial service uses will relocate over time and be replaced by contemporary inner city uses. In the circumstances, the present character is not likely to contribute to the provision of affordable housing.
33 The development does not propose affordable housing. Consequently, the Council - and the Tribunal on review - may not consider additional density bonuses over and above R160. The proposed housing density does not comply with the street block policy and, consequently, is inconsistent with contemplated acceptable levels of residential amenity for the purposes of cl 20(5) of the Scheme. Moreover, as the density of the proposed development is approximately 30% greater than the contemplation in the street block policy, the proposed development is inconsistent with the policy and the orderly and proper planning of the locality (cl 38(5)(b) and cl 38(5)(h) of TPS 1). The development application, therefore, warrants refusal.
Does the proposed height and massing comply with the street block policy?
34 The street block policy states as follows:
"Height and Massing - The wide reserve of Fitzgerald Street, the openness of Robertson Park and the adjacent Maltings development support building height to a maximum of 3 storeys adjacent to the primary streets and up to 8 storeys within the site and to Pendal Lane. A minimum height of two storeys to the primary streets is considered appropriate. The opportunity to extract maximum impact from corner locations will be encouraged and promoted, and greater heights will be considered in these instances."
35 The parties disagree as to whether the expression "within the site" in this provision refers to the site of a proposed development, as the applicant contends, or the area to which the street block policy applies, as the Town contends. Ultimately, nothing turns on the resolution of this dispute because, on either view, the proposed development does not comply with this provision. However, for completeness, the Tribunal considers that the expression "within the site" refers to the area which is the subject of the street block policy, rather than to an individual development site within the policy area, for the following three reasons.
36 First, the references to the width of Fitzgerald Street and the openness of Robertson Park identify the frame that surrounds the policy area.
(Page 11)
37 Second, the reference to "the adjacent Maltings development" refers to the eastern part of the street block that is not within the policy area, indicating that the height and massing provision is concerned with the remainder of the street block as a whole.
38 Third, the planning objective of the provision appears to be to create a consistent height and massing for the whole of the policy area. As Mr Bain observed, if the provision referred to each development site, it would potentially result in an irregular pattern of three and eight storey heights due to the difference in lot sizes and orientations. Such an irregular pattern of heights would adversely impact on the amenity of the locality as well as the amenity of each development. It is to be noted in this regard that the site which is the subject of this application is considerably smaller and shallower than other allotments in the policy area.
39 However, on either view of the meaning of the expression "within the site", the proposed eight storey component does not comply with the provision. The development includes a feature wall with a nil setback to Fitzgerald Street in its northwestern portion. Even if, as Mr Adam considers it appropriate, the sections of this wall above the balustrade for terraces/balconies of residential units were removed, the minimum setback of the building itself to Fitzgerald Street would be 1.2 metres in the northern section of the frontage, increasing to 4.8 metres in the southern section of the frontage. The proposed setback would not be adequate to sufficiently differentiate the three storey component from the eight storey component, such that the eight storey component could be regarded as being "within the site", even assuming that this expression refers to the development site. While the visual impact of the development would be mitigated to an extent by trees in Fitzgerald Street and Stuart Street, the considerable - approximately 30 metre - width of Fitzgerald Street, the setback of the upper five levels from the side boundaries and articulation of the front façade, the development would nevertheless present substantially as an eight storey building adjacent to Fitzgerald Street, rather than as a three storey building adjacent to Fitzgerald Street and up to eight storeys within the site. This would be particularly the case when the development is viewed from street level from the north and northwest as shown by the representational scale model photographs in Attachment A to these reasons which formed part of the evidence of Mr WoodGush. While the representational scale model shows an earlier proposal, it is common ground that it reasonably represents the massing of the currently proposed building. The Tribunal accepts Mr Bain's evidence that the building "will be extremely imposing" in a manner that is inconsistent with the height and massing provision in the street block policy.
(Page 12)
40 The site does not occupy a corner location, even though the commercial property to its north at the corner of Fitzgerald and Stuart Streets may have limited development potential. Furthermore, even if the site did occupy a corner location, the height and massing of the proposed development would be considerably greater than that contemplated by the street block policy for corner locations.
41 The proposed height and massing of the development does not, therefore, comply with the street block policy. While, as Mr WoodGush explained, there may be sense in terms of solar access, crossventilation and privacy in placing eight storey built form near to the street and away from the centre of the policy area, the policy has not adopted that approach. Given that the street block policy has been devised specifically for the area including the site it would be inappropriate to depart from its provisions on account of an alternative urban design scheme.
42 The development application, therefore, also warrants refusal because the proposed height and massing does not comply with the street block policy.
Conclusion
43 The housing density and the height and massing of the proposed development does not comply with the street block policy. The policy is a critical and fundamental element in the planning assessment of the proposed development because it has been specifically devised and adopted to guide development in the relevant street block through the transition of the street block from industrial, light industrial and commercial uses to mixed residential and commercial uses. There is no cogent reason on the evidence to warrant a departure from the policy.
44 Consequently, the decision of the Town to refuse development approval should be affirmed.
Orders
45 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent made on 18 December 2007 to refuse development approval for an
- eight level above two basement levels mixed use commercial and residential building at No 152 - No 158 Fitzgerald Street, Perth is affirmed.
(Page 14)
Attachment A
(Page 15)
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
(Page 16)
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