QUBE BEECHBORO DEVELOPMENT PTY LTD and CITY OF SWAN

[2014] WASAT 58

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   QUBE BEECHBORO DEVELOPMENT PTY LTD and CITY OF SWAN [2014] WASAT 58

MEMBER:   MS R MOORE (MEMBER)

MS J BELL (SESSIONAL MEMBER)

HEARD:   24 AND 25 FEBRUARY 2014

DELIVERED          :   23 MAY 2014

FILE NO/S:   DR 294 of 2013

BETWEEN:   QUBE BEECHBORO DEVELOPMENT PTY LTD

ERCEG MANAGEMENT PTY LTD
Applicants

AND

CITY OF SWAN
Respondent

Catchwords:

Town planning - Outline Development Plan - Modification of Outline Development Plan - Outline Development Plan considered a Structure Plan - Increase in density coding from R40 to R100 ­ Whether R100 residential density coding is appropriate in neighbourhood activity centre ­ Locational characteristics of site ­ Potential impact of R100 development on amenity of locality

Legislation:

City of Swan Local Planning Scheme No 17, cl 4.2.14, cl 4.3, cl 5A.1.3.1, cl 5A.1.6, cl 5A.1.6.3, cl 5A.1.6.4, cl 5A.1.8, cl 5A.1.14.1, cl 5A.1.17.1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
State Planning Policy 3.1 - Residential Design Codes of Western Australia 2013

Result:

Modification of Beechboro Land Scheme Outline Development Plan 42 approved

Summary of Tribunal's decision:

This case concerned a proposal to modify the Beechboro Land Scheme Outline Development Plan 42 in the City of Swan by amending the notation applicable to No 130 (Lot 927) Bridgeman Drive, Bennett Springs.  The majority of this lot has been developed as a neighbourhood activity centre with a mix of retail and commercial uses and is known as the Bennett Springs Shopping Centre.

The proposed modifications involve amending the annotations on OPD 42 to provide for an increase in the residential density coding of the north-eastern corner of the lot from R40 to R100; adding 'child care centre' as a permissible use on the lot; and deleting the reference to a maximum retail floor space of 4,500m² within the 'Village Centre/Commercial Site'.  The only modification that the City objected to was the proposed increase in the residential density coding from R40 to R100 on the north-eastern corner of the lot.

The issue for determination by the Tribunal was whether an increase to a residential density coding of R100 was appropriate in this neighbourhood centre having regard to: the current state and local planning framework; the location of the site with regard to employment, educational facilities and access to services and public transport; and the impact on the amenity of the surrounding locality.

The Tribunal found that the emphasis of the current State and local planning framework is to encourage an innovative approach to the provision of housing accommodation, particularly in activity centres, encompassing more diverse and affordable options.  In this case, the Bennett Springs neighbourhood centre is a well-established centre with good access to a range of commercial and community facilities in close proximity to a regional road network and future reservations for improved public transport and a major industrial employment centre.  In terms of the impact on the amenity of the locality, the Tribunal found that the north-eastern corner of the site is well separated from surrounding low density development and provides the opportunity to consolidate the design of the neighbourhood centre and provide a desirable interface with the surrounding area.

The Tribunal was satisfied that the proposed modifications to ODP 42, as they relate to the subject site, were appropriate and consistent with orderly and proper planning and should be approved with additional notation limiting the R100 development to three storeys.

Category:    B

Representation:

Counsel:

Applicants:     Ms B Moharich

Respondent:     Mr C Slarke

Solicitors:

Applicants:     Flint Moharich

Respondent:     McLeods

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

Hocking Land Company Pty Ltd and City of Wanneroo [2009] WASAT 139

Quinn and City of Mandurah [2010] WASAT 57

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. Qube Beechboro Development Pty Ltd and Erceg Management Pty Ltd (applicants) made application to the City of Swan (respondent or City) on 14 February 2013 to modify the Beechboro Land Scheme Outline Development Plan 42 (ODP 42) in the City of Swan.  The proposed modifications relate to No 130 (Lot 927) Bridgeman Drive (site or subject site), Bennett Springs and involve altering the annotations on the ODP 42 to provide for an increase in the residential density coding of the north­eastern corner of the site from R40 to R100; to add 'child care centre' as a permissible use on the site; and to delete the reference to a maximum retail floor space of 4,500 m² within the 'Village Centre/Commercial Site'.

2. These modifications to ODP 42 were advertised in accordance with cl 5A.1.8 of the City of Swan Local Planning Scheme No 17 (LPS 17) and one public submission of objection was received.  The respondent considered the proposed modifications, as well as a related development application for 36 multiple dwellings on the site, at its Council meeting on 3 July 2013 and resolved to defer the application until 24 July 2014 for the following reason:

   [T]o enable further consideration of the shortfall in car parking, reduced setbacks, over height of 2 parapet walls and the general bulk and scale of the multiple dwellings on the prevailing existing residential character and amenity of Bennett Springs.

3. On 25 July 2013, the applicants made an application to the Tribunal under s 252(1) of the Planning and Development Act2005 (WA) (PD Act) for a review of the deemed refusal of the planning application for 36 multiple dwellings on the north­eastern corner of the subject site (DR 264 of 2013). Then on 23 August 2013, the applicants made an application to the Tribunal under s 252(1) of the PD Act for a review of the deemed refusal to adopt the proposed modifications to ODP 42 (DR 294 of 2013).

4. The Tribunal referred the matter to mediation and in accordance with s 31 of the State Administrative Tribunal Act2004 (WA) (SAT Act), the respondent resolved at its meeting on 23 September 2013 to:

   1)Refuse the proposed amendments to the Outline Development Plan No. 42 for the following reasons:

   1.The density of development proposed is inappropriate for the area and it will have an adverse impact on the amenity of the locality as a neighbourhood centre and is best suited to areas close to high order centres and/or major transport nodes such as railway stations or high frequency bus routes.

   2)Refuse the application for 36 multiple dwelling units at Lot 197 (No. 130) Bridgeman Drive, Bennett Springs for the following reason:

   1.The shortfall in car parking, reduced front setback, wall lengths that exceed the maximum length of two-thirds the length of the boundary and over-height parapet walls to the western side and southern rear boundaries are considered to entail an adverse impact on amenity of both the proposed development and the surrounding locality.

   3)Record that the reason for changing the staff recommendation is the R100 density of the proposed development is inappropriate for this residential area which is zoned predominantly R20 and the extent of variations sought to the State Planning Policy 3.1 ­ Residential Design Codes will have an adverse impact on the amenity of the locality.

5. The two matters, DR 264 of 2013 and DR 294 of 2013, were subsequently listed for a final hearing to be held in February 2014.  The matters were to remain as separate proceedings, but were to be heard and determined together, with evidence in one proceeding to be evidence in the other proceeding.  Ultimately, the parties agreed that it would be preferable for the Tribunal to hear and determine DR 294 of 2013 prior to DR 264 of 2013 and the final hearing proceeded on this basis.  The matter DR 294 of 2013 which relates to proposed modifications to ODP 42 was heard on 24 and 25 February 2014.

Beechboro Land Scheme Outline Development Plan No 42

1. As discussed above, this matter relates to proposed modifications to ODP 42.  These modifications are specifically directed to a particular parcel of land within the ODP area.  That land is No 130 (Lot 927) Bridgeman Drive, Bennett Springs.

2. The site is 14,319 m² in area and is bounded by Beechboro Road North, Bennett Springs Road, Dunlin Gardens and Bridgeman Drive.  The majority of the site has been developed as a neighbourhood activity centre, with a mix of retail and commercial uses, and is known as the Bennett Springs Shopping Centre.

3. ODP 42 was adopted by the City of Swan on 23 September 2008 and provides the broad structure for future subdivision and development of the area. Under the current approved ODP 42, the majority (the southern portion) of the subject site is designated as 'Village Centre/Commercial Site' and includes the following notation:

   Village Centre/Commercial Site.  Commercial/Retail & Non­Retail Possible uses include supermarket, speciality shops, fast foods, tavern, medical centre, service station, etc
   Max. retail floor space 4500m2. 

   Prior to the City considering a development application for the Village Centre/Commercial site a Centre Plan is to be prepared in accordance with the City's 'Commercial Centres Strategy' and approved by the City.

4. The remainder of the subject site (the northern portion) fronting Bennett Springs Drive and abutting the 'Village Centre/Commercial Site' is identified as:

   Non­retail mixed use (street level single 'home offices' within upper levels residential up to R40).

5. The Tribunal had the benefit of a view of the land in the company of the parties on the afternoon of 24 February 2014.

Proposed modifications

1. As discussed earlier, the proposed modifications to ODP 42 involve altering the annotations on the ODP 42 to provide for an increase in the residential density coding of the site from R40 to R100; to add 'child care centre' as a permissible use on the site; and to delete the reference to a maximum retail floor space of 4,500 m² within the 'Village Centre/Commercial Site'.  The respondent did not object to the addition of 'child care centre' as a permissible use on the site or to the deletion of the maximum retail floor space of 4,500 m² within the 'Village Centre/Commercial Site'. 

2. The hearing focussed on the proposal to increase the residential density of the north­eastern corner of the site to R100.  This proposed modification to ODP 42 is a necessary prerequisite to the development application for the north-eastern corner of the site for 36 multiple dwellings (DR 264 of 2013).

3. The Tribunal was provided with a proposed subdivision plan (submitted to the Department of Planning on 18 April 2013) which showed the site subdivided into two lots: Lot 1, with an area of 11,854sqm and Lot 2, with an area of 2,465sqm. The 36 multiple dwelling proposal (DR 264 of 2013) is to be constructed on the proposed Lot 2 and consequently this is the area of the site that the applicant proposes the R100 coding to apply to.

4. During the hearing, the applicants agreed to an additional modification to ODP 42 with respect to the north­eastern corner of the subject site which would limit future R100 development to three storeys.  The proposed notation, which was not opposed by the respondent in the event the review is approved, is:

   Residential R100

   The general site requirements for the R100 coding are varied as follows: Maximum height of multiple dwellings shall be in accordance with Column 5 of Table 4 of SPP3.1: Residential Design Codes (August 2013) for the R60 coding.

Planning framework

1. The subject land is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and 'Residential Development' under LPS 17.

2. Clause 4.2.14 of LPS 17 contains the following objectives for the Residential Development Zone:

   (a)provide for the coordinated development of future residential areas through the application of a comprehensive plan to guide subdivision and development to be known as a 'Structure Plan';

   (b)provide for predominantly residential development, but including also a range of compatible services, consistent with the needs of an integrated neighbourhood, and planned so as to minimise adverse impacts on amenity;

   (c)avoid the development of land for any purposes or at a time when it is likely to compromise development elsewhere in the district or prejudice the future development of land in the Residential Development zone for more appropriate purposes;

   (d)take account of the need to protect the amenity and on-going use of adjacent property owners as well as to provide for the needs of future residents.

3. Clause 4.3 of LPS 1 contains the Zoning Table and provides that the development and use of land within Residential Development zones is to be in accordance with an approved Structure Plan.  Note 1 to the Zoning Table states that where a structure plan applies to the land, the determination of applications involving the exercise of discretion is subject to the provisions of cl 5A.1.3.1.

4. Clause 5A.1.3.1 of LPS 17 provides that subdivision and development of land within a Structure Planning Area is generally to be in accordance with any structure plan that applies to that land.

5. For the purposes of LPS 17 a structure plan includes any Outline Development Plan prepared and approved under the previous town planning scheme.  ODP 42 is considered to be a structure plan in accordance with cl 5A.1.17.1 of LPS 17.

6. Clause 5A.1.14 refers to variations to structure plans and cl 5A.1.14.1 states that:

   The local government may vary a structure plan:

   (a)by resolution if, in the opinion of the local government, the variation does not materially alter the intent of the structure plan;

   (b)otherwise, in accordance with the procedures set out in clause 5A.1.6 onwards.

7. Clause 5A.1.6 refers to the details of proposed structure plans and at cl 5A.1.6.3 provides that a structure plan may impose a classification on the land included in it by reference to residential density coding and the local government is to have due regard to this when recommending subdivision or approving development of land.  Clause 5A.1.6.4 also provides that a proposed structure plan must, in the opinion of the local government, be consistent with orderly and proper planning.

8. Under cl 5.2 of LPS 17 the development of land for residential purposes is to conform with the provisions of State Planning Policy 3.1 Residential Design Codes 2013 (R­Codes).

9. The Tribunal has also had regard to the following local and strategic planning documents:

   •City of Swan Local Planning Strategy

   •City of Swan POL­C­103 Neighbourhood Planning Policy

   •Bennett Springs Centre Plan

   •Western Australian Planning Commission (WAPC) Directions 2031 and Beyond

   •WAPC Liveable Neighbourhoods

   •WAPC draft Central Metropolitan Perth Sub­Regional Strategy

   •WAPC State Planning Policy 4.2 Activity Centres for Perth and Peel (SPP 4.2).

Issue for determination

1. The Tribunal made the following relevant observations in Hocking Land Company Pty Ltd and City of Wanneroo [2009] WASAT 139 at [41] and [43], and again in Quinn and City of Mandurah [2010] WASAT 57 at [12]:

   [In] this case, the Tribunal is charged by the relevant legislation to be a strategic planning body. …

   [T]he relevant test for determining whether to amend a Structure Plan [and, equally an Outline Development Plan] under the Scheme is whether it would be appropriate to do so, having regard to all relevant provisions of the Scheme and all relevant planning considerations.

2. The main issue for determination in this review is whether the proposed R100 density coding is appropriate on the north­eastern corner of the subject site and consistent with orderly and proper planning having regard to the strategic and local planning framework.

3. This issue is discussed under three headings:  firstly, whether a R100 density coding is appropriate in a neighbourhood centre in the context of the relevant planning framework; secondly, the locational characteristics of the subject site; and thirdly, the potential impact of development of the R100 coding on the amenity of the surrounding locality.

4. The Tribunal had the benefit of expert evidence from two town planners: Mr Ryan Darby who gave evidence for the applicants and Ms Amanda Butterworth who gave evidence for the respondent.

Whether R100 density coding is appropriate in a neighbourhood centre in the context of the planning framework

1. The respondent opposed the R100 coding on the grounds that the site does not display the characteristics to make it suitable for R100 and cited SPP 4.2 as the primary planning instrument for consideration of this matter.  In this regard, the respondent referred to the role of SPP 4.2 in defining a hierarchy of activity centres and guiding the nature and scale of their future development within the Perth and Peel regional framework which seeks to reduce travel, support public and other forms of transport and promote a more efficient urban form.

2. The respondent submitted that the subject site is within a designated neighbourhood activity centre, the lowest level of activity centre within SPP4.2, and is intended to provide a focus for shopping and community needs and medium density housing.  The respondent referred to section 5.2.2(1) of SPP 4.2 which states that 'Commercial and residential growth should be optimised through appropriately-scaled buildings and higher-density development in walkable catchments of centres'.  The respondent did not dispute the intent of SPP 4.2 to encourage higher densities in activity centres in general, but contended that a residential coding of R100 density is 'high density' and not 'medium density'.  Although the respondent acknowledged that the current R­Codes had removed the previous reference to low, medium and high density bands contained in Table 1 of the 2008 R­Codes, it was pointed out that the Explanatory Guidelines in the current R­Codes still refer to medium density coding as land generally coded R30 to R60 in the context of the local planning framework.  In her evidence, Ms Butterworth indicated that planners continue to understand and apply density in terms of the density bands and she considered it reasonable to say the application is to increase the density of the site from medium to high.

3. The respondent submitted that the intent of SPP 4.2 is to promote development at a R100 density in higher order centres, such as regional or district centres, with good access to public transport, employment and educational institutions, rather than lower order neighbourhood centres.  It was considered by the respondent that the intent of SPP 4.2 in promoting 'higher density' development meant a density higher than that of the surrounding residential neighbourhood which in this case is predominantly developed at a density of R20 with some R40 grouped housing.

4. The respondent noted the minimum (15 dwellings per gross hectare) and desirable (25 dwellings per gross hectare) performance targets for residential density within neighbourhood centres in Table 3 of SPP 4.2.  The respondent contended that the need to achieve this target formed the central thrust of the applicants' argument and this was flawed for a number of reasons.

5. In the first place, it was argued that the performance targets are notional rather than standards requiring strict adherence and should not be used as a blunt tool for assessment of the proposals.  It was further contended that the focus of strategic planning direction is not to achieve higher density at all costs.  The impact of increasing density needs to be considered in the context of a range of other planning considerations such as the type of centre, surrounding densities, built form impact and location in terms of public transport, employment and other community facilities.  In this regard, reference was made to section 6.2.3 of SPP 4.2 which indicates that density targets should be optimised in local planning strategies, schemes and activity centre plans and premised on housing development that complements the desired scale and intensity of other development in the centre.

1. Secondly, the respondent compared this gross density figure against actual average gross density figures provided for the Perth Central City and other higher order centres for 2010 and 2011 in the WAPC Report Card on Delivering Directions 2013.  This demonstrated that the minimum performance target for a neighbourhood centre had not been achieved in the majority of higher level activity centres in the Perth and Peel region and that the only centres where gross densities came close to this target, were those on high frequency rail routes and those providing higher order services such as Fremantle, Armadale, Stirling, Midland and Subiaco amongst others.  On this basis, the respondent maintained that the gross performance targets in Table 3 are well removed from reality and cannot be effectively achieved in neighbourhood centres with medium density development.

2. Thirdly, the respondent referred to the need and mechanisms in section 6.3.1 of SPP 4.2 for defining activity centre boundaries to ensure that sufficient land was available to accommodate the growth potential and land use diversity for the relevant type and scale of the centre and manage the interface with adjacent land.  It was pointed out, that an activity centre structure plan is not required for a neighbourhood centre under SPP 4.2, as it is less complex and likely to have a mix of uses, but in this case, was a requirement of LPS 17.  It was submitted, that the existing neighbourhood centre had developed in accordance with such a plan under a combination of historic circumstances and this proposal to squeeze high density development into the last remaining site would be an inappropriate attempt to retrofit that plan. 

3. The respondent criticised the methodology for the calculation of walkable catchment set out in SPP 4.2, and used by the applicants in this instance, pointing out that it assumes a typical greenfield situation which seldom exists and can be skewed by a number of factors.  In the case under review, it was submitted that the methodology was flawed, as the centre contained none of the recommended points of reference to undertake the calculation, approximately 25% of the catchment area is bushland and the proposal to add a child care site, further reduced the potential for increased residential density on the site.  During questioning, Ms Butterworth confirmed that her method was not based on a walkable catchment, but on a calculation of lots within the centre.

4. The applicants, in presenting their argument, submitted that the neighbourhood centre had been comprehensively planned and, since its approval in 2008, had required continual modification to keep up with changes in planning practice.  The applicants referred to a significant change in strategic direction since the site was initially developed, expressed in key documents both in the state and local planning framework.  Particular reference was made to the release in 2010 of Directions 2031 and Beyond (Directions 2031) and SPP4.2, which promoted higher densities to meet demands for housing supply, increased housing diversity and affordability and infill residential development in activity centres.  In the local planning framework, the City of Swan Neighbourhood Planning Policy was cited.  This advocates higher densities and diversity near shopping areas and provision of a range of housing types within mixed use community centres.  The applicants emphasised that the current proposal recognised changing demographics in the area and the need to accommodate aged persons, first homebuyers and single households.  In giving evidence, Mr Darby expressed the view that it would not be fair or just to block appropriate medium or high density development within a lower order centre, given the wider policy objectives and the reality that opportunities to promote increased density are limited in many centres.

5. The applicants regarded the performance targets set out in SPP 4.2 for activity centres, as a qualitative tool for achieving these objectives, rather than a blunt instrument.  It was pointed out that there was nothing in Directions 2031 or SPP4.2 which indicated that neighbourhood centres cannot, or should not, satisfy the density targets.  It was submitted that the proposal reflects an attempt to accommodate a range of densities and move closer to the residential density targets in Table 3 of SPP 4.2 within the walkable catchment.  In this regard, Mr Darby expressed the view that the reference in footnote 5 of Table 3 of SPP 4.2, to densities of two to three times the number of dwellings per gross hectare, should be regarded as an average density and there should be an expectancy that the centre would accommodate densities both above and below this range.  Mr Darby explained that the extent of the walkable catchment had been calculated using a ped shed radius of 200 metres, taken from two separate points within the neighbourhood centre, in the absence of the recommended points of reference in SPP 4.2 (rail stations, high frequency bus routes or bus transfer stations).  It was concluded that if the ODP 42 modification is approved, there would be an improvement to the status quo, but the gross density would still fall well below the performance targets for neighbourhood centres as set out in Table 3 of SPP 4.2. Mr Darby acknowledged that there would be delays of up to eight to ten years in achieving density targets in some activity centres, but considered that it was the responsibility of planning to explore opportunities in all activity centres to increase densities, rather than retain lower codings and potentially prejudice the future development of land.

6. The applicants contended that the R100 coding on the subject site represents a medium, rather than high, density development in the context of an activity centre.  In his evidence Mr Darby indicated that although such coding may be considered high density in a suburban context, the current R­Codes removed the bands referring to low, medium or high density codes and now provide separate tables for development in suburban areas and activity centre/mixed use precincts.  In this regard, he drew attention to Table 4 of the R­Codes, which sets out the general site requirements for multiple dwellings in areas coded R30 or greater, within mixed use development and/or activity centres and designates a wide range of codes including five codes higher than R100.  He expressed the view that the built form of the proposal should be the main consideration and that a three storey building is a modest attempt at increasing density.  It was also emphasised that the use will remain residential as contemplated in the current ODP 42 and will not change the status of the area as a neighbourhood centre.

The location of the subject site with regard to employment and educational facilities and access to services and public transport

1. The respondent referred to section 4.4 of the draft Outer Metropolitan Perth and Peel Sub­Regional Strategy (August 2010) which identifies desirable areas for growth in and around retail and employment centres, transit oriented development, high frequency bus routes, and in close proximity to educational institutions and community facilities.  Reference was also made to the City of Swan Local Planning Strategy (LPS) which encourages higher density housing in regional and district centres.  It was submitted that the  neighbourhood centre at Bennett Springs offers only convenience shopping, limited access to employment opportunities, community and educational institutions, and is served by a low frequency bus service.  During questioning, Ms Butterworth conceded that there is some capacity for employment within the centre and the subject site is approximately half a kilometre from Malaga Industrial Area, a significant centre for employment.  The respondent contended, however, that development at R100 density should be premised on less car dependency and if the proposal was approved, would create an isolated high density spot with few facilities, limited parking and a high car dependency.

2. The applicants submitted that the subject site is a targeted location in terms of the planning framework with its status as a well­established neighbourhood centre.  It is conveniently located with regard to the major road network, offers access to daily and weekly shopping facilities, bus stops, a community centre site across the road and public open space.  In giving evidence, Mr Darby referred to some higher order facilities within the centre such as the tavern, medical centre and gym.  The applicants pointed out that the LPS, which recommended higher density in regional and district centres, was adopted in 2008, before the change in policy direction in 2010 associated with Directions 2031 and SPP 4.2.  Although Directions 2031 sets out criteria for selection of locations for increased density, the applicants considered it unreasonable that all would need to be satisfied in each instance.  The site is approximately 200 metres away from a regional reservation for a potential railway or public transport link alongside Reid Highway to Ellenbrook, and both parties agreed that there is potential for an improvement in bus frequency.  The applicants considered that public transport is not a precondition for increased density and cited the potential for affordable and diverse housing in activity centres to provide an incentive for improvements in public transport and increased employment.

Impact of R100 coding on amenity of surrounding locality

1. The respondent submitted that development of the site at a R100 coding, within the flexible provisions of the R­Codes, has the potential to present a building of considerable bulk and scale.  It was contended that there is a significant difference between the urban form of grouped dwellings at a R40 code and three storey multiple dwellings at R100 code.  It was further contended that higher density development should be located within the centre and not on the periphery of the neighbourhood centre.  The respondent argued that the three storey restriction would not address the potential issues associated with development at this higher density.  These include a greater number of dwellings, a greater number of cars, an increase in overall building height and the height of boundary walls, an increase in bulk and scale and a reduction in boundary setbacks.  The respondent argued that three storey R100 development is not appropriately scaled development, given the lower density of adjacent development (R20 and R40) and the existing single storey development within the centre, and would have an adverse impact on the amenity of the area.

2. The applicants submitted that the proposed development of the site at three storeys is in accordance with both the City of Swan Neighbourhood Planning Policy, which specifies a minimum of two storeys, and the Bennett Springs Centre Plan, which recommends development of up to four storeys.  The applicants maintained that the height of the building is not incompatible with the commercial buildings within the activity centre, which are bulky in scale and up to 8.5 metres in height, the two storey dwellings with pitched roofs in close vicinity, and the 50 metre high power line towers approximately 150 metres to the north of the site.  The proposed boundary walls of any development on the subject site would be adjacent to existing accessways within the activity centre and could be effectively screened or treated.  The applicants submitted that this is the only area of the activity centre left to develop and contends that there are sound reasons for not locating such development within the retail centre precinct which include potential noise, odour, light emission and land tenure issues.  Finally, the applicants drew attention to the need for any future development to comply with the provisions of the R­Codes, and that a development application for the north­eastern corner of the site is currently the subject of a separate review to the Tribunal.

Tribunal discussion

1. The respondent's concerns relate primarily to the unsuitability of the subject site for R100 coding in the context of the planning framework, its deficiencies in terms of locational criteria and the potential for an adverse impact on the amenity of the surrounding area.  Both the respondent and the applicants have contrary views on whether the proposed density coding is high or medium density.  The Tribunal takes the view that any interpretation of the level of density will be influenced by its locational context and is likely to differ between a suburban or activity centre context.  The Tribunal agrees with both the respondent's and applicants' view that any proposal for increased density should not be considered wholly from the strategic perspective of promoting urban consolidation, but needs to be considered within the context of a range of planning principles and considerations, particularly its locational context, the built form of the development and its potential impact on surrounding development.

2. A key strategic intent of the current state planning framework contained in the overarching strategic spatial document, Directions 2031 is to provide for adequate housing at higher densities in the Perth and Peel region and to promote diversity and affordability in housing types.  The framework endeavours to provide guidance for the implementation of this aim through its strategic plans and policies, in this case SPP 4.2, which advocates the development of a hierarchy of accessible activity centres providing for retail and commercial needs, employment and housing.  SPP 4.2 provides guidance to local government for the preparation of their local planning framework, and in this regard, the City of Swan has a Local Planning Strategy, a Local Planning Scheme, a Neighbourhood Planning Policy, and the Bennett Springs Centre Plan, all of which provide guidance for development in the area.  The LPS sets out broad objectives for development in the City and both the Neighbourhood Planning Policy and Bennett Springs Centre Plan encourage diversity of housing, a minimum of two storey development and development up to four storeys in activity centres.  The Tribunal notes the general lack of prescription in the plans and policies cited by both the respondent and the applicants in their evidence, and their inherent flexibility for application in a range of varying circumstances.

3. The Tribunal has listened to the complexities of defining walkable catchments under SPP 4.2, discussed by both the respondent and the applicants, but regards this as an indicative, rather than a prescriptive, tool in evaluating density levels in particular localities.  In the cases of both parties, it was illustrated and agreed in evidence given by Ms Butterworth, that the minimum performance density targets in Table 3 of the SPP 4.2 have not been exceeded and that gross density in this activity centre falls well below the desirable standard under SPP 4.2.  The respondent demonstrated the gap between the aims of the State Government with regard to gross densities and the actual situation in existing activity centres, and argued that such performance targets are unrealistic for neighbourhood centres, which provide for a lower level of activity and encourage medium density development.  The Tribunal understands that the existence of low gross densities in activity centres is a function of many factors, including their historical development, inadequacy of infrastructure and land tenure.  The Tribunal considers that evidence of such a gap is not a reasonable justification on its own for retaining lower densities in neighbourhood activity centres and recognises that newer centres, at this and other levels of the hierarchy, may offer more opportunity to meet such targets in the short term. 

4. The Tribunal is of the view that the overriding emphasis of the current State and local planning framework is to encourage a more innovative approach to the provision of housing accommodation in the region, and particularly in activity centres, encompassing more diverse and affordable options, and there is no suggestion that this precludes consideration of a R100 coding in a neighbourhood centre.

5. The Tribunal notes that residents on the subject site will be served by a range of retail and other facilities developed within the existing neighbourhood centre and the site is well located with regard to the potential employment source in the Malaga industrial area.  Whilst it is recognised that the site currently has limited public transport access, it is well positioned in terms of access to a comprehensive road network in this area and to take advantage of future improvements in public transport within the nearby regional reservation under the MRS and around the centre.

6. In terms of impact of the development, the Tribunal agrees with the respondent that the building will be of a greater bulk and scale than grouped dwellings at a R40 code.  During the view of the site, the Tribunal members observed the scale of the retail and commercial centre and its current presentation to Bridgeman Drive.  The north­eastern corner of the subject site is positioned at the rear and less attractive end of the neighbourhood centre and abuts existing accessways on all sides.  The Tribunal also noted that the site was well separated from existing low density residential development and located opposite a vacant residential site to the north and a developed community open space facility site to the east. 

7. The recommended restriction of development on the subject site to three storeys will limit the impact of higher density development in this locality.  The three storey height restriction not only reflects the scale of development in this neighbourhood centre but also facilitates the design of a compatible interface between the neighbourhood centre and the surrounding development. 

8. The Tribunal finds that development of the north­eastern corner of the subject site for residential units, with its north facing orientation to Bennett Springs Drive, has the potential not only to present a built form that addresses streetscape concerns, but also to define the edges of the neighbourhood centre and improve the interface between the existing centre and the surrounding area.  The Tribunal therefore finds that the proposed modifications to the ODP 42 which include a three storey height restriction to the north­eastern corner, would not have an adverse impact on the amenity of surrounding locality.

Conclusion

1. The relevant considerations in the determination of this matter are the interrelated issues of the applicability of a R100 coding in this neighbourhood centre in the context of the planning framework, the locational characteristics of the subject site, with regard to employment and educational facilities and access to services and public transport, and the potential impact of development on the amenity of the surrounding locality.  The Tribunal has determined that the north­eastern corner of the subject site has a number of characteristics which make it suitable for development at this higher density of R100 (but limited to three storeys in height).  The Bennett Springs neighbourhood centre is a well­established centre with good access to a range of commercial and community facilities, in close proximity to a regional road network and future reservations for improved public transport and a major industrial employment centre.  The north-eastern corner of the subject site is well separated from surrounding low density development and provides the opportunity to consolidate the design of the neighbourhood centre and provide a desirable interface with the surrounding area. 

2. For the above reasons, the Tribunal is satisfied that the proposed modifications to ODP 42, as they relate to the subject site, particularly the north­eastern corner (proposed Lot 2), are appropriate and consistent with orderly and proper planning of the locality and therefore should be approved with the additional notation limiting the R100 development to three storeys.

Orders

1. The Tribunal makes the following orders:

   1.The application for review is allowed.

   2.The proposed modifications to Beechboro Land Scheme Outline Development Plan 42 as they relate to No 130 (Lot 927) Bridgeman Drive, Bennett Springs are to be adopted with the following additional notation:

   Residential R100 
   The general site requirements for the R100 coding are varied as follows:  Maximum height of multiple dwellings shall be in accordance with Column 5 of Table 4 of SPP3.1: Residential Design Codes (August 2013) for the R60 coding.

I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS R MOORE, MEMBER