SWANHILL ENTERPRISES PTY LTD and CITY OF PERTH - [2011] WASAT 65

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SWANHILL ENTERPRISES PTY LTD and CITY OF PERTH [2011] WASAT 65

MEMBER: MR D R PARRY (SENIOR MEMBER)
MS R MOORE (SENIOR SESSIONAL MEMBER)

HEARD: 1 AND 2 FEBRUARY 2011 - FURTHER SUBMISSIONS FILED ON 15 FEBRUARY 2011

DELIVERED : 18 APRIL 2011

FILE NO/S: DR 259 of 2010

BETWEEN: SWANHILL ENTERPRISES PTY LTD
Applicant
AND
CITY OF PERTH
Respondent

Catchwords:

Town planning Development application Eight level above basement commercial building Site adjoins Jacob's Ladder on Mt Eliza escarpment Building height Proposed building height of 32.8 metres AHD exceeds maximum building height in Design Policy by 12.2 metres Side setbacks Partly nil side setbacks whereas Design Policy requires minimum 3 metre setbacks Rear setback Maximum height of retaining walls against the scarp Development significantly exceeds maximum height of retaining walls against the scarp and removes most of natural landform of the site Impact on amenity of Jacob's Ladder Impact on area's natural form and visibility Substantially same development previously approved but consent lapsed Orderly and proper planning Consistency in decisionmaking Plans and photomontage presented for previous approval were materially misleading in relation to height of adjoining building and in depiction of apparent height and visual impact of proposed development

Legislation:

City of Perth City Planning Scheme No 2, cl 32, cl 43(4), cl 47
Planning and Development Act 2005 (WA), s 252(1)

Result:

Development application refused

Category: B

Representation:

Counsel:

Applicant: Mr PG McGowan
Respondent: Mr KM Pettit SC with Mr A Roberts

Solicitors:

Applicant: Greg Rowe & Associates (Town Planners)
Respondent: McLeods

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

Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned a development application for the construction of an eight level above basement commercial building on land adjoining Jacob's Ladder on the Mt Eliza escarpment. The City of Perth had previously approved essentially the same development on the site, but refused development approval in this case for reasons including the height and lack of adequate setbacks of the proposal.
The Tribunal determined that the proposed development warrants refusal in the exercise of planning discretion in part because it would have significant and detrimental impacts on the amenity of Jacob's Ladder, which the Tribunal found to be an important and unique public place within the City of Perth. In particular, because of its excessive height, inadequate side setbacks and removal of a substantial part of the escarpment on the site, the proposed development would unacceptably reduce the vista and views to the Swan River, foreshore and city from the upper part of Jacob's Ladder and would have an overbearing impact on users of Jacob's Ladder, given the building's bulk, scale and proximity.
The Tribunal also determined that the proposed development warrants refusal because it would have significant and detrimental impacts on the area's natural form, landscape and visibility when viewed from the Swan River, foreshore and surrounding areas. The Mt Eliza escarpment is recognised as an important element of the setting and image of the City of Perth, preservation which is 'of the highest priority'. The proposed development would remove a substantial part of this important element on the site and would replace it with built form that would block views of the remaining natural landform on the site, the narrow finger of the escarpment to the north-east and part of the escarpment to the southwest, when viewed from different public locations.
The Tribunal also determined that, although consistency is an important principle in administrative decisionmaking in general, and in planning assessment in particular, the City of Perth's previous approval of essentially the same development did not warrant approval of the application. This was because the plans and photomontage presented to the City of Perth for the previous approval were materially misleading in relation to the height of the adjoining development and in the depiction of the apparent height and visual impact of the proposed development. In contrast, the plans presented to the Tribunal were accurate and the Tribunal had the benefit of accurate photomontages presented on behalf of the City of Perth. There was therefore a substantial change in the circumstances between the two applications.
The Tribunal therefore refused the application for development approval.

Introduction

The Book of Genesis records that the patriarch Jacob, fleeing his brother Esau's fratricidal intent:
… departed from Beer-sheba and went toward Haran. He encountered the place and spent the night there because the sun had set; he took from the stones of the place which he arranged around his head, and lay down in that place. And he dreamt, and behold! A ladder was set earthward and its top reached heavenward; and behold! angels of God were ascending and descending on it. (Genesis chapter 28 verses 10 12, translation from Hebrew in The Chumash The Stone Edition (Mesorah Publications, Brooklyn, 1998) page 145)
At Mt Eliza in Perth, some distance to the southeast of Mount Moriah in Jerusalem, which is 'the place' where Jacob dreamt of a ladder connecting earth and heaven, there is a set of 242 concrete steps and landings named after Jacob's comforting vision and known as 'Jacob's Ladder' (Jacob's Ladder). Jacob's Ladder rises approximately 42 metres from 6 metres Australian Height Datum (AHD) to the top of the Mt Eliza escarpment at RL 47.7 metres AHD and connects the lower and upper formed sections of Cliff Street through a 74 metre long unformed part of the Cliff Street road reserve. Jacob's Ladder is located in an attractive landscaped setting on the escarpment formed by trees and plants on the unformed Cliff Street road reserve to the southwest of the steps and landings and on private land to the north-east that is the subject of this proceeding.
While the evidence before the Tribunal does not indicate whether angels ascend and descend Jacob's Ladder, it does establish that Jacob's Ladder is included in the Register of Places of Cultural Heritage Significance under cl 32 of the City of Perth City Planning Scheme No 2 (CPS 2 or Scheme) and is an important and unique public place within the City of Perth. Jacob's Ladder is used by large numbers of people for fitness and as a means of access between the Central Business District and the Swan River foreshore at the bottom of the escarpment and King's Park and its environs at the top of the escarpment. The lookout at the top of Jacob's Ladder and the upper portions of Jacob's Ladder itself provide panoramic views of the City of Perth, King's Park and the Swan River.
The significance of the Mt Eliza escarpment is recognised in planning policy of the City of Perth (City or Council) as follows:
The escarpment, along with the city skyline, Perth Water, foreshore parklands and Mt Eliza, complete the unique setting and image of Perth City. Preservation of this setting and image is therefore of the highest priority. Development atop or at the foot of the escarpment will be subject to strict height control and design and development standards to protect the predominance of the escarpment. (Precinct P10: West Perth Precinct Plan (West Perth Precinct Plan) page 10 13)
This proceeding involves an application brought by Swanhill Enterprises Pty Ltd (Swanhill), pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for review of the decision of the Council to refuse development approval of the construction of an eight level above basement commercial building at No 130B Cliff Street, Perth (site). The site has an irregular shape proximate to the lower formed section of Cliff Street, an otherwise roughly rectangular shape, and an area of 1,862 square metres. The southwestern boundary of the site, which has a length of 72.4 metres, adjoins essentially the whole of Jacob's Ladder.
Other than a relatively flat, irregularly shaped section occupying about a quarter of the site adjacent to the lower formed section of Cliff Street, the site is very steep as it comprises part of the Mt Eliza escarpment. In total, the site rises by 43 metres, from 2 metres AHD to 45 metres AHD, over a distance of 94 metres. Excluding the relatively flat part of the site adjacent to the lower formed section of Cliff Street, the site rises by 39 metres, from 6 metres AHD to 45 metres AHD, over a distance of only 55 metres to 60 metres.
The site is located Precinct P10: West Perth Precinct (West Perth Precinct) and the Residential/Commercial Use area under CPS 2. The site is also subject to the Mount Street Design Policy (Design Policy), which is a planning policy under CPS 2, and is located in height control area 5 under the Design Policy.
Whereas cl 2.3.1 of the Design Policy specifies a maximum building height of 20.6 metres AHD within height control area 5, the proposed building would have a height of 32 metres AHD and 32.8 metres AHD to the top of the lift overrun and plant room. The height of the proposed building would be over 12 metres greater than the height of the adjoining Adelphi Centre (20.55 metres AHD) to the northeast and the adjacent (across Cliff Street) Park Lane Apartment Building (20.28 metres AHD) to the southwest.
Whereas, under cl 2.3.2 of the Design Policy, the maximum height of retaining walls against the scarp in height control area 5 is 4 metres above natural ground level, measured from the centre of the front boundary of the site, the proposed development includes retaining walls with a combined height of 24.3 metres. The proposed development would involve the removal of a substantial portion of the natural land form of the site, with the building and associated built form occupying over three quarters of the site area. The only part of the site in which the natural land form of the escarpment would remain is the rear or north-west portion, having a width of 20 metres and a depth of 20 metres to 25 metres and occupying about one quarter of the site area.
Under cl 2.3.2 of the Design Policy, side setbacks of 3 metres are required to side boundaries in order to maintain vistas between buildings. The proposed development includes three sections with nil setbacks to Jacob's Ladder (of which two would rise to 6 metres and 6.5 metres above natural ground level) and would otherwise be generally set back between 1 metre and 3 metres from Jacob's Ladder, with the narrower setback generally adjoining the upper and middle parts of Jacob's Ladder and the greater setback adjoining the lowest part of Jacob's Ladder. As the southwestern and southern façade of the building would project at an angle away from, and ultimately curve away from, Jacob's Ladder, the setback from Jacob's Ladder would generally progressively increase towards the base of Jacob's Ladder. Adjacent to the lowest 8 metres of Jacob's Ladder, the setback of the proposed building would increase substantially from 3 metres to 6 metres. On the opposite, northeastern side, where the site adjoins the Adelphi Centre which contains a mix of short stay and permanent residential accommodation, the building would include two substantial boundary walls (nil setbacks) with lengths of 19 metres and 16.5 metres, ranging between 1.6 metre and 10.8 metres in height above natural ground level. Above the northeastern boundary walls, the proposed building would comprise four to five levels with a setback of 3 metres to the Adelphi Centre property.
For reasons discussed below, the correct and preferable decision in this case is to affirm the Council's refusal of the proposed development principally because of its significant and detrimental impacts on the amenity of Jacob's Ladder and on the area's natural form, landscape and visibility when viewed from the Swan River, the foreshore and the surrounding area, due to its excessive height, removal of a substantial part of the escarpment on the site and inadequate side setbacks. Because of these elements, the proposed development:
•is not 'sympathetically designed' in relation to Jacob's Ladder;
•does not '[p]rotect the area's natural form and visibility from the Swan River, foreshore and surrounding area';
•does not '[m]aintain and enhance the predominance and quality of landscape and open space in the public and private domains to reduce the impact of buildings';
•does not 'reflect the natural landform by creating a cascading effect towards the escarpment, ensure the protection of the existing scarpline, and provide for vistas to the scarp and views between buildings to the scarp and Swan River';
•does not '[preserve the] setting and image [of the Perth City which is] of the highest priority'; and
•does not 'protect the prominence of the escarpment',
which are all objectives of the relevant planning framework.

Issues

The following four principal issues require consideration in this review:
1)Are the requirements of cl 3.2 of the Design Policy satisfied so that approval may be granted for the proposed development despite its non-compliance with the standards or requirements of the Design Policy relating to maximum building height, side setbacks and rear setbacks?
2)On the basis of the non-compliance with the Design Policy:
a)does the development application constitute a 'non-complying application' for the purposes of cl 47 of CPS 2; and
b)if the answer to a) is 'yes', does the proposed development satisfy the requirements of cl 47 of CPS 2 for approval to be granted?
3)Is the proposed development consistent with the West Perth Precinct Plan?
4)Does the principle of consistency in decision-making as an element of orderly and proper planning warrant approval of the proposed development?
The Tribunal will address each of these issues in turn.

Are the requirements of cl 3.2 of the Design Policy satisfied?

The objectives of the Design Policy include:
…
•Protect the area's natural form and visibility from the Swan River, foreshore and surrounding area.
…
•Maintain and enhance the predominance and quality of landscape and open space in the public and private domains to reduce the impact of buildings. …
Clause 2.3 of the Design Policy, which is entitled 'Built Form', has the following objective:
The built form should reflect the natural landform by creating a cascading effect towards the escarpment, ensuring the protection of the existing scarpline, and provide for vistas to the scarp and views between buildings to the scarp and Swan River.
As noted in the introduction to these reasons, the site is located in height control area 5 under the Design Policy and is therefore subject to a maximum height of 20.6 metres AHD under cl 2.3.1 of the Design Policy. As also noted in the introduction, the site is subject to the following setback controls under cl 2.3.2 of the Design Policy:
Side Setbacks
Side setbacks of 3.0 m will be required to both side boundaries in order to maintain vistas between buildings. …
Rear Setback
…
•In Area … 5 … the maximum height of retaining walls against the scarp shall be 4 metres above natural ground level (NGL) measured from the centre of the front boundary of the site.
As noted earlier, the proposed development would have:
•a height of 32 metres AHD and 32.8 metres AHD to the top of the lift overrun and plant room;
•three sections with nil side setbacks to the south-western boundary with Jacob's Ladder, with the building generally set back between 1 metre and 3 metres to the southwestern boundary, increasing from 3 metres to 6 metres adjacent to the southernmost 8 metres of the boundary;
•nil setbacks to the north-eastern boundary with the Adelphi Centre property for two walls with lengths of 19 metres and 16.5 metres and heights ranging between 1.6 metres and 10.8 metres above natural ground level and setbacks of 3 metres for four to five levels above the boundary wall; and
•retaining walls against the scarp with a combined height of 24.3 metres.
Part 3 of the Design Policy is entitled 'General Provisions' and includes cl 3.2 which is entitled 'Variations to the Policy Provisions'. Clause 3.2 of the Design Policy states, in part, as follows:
The Council, in dealing with an application within the policy area, may relax specific provisions of the policy where it is of the opinion that the proposed development fulfils the objectives of the policy, conserves a place of cultural heritage significance, and does not adversely affect the amenity of the area.
Mr KM Pettit SC, who appeared with Mr A Roberts on behalf of the City, submitted that, as the site is not a place of cultural heritage significance, cl 3.2 of the Design Policy cannot be used to relax the maximum height, side setbacks or rear setback/maximum height of retaining walls against the scarp provisions of the Design Policy. In contrast, Mr PG McGowan, counsel for Swanhill, submitted that 'it would make no sense at all to limit [cl 3.2] to only places of cultural heritage significance' and that 'the only proper and sensible construction of cl 3.2 of the policy is by inserting the words ["]if applicable["] before ["]conserves["]'.
The Tribunal considers that Swanhill's submission in relation to the proper interpretation of cl 3.2 of the Design Policy is correct for the following two reasons. First, the power to relax specific provisions of the policy is contained in a general variation provision, rather than in a provision directed solely to heritage conservation. There is nothing in the text or context of cl 3.2 or elsewhere in the Design Policy to indicate that the power of variation is conferred solely for heritage conservation purposes. Secondly, the evident purpose of the power to relax specific provisions of the Design Policy conferred by cl 3.2 is to be beneficial for development by providing flexibility in the application of development standards prescribed by the Design Policy. It would be contrary to the beneficial purpose of the clause to read it in the manner contended by the City.
On its proper interpretation, therefore, cl 3.2 of the Design Policy is to be read as if the words 'if applicable' appeared before the words 'conserves a place of cultural heritage significance'. As the site does not comprise a place of cultural heritage significance, the conditions precedent set by cl 3.2 of the Design Policy, in order for the Council (and the Tribunal on review) to have discretion to relax specific provisions of the policy, are that the consent authority must be satisfied that:
•the proposed development fulfils the objectives of the policy; and
•the proposed development does not adversely affect the amenity of the area.
The Tribunal does not consider that the proposed development fulfils the objectives of the Design Policy, and considers that the proposed development adversely affects the amenity of Jacob's Ladder, which is, as found earlier, an important and unique public place, and the area comprising the Mt Eliza escarpment in the locality of the site, which is recognised as part of the unique setting and image of Perth City and is 'of the highest priority', for the following reasons.
The City called Mr John Cleary, a landscape planner with 25 years' experience in landscape and visual assessment, to give evidence. Mr Cleary generated three-dimensional computer depictions of the proposed development and of a notional development that complies with the development standards under the Design Policy and carried out a detailed visual assessment of the proposal from key representative viewing locations. Mr Cleary summarised the outcomes of the visual assessment from a number of these locations as set out below. Mr Cleary's evidence is borne out by the photo-montages combining the three-dimensional depictions of the proposed development with the existing views that form part of his landscape assessment.

The Tribunal therefore accepts Mr Cleary's evidence except in relation to one of the locations referred to in para (a) in the quotation below, namely, location 1b, which is a view to the site from Spring Street across the currently vacant 'Emu Brewery' development site. Based on the evidence of Mr Gregory Rowe, a consultant town planner called by Swanhill, and Mr Dewald Gericke, the City's Co-ordinator Statutory Town Planning, the Tribunal finds that the site would not be visible from viewing location 1b if the Emu Brewery site were developed in accordance with the current proposal for that property because of a change in levels between Spring Street and the Emu Brewery site. Mr Gericke considered that the proposed development would be apparent from a large publicly accessible area within the proposed development on the Emu Brewery site. However, as the ultimate form of development on the Emu Brewery site is not known at this stage with certainty, the Tribunal has ignored viewing location 1b in Mr Cleary's analysis.
Mr Cleary's visual assessment from the other viewing locations referred to in the quotation below demonstrates, to quote Mr Cleary, 'that there will be substantial effects on the visibility of the escarpment and on the experience of those using Jacob's Ladder if the building was allowed with a 32.8 metre height … ' and, therefore, that the proposed development does not fulfil the objectives of the Design Policy referred to earlier and would adversely affect the amenity of the area. Mr Cleary gave the following evidence:
(a)From [L]ocations 1b [Spring Street across from the Emu Brewery development site] and 23 [western edge of the freeway to the northeast of the site], the proposed building completely blocks the view to the escarpment that is framed by the two rows of buildings to the north of Mounts Bay Road. The building blocks over half of the existing view of the escarpment.
(b)From Locations 4 and 5 [King's Park], the top of the building is lower than the view locations and there is a good overview of the building in its setting of other buildings. Over half of the southwest face of the proposed building can be seen. The rear of the building partly blocks views to the narrow, north-east part of the escarpment. The Scheme allowed building envelope [that is, a building compliant with the built form development standards in cl 2.3 of the Design Policy] appears to be quite consistent in form and height with adjacent buildings.
(c)From Location 5 [King's Park][,] the added height of the building is quite apparent and it appears to be substantially higher than the buildings abutting Mounts Bay Road. It also appears to be much bigger than the buildings to the north-east (near Mounts Bay Road).
(d)From [Location] 7c [Mounts Bay Road close to the intersection of the lower formed section of Cliff Street][,] the building, even though it is set back from Mounts Bay Road, completely blocks the view of the escarpment seen from this location, with nearly half the building seen against the skyline. It is clear that the building is taller than the Adelphi [Centre] but from this close it is harder to directly compare.
(e)From [L]ocations 9a and 9b [Swan River foreshore to the west of the Bell Tower], the building is seen above the vegetation on Mounts Bay Road (ie plane trees) and surrounding areas. The building appears to be the largest building in the Mounts Bay Road area. The building blocks over half of the existing view of the escarpment (above its footprint).
(f)From [L]ocations 15 [western side of the Narrows Bridge] and 19 [Swan River foreshore to the west of the northern end of the Narrows Bridge], most of the upper part of the building is seen above the vegetation on Mounts Bay Road (ie plane trees) and surrounding areas. The other buildings, apart from the [Mount] [H]ospital, are well screened by this vegetation and the height of this building creates a substantial contrast. The building blocks close to half of the existing view of the escarpment (above its footprint) from this location.
(g)From [L]ocation 20 [western edge of freeway to the south-east of the site], a large part of the building is seen above the vegetation on Mounts Bay Road (ie plane trees) and surrounding areas. By contrast, the buildings to the south-west are well screened by this vegetation. The building appears to be the largest building in the Mounts Bay Road area. The building blocks approximately two thirds of the existing view of the escarpment (above its footprint from this location).
(h)In all these cases, except that described in paragraph … (d) [Mounts Bay Road close to the intersection of the lower formed section of Cliff Street], a building of the Scheme allowed building envelope (with 20.6 [metre] height) would have no effect on views to the escarpment, mainly due to the good screening effect of the trees to the south-east of the site.
(i)The proposed building creates a substantial impact on views to the escarpment from substantial parts of the surrounding area, mainly due to its 32.8 metre height.
Having regard to Mr Cleary's visual assessment, the plans of the proposed development and the context of the surrounding locality, the Tribunal also accepts the following evidence of Mr Gericke in relation to the height of the proposed development:
In my view, the excessive height of the building will make it highly visible against the Escarpment when viewed from the Swan River, foreshore and surrounding areas. The proposed development would interrupt the visibility of the area of the Escarpment above the area 5 buildings. A compliant development would maintain an unbroken view of the Escarpment above these buildings.
This visual impact is exacerbated by the extent to which the building extends towards the rear of the Site. When viewed obliquely from the Escarpment, there is a distinct line at the foot of the Escarpment beyond which existing development does not intrude. The proposed development extends well beyond this line, thereby giving it a greater prominence over and above that which would follow from its height alone. For these same reasons, the second of the above objectives ['Maintain and enhance the predominance and quality of landscape and open space in the public and private domains to reduce the impact of buildings'] is not fulfilled, as the proposed building would not maintain or enhance the predominance and quality of the landscape in the public domain (ie the Escarpment) to reduce the impact of the building. In my view, it would have the opposite effect. …
The proposed development adversely affects the amenity of the area in several ways. First, as discussed above, it impacts negatively on views of the Escarpment. This is an adverse impact on visual amenity. Secondly, the development would impact on the amenity of the occupants of the Adelphi Centre who enjoy an aspect to the south-west. This would be dominated by a large, tall building within a few metres of the outer windows and balconies of these units.
Thirdly, the development would impact on the amenity of those using Jacob's Ladder. There are two amenity impacts in this regard. The first is an impact on visual amenity as the building would obscure more views of the City and Swan River compared to compliant development. Secondly, the building would have an overbearing impact on users of Jacob's Ladder given its bulk, scale and proximity to this facility. The development in my view would therefore impact adversely on Jacob's Ladder which is an important public facility and registered under the CPS 2 as having important cultural heritage significance.
Mr Rowe considered that the building height provision of the Design Policy should be relaxed, as the proposed development fulfils the objectives of the policy and does not adversely affect the amenity of the area, for essentially seven reasons. First, Mr Rowe said that 'the overall height of the building being 32 metres AHD allows for a considerable portion of the escarpment to be viewed above the highest point of the development'. Mr Rowe suggested that the proposed development would 'protect the area's natural form and visibility' by retaining the rear 20 to 25 metres of the natural landform within the site and by enabling visibility of that part of the site from the Swan River, foreshore and surrounding area. However, as Mr Cleary's photo-montages demonstrate, when viewed in perspective, the proposed development would block the view of the relatively small part of the natural landform that would be retained on the site from most viewing positions and would also block the narrow finger of the escarpment to the north-east from King's Park and part of the escarpment to the south-west of the site when viewed from the east.
Secondly, Mr Rowe referred to and relied upon the approval by the City on 19 February 2008 of essentially the same development on the site as the proposed building which is the subject of this proceeding. That earlier development approval lapsed on 19 February 2010 as the development was not commenced by that date. However, the plans and photo-montage presented to the City for its decision on 19 February 2008 were materially misleading in relation to the height of the Adelphi Centre and the depiction of the apparent height and visual impact of the proposed development. In particular, the plans of the south-east or Cliff Street elevation (erroneously called 'north-west elevation') (DA 14) and the north-west elevation (erroneously called 'south-east elevation') (DA 15) and the comparative massing drawings for the south-east or Cliff Street elevation (erroneously called 'north-west elevation') (DA 18) and the south-west elevation (erroneously called 'north-east elevation') (DA 19) each depicted the Adelphi Centre as having a height in excess of 28.30 metres AHD, whereas the actual height of the Adelphi Centre is 20.55 metres AHD. The plans presented by Swanhill for approval by the City in February 2008, therefore, showed the Adelphi Centre as two and a half storeys higher than it actually is and only one storey lower than the proposed development, whereas, in fact, the Adelphi Centre is three and a half storeys lower than the proposed development.
Furthermore, as Mr Cleary demonstrated to the Tribunal, the photo-montage presented by Swanhill in its application for approval in February 2008 of the view of the proposed building from the top on Jacob's Ladder gave an entirely misleading impression of the height of the proposed development, both in absolute terms and relative to the height of adjoining and adjacent buildings. The photo-montage showed the height of the proposed development as essentially the same as the Adelphi Centre and the Park Lane Apartment Building. However, the Adelphi Centre, which has a height of 20.55 metres AHD, and the Park Lane Apartment Building, which has a height of 20.28 metres AHD, are both over 12 metres lower than the proposed development. Mr Cleary's photo simulation, based on the view generated with three dimensional modelling, from close to the same viewing position as in Swanhill's photo-montage, shows that the proposed development would appear considerably higher, both in absolute terms and relative to the adjoining and adjacent buildings. The level of inaccuracy in Swanhill's photo-montage is apparent from the fact that, whereas in its photo-montage, the whole of the roof and the uppermost three to four storeys of the south-western elevation of the Adelphi Centre are visible to the left of the depiction of the development, in the photo simulation produced by Mr Cleary, only a sliver of the north-eastern edge of the roof and none of the south-western elevation of the Adelphi Centre is visible, because the rest of the roof and the whole of the south-western elevation of the Adelphi Centre would be blocked by the proposed development. Swanhill did not dispute the accuracy of Mr Cleary's depiction of the height of the proposed development.
In these circumstances, the approval of essentially the same development on 19 February 2008 does not assist Swanhill in establishing that the proposed development fulfils the objectives of the Design Policy and does not adversely affect the amenity of the area.
Thirdly, Mr Rowe referred to the fact that the Design Policy specifically allows buildings of 32 metres AHD in height on the western boundary of height control area 4, which is located to the north-east of the site. Height control area 4 comprises land referred to as the 'FAI site'. Mr Rowe expressed the opinion that 'the inclusion of the maximum height of the westernmost building on the FAI site of 32.0 metres AHD into the Mount Street Design Policy indicates that building height to the level of 32.0 AHD metres is acceptable … in the locality'. However, as Mr Gericke explained, the Design Policy allowed a building of 32 metres AHD at the western end of height control area 4, because five years before the adoption of the Design Policy, the Minister for Planning and Infrastructure had, on appeal, approved the construction of a building of that height in that location. As Mr Gericke said, 'the maximum building height specified by the Design Policy for buildings further to the west of [the building approved by the Minister for Planning and Infrastructure] is 20.6 metres AHD and was intended to prevent further height variations being sought on the basis of precedent'. Therefore, rather than indicating that building height to the level of 32 metres AHD is acceptable in the locality, including on the site, the specific contemplation of a building of 32 metres AHD at the western end of the FAI site and the specification of a maximum height of 20.6 metres AHD for height control area 5, including the site, shows that a building height of 32 metres AHD is not acceptable in the locality, except on one specific property.
Fourthly, Mr Rowe suggested that 'the quality of the landscape in the private domain, being the Review Site, is substantially maintained and improved [by the proposed development] … through the retention of a significant portion of the Review Site as open space, being the escarpment, and through the provision off additional landscaped open space as part of the landscaped roof'. However, the proposed development would remove approximately three quarters of the natural landform, including substantial landscape on the site. While the 'landscaped roof' would be apparent from the top of Jacob's Ladder, the 12 metre high section of the proposed building that exceeds the maximum height standard under the Design Policy would significantly or entirely block important views of the Swan River and foreshore that are presently available from the upper part of Jacob's Ladder, as shown by Mr Cleary's photo-montage for Location 7i in that area.
Fifthly, Mr Rowe expressed the opinion that 'there is no "specific rationale" contained within the Mount Street Design Policy regarding the requirement for the differentiation in height limits between the specific building height areas prescribed' and suggested that a 'more logical' line of demarcation between a 32 metre AHD height control area and a 20.6 metre AHD height control area is not at the western end of height control area 4, but on the eastern side of the unformed portion of the Cliff Street road reserve, that is, at the site. However, as Mr Gericke said, the 'specific rationale' for the differentiation of height limits in the height control areas is found in the objective of cl 2.3 of the Design Policy, namely:
The built form should reflect the natural landform by creating a cascading effect towards the escarpment, ensure the protection of the existing scarpline, and provide for vistas to the scarp and views between buildings to the scarp and Swan River.
Furthermore, it is understandable that the Design Policy would specifically contemplate a height limit of 32 metres AHD at the western end of the FAI site, given that a building of that height had been recently approved and constructed as at the date of the adoption of the Design Policy.
Sixthly, Mr Rowe suggested that 'the affected part of the escarpment is a small part of the total escarpment therefore the impact is low'. However, as Mr Gericke and Mr Cleary said, the height control in the Design Policy applies to a specific area and to each property in that area 'and within that context the impact is substantial, and furthermore, it is seen from a large area, creating an overall high level of impact'.
Finally, Mr Rowe said that the area of the escarpment comprising the site is less important than other parts of the escarpment and that, in particular, 'the most important and visually significant section of the escarpment [is] to [the] south of the Review Site where the escarpment abuts Mt Eliza and King's Park'. However, the Design Policy applies to a specific part of the escarpment with the intention of protecting that area's natural form and visibility from the Swan River, foreshore and surrounding area, and maintaining and enhancing the predominance and quality of landscape and open space in the public and private domains within that area, to reduce the impact of buildings. The proposed development is, in part because of its excessive height, inconsistent with the objectives of the Design Policy.
As noted earlier, cl 2.3.2 of the Design Policy sets a minimum setback of 3 metres 'to both side boundaries in order to maintain vistas between buildings'. As Mr McGowan submitted, it appears that this provision is not directed to setbacks from a road frontage, including a frontage to an unmade road such as Cliff Street to the south-west of the site, because there are no 'vistas between buildings' at a road frontage. However, cl 43(4) of CPS 2 requires the Council (and the Tribunal on review), in determining a development application, to have regard, among other considerations, to:
…
(h)the conservation of the amenities of the locality;
(i)the design, scale and relationship to existing buildings and surroundings (including heritage and environmental surroundings) of any proposed building; [and]
(j)the cultural heritage significance of any land or building affected by the proposed development.
As Mr Gericke said, the proposed development would have a significant detrimental impact on the amenity of Jacob's Ladder because of its design and scale. In particular, the excessive height of the proposed development, its removal of a substantial part of the natural landform of the escarpment on the site and its inadequate setbacks, including two substantial parts with nil setbacks and a general setback of only 1 metre to 3 metres, in Mr Gericke's words, 'unacceptably reduces the vista and views to the city and the Swan River as viewed from Jacob's Ladder' and 'would have an overbearing impact on users of Jacob's Ladder given its bulk, scale and proximity to this facility'. Photomontages prepared by Mr Cleary as part of his visual assessment from Locations 7d, 7i and 7k on Jacob's Ladder confirm the correctness of Mr Gericke's evidence and demonstrate, in Mr Cleary's words, 'that there will be substantial effects … on the experience of those using Jacob's Ladder if the building was allowed with a 32.8 metre height and nil setback on substantial lengths of the sides'.
Mr Rowe considered that the proposed development would have an acceptable impact on Jacob's Ladder, because the design of the development provides for passive surveillance of the Ladder, thereby increasing public security, there would be an opportunity for some social interaction between terraces on the southwestern part of the proposed development and users of the Ladder, and Swanhill has proposed displaying artworks on the sections of the development with nil setbacks to the Ladder.

The Tribunal considers that, although the elements referred to in the previous paragraph are positive, they do not sufficiently mitigate the significant and detrimental amenity impacts of the proposed development on Jacob's Ladder, which is a heritage item under CPS 2 and an important and unique public place in the City, used by many people for fitness and as a means of access across the Mt Eliza escarpment.
In relation to the proposed setbacks to the Adelphi Centre property to the north-east, the Tribunal accepts the following evidence from Mr Gericke:
The nil setback to the common boundary of the Adelphi Centre would produce an unsatisfactory vista between the existing and proposed buildings compared to the vista which would be created if a minimum 3 metre setback was provided. The nil setback would not be consistent with the previously mentioned objectives of the Design Policy because the boundary walls would detract from, rather than protect, the visibility of the escarpment. In addition, the nil setbacks would not maintain (or enhance) the predominance of the Escarpment, as an aspect of landscape in the public domain. Rather, the nil setbacks would have an adverse affect on the visual amenity of the area.
Mr Rowe considered that the objectives of the Design Policy are fulfilled and that the proposed development does not adversely affect the amenity of the area, notwithstanding the nil setbacks of the two walls proposed on the northeastern boundary of the site, because the boundary walls would be constructed of 'high quality stone', the Adelphi Centre is set back 2.5 metres from the common boundary and there would be a 3 metre wide vista above level 4 of the proposed building. However, the proposed development is inconsistent with the intent of the setback requirement 'to maintain vistas between buildings' and would present as a substantial building directly on the north-eastern boundary of the site when viewed from the street and the Adelphi Centre. In part because of the inadequate setbacks on the north-eastern boundary, the proposed development clearly does not protect the area's natural form and visibility or maintain and enhance the predominance and quality of landscape and open space in the private domain to reduce the impact of buildings. The nil setback of two substantial walls abutting the Adelphi Centre property would also adversely affect the amenity of that property due to their bulk and scale, notwithstanding the proposal to use 'high quality stone'.
Mr Rowe and Mr Gericke agreed that the objective of the rear setback/maximum height of retaining walls against the scarp development standard in cl 2.3.2 of the Design Policy is to limit the extent to which a development can excavate into and up the escarpment and thereby to preserve views of the escarpment. The proposed development would remove a substantial part of the natural landform of the escarpment on the site and would replace it with substantial built form which involves and necessitates retaining walls with a combined height of 24.3 metres. As Mr Gericke said:
As the proposed development significantly exceeds the rear setback due to the height of the retaining walls proposed it also extends much further to the rear of the Site thereby protruding into the rear setback which was intended to protect the Escarpment. This is directly inconsistent with the objective of the policy to 'maintain and enhance the predominance and quality of landscape and open space in the public (ie the Escarpment) and private domains to reduce the impact of buildings'. For the same reasons, the proposed retaining walls would result in an adverse effect on the visual amenity of the area.
Mr Rowe gave evidence, with which Mr Gericke agreed, that strict compliance with the maximum height of retaining walls against the scarp development standard of 4 metres above natural ground level 'would in effect limit development of the [site] to forward of the 6.5 [metre] AHD contour'. This translates to a developable area of approximately 412 square metres. Mr Rowe said that this would 'severely restrict any development of the [site]'. Mr Gericke did not disagree with Mr Rowe's evidence in this regard. Mr Gericke suggested that some variation of the rear setback standard would be appropriate and in particular that 'it would make sense from a planning point of view to match the adjoining and adjacent buildings'.
For the reasons explained by Mr Gericke, the significant exceedance of the rear setback/maximum height of retaining walls against the scarp development standard in cl 2.3.2 of the Design Policy undermines the objectives of the Design Policy to 'protect the area's natural form and visibility from the Swan River, foreshore and surrounding area' and 'maintain and enhance the predominance and quality of landscape and open space in the public and private domains to reduce the impact of buildings'. Also for the reasons given by Mr Gericke, the significant exceedence of the standard adversely affects the amenity of the area, in particular the amenity of Jacob's Ladder and the Adelphi Centre. From Jacob's Ladder, the excavation and removal of a substantial portion of the escarpment on the site and its replacement with a high building with minimal setbacks to Jacob's Ladder in its upper and middle parts would significantly reduce the amenity of this important public place. From the Adelphi Centre, the extension of the building substantially beyond the rear setback established by the standard also substantially reduces amenity by removing natural landform and landscape and replacing it with a substantial building of considerable bulk and scale in that part of the site.
As the town planning expert witnesses agreed, some relaxation of the rear setback development standard is appropriate to enable development of the site. While it is unnecessary to express a considered view in this proceeding, the setback line suggested by Mr Gericke, that is, matching the rear setbacks of the Adelphi Centre and the Park Lane Apartment Building, appears sensible. Such a setback is likely to fulfil the objectives of the Design Policy and not adversely affect the amenity of the area, provided that the other relevant standards were observed.
It follows that the requirements for the exercise of the relaxation power under cl 3.2 of the Design Policy are not satisfied in the circumstances of this case and the maximum height, minimum side setbacks and minimum rear setback/maximum height of retaining walls against the scarp standards cannot be varied under cl 3.2 of the Design Policy in this case.

Does the proposed development constitute a 'non-complying application' for the purposes of cl 47 of CPS 2?

Clause 47(3) of CPS 2 states that 'the Council cannot grant planning approval for a non-complying application' unless it is satisfied of certain matters. However, a 'non-complying application' is defined in cl 47(1)(a) of CPS 2 as 'an application which does not comply with a standard or requirement of this Scheme (including a standard or requirement set out in a planning policy or in a relevant precinct plan), where the standard or requirement does not provide for any permitted variation' (emphasis in bold added). While the proposed development does not comply with the maximum height, minimum side setbacks (on the north-eastern boundary) and minimum rear setback standards set out in the Design Policy, the relevant standards do provide for permitted variation by means of cl 3.2 of the Design Policy. It follows that the proposed development is not a 'non-complying application' for the purposes of cl 47 of CPS 2.

Is the proposed development consistent with the West Perth Precinct Plan?

The West Perth Precinct Plan requires that development 'shall comply' with the Design Policy. In particular, the West Perth Precinct Plan states, in relation to setbacks, that 'buildings setbacks shall be consistent with the Mount Street Design Policy' and, in relation to building height, refers to the Design Policy 'with regard to development height controls'. The West Perth Precinct Plan also contains the following within its statement of intent:
The Mount Street/Mounts Bay Road area south of Malcolm Street shall predominantly remain and be consolidated as an inner city residential area with the Mt Eliza escarpment being the principal natural feature. This area, adjoining King's Park, is highly visible from the Swan River, the foreshore and surrounding areas and its natural form will therefore be protected and enhanced.
… New development in the vicinity of heritage items will be sympathetically designed. Overall there will be a predominance of landscaping in the Precinct on both private and public land to reduce the impact of buildings and ensure a close harmony between the well vegetated escarpment, King's Park and the Precinct. Existing vegetation should be preserved as much as possible.
For reasons discussed in relation to issue 1, the proposed development is inconsistent with these various provisions of the West Perth Precinct Plan. In particular, the proposed development would have a significant and detrimental impact on 'the principal natural feature', namely, the escarpment, within the site, and on the visibility of the escarpment from the Swan River, the foreshore and surrounding areas. The proposed development is also not 'sympathetically designed' with respect to Jacob's Ladder, because of its excessive height, inadequate side setbacks and excessive removal of the natural landform from the site. As Mr Gericke said:
The proposed development is inconsistent with the West Perth Precinct Plan. The height of the proposed development together with its nil side setbacks and significant retaining walls would make it a highly visible feature from the Swan River, Barrack Square, the city foreshore, the open spaces between the city foreshore and Mounts Bay and from the Mitchell Freeway against the Mt Eliza Escarpment. It would not protect or enhance the Escarpment's natural form; it would diminish the Escarpment's visual presence.
Further, in my opinion, the visual impact of the building would produce disharmony between the well-vegetated Escarpment and the precinct because it would introduce a highly prominent built form and disrupt views of the Escarpment from significant vantage points. The view of the Escarpment, linking it with King[']s Park, is one of the City's major attractions and a most important topographical feature with a very significant view.

Does the principle of consistency in decision-making warrant approval of the proposed development?

In Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71 (Hanson), the Tribunal said, at [54]:
In circumstances where the planning framework is the same and the circumstances have not changed in any substantial way, it is in the interests of orderly and proper planning that planning decisions in relation to a site are made in a consistent way.
As noted earlier, on 19 February 2008, the Council granted development approval for essentially the same development as is now proposed. While the planning framework is the same as was applicable on 19 February 2008, the circumstances have changed in a substantial way because, for reasons found earlier, the plans and photo-montage presented to the Council for approval in February 2008 were materially misleading in relation to the height of the Adelphi Centre and in the depiction of the apparent height and visual impact of the development, whereas the plans presented to the Tribunal are correct and the Tribunal has the benefit of an accurate photo simulation of the apparent height and visual impact of the development from the top of Jacob's Ladder provided by Mr Cleary.
Consequently, although consistency is an important principle in administrative decision-making in general, and in planning assessment in particular, the principle referred to in Hanson at [54] is not applicable because of changed circumstances.
It follows that, unusually, in this case, the principle of consistency in decision-making as an element of orderly and proper planning does not warrant approval of the proposed development.

Conclusion

The proposed development warrants refusal in the exercise of planning discretion because it would have significant and detrimental impacts on the amenity of Jacob's Ladder and on the area's natural form, landscape and visibility when viewed from the Swan River, foreshore and surrounding area, due to its excessive height, inadequate side setbacks and removal of a substantial part of the escarpment on the site. Specifically, the proposed development is in significant breach of the development standards prescribed by the Design Policy in relation to maximum building height, minimum side setbacks (north-eastern side boundary) and rear setback/maximum height of retaining walls against the scarp. The conditions precedent to the relaxation of these provisions under cl 3.2 of the Design Policy are not established. The proposed development is also materially inconsistent with provisions of the West Perth Precinct Plan.
Planning policies are not to be inflexibly applied, regardless of the merits of the particular case. However, there are no cogent reasons, in the circumstances of this case, to depart from the planning policies to the extent necessary for approval of the proposed development. Furthermore, although the Council approved essentially the same development on 19 February 2008, the principle of consistency in decision-making as an element of orderly and proper planning does not warrant approval of the proposed development, because the plans and photo-montage presented to the City for approval in February 2008 were materially misleading in relation to the height of the adjoining development and in the depiction of the apparent height and visual impact of the proposed development, whereas the Tribunal has accurate plans and an accurate photo simulation which, having regard to the evidence presented, indicate that the proposed development has significant and adverse impacts that warrant its refusal.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision made by the respondent on 16 November 2010 to refuse development approval for the construction of an eight level above basement commercial building at No 130B Cliff Street, Perth is affirmed.

I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER