TTH 28 Pty Ltd and City Of Subiaco
[2008] WASAT 200
•29 AUGUST 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: TTH 28 PTY LTD and CITY OF SUBIACO [2008] WASAT 200
MEMBER: MR J JORDAN (MEMBER)
MR A EDNIE-BROWN (SENIOR SESSIONAL MEMBER)
HEARD: 31 JULY 20008
DELIVERED : 29 AUGUST 2008
FILE NO/S: DR 95 of 2008
BETWEEN: TTH 28 PTY LTD
Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning - Development - Refusal - Proposed five storey mixeduse development - Basement parking, ground floor office and retail, first floor office, upper floors residential - Associated proposal to demolish existing building - Commercial/residential zoning - Adjacent to Town Centre zone - Concessions required for wall height and overall height - Orderly and proper planning - Local amenity - Development policy - Scale and character - Hay Street location - Urban design - Impact on future development of locality - Transitional development at edge of zone
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
City of Subiaco Town Planning Scheme No 4, cl 27(4) cl 28, cl 28(3), cl 30, cl 30(c), cl 44, cl 45(4)(a), cl 45(4)(b)
Result:
The application for review is dismissed
The City of Subiaco's refusals of the application for demolition of the existing building and the application for approval of a five storey mixeduse building at No 350 Hay Street, Subiaco are affirmed
Category: B
Representation:
Counsel:
Applicant: Mr M Casselton (Town Planner)
Respondent: Mr S Allerding (Town Planner)
Solicitors:
Applicant: TPG Town Planning & Urban Design (Town Planners)
Respondent: Allerding & Associates (Town Planners)
Case(s) referred to in decision(s):
Fryer and City of Subiaco [2006] WASAT 199
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Tooth v City of Subiaco [2005] WASAT 317
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
TTH 28 Pty Ltd applied to the City of Subiaco to demolish a two storey office building at 350 Hay Street on the corner of Axon Street in Subiaco and to develop a new five storey building with basement parking, ground floor retail and offices, with offices and residential units on the upper floors.
The City of Subiaco refused to grant development approval for the new building because it would exceed the height requirements for the Commercial/Residential zone in its town planning scheme and zone development policy. The City of Subiaco also refused the associated application for approval to demolish the existing building on the site because approval had not been granted for the proposed replacement building.
The applicant said that the building design was consistent with sound urban design principles. It considered the building would have little impact on its immediate locality and provided an appropriate transition from the town centre zone.
The height proposed would require a further concession on the concessions already available under the town planning scheme. The Tribunal found that the departures required from the existing planning controls would not be consistent with orderly and proper planning of the locality. The Tribunal considered that if the development proceeded as proposed the site would be overdeveloped; the building would have an undesirable impact on its neighbours; it would not be an acceptable transition from the Town Centre zone and it would likely have an undue impact on future development in the locality.
The Tribunal determined that the additional building height could not be supported. The application for approval of the proposed building was refused and as a consequence the application for the demolition of the existing building was also refused. The application for review was therefore dismissed and the City of Subiaco's decision affirmed.
Introduction
These proceedings involved an application brought by TTH 28 Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for review of two related decisions issued by the City of Subiaco (City or Council) on 11 April 2008 concerning No 350 (Lot 26) Hay Street, corner Axon Street, Subiaco (site). One was a refusal of an application to demolish the existing building on the site and the other was refusal of an application for the subsequent development of a five storey mixed use building.
Prior to the hearing, the Tribunal, in the company of the representatives of both parties, visited the site and surrounding streets.
Site and locality
The site has an area of 1,983 square metres comprising a rectangular area on the northeast corner of the junction of Axon Street with Hay Street and a rear access leg to York Street. The access leg is best described as a dogleg around the eastern side of a lot on the corner of Axon Street and York Street abutting to the north of the main part of the site. The main part of the site has a frontage of about 30 metres to Hay Street to the south and about 50 metres to Axon Street to the west. The access leg is 12 metres wide and includes parking bays.
There is currently on the site a two storey office building built up to the Axon and Hay Street boundaries with ground level parking at the rear. The building appears to be about 25 years old, occupied and well maintained. The site could be described as flat and there is currently vehicular access from Axon Street and to the access leg from York Street.
The lot abutting to the north contains four two storey grouped dwellings. Adjoining immediately to the east on the Hay Street frontage is a single storey commercial building with a two storey façade. East from that building are one and two storey commercial buildings, except for No 322 Hay Street which is a three storey commercial development. To the west across Axon Street, the first two buildings are single storey commercial properties, beyond which are taller buildings, one being a four storey development at 388 Hay Street, known as the Colonnade. On the southern side of Hay Street are one or two storey commercial buildings. To the north across York Street is one and two storey residential development.
Hay Street is a significant regional road one way east to west linking central Perth to the coastal suburbs. Nine hundred and fifty metres to the east is Princess Margaret Hospital at the intersection with Thomas Road. Three hundred metres to the west is the intersection with Rokeby Road and the core of Subiaco commercial area.
Planning framework
In the Metropolitan Region Scheme (MRS) the site is zoned urban and Hay Street is reserved as an Other Regional Road.
Under the City's Town Planning Scheme No 4 (TPS 4), the site is within, but at the western edge of an area south of York Street and east of Axon Street, zoned Commercial/Residential. North of York Street the zoning is Residential R50. West of Axon Street and south of York Street the zoning is Town Centre.
In determining any development application, cl 27(4) of TPS 4 requires that regard be had to:
(a)the provisions of this Scheme …;
(b)any relevant planning policies;
…
(d)any planning study …;
(e)any submission accompanying or relating to the application;
(f)the orderly and proper planning of the locality;
(g)the conservation of the amenity of the locality; and
(h)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
…
Clause 44 of TPS 4 sets out the objectives for the Commercial/Residential zone which include:
…
(2) to encourage small-to-medium scale mixed-use development of a type and character appropriate to Hay Street east and Rokeby Road south areas;
…
(6)the protection and enhancement of the amenity and general environmental standards of existing and future development within land adjoining this zone.
Clause 45(4)(a) of TPS 4 prescribes building height in the commercial/residential zone as follows:
… shall not exceed 9 metres overall height and 6 metres wall [height].
Clause 45(4)(b) describes that Council may permit at its discretion:
… a variation to subclause (a) and permit buildings of up to 12 metres overall height and 9 metres wall height on lots fronting Hay Street and/or Rokeby Road, where Council is satisfied that there is to be no undue adverse impact on the adjoining sites, streetscape or the amenity of the locality in general.
Clause 28 provides for the consideration of a development the subject of an application for planning approval which does not comply with a standard or requirement under TPS 4. The matters to be considered are set out at cl 28(3) and these are discussed below.
The City has also adopted the following policies which are relevant:
•"Development in the Commercial/Residential Zone" (the zone development policy) which repeats the objectives and height provisions for the zone found at cl 44 and cl 45 of TPS 4 respectively;
•Subiaco Central Development Plan; and
•Hay Street East Precinct Planning Policy.
Proposed development
The parties agreed that the development proposal before the Tribunal for consideration is that shown on the series of plans the City date stamped 8 May 2008. Proposed is a five storey plus basement mixeduse development. The development comprises:
a)Basement - parking for 35 vehicles, store rooms and a relocated electricity transformer.
b)Ground floor - one office and three retail tenancies built to the Hay Street and Axon Street boundaries. At the rear of the building and in the access leg, parking for 35 vehicles, and a ramp down to the basement.
c)First floor - office tenancies built to the Hay Street and Axon Street boundaries.
d)Second floor - nine residential apartments built to the Hay Street and Axon Street boundaries. The height at the building line is 10.4 metres to the top of the glass balustrade of the open balconies above this floor.
e)Third floor - four residential penthouse apartments set back 6 metres from Hay Street and Axon Street, and 5.5 metres from the eastern boundary.
f)Fourth floor - one penthouse apartment set back 7.6 metres from Hay Street, 6 metres from Axon Street and 11.3 metres from the eastern boundary. The roof is concealed behind a parapet and the building has an overall height of 16.4 metres.
A further application for a planning approval to demolish the existing building on the site was considered with the application for the building.
Council's decisions
The Council refused the application for planning approval to demolish the existing building for the reason that:
A development application for the subsequent redevelopment of the site, which meets the requirements of the City of Subiaco Town Planning Scheme No 4 and relevant policies, has not been approved.
The Council refused the development of the new building for reasons that might be summarised as:
1)The proposal does not meet the requirements of TPS 4 relating to wall and overall height.
2)The proposal does not meet the planning objectives of the Commercial/Residential zone relating to scale and character.
3)The proposal is inconsistent with the objectives of TPS 4 relating to orderly and proper planning of the locality, impact on the amenity of the locality and undue impact on future development in the locality.
Issues
In their joint statement, the two expert witnesses, Mr Andrew Howe for the applicant and Ms Natalie Goode for the respondent, did not discuss as an issue the Council's refusal to grant planning approval for the demolition of the existing building on the site.
Mr Allerding, in his submissions for the respondent, said that if the Tribunal were to approve the proposed development, the respondent would not oppose planning approval being granted for the demolition of the existing building on the site. If the Tribunal were to refuse the application for the proposed development, the respondent would oppose the application for demolition.
Mr Casselton, for the applicant, said that if the Tribunal were to refuse the application for the new building, then the applicant would not expect an approval of the demolition application. If the Tribunal approved the new building, then planning approval for the demolition of the existing building on the site should also be granted.
TPS 4 and the Council's policies do not provide specific guidance on when demolition might be approved or refused. There is, however, the general emphasis on amenity, streetscape and maintaining character in the instruments. Clause 30(a) of TPS 4 provides for deferral of consideration of demolition until a replacement building is approved and cl 30(c) allows for refusal of an application for demolition.
In the circumstances of this matter, particularly the location of the site on Hay Street, a significant traffic and commercial street, and the standard and current use made of the existing building, the Tribunal considers the positions adopted by the two parties to be the correct and preferable approach. It is considered that demolition without a replacement building would not preserve the streetscape and character of this important street or the amenity of the locality: Fryer and City of Subiaco [2006] WASAT 199 at [41]. Whether planning approval is to be granted for the demolition depends on the decision made in respect of what is the main issue in this matter; that is, whether the proposed building is to be approved.
In their joint statement, Mr Howe and Ms Goode agreed that, with the exception of overall height, wall height and privacy, the proposed building would comply with applicable development standards in TPS 4.
Privacy is an issue that can be addressed by conditions of approval. The applicant said it had no objection to the conditions to address overlooking suggested by the respondent, if the proposed development were to be allowed.
In their comments on the development complying with certain TPS 4 standards, the experts agreed that the development standards they were referring to were those with measurable finite numbers, such as plot ratio and car parking. This did not include subjective TPS 4 clauses referring to, for example, orderly and proper planning, amenity, scale and bulk, local character and likely impact on the future development of the area, on which the experts had different opinions. Mr Allerding said the respondent's concerns regarding subjective standards specifically relate to the extent of the height variations required for the proposed building.
The Tribunal notes that cl 45(4)(b) of TPS 4, and the zone development policy, provides that in the Commercial/Residential zone there may be permitted height variations from 9 metres up to 12 metres in overall height and from 6 metres to 9 metres in wall height on lots fronting Hay Street where:
… there is to be no undue adverse impact on the adjoining sites, streetscape or the amenity of the locality in general.
The applicant is seeking an overall height of 16.4 metres. With the parapet design of the building, this means a wall height also of 16.4 metres at the top of the wall of the fourth floor penthouse. As described above, the third and fourth floors are progressively set back from the property boundaries. The wall height of the second floor at the Hay Street and Axon Street frontages would be 10.4 metres to the top of the glass balustrade of the balconies of the third floor units which extend over the floors below.
To obtain the heights applied for, further concessions on the concessional heights set out in cl 45(4)(b) of TPS and the zone development policy would be required. Clause 28 of TPS 4 provides that Council, or the Tribunal on review, may grant planning approval for a development that does not comply with a standard or requirement prescribed under TPS 4. Clause 28(3) states that:
The Council cannot grant development approval for a non-complying application unless, if so required by the Council under clause 26, the application has been advertised and the Council is satisfied that:
(a)if approval were to be granted, the development would be consistent with:
(i)the orderly and proper planning of the locality;
(ii)the preservation of the amenity of the locality; and
(iii)the planning objectives of the particular zone and relevant precinct planning policies; and
(b)non-compliance would not have any undue adverse effect on:
(i)the occupiers or users of the development;
(ii)the property in, or the inhabitants of, the locality; or
(iii)the likely future development of the locality.
The experts addressed the various considerations, which overlap to a degree, found in cl 28(3) and cl 45(4)(b) of TPS 4 and the zone development policy. From the submissions made on behalf of the parties and the evidence of the experts, the Tribunal has found that the issue to be addressed is:
1)Whether the concessions on height required for the proposed building might be granted having regard to:
i)orderly and proper planning;
ii)height and the scale and bulk of the development;
iii)impact on the amenity of the locality;
iv)the proposed building as a transition from the height standard of the Town Centre zone to the west;
v)impact on the future development of the locality; and
vi)precedent.
Whether the concessions on height required for the proposed building should be granted having regard to:
Orderly and proper planning
The applicant's submission was that orderly and proper planning is served by the development of local planning policy that is consistent with State Government objectives and by the consistent application of the requirements to achieve these objectives. Mr Howe said Hay Street was identified as on a potential new light rail route in the Department of Planning and Infrastructure plan "Perth Light Rail Alignment" prepared by Maunsell/Aecom and it was fundamental that Hay Street include urban consolidation to achieve the objectives for transport activity corridors of the Government's "Network City" plan. The site was also within 400 metres of Subiaco railway station and under the principles of "Liveable Neighbourhoods" development should be at a scale and intensity at least equal to or even greater than that proposed.
In his opinion, the Council recognised the importance of the area at the town centre frame in its Subiaco Central Development Plan and the Hay Street East Precinct Planning Policy, but the City's TPS 4, which predates the State Government documents, and its zone development policy have underestimated height and intensity standards appropriate for the location.
The respondent's zone development policy states that its purpose is to provide guidance on how to assess developments. The policy encourages "small to medium scale mixed use development" and provides height standards which reflect those of cl 45(4)(a) and cl 45(4)(b) of TPS 4. Mr Howe was of the opinion that good urban design dictated medium scale was four to eight storeys and the proposed overall height of the development was within this height. He considered a 12 metre height at the property line low for a 20 metre wide street. Despite this, the upper two levels of the development would be set back within recession lines so that they would be barely visible to a normal height person on the other side of both Hay Street and Axon Street.
Mr Casselton submitted that the proposal in effect complied with the standard street building height of 12 metres because visible building at the street alignment would be 10.65 metres high. He said the building should therefore be allowed as an acceptable development. In his view generic development standards for the wider zone did not take account of the particular Hay Street corner location of the site.
Ms Goode said TPS 4 was gazetted in 2001 after completion of the required advertising period. The zone development policy was adopted by Council in 2005 and while it reflects TPS 4 it also was the subject of public consultation. She said that the standards in the instruments were directed to achieving the planning objectives expressed during the public consultation periods.
It was Mr Allerding's submission that the debate on whether different planning controls would create a better urban outcome should be conducted in the course of any review of TPS 4 and the Council's policies. Mr Allerding referred to the Tribunal's comments in Tooth v City of Subiaco [2005] WASAT 317 at [58] in which it was said that some examples of development pointed to by the applicant might have aesthetically pleasing aspects, but such concessions do not point to the abandonment or futility of the policies under consideration.
The Tribunal notes that the planning philosophy set out in State Government publications such as "Network City" and "Liveable Neighbourhoods" can be interpreted to support development on the site equivalent to or greater in intensity than the proposed development. The Tribunal does not agree, however, that this is an appropriate basis to set aside the established planning framework. The Council has adopted the standards of TPS 4 and the zone development policy after following the appropriate procedures. There was no evidence that the standards adopted by the Council would produce planning outcomes so contrary to "Network City" and "Liveable Neighbourhoods" that they should be diminished in relevance.
Except for the specific examples identified below, the evidence was that development approvals in the locality have been consistent with the existing planning controls. Review of the planning instruments in the light of current metropolitan policy is a proper planning course, but until that occurs the Tribunal considers that the existing statutory planning controls should be applied rather than determining individual planning applications just on the basis of the metropolitan policy documents.
The Tribunal considers the proposal would be a departure from the properly conceived and consistently applied standards of TPS 4 and the zone development policy, and so is not consistent with orderly and proper planning. The Tribunal has formed the view that consideration of the requirement for orderly and proper planning does not provide a basis for the additional concession on height being sought by the applicant. Whether other considerations raised by the parties provide reasons why approval of the proposed heights might be allowed as an exception are considered below.
Height and the scale and bulk of the development
At the street frontages of Hay Street and Axon Street, the building would be about 1.4 metres above the prescribed standard, but this would, in part, be to the top of a glass balustrade. Mr Howe stressed that the height at the building line was consistent with the urban design principles associated with width of the streets and sense of closure. The recession plane of the upper floors of 30 degrees at Hay Street and 45 degrees at Axon Street would result in little impact from overshadowing with sun falling on the south side of Hay Street at noon in midwinter. He further supported the application by reference to the breakdown of any visual impact through the screening of street trees.
The applicant submitted that the scale and bulk of the building at the street line would be consistent with the planning control objectives of small to medium scale pedestrianfriendly mixeduse that enhances the streetscape. The Tribunal considers that the additional height at the street line does not create such an impression of overdevelopment as to alone provide a reason for refusal.
The overall height of the building would require a concession of 4.4 metres additional to the concession available under cl 45(4)(b). Mr Casselton stressed that from nearby in Hay Street and Axon Street, the top floors of the proposed building, being set back, would not be seen. In addition, he considered that from the east up Hay Street, the building would appear to blend with the taller buildings, particularly the Colonnade, of the Town Centre zone.
Ms Goode pointed to the upper floors of the building being visible from both the east and particularly the west along Hay Street.
The Tribunal has formed the view that, with the additional height, the site is overdeveloped and while the additional bulk is limited at the upper levels, the overall scale of the building is inconsistent with objectives for development in the Commercial/Residential zone. The proposed building would still have a scale inconsistent with the zone requirements even though all of the building cannot be easily seen. The Tribunal does not consider that a development can be considered of a different character because its bulk is arranged in a particular manner. The resultant scale of the building is considered to be unacceptable and therefore does not provide a basis for granting the height concession being sought.
Impact on the amenity of the locality
The applicant considered the proposed development would improve the local amenity by additional pedestrian interaction with the proposed retail uses at the building line at street level. In addition, residential units would be added consistent with the objectives for the zone and the design principles of the City of Subiaco Central Development Plan, and the upper level design would ensure the "new development minimises any detrimental impacts on neighbouring properties". It was also said the building contains design elements that help maintain the character of Hay Street.
As stated by Mr Howe, the locality is currently a mixture of building styles, heights and setbacks, consistent with an area in transition. Ms Goode provided an assessment of the wall heights of neighbouring buildings in Hay Street, Axon Street and York Street in both the Commercial/Residential and the Town Centre zones. In the Town Centre zone is the Colonnade at No 388 Hay Street with a 15 metre wall height at the street frontage. In the Commercial/Residential zone at No 320 Hay Street zone is a building of 1970s vintage which preceded the current planning controls but has recently been upgraded with wall height of 12.8 metres. The majority of buildings were noted as having wall heights of less than 9 metres.
Ms Goode referred to the definition of amenity in TPS 4 which states:
Amenity - means all those factors, which combine to form the character of an area and include the current and likely future amenity.
The Tribunal has formed the view that the building at the Hay Street building line might be acceptable if neighbouring buildings are developed according to the zone objectives. Overall, however, the scale of the proposed building would be inconsistent with most neighbouring existing buildings and because it would be over height and out of scale, the new building would be inconsistent with the likely future character of the zone. The resultant contribution to the amenity of the locality is not considered to provide a basis for granting the required additional height.
The proposed building as a transition from the height standard of the Town Centre zone to the west
Where a building is at a boundary with another zone, as in this instance, Mr Howe argued that it was sound urban design to have a transition in the height of buildings between the zones so that there was no abrupt change in character at the boundary. Ms Goode said that TPS 4 did not include provisions for transition between zones. In her opinion, the standards for each zone provide the appropriate transition.
For the Town Centre zone west of Axon Street, cl 54(4) of TPS 4 provides that a new building be a maximum of 12 metres in height and that the façades should be in harmony with neighbouring streetscapes with a maximum height of 9 metres. An overall height of 15 metres might be allowed where the additional upper portion is set back at least 6 metres from the street. The 9 metre high façade is required to be maintained "in keeping with the pedestrian scale of the street". The respondent provided a photograph of the view looking eastward along Hay Street at the Town Centre zone lots abutting Axon Street. Superimposed on the photograph was a grey block impression to demonstrate the maximum allowable building envelope of wall height of 9 metres at the Hay Street frontage with a 15 metre wall height set back 6 metres.
The applicant's submission was that the proposed development could be considered as "transitional" between the Town Centre zone and the Commercial/Residential zone. This should allow discretion to be exercised in favour of the proposed wall and overall heights in excess of the Commercial/Residential zone requirements.
The Tribunal notes that if the glass balustrade at the top is ignored, the street frontage of the proposed building would be generally consistent with the maximum height standard for a potential street frontage in the Town Centre zone. The Tribunal does not consider, however, that the overall height would be transitional. Instead of being somewhere between the 15 metres of the Town Centre zone and the 12 metres of the Commercial/Residential zone, the overall height of the proposed development would be 16.4 metres. It might then follow that the next building into the Commercial/Residential zone also be granted a height concession to avoid an abrupt change from the site to the height requirements of the Commercial/Residential zone.
The applicant endeavoured to demonstrate that when viewed from further east or west of the site, the proposed 16.4 metre maximum height would satisfactorily blend with possible development on the opposite side of Axon Street where the maximum standard of the Town Centre zone might be applied. The evidence revealed that the upper level of the proposed building would be visible from along Hay Street. The Tribunal remains unconvinced that a building of the height proposed can be supported as a transition building at the margin of the zone.
Impact on the future development of the locality
The witnesses agreed that the upper floors of the proposed building, even with the recession planes, would be seen from oblique locations along Hay Street to the west and east of the site even if sites west of Axon Street are developed to the height and scale allowed by TPS 4 standards, as demonstrated in the respondent's simulation of the maximum building envelope.
Mr Howe gave evidence of what he considered to be the urban design benefits on character and appearance of the proposed development on Hay Street, a key traffic route and urban activity corridor. It was the submission of Mr Allerding that the provisions of TPS 4 and the zone development policy should not be set aside in favour of subjective urban design considerations.
The Tribunal considers that the proposed development would have an unacceptable influence on the future development of land in the zone. As set out above, this section of Hay Street is an area in which there are a number of sites with older buildings with potential for redevelopment. An approval of the proposed building would establish a development standard in excess of that otherwise set out in the zone development policy and TPS 4. Any transition would then be within the zone rather than at its margin, and the introduction of the recession planes to obtain additional height is a design element that might be included in other applications undistinguished from the current proposal.
The Tribunal has concluded that, because of the potential impact on likely future development of the locality, the height concessions being sought cannot be supported. As submitted by Mr Allerding, the Tribunal considers that an approval might be considered to set a new "benchmark" for future development in the zone beyond the standards set to achieve the zoning objectives.
Precedent
In Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [74], the Tribunal respectfully adopted criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment. These are:
a)The proposed development or subdivision is not in itself unobjectionable; and
b)There is more than a mere chance or possibility that there may be later undistinguishable applications.
The Tribunal has formed the view that precedent is a relevant consideration in this matter. As set out under the subheadings above, the Tribunal has formed the view that the building and the effect it would have on its surroundings, and the likely future development of the locality are objectionable. The Tribunal has accepted that this is a locality in transition and considers that as sites are redeveloped there is more than a mere chance of later undistinguishable applications. The proposed development would be a precedent that would make more difficult achieving the objectives of the zone as currently expressed.
The applicant also requested that the Tribunal consider as a relevant precedent for allowing an over height building a planning approval issued by the Council for the "BBC site" in the Town Centre zone just to the west of Rokeby Road in Hay Street close to Railway Parade. The respondent considered that there were insufficient similarities between the two developments to reasonably argue that the "BBC site" approval provides a supporting precedent. It was said that a community benefit (cinemas) is to be provided in that instance.
The cited example in the Town Centre zone, while an expression of the additional discretion available under cl 28 of TPS 4, is not considered by the Tribunal to be sufficient to exercise that discretion as a matter of course.
Conclusion
Clause 45(4)(a) of TPS 4 stipulates a 6 metre wall height and a 9 metre overall height for buildings in the Commercial/Residential zone. Clause 45(4)(b) provides that a concession might be granted in certain circumstances leading to a further 3 metres of wall height and 3 metres of overall height.
Clause 28 of TPS 4 provides that an application can be approved notwithstanding the noncompliance with a standard or requirement under the Scheme. In this matter the applicant is seeking a concession under cl 28 on the concession already available under cl 45(4)(b) to achieve what would be a 7.4 metre wall height variation, and a 7.4 metre overall height variation from the standards of both TPS 4 and the zone development policy.
The Tribunal considered the proposal under a number of subheadings, as set out above, to determine whether it might grant the height concession being sought. From its consideration of the evidence and the submissions of the parties, the Tribunal has concluded that a further concession on the concession is not considered appropriate in the circumstances of this case.
The Tribunal considered Mr Howe's evidence on the application of urban design principles in an activity corridor such as Hay Street was instructive, but the Tribunal found that the departures required from the existing planning controls in TPS 4 and the zone development policy would not be consistent with orderly and proper planning of the locality. There was no evidence that the standards adopted by the Council would produce planning outcomes so contrary to good urban design that the provisions of TPS 4 and the zone development policy should be diminished in relevance. The Tribunal considered that if development proceeded as proposed, the site would be overdeveloped, the building would have an undesirable impact on its neighbours, it would not be an acceptable transition from the Town Centre zone and it would likely have an undue impact on future development in the locality.
The Tribunal has concluded that the additional concession on height requested by the applicant should not be granted. The application for approval of the proposed building is refused and as a consequence the application for the demolition of the existing building is also refused. The application for review has therefore been dismissed and the Council's decisions affirmed.
Orders
1.The application for review is dismissed.
2.The City of Subiaco's refusals of the application for demolition of the existing building and the application for approval of a five storey mixeduse building at No 350 Hay Street, Subiaco are affirmed.
I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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