Tuscom Subdivision Consultants Pty Ltd and City Of Melville - [2009] WASAT 25

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: TUSCOM SUBDIVISION CONSULTANTS PTY LTD and CITY OF MELVILLE [2009] WASAT 25

MEMBER: MR D R PARRY (SENIOR MEMBER)
MS M CONNOR (MEMBER)

HEARD: 3 FEBRUARY 2009 - FURTHER EVIDENCE FILED 11 FEBRUARY 2009

DELIVERED : 12 FEBRUARY 2009

FILE NO/S: DR 339 of 2008
DR 342 of 2008

BETWEEN: TUSCOM SUBDIVISION CONSULTANTS PTY LTD
Applicant
AND
CITY OF MELVILLE
Respondent
HANS SCHUTTE
AMANDA SCHUTTE
COURTNEY WILLIAMS
Intervenors (DR 342 of 2008)

Catchwords:

Town planning Development application Mixed use office/residential building Residential building Full four to four and a half storeys above street frontage level Site opposite residential area comprising one to two storey single and grouped dwellings Plot ratio Whether proposed plot ratio is capable of approval Whether mixed use plot ratio in local planning scheme can be varied under scheme Whether residential plot ratio in Residential Design Codes of Western Australia (2008) can be varied under Codes or local planning scheme Whether proposed plot ratio is acceptable Weight to be given to local planning policy that misconceives and is inconsistent with local planning scheme Whether office use of site is acceptable Whether height, bulk, scale and setbacks are acceptable

Legislation:

City of Melville Community Planning Scheme No 5, cl 4.1, cl 4.2, cl 4.2(b), cl 4.3, cl 5.1(3), cl 5.11, cl 5.11(a), cl 5.19, cl 7.8(b), cl 7.8(c)
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.3.1 A1, Table 1
State Administrative Tribunal Act 2004 (WA), s 37(3)

Result:

Development approval refused

Category: B

Representation:

Counsel:

Applicant:    Mr MJ Hardy
Respondent:    Mr CA Slarke
Intervenors (DR 342 of 2008)     :    Mr JCW Skinner

Solicitors:

Applicant:    Hardy Bowen
Respondent:    McLeods
Intervenors (DR 342 of 2008)     :    Jackson McDonald

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

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Buildex Construction Company and City of Melville [2008] WASAT 86
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79
Kimber and Town of Vincent [2008] WASAT 58
Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 272
Sonnet Holdings Pty Ltd and City of Melville [2004] WATPAT 203

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned two alternative development applications for the same site. The first application involved a mixed use office/residential building with four offices and three residential units, and the second application involved a wholly residential building with five units. The external appearance of the proposed buildings would be essentially identical. The building would present as a full four to four and a half storey building, with a width of approximately 21 metres at each level, and with little variation in street setbacks between the levels.
The plot ratio of the building would be 1.0, whereas the maximum plot ratio prescribed by the Residential Design Codes of Western Australia (2008) for the residential proposal was 0.6 and the maximum plot ratio prescribed by the local planning scheme for the mixed use proposal was 0.8. The local planning scheme conferred discretion to vary the maximum plot ratio for the mixed use proposal, but not the residential proposal.
However, on the assumption that the Codes conferred discretion to vary the maximum plot ratio for the residential proposal, the Tribunal declined to exercise discretion to approve the variation, because the plot ratio exceedance translated to 400 square metres of floor space and manifested itself in the form of a considerably larger building than would be the case if it were compliant. The height, bulk and scale of the building would result in significant and detrimental impacts on residential amenity, streetscape and character, particularly as the site is located at the interface with a lower density residential area.
The Tribunal determined that the site is an inappropriate location for offices, because it is physically remote from other commercial or mixed use areas, and there is little prospect of accommodating other offices in the immediate locality. However, if the site were suitable for offices, the Tribunal would not have exercised discretion to allow the variation in plot ratio, because the exceedance translated to 200 square metres of floor space and resulted in significant and detrimental impacts on residential amenity, streetscape and character.
The Tribunal therefore refused both development applications.
While the Tribunal was able to determine the proceedings on the assumption that there is discretion under the Codes to vary plot ratio prescribed by the Codes, it observed that the Codes should be reviewed as a matter of priority to state explicitly whether or not there is discretion to vary plot ratio. The Tribunal has highlighted the difficulties in the interpretation of the Codes in this respect for over three years.

Introduction

Tuscom Subdivision Consultants Pty Ltd (applicant) has sought review, in accordance with s 252(1) of the Planning and Development Act 2005 (WA), of the following decisions of the City of Melville (City or Council) in relation to the proposed development of No 15 Tweeddale Street, Applecross (site):
•refusal of a development application for a mixed use office/residential building comprising four office tenancies on the ground floor, three multiple dwellings, each occupying a full level above, and 16 car parking bays in an undercroft garage (mixed use proposal) (DR 339 of 2008); and
•deemed refusal of a development application for a residential building comprising five multiple dwellings, two located on the ground floor and one on each of the three levels above, and 13 car parking bays in an undercroft garage plus two visitor bays within the front setback area (residential proposal) (DR 342 of 2008).
The building proposed in each development application is essentially identical in its external appearance. The building would present as a full four to four and a half storey building, with a height of 13 ‑ 14 metres above the street frontage level, a width of approximately 21 metres at each level, and little variation in street setbacks between the levels.
Whereas the Council refused to grant approval for the mixed use proposal under the City of Melville Community Planning Scheme No 5 (CPS 5 or Scheme), it resolved by a simple majority of one vote to approve the residential proposal. However, it is common ground between the parties that, in the circumstances of this case, approval of the residential proposal would have required a special majority (75%) of Council. Consequently, the parties agree that the Council is deemed to have refused the residential proposal under CPS 5.
In these proceedings, the City actively opposed the mixed use proposal, but adopted a non-adversarial role in relation to the residential proposal, not raising any issue and not making any contention in connection with that application.
In these unusual circumstances, Mr Hans Schutte, Mrs Amanda Schutte and Mr Courtney Williams (intervenors), the owners and occupiers of units in the building at No 28A Kintail Road, Applecross, which adjoins the site to the south, sought and were granted leave under s 37(3) of the State Administrative Tribunal Act 2004 (WA) to intervene in proceedings DR 342 of 2008.

Site and locality

The site has an area of 1,012 square metres and is located on the southern side of Tweeddale Road in the section between Forbes Road to the west and Moreau Mews to the east. The southern side of Tweeddale Road in this location forms the northern boundary of the Canning Bridge Frame (CBF) precinct designated by cl 4.1 of CPS 5.
The CBF precinct is coded R50. The statement of intent in CPS 5 for the CBF precinct is as follows:
Primarily residential but may include offices and medical practitioners where privacy of neighbours is respected and design has a residential character. Buildings shall not use reflective or mirror glass externally. Shops, open-air display of goods and vehicles, service stations and the like are prohibited. The Council may prepare urban design guidelines for the precinct.
The predominant form of development along the southern side of Tweeddale Road between Forbes Road and Moreau Mews is two to three storey grouped dwellings. To the immediate east of the site, at No 13 Tweeddale Road, is a residential building of similar height, bulk and scale to the building proposed in the applications before the Tribunal. Significantly, however, the building at No 13 Tweeddale Road was considered and approved by the Council in the context of a property double the area of the site. To the immediate west of the site, at No 17 Tweeddale Road, is a single‑storey development comprising two grouped dwellings. It appears that the site contains the last original single house on the southern side of Tweeddale Road in this section.
The properties on the northern side of Tweeddale Road, between Forbes Road and Moreau Mews, are contained in the A3 ‑ Applecross Living Area (A3) precinct under the Scheme. The A3 precinct is subject to a residential density coding of R30 and has the following statement of intent in the Scheme:
Primarily medium density residential but may include home occupations, parks, religious, recreational, educational and community uses provided they are not developed to such an intensity that they disturb the Precinct or are out of character with it. All non-residential uses shall be advertised in accordance with Clause 7.5, provided that home occupations shall be determined in accordance with Clause 5.6.
Development on the northern side of Tweeddale Road in this section comprises one to two storey single and grouped dwellings.

Issues for determination

The following two principal issues arise for determination in relation to both the mixed use and residential proposals:
1)Whether the proposed plot ratio is capable of approval and, if so, whether it is acceptable.
2)Whether the height, bulk, scale and setbacks of the proposed development are acceptable.
The following additional issue arises for determination in relation to the mixed use proposal:
3)Whether the proposed office use of the site is acceptable.
The Tribunal will address each of these issues in turn.

Can the proposed plot ratio be approved and, if so, is it acceptable?

The expert planning witnesses who gave evidence, Mr Murray Casselton, called on behalf of the applicant, Mr Steven Allerding, called on behalf of the City, and Mr Simon Bain, called on behalf of the intervenors, disagreed in relation to the calculation of plot ratio.
Mr Casselton considered that the total plot ratio in both proposals is 1.0 and comprises 0.3 for the offices and 0.7 for the residential component in the mixed use proposal. Mr Allerding and Mr Bain considered that the total proposed plot ratio is 1.058, which Mr Allerding said comprises 0.344 for the offices and 0.714 for the residential component in the mixed use proposal.
However, the experts agreed, and the Tribunal concurs, that nothing turns on this difference. For the purposes of these proceedings, the Tribunal has assumed that the proposed plot ratio for each proposal is 1.0, comprising 0.3 for the office component and 0.7 for the residential component of the mixed use proposal.

Residential proposal

Clause 5.1(3) of CPS 5 states that, unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes of Western Australia (2008) (Codes) 'shall conform to the provisions of those Codes'. Table 1 of the Codes specifies a maximum plot ratio of 0.6 for residential development in the R50 code.
However, Mr MJ Hardy, counsel for the applicant, submitted that discretion is available both under the Codes and the Scheme to vary the maximum plot ratio of 0.6 so as to enable approval of the residential proposal.
In support of his argument that the Scheme enables variation of the maximum plot ratio specified in the Codes, Mr Hardy relied on cl 4.2(b) and cl 4.3 of CPS 5, which state as follows:
4.2For the control of development:
…
(b)except for development in respect of which the [Codes] apply, if a development is the subject of an application for planning approval and does not comply with a standard or precinct development requirement prescribed under the Scheme, the Council may, despite the non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit;
4.3Notwithstanding the provisions of clause 4.2(b) the Council may, by a vote of a Special Majority, resolve in regard to any particular application for planning approval, to vary any standard or requirement in Part 4 or elsewhere in this Scheme in relation to residential development, other than a standard referred to in paragraph (e) of clause 4.2.
However, for reasons similar to those discussed by the Tribunal in Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 272 (Mainbush Pty Ltd) at [18] ‑ [20], these provisions do not assist the applicant in this case.
In relation to cl 4.2(b) of the Scheme, the residential proposal is development 'in respect of which the [Codes] apply', and the maximum plot ratio specified in the Codes is not a development requirement 'prescribed under the Scheme', but rather is prescribed by the Codes, with which the Scheme requires conformity.
In relation to cl 4.3 of the Scheme, the maximum plot ratio specified in the Codes is not a standard or requirement 'in Part 4 or elsewhere in this Scheme in relation to residential development'. Rather, it is a standard or requirement in the Codes, with which the Scheme requires conformity.
In Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79 (Canning Mews) at [69], the Tribunal said that:
On balance, it would appear that discretion is available [under the Codes to vary a maximum plot ratio], although, in light of other findings, the Tribunal does not have to, and does not, come to a final view on this question.
On the assumption that a discretion was available to vary a maximum plot ratio under the Codes, the Tribunal determined in Canning Mews, at [70], that the discretion should not be exercised so as to permit the application in that case.
Similarly, in Kimber and Town of Vincent [2008] WASAT 58, the Tribunal said, at [39], that it was not necessary to come to a concluded view in relation to whether discretion was available under the Codes to vary the maximum plot ratio prescribed by Table 1 of the Codes. On the assumption that a discretion was available, the Tribunal determined that it should not be exercised in the circumstances of that case so as to permit the proposed development to be approved, notwithstanding the exceedance of the maximum plot ratio.
So too, in this case, it is unnecessary to express a concluded view in relation to whether there is discretion under the Codes to vary maximum plot ratio. On the assumption that discretion is available under the Codes, it should not be exercised so as to allow the residential proposal in the circumstances of this case.
The residential proposal involves the exceedance of the maximum plot ratio by 0.4 or 67%. This exceedance translates to 400 square metres of excess floor space. The excess floor space manifests itself in the form of a considerably larger building, in terms of height and width, than would be the case if the maximum plot ratio were applied. The excess floor space would have significant and detrimental impacts on the residential amenity of the intervenors' dwellings in terms of loss of views of the Canning River, Kings Park and the City of Perth, and visual impact from the bulk and scale of the building.
Mr JCW Skinner, counsel for the intervenors, pointed out that plot ratio of 1.0 is the maximum plot ratio prescribed by Table 1 of the Codes for the R80 code, which is a high density code. Approval of the residential proposal would, in effect, result in a building that reflects a high density, rather than a medium density, coding. The Tribunal considers that the significant loss of views and the visual impact of the exceedance of the maximum plot ratio of 0.6 is contrary to the reasonable amenity expectations of the intervenors, whose views and outlook is over land coded R50.
Furthermore, the plot ratio in excess of 0.6 results in a building which is significantly greater in height, bulk and scale than all existing buildings on the southern side of Tweeddale Road, with the exception of the building at No 13 Tweeddale Road. As most properties on the southern side of the street are already developed with grouped dwellings, it is unlikely that they will be redeveloped under the current planning framework. Although the building at No 13 Tweeddale Road has a similar height, bulk and scale to the proposed building, and must be taken into account as an element of the surrounding built form, little weight should appropriately be given to it in these proceedings, because it was approved in the context of a property considerably greater in size than the site and all other properties in the relevant part of the street. For this reason, the building at No 13 Tweeddale Road was aptly described by Mr Allerding as 'a special case and an undesirable anomaly'.
The Tribunal accepts Mr Allerding's evidence that:
To approve a four-storey development in a street characterised by single and two‑storey development with some three-level (and one four-level) development is not considered to be consistent with the existing streetscape character of the area.
Finally, the site is located at the zone and precinct interface with a lower density residential area to the north. The Tribunal agrees with Mr Skinner's submission that the proposed building would be 'manifestly excessive' in its height, bulk and scale, having regard to its location relative to the lower density area to the north. The proposal is a full four to four and a half storey building, with a width of approximately 21 metres at each level and little variation between storeys in setbacks to the street, whereas the opposite side of the street comprises one and two storey single and grouped dwellings. This juxtaposition of building scale and form is contrary to orderly and proper planning. In this respect, the proposal can be contrasted with a building considered and approved by the Tribunal at another boundary of the CBF precinct which the Tribunal characterised as 'appropriately transitional' ‑ see Buildex Construction Company and City of Melville [2008] WASAT 86 (Buildex Construction Company) at [43] ‑ [45].
Finally, the Tribunal notes that it is regrettable that the Codes have not been amended since the decision of the Tribunal in Canning Mews to explicitly state whether maximum plot ratio can be varied under the Codes. The Codes should be reviewed in relation to this aspect as a matter of priority.

Mixed use proposal

For reasons set out below, the Tribunal does not consider that the proposed use of the site for offices is acceptable. It is, therefore, strictly unnecessary to decide whether the proposed plot ratio of the mixed use proposal is capable of approval and, if so, whether it is acceptable. However, as this issue involves an important question about the interpretation and application of cl 5.19 of the Scheme and the weight to be given to the Council's planning policy Policy No: 06‑029 Mixed Use Plot Ratio Bonus Application (Bonus Policy), the Tribunal will address it.
Clause 5.19 of the Scheme states as follows:
For the City Centre, City Centre Frame, District Centre, District Centre Frame and Community Centre precincts, in the case of a mixed use non‑residential and residential development, the Council may approve a maximum plot ratio for the total development up to 0.2 more than the Maximum Plot Ratio (non‑residential) development requirement specified for the precinct, provided that the residential proportion of the development is a minimum of fifty per cent (50%).

The Maximum Plot Ratio (non‑residential) development requirement specified in the Scheme for the CBF precinct is 0.6.
Mr CA Slarke, counsel for the City, submits that cl 5.19 of the Scheme applies to the CBF precinct, because this precinct is relevantly a 'District Centre Frame … precinct' within the meaning of this provision. Clause 4.1 of the Scheme identifies the CBF precinct as a 'Commercial Centre Frame' precinct and identifies the Canning Bridge Centre, which is framed by the CBF precinct, as a 'District Centre' precinct. Clause 4.1 of the Scheme does not specifically refer to 'District Centre Frame' precincts, or to 'City Centre Frame' or 'Community Centre' precincts. Although it is unfortunate that the Scheme uses inconsistent terminology, the Tribunal finds that the CBF precinct is a 'District Centre Frame' precinct for the purposes of cl 5.19 of CPS 5, because it is a 'Commercial Centre Frame' precinct that 'frames' a 'District Centre' under the Scheme.
The applicant and the City disagreed in relation to the meaning and effect of cl 5.19 of CPS 5. The City argued that cl 5.19 of the Scheme confers a discretion on the Council to grant a 'bonus' plot ratio of 0.2 above 0.6 for a mixed use development in the CBF precinct and that there is no discretion in the Scheme to approve a greater plot ratio than 0.8. In contrast, the applicant argued that cl 4.3 of CPS 5 confers a discretion to vary the maximum mixed use plot ratio of 0.8.
The Tribunal considers that cl 5.19 of the Scheme prescribes mixed use plot ratio development standards of the relevant Maximum Plot Ratio (non‑residential) specified for the precinct plus 0.2, and requires that at least 50% of mixed use development comprise residential.
Contrary to the City's argument, cl 5.19 of CPS 5 does not, expressly or by implication, identify the 0.2 plot ratio referred to as a 'bonus'. The Maximum Plot Ratio (non‑residential) development requirement is not, as its designation indicates, a mixed use plot ratio, but rather, is a non-residential plot ratio. The purpose of cl 5.19 is to create a mixed use plot ratio by adding 0.2 to the Maximum Plot Ratio (non‑residential) development requirement specified for the relevant precinct. As the Maximum Plot Ratio (non‑residential) development requirement varies from 0.3 to 1.3 for the various precincts, cl 5.19 conveniently creates different mixed use plot ratio development standards for the various precincts. Relevantly, cl 5.19 creates a mixed use plot ratio of 0.8 for the CBF precinct.
The Town Planning Appeal Tribunal came to the same conclusion in Sonnet Holdings Pty Ltd and City of Melville [2004] WATPAT 203 (Sonnet Holdings) where it held, at [14], that cl 5.19 involves 'the introduction of an additional development standard' which is subject to variation under cl 4.2 and cl 4.3 of the Scheme.
However, Mr Slarke invited the Tribunal to determine that the decision of the Town Planning Appeal Tribunal in Sonnet Holdings is not correct, having regard to the following statement by the High Court of Australia in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 (Anthony Hordern & Sons Ltd) at 47:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
While cl 5.19 of the Scheme restricts the application of the mixed use plot ratio by requiring that at least 50% of a mixed use development must be residential, it is not a provision to which this statement of principle applies; contrast, for example, Mainbush Pty Ltd at [27] ‑ [28]. Clause 5.19 of the Scheme and the dispensing provisions in cl 4.2(b) and cl 4.3 of the Scheme do not confer the same power. Rather, cl 5.19 establishes a maximum mixed use plot ratio of, relevantly, 0.8, whereas cl 4.2(b) and cl 4.3 enable development standards such as those established by cl 5.19 to be varied.
In Buildex Construction Company at [46], the Tribunal observed that the planning controls for the CBF precinct contemplate a total floor space for a mixed use building of 1.2 to 1.4 plot ratio. That observation was incorrect. The maximum mixed use plot ratio prescribed under cl 5.19 of CPS 5 is, relevantly, 0.8, not 1.2 to 1.4, although the maximum plot ratio of 0.8 can be varied in appropriate circumstances under cl 4.2(b) of the Scheme.
While, in Buildex Construction Company, the Tribunal referred to cl 5.19 of CPS 5 in passing, the Council did not raise the application of cl 5.19 as an issue in that case and the Tribunal did not set out or give any detailed consideration to that provision. The principal issues in that case related to whether the proposed development conformed to the Codes in relation to mixed use development, rather than whether the development was consistent with cl 5.19 of the Scheme, and the acceptability of the proposal in relation to height, bulk and scale: see Buildex Construction Company at [24]. Furthermore, the reference to cl 5.19 of CPS 5 formed a minor aspect of the Tribunal's reasoning. The Tribunal approved the proposed building principally because it found that the development conformed to the performance criteria for mixed use development in the Codes and was appropriately transitional in terms of height, bulk and scale.
While the maximum mixed use plot ratio of 0.8 established by cl 5.19 of the Scheme can be varied under cl 4.2(b) of the Scheme, and while the variation of 0.2 plot ratio sought by the applicant for the mixed use proposal is half the variation it sought for the residential proposal, it is, nevertheless, a substantial variation that should not be granted in the circumstances of this case. The 0.2 plot ratio translates to 200 square metres of floor space. This excess floor space is manifested in a building that is significantly higher and wider than would be a compliant building. For the same reasons of impact on residential amenity, streetscape and character, particularly at the zone and precinct boundary, as discussed in relation to the variation for the residential proposal, it would not be appropriate to grant the variation required in this case to approve the mixed use proposal.
Finally, it is noted that the City relied on the Bonus Policy. However, the Tribunal considers that no weight should be given to this policy in determining whether to allow the variation to plot ratio for the mixed use development, because the policy is premised on a misunderstanding of the effect of cl 5.19 of the Scheme and is inconsistent with that clause.
The objectives of the Bonus Policy include:
To encourage Mixed Use Development in … by providing for plot ratio bonuses.
Clause 2.4 of the Bonus Policy states as follows:
The basic plot ratio applicable to a Mixed Use Development (ie before any bonus that may be added) is the greater of the Residential and Non‑residential plot ratios applicable to the precinct provided there is a minimum of fifteen percent (15%) Residential total gross leasable floor area (not including home occupations) and fifteen percent (15%) Non‑Residential total gross leasable floor area included within the development. Otherwise, the plot ratio for mixed use development shall be calculated based on the extent of the Residential and Non‑Residential uses.
As noted earlier, cl 5.19 of CPS 5 does not involve a 'bonus'. Rather, it prescribes a mixed use maximum plot ratio of, relevantly, 0.8.
Furthermore, cl 2.4 of the Bonus Policy is inconsistent with cl 5.19 of the Scheme, both in relation to the 'basic plot ratio' and the contemplation that mixed use development can include less than a 50% residential component.
Other parts of the Bonus Policy appear to be entirely unrelated to cl 5.19 of the Scheme and are extremely complicated in their expression. However, it is unnecessary to explore this policy labyrinth further, because of the fundamental misconception upon which the policy is premised.

Are the height, bulk, scale and setbacks of the proposed development acceptable?

It follows from the Tribunal's earlier findings in relation to whether the maximum plot ratio for either the residential proposal or the mixed use proposal should be varied, that the proposed development involves manifestly excessive height, bulk and scale, having regard to its impacts on the residential amenity of the intervenors, and on the streetscape and character of the locality, particularly as the site is located at the zone and precinct interface with a lower density residential area.
The excessive height, bulk and scale of the building is exacerbated by its exceedance of the maximum height standard of 13.5 metres prescribed for the CBF precinct in the Scheme. While giving concurrent evidence at the hearing, the planning experts agreed that the proposed building exceeds this standard by up to 0.8 metre in the front façade. In a written statement submitted without leave after the hearing, Mr Casselton sought to resile from this agreed position and suggested that the non‑compliance is up to 0.5 metre. The other experts disagreed. Nothing turns on the difference. The building is non-compliant in terms of height.
Mr Skinner submitted that the exceedance of the maximum height standard is fatal to the application under the Scheme. In support of this submission, Mr Skinner referred to cl 5.11(a) of the Scheme which states as follows:
To preserve local amenity:
(a)a building shall not be erected or added to so as to exceed the height prescribed for each precinct in Part 4 or in Council Policy provided that:
(i)a tower mast may exceed the prescribed height subject to Clause 5.12;
(ii)a building may have a non-habitable tower, spire or arch feature that exceeds the prescribed height;
Mr Skinner submitted that the principle of interpretation stated in Anthony Hordern & Sons Ltd referred to earlier has the effect that the dispensing provisions in cl 4.2(b) and cl 4.3 of the Scheme are not available in relation to the exceedance of a height standard prescribed for a precinct in the Scheme.
However, on its proper interpretation, cl 5.11(a) of the Scheme does not exclude the application of the general discretion under cl 4.2(c) and cl 4.3 of the Scheme.
Paragraphs (i) and (ii) of cl 5.11(a) simply exclude certain built form from the application of the height standard. Clause 5.11 does not prescribe the mode, conditions or restrictions for varying the height standard.
The proposed developments are, therefore, capable of approval, notwithstanding the exceedance of the height standard. However, for reasons discussed earlier, the height standard should not be varied and the application should not be approved in the exercise of planning discretion, because of its impacts on residential amenity, streetscape and character.
Furthermore, as Mr Skinner submitted, the maximum height standard is a maximum, not an entitlement. Having regard to the potential impact of development of the site on significant views enjoyed by the intervenors, the predominant two to three storey height of development on the southern side of Tweeddale Road in the vicinity of the site, and the location of the site at the zone and precinct boundary with a lower density residential area, it is unlikely that development at or near the maximum height standard would be acceptable in the exercise of planning discretion, at least where the proposal has a flat roof.
Finally, the excessive height, bulk and scale of the building is exacerbated by the lack of adequate setbacks from the side boundaries. The setbacks at the uppermost level from both side boundaries are significantly less than contemplated by the acceptable development provision in cl 6.3.1 A1 of the Codes. While, as Mr Casselton noted, the minimum setbacks for the purposes of the acceptable development provision can be reduced from 9 metres to 4.5 metres (west) and from 8.5 metres to 3.5 metres (east) by converting 'major openings' to 'minor openings', the experts agreed that these changes would still not satisfy the acceptable development provision.
The Tribunal accepts the evidence of Mr Allerding and Mr Bain that, whether modified by converting 'major openings' to 'minor openings' or not, the development does not conform to the performance criteria in cl 6.3.1 P1 of the Codes, because the building is not set back from boundaries so as to 'assist in ameliorating building bulk on adjoining properties', particularly the properties to the west and south. Indeed, as Mr Bain observed, Mr Casselton's suggestion of converting 'major openings' to 'minor openings' would increase building bulk due to a 'greater amount of blank wall'.

Is the proposed office use acceptable?

Mr Casselton gave evidence that office uses 'can sit well within a primarily residential context if they are of an appropriate scale that does not cause adverse impacts on the amenity of the locality in terms of car parking demand, traffic generation, noise generation or other land use conflicts'. Mr Casselton did not believe that the office use would be out of character with the use to which other land in Tweeddale Road is put, and considered that the proposal would not adversely affect the amenity of the residents.
In contrast, Mr Allerding considered that the proposed office use should not be approved in the exercise of planning discretion. In particular, Mr Allerding emphasised that there are no commercial uses along Tweeddale Road and that the residential amenity of the area has therefore remained intact, notwithstanding the potential allowance for offices under the Scheme. Furthermore, Mr Allerding noted that the site is located 'at the furthest edge away of the Frame from what could be described as the primary Activity Corridor (in Canning Highway) and is in a 'midblock' location'.
The Tribunal prefers Mr Allerding's evidence on this point. The statement of intent for the CBF precinct states that the precinct is to be primarily residential, but may include offices. The site is an inappropriate location for the approval of offices for two reasons. First, it is physically remote from the Canning Bridge District Centre and from the core of the CBF precinct. Second, as most of the southern side of Tweeddale Road within the CBF precinct has been developed for grouped dwellings and, in one case, for multiple dwellings, there is little prospect for the accommodation of any other offices in this part of the CBF precinct. Approval of offices in a locality that is and is otherwise likely to remain exclusively residential is inappropriate having regard to the orderly and proper planning of land within the area and the existing and likely future amenity of the area (cl 7.8(b) and cl 7.8(c) of CPS 5).

Conclusion

Both the residential proposal and the mixed use proposal substantially exceed the maximum applicable plot ratios. It is inappropriate, in the circumstances of this case, to exercise discretion so as to approve either of the proposals despite these exceedances. The proposals are manifestly excessive in terms of height, bulk and scale, having regard to the impacts on the residential amenity of the intervenors, streetscape and character, particularly given the location of the site at the zone and precinct interface with a lower density area.
The site is also an inappropriate location for commercial development, given that it is physically remote from the district centre and the core of the CBF precinct, and that offices are unlikely to be accommodated on any other property in Tweeddale Road.
It follows that the applications for review should be dismissed and each development application should be refused.

Orders

The Tribunal makes the following orders:

DR 339 of 2008

1.The application for review is dismissed.
2.The decision of the respondent made on 19 August 2008 to refuse development approval for a mixed use office and residential building at No 15 Tweeddale Road, Applecross is affirmed.

DR 342 of 2008

1.The application for review is dismissed.
2.The deemed refusal by the respondent of a development application for a residential building at No 15 Tweeddale Road, Applecross is set aside and a decision is substituted that development approval is refused.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER