EDGE HOLDINGS NO. 6 PTY LTD and THE ACTING PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2020] WASAT 35

STATE ADMINISTRATIVE TRIBUNAL
[2020] WASAT 35
PLANNING AND DEVELOPMENT ACT 2005 (WA)
DR 79/2018
17 - 20 SEPTEMBER, 23 - 24 OCTOBER AND 13 DECEMBER 2019 - FURTHER DOCUMENTS FILED ON 16 DECEMBER 2019, 10 FEBRUARY AND 5 MARCH 2020 AND FURTHER SUBMISSIONS FILED ON 13, 20, 27 AND 31 MARCH AND 1 APRIL 2020
JUDGE D PARRY, DEPUTY PRESIDENT
MS M CONNOR, MEMBER
02/04/2020
Perth
Application for review allowed Conditional development approval granted
B
EDGE HOLDINGS NO. 6 PTY LTD
THE ACTING PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
Town planning
Development application
Twenty-nine level (above two basement levels) mixed community, commercial and residential use development
South Perth Peninsula
Special Control Area 1
South Perth Station Precinct under Sch 9A of City of South Perth Local Planning Scheme No. 6
Comprehensive new development
Building height
25 metre (measured to finished floor level of upper-most storey) building height limit
Proposed development building height is 92.5 metres (measured to finished floor level of upper-most storey) and 99.1 metres (measured to roof)
Because site is in Special Design Area building height limit may be varied (with no absolute maximum height specified) if development satisfies related Guidance Statements in Table A of Sch 9A and complies with all Performance Criteria in Table B of Sch 9A
Whether height of proposed development capable of approval under Sch 9A
Whether proposed development complies with all Development Requirements in Table A, satisfies Guidance Statements related to Building Height and Special Design Area in Table A and complies with all Performance Criteria in Table B of Sch 9A
Whether podium mandatory or optional
Whether setback provision under former R-Codes continues to operate under local planning scheme
Design quality
Whether architectural design of proposed building is 'exemplary, sensitive and sophisticated, contributing to the high quality of the inner urban environment being promoted within the Precinct'
Sustainability
Whether proposed development complies with Performance Criteria that 'the building is to achieve a 5-star rating under the relevant Green Star rating tool, or equivalent rating tool' by a 'pathway report' by a Green Star Accredited Professional indicating that proposed development is capable of achieving a 5-star rating and condition of development approval requiring development to achieve a 5-star rating
Whether height, bulk and scale of proposed development is acceptable
Nature and extent of community benefits provided by proposed development and relationship between community benefits proposed and building height variation required
Whether proposed development likely to prejudice opportunities for appropriate future development within precinct
Pedestrian and vehicular access and egress
Whether condition should be imposed requiring notification on title informing prospective purchasers of potential increase in traffic congestion in locality and that other development has potential to prevent or restrict views for occupiers of proposed development
City of South Perth Local Planning Scheme No. 6, cl 3(1), cl 3.2, cl 4.1, cl 4.1(3), cl 4.3, cl 4.3(1), cl 4.3(1)(m), cl 5.1(6), Sch 9A, Provision 1, Provision 3(1), Provision 3(2), Provision (3), Provision 3(4), Table A, Table B
Land Administration Act 1997 (WA), s 195, s 196
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 18(2), reg 18(3)(b)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Sch 2 (deemed provisions), cl 1, cl 67, cl 67(a), cl 67(b), cl 67(c), cl 67(s), cl 67(t), cl 67(m), cl 67(n), cl 68(2)(b)
Planning and Development Act 2005 (WA), s 3(1)(b), s 3(1)(c), s 87(4), s 241(1)(a), s 242, s 246(2), s 246(2)(a), s 247(1), s 247(2), s 247(4), s 247(5), s 257B, Pt 14
State Administrative Tribunal Act 2004 (WA), s 27(2), s 31(1)
State Planning Policy 3.1 - Residential Design Codes
State Planning Policy 7.3 - Residential Design Codes Volume 1
State Planning Policy 7.3 ­ Residential Design Codes Volume 2 - Apartments
Transfer of Land Act 1893 (WA), s 70A(1)
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Edge Visionary Living Pty Ltd v Nairn [2016] WASCA 211; (2016) 221 LGERA 309
Hanson Construction Materials and Town of Vincent [2008] WASAT 71
Ienco and City of Melville [2007] WASAT 56
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nairn v Metro-Central Joint Development Assessment Panel [2016] WASC 56
Nairn v Metro-Central Joint Development Assessment Panel [2018] WASCA 18; (2018) 53 WAR 20; (2018) 230 LGERA 319
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312
Presiding Member of the Metropolitan Central Joint Development Assessment Panel v 43 McGregor Road Pty Ltd [2018] WASC 98
Real Estate Institute of Western Australia and City of Subiaco [2009] WASAT 111
Santelli Architects Pty Ltd and City of Bayswater [2009] WASAT 114
Southern Forest Developments Pty Ltd and Western Australian Planning Commission [2019] WASAT 125
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134

Edge Holdings No. 6 Pty Ltd (applicant) sought review by the Tribunal of the decision of the Metro Central Joint Development Assessment Panel (JDAP) to refuse a development application for the construction of a 29 storey (above two level basement) building, comprising community, commercial and residential uses, at Nos. 72B-74 Mill Point Road, South Perth on the South Perth Peninsula. 

The Tribunal found that the proposed development has a distinctive architectural design comprising 'a dynamic, organic tower that would differentiate it from others in the precinct', with the 'curved geometry of the tower' having been 'carefully considered to reduce the bulk of the tower and soften the architecture' and improve view corridors from neighbouring buildings, and with the curved tower form appropriately integrated with the form of the podium.  The Tribunal also found that the design philosophy of the proposed development references 'the nearby Swan River and [is] influenced by flowing water, [and] the façade design uses layering of perforated metal and glass balustrades to create a rippling effect', with this 'fluid design simulat[ing] movement to provide a sophisticated architectural response, sympathetic to its riverfront setting'.

 

The height of the proposed development is 92.5 metres (measured to the finished floor level of the upper-most storey, which is how building height is determined under Sch 9A of the City of South Perth Local Planning Scheme No. 6 (Scheme)) and 99.1 metres (measured to the roof).  Under Plan 3 'Building Heights' in Sch 9A of the Scheme, the maximum building height on the site is 25 metres (measured to the finished floor level of the upper-most storey) and, consequently, the proposed development requires a height variation of 67.5 metres or 270%.  However, as the site is located within the Special Design Area under Sch 9A of the Scheme, the building height limit may be varied (with no absolute maximum building height specified) if the proposed development complies with all of the Development Requirements in Table A, satisfies the Guidance Statements related to variation of building height in the Special Design Area in Elements 5 and 6 in Table A, and complies with all of the Performance Criteria in Table B of Sch 9A of the Scheme. 

 

The Tribunal accepted the joint planning evidence and the common position of the parties that the vast majority of the Development Requirements in Table A and Performance Criteria in Table B are either inapplicable to, or complied with and satisfied by, the proposed development.  However, the acting presiding member of the JDAP (respondent) contended that the height of the proposed development is not capable of approval under Sch 9A of the Scheme, for essentially the following four reasons:

 

  1. The proposed development does not comply with Development Requirement 8.3(b) in Element 8 'Side and Rear Setbacks' in Table A of Sch 9A;
  2. The proposed development does not comply with and satisfy all of the Performance Criteria in Design Consideration 1 'Design Quality' in Table B of Sch 9A, which requires that 'the architectural design of the proposed building is exemplary, sensitive and sophisticated, contributing to the high quality of the inner urban environment being promoted within the Precinct';
  3. The proposed development is not consistent with Guidance Statements (b) and (c) of Element 6 'Special Design Area' in Table A of Sch 9A, because it is not of 'exceptional, sensitive and sophisticated design quality'; and
  4. The proposed development does not satisfy the Performance Criteria in Design Consideration 5 'Sustainability' in Table B of Sch 9A, which requires that '[i]n order to demonstrate excellence in sustainable development, the building is to achieve a 5-star rating under the relevant Green Star rating tool, or equivalent rating tool'.

 

The Tribunal determined that the height of the proposed development is capable of approval under Sch 9A of the Scheme, because the proposed development complies with all of the Development Requirements in Table A, satisfies the Guidance Statements related to variation of building height in the Special Design Area in Elements 5 and 6 in Table A, and complies with all of the Performance Criteria in Table B of Sch 9A of the Scheme. 

 

The Tribunal determined that the side and rear setbacks of the proposed development above the podium comply with Development Requirement 8.3(b) in Element 8 'Side and Rear Setbacks' in Table A of Sch 9A of the Scheme, because that provision, on its proper interpretation, prescribes minimum side and rear setbacks of 4 metres, which the proposed development satisfies.  The Tribunal found that the respondent's planning evidence and submissions in relation to setbacks and building separation are based on a misunderstanding as to the applicable development provisions, which are all contained within Sch 9A of the Scheme, and the provisions of State Planning Policy 7.3 - Residential Design Codes Volume 2 - Apartments in relation to setbacks and building separation defer to the Scheme provisions and are not relevantly applicable.

 

The Tribunal determined that 'the architectural design of the proposed building is exemplary, sensitive and sophisticated, contributing to the high quality of the inner urban environment being promoted within the Precinct', in compliance with Performance Criteria (a) in Design Consideration 1 'Design Quality' in Table B of Sch 9A of the Scheme.  Having regard to the broad expression of that provision, the breadth of the expert evidence relating to it, and the submissions of the parties, the Tribunal came to its determination in relation to the design quality of the proposed development after reviewing the extensive evidence and submissions presented to it under the following relevant topics:

 

  1. Architectural form and design quality;
  2. Quality of internal amenity;
  3. Impact on visual amenity and landscape and urban character;
  4. Impact on residential amenity in the locality;
  5. Present character of the locality;
  6. Contemplation of height, bulk and scale under Sch 9A of the Scheme; and
  7. Contemplation of height, bulk and scale under draft Amendment 61 to the Scheme.

 

In relation to architectural form and design quality, the Tribunal found that the proposed building form is 'an appropriately slender tower' and a 'sculpted building', with 'quite a complex form', and that the proposed podium is 'well considered and well designed'.  The Tribunal found that the 'organic form of the tower and the curved façade patterning is considered and innovative' and '[t]his architectural language and aesthetic is memorable and somewhat unique in its context in South Perth'.  The Tribunal found that the proposed development 'delivers a high level of amenity within [the building] by providing for appropriate natural light access, natural ventilation, privacy and outlook'.  The Tribunal found that the proposed development would not 'adversely affect the existing character of the [South Perth Peninsula, when viewed from the South Perth foreshore] as the dominant determining factor is the panoramic views [of the Swan River and the City of Perth] to the north [and the expansive sky]'.  Because of the dominant characteristic of the streetscape created by large London Plane Trees, the height, bulk and scale of the proposed building would not have a material impact on the streetscape and would be acceptable in its streetscape context.  In terms of impact on residential amenity in the locality, the Tribunal found that, although the proposed development would result in loss of views across the site from the eight to 10 storey buildings on the opposite side of Mill Point Road, the loss of views caused by the proposed development for apartments up to level eight in those buildings is 'a reasonable expectation for the community in consequence of the Building Height Limit applicable to the site under Sch 9A of the Scheme'.  The Tribunal also found that 'a compliant development (in terms of Building Height Limit and side setbacks) on the site could result in more significant loss of views for the apartments up to level eight in the buildings on the opposite side of the road than would occur as a result of the proposed development, because, in the proposed development, the minimum 4 metre setback … is exceeded on the northern side of the development and owing to the curved geometry of the building'.

 

The Tribunal determined that the height, bulk and scale of the proposed development is consistent with the current planning framework in Sch 9A of the Scheme, which, the Tribunal found, contemplates a 'stepped change in scale of development from what currently exists on this portion of Mill Point Road' and 'a dramatically different urban character and built form outcome into the future'.  The Tribunal also determined that the height, bulk and scale of the proposed development is broadly consistent with the contemplation of draft Amendment 61 to the Scheme.  Although the height of the proposed development is 8.8 metres higher than the absolute maximum Tier 2 height under Amendment 61, the Tribunal found that the height of the proposed development is broadly consistent with the planning intent of Amendment 61 to accommodate tall buildings in the area identified as 'Tier 2 Additional Development Potential Available', which includes the site.  In terms of plot ratio, although the proposed development has a plot ratio which is 1.4 or 1.6 greater than the absolute maximum Tier 2 plot ratio of 7.6 under Amendment 61, the exceedance is largely due to requirement under Sch 9A of the Scheme that comprehensive new development must incorporate a non-residential component with a minimum plot ratio of 1.0 and the requirement under Sch 9A of the Scheme (in order for the variation in building height to be capable of approval) to provide community benefit facilities.  Furthermore, although the gross floorplate area is 300m2 - 350m2 greater than the approximately 600m2 maximum gross floorplate area prescribed in Amendment 61, the exceedance is largely due to the inclusion within the calculation of gross floorplate area of the parts of balconies more than 2.4 metres from the enclosed part of the building.  The Tribunal observed that, by only excluding the first 2.4 metres of balconies from the calculation of gross floorplate area, Amendment 61 'may not accord with sound town planning principles, which include providing, where possible, a high level of internal amenity for residential apartments [by providing generous balconies]'.  If the balconies are excluded from the calculation of gross floorplate area, the proposed development is only about 5% in exceedance of the 30% gross floorplate area that would be prescribed under Amendment 61.

 

The Tribunal determined that the respondent's contention that the proposed development is not consistent with Guidance Statements (b) and (c) of Element 6 'Special Design Area' in Table A of Sch 9A of the Scheme, because it is not of 'exceptional ... design quality', is misconceived.  This is because the term 'exceptional' in the relevant provisions does not bear its ordinary meaning, but rather means a development that complies with the whole of Table B of Sch 9A.

 

The Tribunal also determined that the proposed development complies with the Performance Criteria in Design Consideration 5 'Sustainability' in Table B of Sch 9A of the Scheme, which requires that '[i]n order to demonstrate excellence in sustainable development, the building is to achieve a 5-star rating under the relevant Green Star rating tool, or equivalent rating tool'.  This is because the Tribunal accepted the evidence of a Green Star Accredited Professional, who provided a 'pathway report' as to how to achieve 5 Star Green Star rating, that the proposed development has the capacity to achieve this rating or an equivalent rating.  The Tribunal found that the pathway report by a Green Star Accredited Professional reflects 'entirely normal standard practice'.  The Tribunal determined that the Performance Criteria can be, and in the circumstances of this case is, complied with by 'a pathway report by a Green Star Accredited Professional evidencing that the proposed development is capable of achieving a 5 Star Green Star rating (or equivalent) and a condition of development approval requiring the development to achieve that rating'.

 

The Tribunal also determined that the height, bulk and scale of the proposed development is acceptable, because:

 

  • the side and rear setbacks of the proposed development above the podium comply with the applicable planning framework, as do the setbacks of the podium element;
  • the architectural form and design quality of the proposed development is appropriate;
  • the impact of the proposed development on residential amenity in the locality, including in relation to loss of views of the Swan River and the City of Perth skyline from properties on the opposite side of Mill Point Road and affect in terms of open views of the sky, is acceptable;
  • the height, bulk and scale of the proposed development is consistent with the contemplation of the current planning framework in Sch 9A of the Scheme; and
  • the height, bulk and scale of the proposed development is broadly consistent with the contemplation of Amendment 61 (and a draft Activity Centre Plan).

 

The Tribunal also found that the significant extent of local and wider community benefits provided within the proposed development 'is a factor in favour of permitting the variation in height proposed and granting conditional development approval in the circumstances of this case'.  The proposed development includes 1,415m2 of local and wider community benefits, comprising an ageing in place office, café, gourmet deli, medical consulting rooms, art gallery, health spa, physiotherapy, community gym, workshops and classrooms, library and reading room, multi-purpose room/cinemarette and public garden terrace.  In addition, in terms of occupier benefits, the Tribunal found that the proposed development would provide 'a high level of internal amenity, including in relation to natural light and sunlight access, natural ventilation, privacy and outlook (with generous balconies)' and 'extensive communal occupier benefits of a high level in terms of leisure and sporting amenities for residents on level 18, consisting of a gym, steamroom and sauna, an internal lounge and dining area, a theatrette (referred to as a 'theatre'), and an infinity pool, spa and external pool deck oriented to the Swan River and the City of Perth to the north-east, as well as associated amenities'.  The Tribunal also found that the proposed development would provide 'a significant occupier benefit that goes well beyond the requirement in [the Scheme], and which is of public benefit in terms of facilitating ageing in place (although restricted to occupants of the proposed building)' by conditions requiring 25% of the apartments (rather than 20%, as prescribed in the Scheme) to achieve the 'Silver Level' of the Livable Housing Design Guidelines and that 25% of the apartments are to achieve the higher 'Gold Level' of the Livable Housing Design Guidelines (when the Scheme does not require any apartments to achieve that level).

 

The Tribunal also determined that:

 

  • the internal amenity of the proposed development is acceptable in all respects, including in relation to building separation, natural ventilation and access to sunlight and natural light;
  • the proposed development is not likely to prejudice opportunities for appropriate future development within the South Perth Station Precinct; and
  • the proposed development is acceptable in relation to pedestrian and vehicular access and egress (including by waste servicing vehicles) and pedestrians on Mill Point Road.

 

The Tribunal determined that the correct and preferable decision in the circumstances of this case is to allow the height variation sought and to grant conditional development approval for the proposed development, subject to 52 conditions.  The Tribunal did not accept a submission made by an adjoining landowner that it should impose a condition requiring notifications on title of the approved development advising prospective purchasers that traffic congestion has the potential to increase in Mill Point Road and the surrounding locality negatively affecting vehicle access and egress for occupiers of the proposed development and that other development in the adjacent and surrounding locality has the potential to prevent or restrict views for occupiers of the proposed development.  The Tribunal determined that the notifications on title sought by the adjoining landowner are not reasonably required in the circumstances of this case and should therefore not be imposed.