The Supreme Court of Western has recently set aside a decision of the Metro-Central Joint Development Assessment Panel (JDAP) in relation to a proposed development to be located on Mill Point Road, South Perth.
The JDAP decision was challenged by two Applicants, being owners of apartments adjacent to the development site. In addressing standing, Chaney J found that the Applicants had a special interest in the action, which was greater than other members of the public. It was accepted that the proposed development may have impacted the Applicant’s property, by effecting their views and thereby affecting their property values.
“In summary, the Applicant’s case was that the JDAP acted outside of its jurisdiction in respect to its approach to the questions of plot ratio, building height, the characterization of the shortfall in lots size as a minor variation and the requirements of Clause 7.5 of TPS6 and the discretion to vary the minimum setback.”
The proposed development was for a mixed use development, comprising of 91 residential apartments and 18 commercial tenancies including a café and various residents’ amenities. The proposed development site had an area of 1,427m2, a building height of 97m and a frontage of 33.1m. The total plot ratio of the proposed development was 7.9, with a residential plot ratio of 6.4 and non-residential plot ratio of 1.5. The proposed development was approved by JDAP on 25 May 2015. The approval was granted pursuant to the City of South Perth’s Town Planning Scheme No 6 (TPS6).
Clause 3.2 of TPS6 created various precincts within the Scheme area. The development site was located within Precinct 15 and was also within a special control area (SCA). Schedule 9 of TPS6 created further sub-precincts, and contained provisions relating to lots fronting the more significant roads within the precinct. The development site was located within the Mends sub-precinct and was also designated a Special Design Area (SDA) in accordance with Schedule 9.
The purpose of the SCA was
“to introduce very specific development requirements relating to comprehensive new development within the Special Control Area … where a variety of daily activities are closely integrated with substantial growth for an increasingly dense commercial centre”.
Schedule 9 also imposed various other requirements in the form of Tables and Plans.
Element 3 “Plot Ratio and Land Use Proportions” of Table A, Schedule 9 required:
- a non-residential minimum plot ratio of 1.0;
- where the total plot ratio is 3.0 or less, the residential plot ratio area is not to exceed 50%; and
- where the total plot ratio exceeds 3.0, the residential plot ratio is not to exceed 1.5.
Element 13 of Table A Schedule 9 provided, in relation to sites within the SDA, that Element 3 “Plot Ratio and Land Use Proportions” and Element 5 “Building Height” may be varied where it can be demonstrated that the development is consistent with the guidance statements applicable and meets all the relevant performance criteria of Table B.
It is worth noting that clause 4.3(n) of TPS6 showed the building height limit for the development site as 24.5m.
Table B of Schedule 9 specified a development site is to have, unless otherwise approved:
- minimum area of 1700m2; and
- a frontage of 24m
Chaney J considered that the proposed development in this matter was for predominately residential use. In this respect, His Honour considered that the discretion to vary the requirements of plot ratio and height had not been enlivened, as the proposed development had failed to demonstrate consistency with the guidance statements or meet all the relevant performance criteria. The proposed development was inconsistent with the purpose of ensuring that the precinct consolidated its role as an employment destination. Therefore, the JDAP had made a decision not properly or reasonably open to it, because no reasonable decision-maker could have been satisfied that the development consisted of a predominately non-residential use.
In relation to the discretion to vary once enlivened, Chaney J commented that the “significance and importance of a variation must properly involve an examination of the particular development proposed so as to understand the impact of the variation on the relevant planning objectives”. In addressing variations, any assessment must involve an analysis of the particular development proposal and the impact of the variation on the planning objectives inherent in Schedule 9.
The proposed development, with a total plot ratio of 7.9, required the non-residential component to be at least a plot ratio of 6.4, and not 1.5 as approved. The Supreme Court therefore found that JDAP had made a decision not properly or reasonably open to it, because no reasonable decision‑maker could have been satisfied that the development consisted of a predominately non-residential use.
For more information about this Update or any Local Government issue please contact Anne Wood on (08) 9321 3755. .
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.
 Australian Conservation Foundation Inc v The Commonwealth  HCA 53; (1980) 146 CLR 493, 526-530.
 Nairn v Metro-Central Joint Development Assessment Panel  WASC 56, para 45.