APPROVAL FOR TOWER FLAWED
IT has again been determined by a court that MCJDAP was wrong to approve a building development application of 29 storeys at 74 Mill Point Road, South Perth because it was not consistent with a guidance statement that to gain such height the building had to be predominantly non-residential in order to consolidate the area’s role as an employment destination.
The City’s planning department had misinterpreted a development requirement in the local town planning scheme in asserting that “achieving a minimum non-residential plot ratio of 1.5 was sufficient to satisfy the requirements of the guidance statement.”
That provision didn’t mean that a maximum residential plot ratio of 1.5 applied according to the Court of Appeal’s decision of December 1, 2016.
“No reasonable or rational decision-maker could have been satisfied that the development consists of predominantly nonresidential uses”, the court decided.
“It is plain that the proposed development is for predominantly residential use.”
Meanwhile, MCJDAP has refused a 44 floor building on the site, but on October 19, 2016 approved a 34 storey building.
Will the two residents who’ve won their case on two occasions seek another review by the Supreme Court given that a condition of its approval was that “the approved plan shall clearly identify that the non-residential plot ratio area is greater than the residential plot ratio area?”
MCJDAP was aware that the respective calculations were not done as defined in the scheme.
The developer’s plot ratio figures were – Total: 11.1; non-residential: 5.56 and residential: 5.55. Comparing the figures (5. 56 and 5.55) does not meet the “predominantly” wording to which the Supreme Court gave attention in terms of its meaning in the context of its use:
Predominantly - the main or strongest element, mainly or for the most part (Cheney J) – a point at which the development failed the level of use as nonresidential.
It has two meanings in a dictionary: prevalent (common or widespread) and dominant (significant or important).
By any of those definitions, the test failed because 5.56 is virtually equal to 5.55 and therefore to grant bonus height from 25 metres to 116.65 was reckless.
The development application failed more tests as well when compared to some other guidance statements which in general the court took to be not discretionary but required.
And matters to which the council and DAP shall have due regard – include “any relevant proposed new TPS or amendment which has been granted consent for public submissions to be sought.”
It is the job of developers, planning officers, council and DAP to see that the scheme’s objectives are not ignored but are respected so that outcomes of a performance-based TPS are consistent with its objectives.
It is the job of the Minister for Planning to decide the fate of Amendment 46 so as to give clearer guidance to decisionmakers. CAROL ROE, Manning.