Southern Gazette (South Perth) - - OPINION -

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.

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