On 25 February 2016, the Supreme Court handed down its decision in Nairn v Metro-Central Joint Development Assessment Panel  WASC 56.
The decision by Justice Chaney quashed an approval by the Metro-Central Joint Development Assessment Panel for a 29 storey mixed use development on Mill Point Road, South Perth.
The decision has caused a great deal of consternation within the property development sector and attracted a lot of press about the ramifications for other approvals of high rise developments in South Perth.
The decision highlights the difficulties of interpreting and applying the provisions of a planning scheme which may have multiple, overlapping and, in some cases, disparate provisions applying to a particular subject site.
However, the decision should not be construed as precluding or limiting a decision-maker’s discretion to vary development requirements (such as height and plot ratio) under a planning scheme in appropriate circumstances.
On 25 May 2015, the Metro-Central JDAP (JDAP) approved an application by Edge Visionary Living Pty Ltd (Edge) for a mixed use development at Mill Point Rd, South Perth comprising 91 residential apartments and 18 commercial tenancies including a café and various residents’ amenities.
The JDAP’s approval was granted pursuant to the City of South Perth’s Town Planning Scheme No. 6 (TPS6).
The approved development comprised 29 storeys (plus two basement levels) and had an overall height of 97 metres (which exceeded the height limit of 25 metres for that area).
The residential plot ratio of the approved development was 6.4 (which exceeded the residential plot ratio limit of 1.5 for that precinct [i]). The non-residential plot ratio was 1.5.
The Planning Framework
“a more intensive and mixed use form where a variety of daily activities are closely integrated with substantial growth for an increasingly dense commercial centre.” [iv]
More relevantly, any comprehensive new development in this area had to consist of predominantly non-residential uses to ensure the precinct consolidated its role as an employment destination. [v]
The requirements for plot ratio and building height at the subject site could be varied if it could be demonstrated that the development was consistent with the guidance statements applicable to those elements and met the relevant performance criteria. [vi
Analysis of the Decision
A lot has been made about the fact that the development relevant to this matter was to be 97m high where the scheme had a height limit of 25m, and that plot ratios and lots sizes were also not in accordance with the scheme.
Certainly, in the legal challenge that was brought by two South Perth residents against the JDAP’s approval of the development, arguments were run that the JDAP’s approval should be quashed because of these things. Ultimately, though, the Court’s decision wasn’t based on the height, bulk, scale and lot size of the development being contrary to the scheme.
Those grounds of objection were dismissed by the Court.
Justice Chaney determined the relevant question was whether a development of the size and scale of the proposed development was capable of falling within the available discretion under TPS6 [vii] independently of its proposed use (i.e. whether it could be said to be beyond anything contemplated by Schedule 9 of TPS6).
In answering this question, Justice Chaney noted that the scope for variations in height limit and maximum plot ratio, the latter being unlimited, was conditioned by the satisfaction of the applicable guidance statements and specified performance criteria and concluded at  that:
“…there is nothing inconsistent between approval of a building of a height four times the maximum building height of 25 m and:
- the stated purpose of encouragement of a more intensive mixed use form for an increasingly dense commercial centre;
- consolidation of the development area in its role as an employment destination;
- the encouragement of performance based development which recognises individual precinct objectives and desired future character; or
- the objective of higher intensity visitation being located on the ground floor with residential uses in the upper floor.”
What the Court focussed on, and which was the ultimate reason for it concluding that the JDAP’s decision should be quashed, was the fact that the development as a whole did not satisfy the City’s applicable guidance statement for development at this particular site.
Development at this site had to consist of predominantly non-residential uses, and the Court said that here, that was patently not the case.
In the circumstances of 91 residential apartments and 18 commercial tenancies, the Court considered that no reasonable or rational decision maker could have been satisfied that the development consisted of predominantly non-residential uses.
The Court therefore quashed the JDAP’s approval.
The Court had no issue with the scope of the JDAP’s discretion under TPS6 to vary the maximum building height, plot ratio and lot sizes of the development provided that the development satisfied the applicable guidance statement for a predominant non-residential use.
Relevantly, the Court was satisfied that the JDAP (and the Responsible Authority Reports relied upon by the JDAP) had appropriately addressed the relevant performance criteria in relation to the variation of lot sizes, building height and maximum plot ratio under TPS6.
Had the development been for a 29 storey non-residential development, the JDAP’s decision would have been upheld.
Indeed, in response to the Court’s decision, the developer for this site has said that it will continue with a replacement development application for a 44 storey apartment tower containing 34 serviced apartments (being a non-residential use).
It remains to be seen whether other legal challenges will be brought against other high rise developments approved for sites situated within the South Perth Station Precinct. While the lawfulness of each development approval must be assessed on a case-by-case basis, it is clear that approvals for predominantly residential development are at risk of being overturned, but not because they exceed maximum height limits.
In its first decision following the delivery of the Court’s judgment in Nairn v Metro-Central JDAP, the Metro-Central JDAP at its meeting on 8 March 2016 resolved 3:2 to approve an 11 storey development on Labouchere Road (which is also situated within the City of South Perth’s ‘special design area’). This latest approval was in respect of a development comprising 34 residential apartments, 66 short-stay tourist accommodation units and offices and a café on the ground floor. Relevantly, the development exceeded the maximum plot ratios and building heights for the subject site. However, the JDAP concluded that it had discretion to vary these requirements and approve the development, noting that in this case the development was also predominantly non-residential.