Recent Decision Deems Development Approval for Proposed High-rise Apartments in Perth Metropolitan Area Invalid

In the recent decision of Nairn v Metro Central Joint Development Assessment Panel ([2016] WASC 56), the Supreme Court of  Western Australia (Court) upheld a highly-anticipated judicial review application concerning a decision of the Metro Central Joint Development Assessment Panel (JDAP) for the first time. The Court ruled that the JDAP’s approval of a development for a multimillion dollar high rise apartment complex (Development) was invalid as its approval breached local planning laws, which prohibited buildings of this type which are predominantly residential in nature.

This decision casts doubt over development approvals given to other high-rise projects planned within the Perth metropolitan area. This ruling is also likely to have far-reaching effects on the commercial viability of new residential developments in suburban precincts. It remains to be seen whether other legal challenges will be brought against other similar developments. Developers may need to reconsider design specifications and make modifications so its projects conform to the relevant local planning scheme, and particularly, the residential and non- residential components prescribed.

The Development at the centre of this case was intended to be 29 storeys high, and consist of 91 residential apartments and 18 commercial tenancies. The town planning scheme applicable to the Development required that developments in the area:

  • Should consist of predominantly non-residential uses, in line with its role as an employment destination
  • Are limited to a height of 25 metres and a residential plot ratio limit of 1.5

However, the Development was intended to be 97 metres tall with a residential plot ratio of 6.4, a non-residential plot ratio of 1.5 and had a lot area of 1,427 sqm.

The planning scheme contained a discretion to permit a “minor variation” from the height limit and plot ratio. However, this was only available if the Development met applicable “performance criteria”. Among other things, this required that the Development had a minimum area of 1,700 sqm.

The JDAP’s approval for the Development triggered an application for judicial review of this decision. The application was commenced by local residents, Karyl Nairn QC and Richard Hawley (Applicants), each of whom owned apartments in the area. The Applicants argued that the JDAP exceeded its jurisdiction in granting the development approval, particularly as the Development was not in compliance with several aspects of the planning scheme.

However, the Court’s reasoning for quashing the JDAP approval was not due to the height, lot area or residential plot ratio of the Development. The Court asserted that the JDAP did have a legitimate discretion to vary these aspects of the Development. Instead, it was whether the JDAP were able to exercise this discretion independently, without considering the proposed residential use.

Ultimately, it was ruled that the residential nature of the Development warranted consideration before exercising this discretion. Approval of the Development was therefore contrary to the element of the scheme stating that developments should consist of predominantly non-residential uses. It was patent that the Development was overwhelmingly residential in character, and no reasonable or rational decision maker could have been satisfied that the Development was non-residential, which would activate the discretion available. If the Development was for predominantly non- residential purposes, the JDAP’s decision would have been upheld by the Court.

Interestingly, before this decision was handed down, another development application had been submitted by the developer over the same site for another mixed-use development, which stands 13 storeys and 48 metres higher than the Development.

The Court’s decision is currently the subject of an appeal by the developer.