Questions & our answers
march 2016 - Supreme court decision on judicial review of 74 mill point rd
Are you happy with the Supreme Court's decision?
South Perth residents are delighted with the Court’s decision.
We have said from the outset that irrational planning approvals were being granted in South Perth that were contrary to the Station Precinct Plan, promoted to the public by the City of South Perth back in 2010-2011. The Court has now recognised that the residents’ concerns were well based, and so we all feel vindicated.
The successful applicants Ric Hawley and Karyl Nairn QC said they were delighted with the Court's decision.
Ms Nairn, who is a law graduate of UWA, a Queen's Counsel and a Council member for the rule of law charity, JUSTICE, said: "The flawed process by which the JDAP gave approval to this inappropriate development was like a scene out of a Kafka novel. It is a sad indictment of the local planning procedures that litigation provided the only available means of redress for the residents of South Perth. We are fortunate at least in Western Australia that our Courts have the wisdom and independence to protect the public against unlawful behaviour by administrative bodies. The Court's decision should bring some much needed clarity and rationality into the planning process in South Perth."
How do you feel knowing the Court upheld the approval on issues of height, setback and design?
The Court has ruled that the proposed development is unlawful.
The effect of the decision is that the issue of height cannot be divorced from the purpose of the development. The Court has made it clear that if developers want to build a predominantly residential development in the South Perth Peninsula, they cannot do so at more than the prescribed height. If they want to build at more than the prescribed height, they must build a predominantly non-residential development, which is fundamentally different from both the 29 storey and the 44 storey proposals for 74 Mill Point Road.
South Perth residents are delighted with the Court’s decision.
We have said from the outset that irrational planning approvals were being granted in South Perth that were contrary to the Station Precinct Plan, promoted to the public by the City of South Perth back in 2010-2011. The Court has now recognised that the residents’ concerns were well based, and so we all feel vindicated.
The successful applicants Ric Hawley and Karyl Nairn QC said they were delighted with the Court's decision.
Ms Nairn, who is a law graduate of UWA, a Queen's Counsel and a Council member for the rule of law charity, JUSTICE, said: "The flawed process by which the JDAP gave approval to this inappropriate development was like a scene out of a Kafka novel. It is a sad indictment of the local planning procedures that litigation provided the only available means of redress for the residents of South Perth. We are fortunate at least in Western Australia that our Courts have the wisdom and independence to protect the public against unlawful behaviour by administrative bodies. The Court's decision should bring some much needed clarity and rationality into the planning process in South Perth."
How do you feel knowing the Court upheld the approval on issues of height, setback and design?
The Court has ruled that the proposed development is unlawful.
The effect of the decision is that the issue of height cannot be divorced from the purpose of the development. The Court has made it clear that if developers want to build a predominantly residential development in the South Perth Peninsula, they cannot do so at more than the prescribed height. If they want to build at more than the prescribed height, they must build a predominantly non-residential development, which is fundamentally different from both the 29 storey and the 44 storey proposals for 74 Mill Point Road.
The developer is currently submitting a DA to the City of South Perth, on the same lot as the proposed Lumiere development, with a height of 44 storeys that will meet the prescribed 50/50 commercial and residential mix. What action will the Save South Perth Peninsula Action Group (SSPPAG) take to oppose this development?
The new application has been available for comment on the City Of South Perth website so many members and neighbours have given their feedback. The council planner prepares a Responsible Authority Report (RAR) for the JDAP to recommend or reject the proposal. (JDAPs rarely take any notes of reject recommendations)
The review of that proposal by JDAP was to have been on 8th March 2016 – but has been withdrawn as a direct result of the Supreme Court decision. When it is rescheduled we will once again be given an opportunity to make a 5 minute deputation.
Interestingly, the points upheld in this recent Judicial Review of 74 Mill Point Rd, were first raised in the original JDAP review in May 2015. But JDAP chose not to listen to Margie Tannock, Partner of Squire Patton Boggs, Richard Lewis, a past Planning Minister, Evan Jones, International Town Planner, all of whom expressed grave concerns to JDAP that it did not have the power or authority to approve 74 Mill Point in that form. JDAP chose to ignore us - in fact they paid us less than courteous attention.
If approved again in its current form, we would be left with few options. As this undemocratic process now stands – aggrieved residents have no right of appeal unlike developers who can appeal to SAT. A Supreme Court judicial review is all we have open to us.
The new application has been available for comment on the City Of South Perth website so many members and neighbours have given their feedback. The council planner prepares a Responsible Authority Report (RAR) for the JDAP to recommend or reject the proposal. (JDAPs rarely take any notes of reject recommendations)
The review of that proposal by JDAP was to have been on 8th March 2016 – but has been withdrawn as a direct result of the Supreme Court decision. When it is rescheduled we will once again be given an opportunity to make a 5 minute deputation.
Interestingly, the points upheld in this recent Judicial Review of 74 Mill Point Rd, were first raised in the original JDAP review in May 2015. But JDAP chose not to listen to Margie Tannock, Partner of Squire Patton Boggs, Richard Lewis, a past Planning Minister, Evan Jones, International Town Planner, all of whom expressed grave concerns to JDAP that it did not have the power or authority to approve 74 Mill Point in that form. JDAP chose to ignore us - in fact they paid us less than courteous attention.
If approved again in its current form, we would be left with few options. As this undemocratic process now stands – aggrieved residents have no right of appeal unlike developers who can appeal to SAT. A Supreme Court judicial review is all we have open to us.
As the developers are now including serviced apartments to meet the “Commercial” component, won’t the 44/50/60 storey buildings conform to the regulations?
Justice Chaney made it clear that the purpose of the use, rather than the characterization of the use, is the key factor for the Council to take into account. The bottom line is that the type of use proposed for the building must properly be considered to promote South Perth as an employment destination.
His comments are:
82 "There are a number of reasons why I consider that the stipulation, that any comprehensive new development consist of predominantly non-residential uses, must be met in order to enliven the discretion to vary the requirements of plot ratio and height.
83 The first is that the stipulation is coupled with an express purpose, namely 'to ensure the precinct consolidates its role as an employment destination'. That purpose is not served by a predominantly residential use. A comprehensive new development which is overwhelmingly residential, as is the proposed development, is inconsistent with that stated purpose."
The proper question is therefore not how to characterize serviced apartments but rather whether the proposed development is going to fulfil the purpose for which the extraordinary powers of additional height and nil set backs are granted.
We are greatly concerned that developers will argue that token, serviced apartments entitle them to additional height when serviced apartments clearly do not promote employment. At best, serviced apartments employ cleaners (and probably fewer cleaners than would be employed in residential apartments) so they contribute nothing to the aim of making South Perth a place where people travel to work.
Additional height developments need to contribute something meaningful and substantive to the regeneration of the area as an employment destination; serviced apartments and residential apartments are simply doing what we already have and so should be confined to the prescribed heights like every other development.
The developer has to accept that its approval was unlawful, that it is not entitled to build residential high rise in South Perth and that it will need to go back to the drawing board if it wants to do high-rise and consider how to create something that will make South Perth a place where people come to WORK!
What role did SPPAG have in Amendment 46 being rewritten by the City of South Perth?
The South Perth Station Precinct Plan proposed changes to an area within 800 metres of a planned future rail station on the Perth-Mandurah line. It was included into the South Perth Town Planning Scheme as Schedule 9 in January 2013.
The Station Precinct Plan was intended to propose moderately scaled buildings of mainly 8 storeys near the planned station, with some 13 storey buildings on Judd Street and Melville Parade. A ‘Special Design Area’ which applied to most of the Station Precinct Plan also allowed some additional height increases in return for the development meeting a range of performance criteria such as a minimum site size, exceptional architectural design and preventing overshadowing of neighbours.
Something went badly wrong, however, after the Precinct Plan came into force. Certain officers in the South Perth Council began interpreting Schedule 9 as allowing UNLIMITED height buildings. This is not what the community expected. In 2014 and 2015, some very tall developments were approved by the State Government’s Joint Development Assessment Panel (JDAP) on the advice of Council’s officers. Officers attempted to consolidate this unlimited height, pro-development interpretation by means of further proposed amendments to the South Perth Town Planning Scheme (known as "Amendment No 46"). The original Amendment 46 proposals were regarded by many people in the community as making a bad situation worse and protests were made to Councillors throughout 2015 in the form of letters, calls, petitions, meetings and deputations. The idea of unlimited building heights in South Perth exceeds any reasonable community expectation of the moderately scaled maximum heights which had been developed through the South Perth Station Precinct Plan. Drastic increases in height, and zero setbacks, are completely out of character with the current architectural tone and natural landscape of the South Perth Peninsula and put major strains on roads and infrastructure throughout the Station Precinct. Even the elected councillors were shocked at the dramatic consequence of the first Amendment.
The South Perth City Council has now listened to the local community protests and has proposed modifications to Amendment No. 46 (the "new Amendment 46") to sensibly limit development through more appropriate height limits and performance requirements. The reworded Amendment 46 passed unanimously by the elected councillors and to send it out to comment late last year.
Coincidently around 50 people gave their support to the original Amendment 25 which essentially bought in unlimited heights - due to very select feedback and handling of the process. With Amendment 46, over 900 submissions have been received and council staff are working to have their report to council by the April Meeting.
Is your group anti-development?
"The developers have repeatedly tried to mischaracterise our opposition to the high-rise development as a minority of disgruntled residents", Vicki Redden said, "whereas the reality is that residents throughout South Perth, Como, Kensington and Manning have been shocked by these unexpected planning approvals. We were never consulted about a Scheme to permit skyscrapers in South Perth. Our concerns about the incorrect application of the Town Planning Scheme were fully justified. It is important that people stand up and speak out when they see things happening in their area that are not right! They may try to label us as NIMBYS, but there is nothing wrong with standing up and being passionate about the area in which you live and we would stand up against this happening in anyone’s backyard".
Mr Terry Hogan added "We are not anti-development; we simply want responsible development that preserves the character of the area. We hope all developers in South Perth will act in an appropriate way and respect the spirit of the Court's ruling."
The developers are calling this decision anti-development and say it will prevent millions of dollars being invested?
To characterise the Court's judgment as "anti-development" is factually and legally inaccurate. The Judge carefully and correctly construed the purpose of the Scheme. His construction of the Scheme amendment to facilitate predominantly commercial development was also consistent with the promotional material and the Station Precinct Plan. His judgment is about law and not the merits of the planning application. The bottom line is that JDAP had no power to approve a residential high rise building and raise the hopes of developers that this type of building was legal. Appropriate medium rise development will still continue and millions of dollars of investment will still continue.
What specific planning principles does SPPAG support?
Planning should be orderly and proper …… disciplined methodical, logical and systematic ….not haphazard or capricious. We have 2 very experienced town planners and lawyers specialising in matters of land and planning within our group with whom we consult regularly.
We also believe that town planning in the City of South Perth should be directed by the city (councillors and staff, with feedback from the community) The future streetscapes of South Perth should not be determined by a group of people with very vested interests. International property investment funds should not be above the law, nor should their voices be heard above the community.
What would the SPPAG like to see happen in the area in the future?
We would like to see development which complies with the law. Developers can't just build unlawful residential high rise in an area where the law does not permit it, just because they think it’s a good idea. Developers cannot put profit above the law. They cannot put profit above democracy.
What we would like to see is what was promoted through the original Town Planning Scheme and the Station Precinct Plan. A revitalisation of the whole area, through medium rise infill, mixed retail and commercial to attract a new workforce. What is happening right now, is that a few developers who had the inside running are asking for an enormous bonus in height. These first few who have sought approval such as Finbar, ZoneQ, Hillam etc have swallowed up the whole residential market and some!
Smaller developers trying to develop medium commercial/residential mix buildings are finding it difficult to compete and so appropriate development across the whole area is not happening.
We would love to see more evenly spread medium-rise infill with the retail mix which as planned, will provide revitalisation across the whole area, not just residential towers all within 300mts of Mends Street.
Studies stated that infrastructure such as sewerage, power, water and roads needed an urgent upgrade before any development started – none of that has been done. Nor is there a Local Planning or Housing Strategy or a Comprehensive Traffic Study been done. Nor has the Developer Contribution Scheme been implemented to recoup some cost of the infrastructure that will be required. And there has been no study done on the social problems associated with introducing high-rise, nor the energy consumption of such buildings.
We further hope that another outcome from this process will be the instilling of some order and good governance into what is currently a chaotic planning process in the City of South Perth.
Does the SPPAG support a train station at South Perth?
South Perth has never had a specific count of residents who want and don’t want a station, so its true popularity is really unknown. Our members and supporters have expressed a variety of opinions, but mostly we hear that it will be a long time before it emerges. The important issue though is that the station is at the heart of the Station Precinct Plan and the statutory document on which town planning in this area is based.
By universal standards, the walking distance people will commute to public transport is between 600-800 metres. This area of the peninsula where the proposal is at 74 Mill Point Rd is over a kilometre walking distance and is why this area is removed for the “Special Design Area” of the Station Precinct in Amendment 46.
The Station plans are for no parking, it has a very narrow catchment area being surrounded, by a large park, a golf course, a zoo and the freeway – all aspects which transport experts say make it very unlikely the station will ever come to fruition.
The majority of these towers that are proposed in the Mends St/Mill Point Rd area are residential, car-centric towers and are a kilometre away – nothing that adds to the case for a station.
The Peninsula should never have been included in the Special Design Area marked for intensive commercial development and SPPAG has campaigned to amend the Scheme to exclude the Peninsula from the commercial development zone for South Perth. This area is primarily residential and it makes no sense to have high rise commercial development there, especially where this will interfere with the historic avenue of trees on Mill Point Road. The exclusion of the Peninsula from the SDA was not before the Judge and is entirely separate from the question of why the proposed development at 74 Mill Point was unlawful.
Why was the Lumiere the particular development opposed, given that there are a number of similar developments under construction, going to Council, or being designed?
At the time of this proposal South Perth Council’s policy was to inform people within a very limited area of a new proposal – this has been expanded in the last year, due to questions and suggestions from this group. For example we live 88 metres from the proposal at 74 Mill Point Rd and we did not receive notification of a building 400% over height in our street, or a building that will increase traffic in our street by over 1200 VPD, or a building that will shadow many others for hours a day, or a building that would jeopardise an historic avenue of London Plane Trees – the landmark of this area.
The previous proposal at Civic Heart had no residents within the notification area, so very few people knew of this approval until it appeared on the front page of the local paper – and all of a sudden if was for 37 stories not the 17-20 described to the public when the council land was sold the year before. That raised the ire of locals. The Civic Heart building was always intended to be the focal point and the tallest building at ~20 storeys.
The residents at 73 Mill Point Rd did receive notification and informed others in the street – and so the first meeting of SPPAG was held.
In the first half of last year, we went through the correct channels of providing feedback and making deputations – only for the building to be approved by JDAP in May 2015. If the proposal had not been approved the developer could appeal to SAT and in nearly every case so far approval is given. For residents and neighbours there is no right of appeal – the only course of action is to take it to the Supreme Court for a Judicial Review.
Will the SPPAG oppose these other developments?
We are calling upon other developers who have had development approvals in South Perth granted by the same JDAP body to make appropriate changes so that their developments are compliant with the Court's interpretation of the Town Planning Scheme in South Perth.
There is very limited scope for residents who have not been part of the approval process of a development to take further action.
How many supporters do you have in South Perth? Who are the pro-development group?
We now have over a thousand supporters right across South Perth, Como, Kensington, Manning and Karawara. Then there are the 32 DAP-affected Communities right across Perth that make up many thousands more supporters.
This debate on high-rise in South Perth is not an argument between residents and residents; this is a fight between residents and those with very vested interests.
The lobby group demanding unlawful high-rise in South Perth are by their own press release a group of property agents, developers and builders. We have been unable to find the actual membership or who is funding the group. But they are pressuring, even threatening council, the councillors and the mayor with legal action to try to regain the status quo of unlimited height and planning mayhem.
These people led by ex-mayor James Best claim that Amendment 46 was a knee-jerk reaction - but in fact it was the result of the extensive input from esteemed town planners, university resources, developers, elected councillors and residents. The lobby group is also claiming that Amendment 46 will excise a portion of developable land. This is totally incorrect; it merely reintroduces some reasonable controls to return us to the objectives of the original Town Planning Scheme.
The best outcome from this decision would be to see some order and good governance into what is currently a chaotic planning process in the City of South Perth.
Justice Chaney made it clear that the purpose of the use, rather than the characterization of the use, is the key factor for the Council to take into account. The bottom line is that the type of use proposed for the building must properly be considered to promote South Perth as an employment destination.
His comments are:
82 "There are a number of reasons why I consider that the stipulation, that any comprehensive new development consist of predominantly non-residential uses, must be met in order to enliven the discretion to vary the requirements of plot ratio and height.
83 The first is that the stipulation is coupled with an express purpose, namely 'to ensure the precinct consolidates its role as an employment destination'. That purpose is not served by a predominantly residential use. A comprehensive new development which is overwhelmingly residential, as is the proposed development, is inconsistent with that stated purpose."
The proper question is therefore not how to characterize serviced apartments but rather whether the proposed development is going to fulfil the purpose for which the extraordinary powers of additional height and nil set backs are granted.
We are greatly concerned that developers will argue that token, serviced apartments entitle them to additional height when serviced apartments clearly do not promote employment. At best, serviced apartments employ cleaners (and probably fewer cleaners than would be employed in residential apartments) so they contribute nothing to the aim of making South Perth a place where people travel to work.
Additional height developments need to contribute something meaningful and substantive to the regeneration of the area as an employment destination; serviced apartments and residential apartments are simply doing what we already have and so should be confined to the prescribed heights like every other development.
The developer has to accept that its approval was unlawful, that it is not entitled to build residential high rise in South Perth and that it will need to go back to the drawing board if it wants to do high-rise and consider how to create something that will make South Perth a place where people come to WORK!
What role did SPPAG have in Amendment 46 being rewritten by the City of South Perth?
The South Perth Station Precinct Plan proposed changes to an area within 800 metres of a planned future rail station on the Perth-Mandurah line. It was included into the South Perth Town Planning Scheme as Schedule 9 in January 2013.
The Station Precinct Plan was intended to propose moderately scaled buildings of mainly 8 storeys near the planned station, with some 13 storey buildings on Judd Street and Melville Parade. A ‘Special Design Area’ which applied to most of the Station Precinct Plan also allowed some additional height increases in return for the development meeting a range of performance criteria such as a minimum site size, exceptional architectural design and preventing overshadowing of neighbours.
Something went badly wrong, however, after the Precinct Plan came into force. Certain officers in the South Perth Council began interpreting Schedule 9 as allowing UNLIMITED height buildings. This is not what the community expected. In 2014 and 2015, some very tall developments were approved by the State Government’s Joint Development Assessment Panel (JDAP) on the advice of Council’s officers. Officers attempted to consolidate this unlimited height, pro-development interpretation by means of further proposed amendments to the South Perth Town Planning Scheme (known as "Amendment No 46"). The original Amendment 46 proposals were regarded by many people in the community as making a bad situation worse and protests were made to Councillors throughout 2015 in the form of letters, calls, petitions, meetings and deputations. The idea of unlimited building heights in South Perth exceeds any reasonable community expectation of the moderately scaled maximum heights which had been developed through the South Perth Station Precinct Plan. Drastic increases in height, and zero setbacks, are completely out of character with the current architectural tone and natural landscape of the South Perth Peninsula and put major strains on roads and infrastructure throughout the Station Precinct. Even the elected councillors were shocked at the dramatic consequence of the first Amendment.
The South Perth City Council has now listened to the local community protests and has proposed modifications to Amendment No. 46 (the "new Amendment 46") to sensibly limit development through more appropriate height limits and performance requirements. The reworded Amendment 46 passed unanimously by the elected councillors and to send it out to comment late last year.
Coincidently around 50 people gave their support to the original Amendment 25 which essentially bought in unlimited heights - due to very select feedback and handling of the process. With Amendment 46, over 900 submissions have been received and council staff are working to have their report to council by the April Meeting.
Is your group anti-development?
"The developers have repeatedly tried to mischaracterise our opposition to the high-rise development as a minority of disgruntled residents", Vicki Redden said, "whereas the reality is that residents throughout South Perth, Como, Kensington and Manning have been shocked by these unexpected planning approvals. We were never consulted about a Scheme to permit skyscrapers in South Perth. Our concerns about the incorrect application of the Town Planning Scheme were fully justified. It is important that people stand up and speak out when they see things happening in their area that are not right! They may try to label us as NIMBYS, but there is nothing wrong with standing up and being passionate about the area in which you live and we would stand up against this happening in anyone’s backyard".
Mr Terry Hogan added "We are not anti-development; we simply want responsible development that preserves the character of the area. We hope all developers in South Perth will act in an appropriate way and respect the spirit of the Court's ruling."
The developers are calling this decision anti-development and say it will prevent millions of dollars being invested?
To characterise the Court's judgment as "anti-development" is factually and legally inaccurate. The Judge carefully and correctly construed the purpose of the Scheme. His construction of the Scheme amendment to facilitate predominantly commercial development was also consistent with the promotional material and the Station Precinct Plan. His judgment is about law and not the merits of the planning application. The bottom line is that JDAP had no power to approve a residential high rise building and raise the hopes of developers that this type of building was legal. Appropriate medium rise development will still continue and millions of dollars of investment will still continue.
What specific planning principles does SPPAG support?
Planning should be orderly and proper …… disciplined methodical, logical and systematic ….not haphazard or capricious. We have 2 very experienced town planners and lawyers specialising in matters of land and planning within our group with whom we consult regularly.
We also believe that town planning in the City of South Perth should be directed by the city (councillors and staff, with feedback from the community) The future streetscapes of South Perth should not be determined by a group of people with very vested interests. International property investment funds should not be above the law, nor should their voices be heard above the community.
What would the SPPAG like to see happen in the area in the future?
We would like to see development which complies with the law. Developers can't just build unlawful residential high rise in an area where the law does not permit it, just because they think it’s a good idea. Developers cannot put profit above the law. They cannot put profit above democracy.
What we would like to see is what was promoted through the original Town Planning Scheme and the Station Precinct Plan. A revitalisation of the whole area, through medium rise infill, mixed retail and commercial to attract a new workforce. What is happening right now, is that a few developers who had the inside running are asking for an enormous bonus in height. These first few who have sought approval such as Finbar, ZoneQ, Hillam etc have swallowed up the whole residential market and some!
Smaller developers trying to develop medium commercial/residential mix buildings are finding it difficult to compete and so appropriate development across the whole area is not happening.
We would love to see more evenly spread medium-rise infill with the retail mix which as planned, will provide revitalisation across the whole area, not just residential towers all within 300mts of Mends Street.
Studies stated that infrastructure such as sewerage, power, water and roads needed an urgent upgrade before any development started – none of that has been done. Nor is there a Local Planning or Housing Strategy or a Comprehensive Traffic Study been done. Nor has the Developer Contribution Scheme been implemented to recoup some cost of the infrastructure that will be required. And there has been no study done on the social problems associated with introducing high-rise, nor the energy consumption of such buildings.
We further hope that another outcome from this process will be the instilling of some order and good governance into what is currently a chaotic planning process in the City of South Perth.
Does the SPPAG support a train station at South Perth?
South Perth has never had a specific count of residents who want and don’t want a station, so its true popularity is really unknown. Our members and supporters have expressed a variety of opinions, but mostly we hear that it will be a long time before it emerges. The important issue though is that the station is at the heart of the Station Precinct Plan and the statutory document on which town planning in this area is based.
By universal standards, the walking distance people will commute to public transport is between 600-800 metres. This area of the peninsula where the proposal is at 74 Mill Point Rd is over a kilometre walking distance and is why this area is removed for the “Special Design Area” of the Station Precinct in Amendment 46.
The Station plans are for no parking, it has a very narrow catchment area being surrounded, by a large park, a golf course, a zoo and the freeway – all aspects which transport experts say make it very unlikely the station will ever come to fruition.
The majority of these towers that are proposed in the Mends St/Mill Point Rd area are residential, car-centric towers and are a kilometre away – nothing that adds to the case for a station.
The Peninsula should never have been included in the Special Design Area marked for intensive commercial development and SPPAG has campaigned to amend the Scheme to exclude the Peninsula from the commercial development zone for South Perth. This area is primarily residential and it makes no sense to have high rise commercial development there, especially where this will interfere with the historic avenue of trees on Mill Point Road. The exclusion of the Peninsula from the SDA was not before the Judge and is entirely separate from the question of why the proposed development at 74 Mill Point was unlawful.
Why was the Lumiere the particular development opposed, given that there are a number of similar developments under construction, going to Council, or being designed?
At the time of this proposal South Perth Council’s policy was to inform people within a very limited area of a new proposal – this has been expanded in the last year, due to questions and suggestions from this group. For example we live 88 metres from the proposal at 74 Mill Point Rd and we did not receive notification of a building 400% over height in our street, or a building that will increase traffic in our street by over 1200 VPD, or a building that will shadow many others for hours a day, or a building that would jeopardise an historic avenue of London Plane Trees – the landmark of this area.
The previous proposal at Civic Heart had no residents within the notification area, so very few people knew of this approval until it appeared on the front page of the local paper – and all of a sudden if was for 37 stories not the 17-20 described to the public when the council land was sold the year before. That raised the ire of locals. The Civic Heart building was always intended to be the focal point and the tallest building at ~20 storeys.
The residents at 73 Mill Point Rd did receive notification and informed others in the street – and so the first meeting of SPPAG was held.
In the first half of last year, we went through the correct channels of providing feedback and making deputations – only for the building to be approved by JDAP in May 2015. If the proposal had not been approved the developer could appeal to SAT and in nearly every case so far approval is given. For residents and neighbours there is no right of appeal – the only course of action is to take it to the Supreme Court for a Judicial Review.
Will the SPPAG oppose these other developments?
We are calling upon other developers who have had development approvals in South Perth granted by the same JDAP body to make appropriate changes so that their developments are compliant with the Court's interpretation of the Town Planning Scheme in South Perth.
There is very limited scope for residents who have not been part of the approval process of a development to take further action.
How many supporters do you have in South Perth? Who are the pro-development group?
We now have over a thousand supporters right across South Perth, Como, Kensington, Manning and Karawara. Then there are the 32 DAP-affected Communities right across Perth that make up many thousands more supporters.
This debate on high-rise in South Perth is not an argument between residents and residents; this is a fight between residents and those with very vested interests.
The lobby group demanding unlawful high-rise in South Perth are by their own press release a group of property agents, developers and builders. We have been unable to find the actual membership or who is funding the group. But they are pressuring, even threatening council, the councillors and the mayor with legal action to try to regain the status quo of unlimited height and planning mayhem.
These people led by ex-mayor James Best claim that Amendment 46 was a knee-jerk reaction - but in fact it was the result of the extensive input from esteemed town planners, university resources, developers, elected councillors and residents. The lobby group is also claiming that Amendment 46 will excise a portion of developable land. This is totally incorrect; it merely reintroduces some reasonable controls to return us to the objectives of the original Town Planning Scheme.
The best outcome from this decision would be to see some order and good governance into what is currently a chaotic planning process in the City of South Perth.
august 2015 - opposition to 74 mill point rd, south perth
Q. Didn't you already have a chance to comment on the South Perth Station Precinct?
A. Not really. That consultation took place in 2009 and buildings of 30-40 storeys were never mentioned. The Consultation Study says: “The Draft Precinct Plan is proposing increased height but in a manner which will maximise river views.”
Q. Didn't the developer have an expectation that they could develop on the site because of Amendment 25 ?
A. That Amendment should never have been passed, as the South Perth Precinct Study says that there should be a Local Planning Strategy before any amendment. We have an expectation that an Adopted Precinct Plan would be followed and a Local Planning Strategy completed. Plus the site is situated in a 8 storey height limit area and there is no "right" to get greater height. The developer can still develop an 8 storey building.
Q. Aren't you just being NIMBY’s?
A. We are perfectly happy to have proper developments in our back yard that comply with the Planning Scheme and are consistent with what we were told in the public consultation process. The Planning Scheme requires that “orderly and proper planning” be considered by Council when there is a Development Application. That phrase implies that we can have an expectation that planning will occur in an orderly way. The WA Planning Commission Guidelines for a Local Planning Strategy provides a proper forum to concentrate on present concerns. We are not stopping development – we just want planning to be done correctly.
Read more on NIMBYs
Q. Doesn't the City of South Perth need revitalization for this Precinct?
A. Two points: first, it is wrong to assume that "revitalization" requires high rise. Such an assumption is not contained in any approved planning document and there are many very distinguished architects and planners who think that high rise is counter-productive to "revitalization". Secondly, the Precinct Plan is based on the development of the railway station that is yet to happen. It is not proper planning to build intense development around a railway station that may never be developed. Infrastructure must come before housing, not afterwards in some vague hope it might force the Government to act. Indeed the Council itself said at the time of the Precinct plan that the intense development would not happen until AFTER the WA government committed to a train station (which it hasn’t)
Q. Won't Iconic buildings will be a positive development for the City?
A. The State Architect says this isn’t iconic- not exceptional. Run of the mill buildings don’t get more impressive just because they are tall. In fact the opposite is true. It might well be right to have a very tall building on or near this site, but that decision can only be made if the building can be understood in terms of its relationship to the foreshore and other buildings. There needs to be fine grain work done on the planning in the Peninsula before such precedent-setting development can take place and this requires a Local Planning Strategy.
Q. Can't the traffic can be handled as conditions of the development?
A. This may be as a technical matter but traffic is actually a fundamental concern on a street like Mill Point Road that cannot be widened. There may be no way to solve the traffic problems caused by this building. There is much analysis still to be done and this must be considered before the building is approved: there are workshops to be held and more detailed consultation required in the form of a Local Planning Strategy (as the Station Precinct Plan requires).
Q. The adoption of the Precinct Plan made it a policy that Council must follow, so isn't it too late to do anything? We already have a policy and don’t need any more public consultation.
A. The Scheme sets out how a Planning Policy can be made. A planning policy is not in the same form as the Precinct plan. By way of example is that the Precinct Plan says "heights may be exceeded". It cannot be a proper policy if there are dramatically different views about how that sentence can be interpreted. The Precinct Plan is too broad brush, too uncertain and there is no indication of how the 4 areas of prescribed heights dovetail with the discretion for exceeding heights in the SCA. So the Precinct Plan is not a formal Planning Policy and, even if it was, it still requires a Local Planning Strategy to give it context and make it possible for the public and developers to know what to expect from it.
Q. This building will not create a precedent as each development must be considered in its own right, wont it?
A. The amenity of the area is determined by what is in place. If this building is developed, it is so tall and intrusive that it will automatically change the amenity of the Peninsula and thus new developments will find it easy to get permission. Also the State Architect agrees that this building will create a precedent.
Q. Isn't this the time for such development? Progress requires it?
A. No, there is no imperative. The is no planning justification for rushing through high rise contrary to community expectations.
South Perth is not desperate for more luxury apartments, this area of the Peninsula has already undergone infill. This development is premature because no fine grain work has been done. Amendment 25 was too early as the level of discretion on heights being exercised under it, was never contemplated by anyone - even the elected councillors. More work needs to be done on a Local Planning Strategy.
Q. Won't the Local Planning Strategy take too long?.
A. There are 61 LPS’s in place already in WA and they are carefully worded documents that serve as a framework for further action. We can wait to get it right. We don’t have a train station and the chances of having one in the next 20 years are practically zero.
Only developers who want to sneak through more high rise quickly have a motive to rush and prevent a Local Planning Strategy
Q. Didn't the Council follow proper procedure in Amendment 25?
A. No they did not. Legally, it is possible to pass an amendment to a Scheme without an LPS but the scale of planning change in this amendment demanded an LPS and that is what the public were told they would get. The consequence of a jump straight from Precinct Plan to Amendment was not explained sufficiently to those affected. No one could have foreseen what was to come and what scale of development would suddenly be allowed, without further controls. So whist it is legally possible to have an Amendment without an LPS, it is flawed planning and is contrary to the whole community’s expectations. The obligation of orderly and proper planning therefore requires the Council to proceed with a Local Planning Strategy now.
Q. Can't the developer sue the City if it doesn't go ahead?
A. That is nonsense! The developer, like any other, may have his application refused for reasons such as orderly and proper planning and amenity of the locality which are in the Scheme. There is no basis for the developer to sue as they still can develop at a lower height.
Q. The Council cannot be moved by the vocal minority.
A. Only those with a vested interest in making profit from development could possibly want to stop a Local Planning Strategy.
It is in everyone's interest to have certainty and clarity on how future significant planning decisions will be made. The petitions and attendance at this meeting indicate a much wider concern in the community that must be addressed. We are not saying "refuse all development" but rather are saying "let’s go back to what we were told at the beginning and then have a proper process in which we find out the best way to develop the locality". That's the problem! - the people of South Perth are confused they do not know what they are getting and they can't know because the council doesn't know either.
Q; The public doesn’t really understand planning. Don't they only want to stop the development that the City really needs for the 21st century?
A. That is not borne out by the facts. The Precinct consultation process showed that the public of South Perth were willing to accept higher density in the form of 8-12 storey buildings and accepted what is best for Perth. The density they approved is higher than any other suburb in Perth. If there is a secret plan within part of the government to turn South Perth into Manhattan or Shanghai then that needs to be fully explained and justified by those promoting it so that the public can decide if that's what they want. That's democracy! What isn't acceptable is what we have now - a system which pretended to consult on 8-14 storeys, but is delivering 30/40.50 storeys. That is non-democratic and non transparent.
Q. What else would you suggest instead of this building?
A. The starting point should be an 8 storey development. Beyond that, we don’t know because we have not been given the chance to consider and play out different scenarios for this part of the Peninsula and that’s why a Local Planning Strategy is needed.
Q. We may lose the opportunity for intense development as this might cause developers to go elsewhere?
A. We are not saying refuse all development. Developers have been making great money in South Perth for years with 6-8 storey developments and less. We are simply saying let’s plan more carefully what is to take place on the Peninsula with proper consultation and workshops, so that the community vision is honoured as well as the "right" for developers to make money. Greater certainty benefits developers as well as residents. That is just good planning.
A. Not really. That consultation took place in 2009 and buildings of 30-40 storeys were never mentioned. The Consultation Study says: “The Draft Precinct Plan is proposing increased height but in a manner which will maximise river views.”
Q. Didn't the developer have an expectation that they could develop on the site because of Amendment 25 ?
A. That Amendment should never have been passed, as the South Perth Precinct Study says that there should be a Local Planning Strategy before any amendment. We have an expectation that an Adopted Precinct Plan would be followed and a Local Planning Strategy completed. Plus the site is situated in a 8 storey height limit area and there is no "right" to get greater height. The developer can still develop an 8 storey building.
Q. Aren't you just being NIMBY’s?
A. We are perfectly happy to have proper developments in our back yard that comply with the Planning Scheme and are consistent with what we were told in the public consultation process. The Planning Scheme requires that “orderly and proper planning” be considered by Council when there is a Development Application. That phrase implies that we can have an expectation that planning will occur in an orderly way. The WA Planning Commission Guidelines for a Local Planning Strategy provides a proper forum to concentrate on present concerns. We are not stopping development – we just want planning to be done correctly.
Read more on NIMBYs
Q. Doesn't the City of South Perth need revitalization for this Precinct?
A. Two points: first, it is wrong to assume that "revitalization" requires high rise. Such an assumption is not contained in any approved planning document and there are many very distinguished architects and planners who think that high rise is counter-productive to "revitalization". Secondly, the Precinct Plan is based on the development of the railway station that is yet to happen. It is not proper planning to build intense development around a railway station that may never be developed. Infrastructure must come before housing, not afterwards in some vague hope it might force the Government to act. Indeed the Council itself said at the time of the Precinct plan that the intense development would not happen until AFTER the WA government committed to a train station (which it hasn’t)
Q. Won't Iconic buildings will be a positive development for the City?
A. The State Architect says this isn’t iconic- not exceptional. Run of the mill buildings don’t get more impressive just because they are tall. In fact the opposite is true. It might well be right to have a very tall building on or near this site, but that decision can only be made if the building can be understood in terms of its relationship to the foreshore and other buildings. There needs to be fine grain work done on the planning in the Peninsula before such precedent-setting development can take place and this requires a Local Planning Strategy.
Q. Can't the traffic can be handled as conditions of the development?
A. This may be as a technical matter but traffic is actually a fundamental concern on a street like Mill Point Road that cannot be widened. There may be no way to solve the traffic problems caused by this building. There is much analysis still to be done and this must be considered before the building is approved: there are workshops to be held and more detailed consultation required in the form of a Local Planning Strategy (as the Station Precinct Plan requires).
Q. The adoption of the Precinct Plan made it a policy that Council must follow, so isn't it too late to do anything? We already have a policy and don’t need any more public consultation.
A. The Scheme sets out how a Planning Policy can be made. A planning policy is not in the same form as the Precinct plan. By way of example is that the Precinct Plan says "heights may be exceeded". It cannot be a proper policy if there are dramatically different views about how that sentence can be interpreted. The Precinct Plan is too broad brush, too uncertain and there is no indication of how the 4 areas of prescribed heights dovetail with the discretion for exceeding heights in the SCA. So the Precinct Plan is not a formal Planning Policy and, even if it was, it still requires a Local Planning Strategy to give it context and make it possible for the public and developers to know what to expect from it.
Q. This building will not create a precedent as each development must be considered in its own right, wont it?
A. The amenity of the area is determined by what is in place. If this building is developed, it is so tall and intrusive that it will automatically change the amenity of the Peninsula and thus new developments will find it easy to get permission. Also the State Architect agrees that this building will create a precedent.
Q. Isn't this the time for such development? Progress requires it?
A. No, there is no imperative. The is no planning justification for rushing through high rise contrary to community expectations.
South Perth is not desperate for more luxury apartments, this area of the Peninsula has already undergone infill. This development is premature because no fine grain work has been done. Amendment 25 was too early as the level of discretion on heights being exercised under it, was never contemplated by anyone - even the elected councillors. More work needs to be done on a Local Planning Strategy.
Q. Won't the Local Planning Strategy take too long?.
A. There are 61 LPS’s in place already in WA and they are carefully worded documents that serve as a framework for further action. We can wait to get it right. We don’t have a train station and the chances of having one in the next 20 years are practically zero.
Only developers who want to sneak through more high rise quickly have a motive to rush and prevent a Local Planning Strategy
Q. Didn't the Council follow proper procedure in Amendment 25?
A. No they did not. Legally, it is possible to pass an amendment to a Scheme without an LPS but the scale of planning change in this amendment demanded an LPS and that is what the public were told they would get. The consequence of a jump straight from Precinct Plan to Amendment was not explained sufficiently to those affected. No one could have foreseen what was to come and what scale of development would suddenly be allowed, without further controls. So whist it is legally possible to have an Amendment without an LPS, it is flawed planning and is contrary to the whole community’s expectations. The obligation of orderly and proper planning therefore requires the Council to proceed with a Local Planning Strategy now.
Q. Can't the developer sue the City if it doesn't go ahead?
A. That is nonsense! The developer, like any other, may have his application refused for reasons such as orderly and proper planning and amenity of the locality which are in the Scheme. There is no basis for the developer to sue as they still can develop at a lower height.
Q. The Council cannot be moved by the vocal minority.
A. Only those with a vested interest in making profit from development could possibly want to stop a Local Planning Strategy.
It is in everyone's interest to have certainty and clarity on how future significant planning decisions will be made. The petitions and attendance at this meeting indicate a much wider concern in the community that must be addressed. We are not saying "refuse all development" but rather are saying "let’s go back to what we were told at the beginning and then have a proper process in which we find out the best way to develop the locality". That's the problem! - the people of South Perth are confused they do not know what they are getting and they can't know because the council doesn't know either.
Q; The public doesn’t really understand planning. Don't they only want to stop the development that the City really needs for the 21st century?
A. That is not borne out by the facts. The Precinct consultation process showed that the public of South Perth were willing to accept higher density in the form of 8-12 storey buildings and accepted what is best for Perth. The density they approved is higher than any other suburb in Perth. If there is a secret plan within part of the government to turn South Perth into Manhattan or Shanghai then that needs to be fully explained and justified by those promoting it so that the public can decide if that's what they want. That's democracy! What isn't acceptable is what we have now - a system which pretended to consult on 8-14 storeys, but is delivering 30/40.50 storeys. That is non-democratic and non transparent.
Q. What else would you suggest instead of this building?
A. The starting point should be an 8 storey development. Beyond that, we don’t know because we have not been given the chance to consider and play out different scenarios for this part of the Peninsula and that’s why a Local Planning Strategy is needed.
Q. We may lose the opportunity for intense development as this might cause developers to go elsewhere?
A. We are not saying refuse all development. Developers have been making great money in South Perth for years with 6-8 storey developments and less. We are simply saying let’s plan more carefully what is to take place on the Peninsula with proper consultation and workshops, so that the community vision is honoured as well as the "right" for developers to make money. Greater certainty benefits developers as well as residents. That is just good planning.