Once again two individual rate payers have won their bid in the WA Court of Appeal to correct errors made by a Development Assessment Panel (JDAP) in Western Australia.
Karyl Nairn and Ric Hawley succeeded today in overturning another erroneous decision by a JDAP to approve a non-compliant planning application for the site at 74 Mill Point Road in South Perth's Peninsula.
The WA Court of Appeal today (20/02/2018) issued its judgment in respect of planning approval granted last year at 74 Mill Point Road for a 34 storey tower block. The development application by Edge Developments was strongly opposed by local residents, including on the two grounds which the Court of Appeal has upheld and which a majority of members of the JDAP ignored.
The Court found that the JDAP misapprehended or disregarded the limits of its function under the scheme and took into account an irrelevant consideration. Importantly, the Court also held that the JDAP was wrong to rely on its own previous unlawful approvals of other very high towers in South Perth as a justification for approving new high rise developments.
Consequently, the JDAP exceeded its jurisdiction and the Court quashed its approval.
Ric Hawley, who is himself a property developer, said: "Edge Developments and their spokespeople have been wrongly trying to characterize the overwhelming opposition to 30 plus storey buildings in the South Perth Peninsula as "nimbyism" when in fact most residents simply do not want inappropriate development. We are not anti-development. High rise residential buildings of the kind being promoted by Edge on the Peninsula, are unacceptable for a myriad of sensible planning reasons, importantly they do not consider the existing heights of the built environment."
Karyl Nairn, a lawyer, welcomed the decision. "It shows that local residents were right to object to JDAP members relying on their wrongful approval of other high rise buildings in South Perth as a 'precedent'" she said. "It is time to end this madness. For future development applications, the JDAP must start from the correct baseline and not take into account irrelevant considerations."
Vicki Redden, President of the local action group which has campaigned tirelessly to prevent mega high rise in favour of more proportionate development in South Perth, called upon the JDAP members who have made repeated errors in connection with 74 Mill Point Road to recuse themselves so that a fresh perspective can be brought to bear on planning in the area. "We are fortunate that two civic-minded individuals have been prepared at great personal cost to step in and correct these injustices. Private citizens should not have to spend a fortune taking public action to ensure that planning officers abide by the law, but regrettably this is how bad things have become at South Perth." she said. "We hope the Labor government will now take this opportunity to re-examine the JDAP process and overhaul the planning scheme in South Perth."
This is the third time that Karyl Nairn and Ric Hawley have brought a case before the WA courts to overturn development approval for a high rise building on 74 Mill Point Road. They have succeeded in each stage, over the objections of the developers.
For more information please contact:
Margie Tannock, Partner - Squire Patton Boggs (AU)
Level 21, 300 Murray Street, Perth WA 6000
08 9429 7456
0458 144 012 email@example.com
Vicki Redden South Perth Peninsula Action Group Inc
0404 800051 firstname.lastname@example.org
New development in South Perth is supposed to be sensitive, sophisticated and respectful of the neighbouring area. This is none of those things!
All the other buildings along Mill Point Rd have setbacks all around to allow for vegetation and large trees as you can see in this picture.
This would be the first complex with a massive podium and no set backs on the sides and rear - so the 4 storey podium will take up the entire block of land.
How can anyone say this will blend in?
Unless of course you are a developer or real estate agent.
Poor sales and local anger impact on Civic Heart
A decision by prominent Perth property developer Finbar to substantially scale back the size of its Civic Heart project in South Perth is a major victory for local residents, who have vigorously fought the proposal over the past two years.
Finbar has now conceded that its design for a $400 million 39-storey tower with 600 car bays on Mill Point Road is out of character for the location. It says it intends putting forward a more modest proposal that adheres to City of South Perth planning regulations.
The original proposal on a collection of council owned land was valued and marketed back in 2013 was for an iconic city building of between 17 and 20 storeys that would enliven the city heart with retail, entertainment and space new employment.
Vicki Redden of the South Perth Peninsula Action Group says it wasn't until after purchasing the land from council that Finbar instead proposed a 39-storey monster that would have bought traffic chaos and a complete change to the character of South Perth, with few benefits to the community.
She says: “Finbar can't blame the current South Perth Council. The original proposal for Civic Heart did not comply with the Town Planning Scheme, something that "WA’s largest most trusted apartment developer" should have been aware of.”
At about that time, the current state government introduced joint development approval panels (JDAPs) to approve developments over a certain value. Vicki Redden says the majority on the panels are people set to benefit by development approvals being granted. She says they really should be renamed “developer approval panels.”
But it was the proposal by Edge Developments for 74 Mill Point Rd North that riled residents.
When a 29-storey building was proposed for the beautiful tree-lined street at a height that was four times taller than any existing building, neighbours rose up in protest. Objections from existing residents were loud and clear at the DAP review into the project.
They gained the professional support of property lawyers, planners, engineers and even a former planning minister, who were unanimously opposed. Yet, in May 2015, the joint DAP approved the proposal, despite the fact that historic plane trees were in jeopardy, the traffic would become gridlocked on the constrained streets of the peninsula and the amenity of a well established residential area would be destroyed.
It took a judicial challenge to the Supreme Court by local residents to overturn the decision and to make everyone aware that local government scheme requirements were being ignored and that the JDAP decisions was unlawful.
In the meantime, the City of South Perth had already started work on making its scheme more defined and less open to distortion.
Amendment 46, reinstating a 26-level height limit, was supposed to do that but was fought hard by the property industry lobby groups who did not want their vision for South Perth constrained in any way.
Then came the final crunch. A diving property market post-mining decline and a choked flow of Asian money, stopped sales virtually overnight. The entire projections for increased dwellings and commercial space in South Perth had been met by just three buildings.
Finbar blames uncertainty and the coming scheme amendment changes for making it difficult to sell apartments at Civic Heart.
Finbar says it will announce details of a revised Civic Heart project within months, stating that it is likely to be a smaller development. In the meantime, the development company says it will refund deposits to the buyers who had signed contracts to buy a total of 137 apartments at Civic Heart.
But Vicki Redden says the developers had shot themselves in the foot. “Their greedy proposals were too much, too tall, too many cars, too much traffic for South Perth.”
Vicki Redden stresses the importance for members of the South Perth community to attend the upcoming planning forums and have their say about what they envisage for their suburb.
Best planning or "intelligent urban planning" does not rely on high rise to obtain a good development. She says too few members of the South Perth community were aware of what was happening between 2007 and 2009 and “the wool was pulled over our eyes.”
It is, she says, absolutely essential that the community plays a significant role in developing South Perth’s next local planning strategy, ensuring that the developers and their greedy and privileged mates are not making the decision to suit themselves.
South Perth Peninsula Action Group Inc.
The following is a letter we sent to the West Australian asking for the general public to be able to read the other side to the article which appeared in the Property section on 1st Feb 2017 "Finbar ducks South Perth Ire"
Finbar’s ‘Civic Heart’ in South Perth has been on the books for 2 years and just hours before a recent Joint Development Assessment Panel (JDAP) meeting, they withdrew their request for a 12 month extension of time, to start construction.
Clearly, the most obvious reason is lack of sales with only 50% sold and many of those are probably in jeopardy, due to the new restrictions on moving money from China. But market conditions are not an “allowed reason” for an extension, so they cited technical issues.
Where then have all those significant technical issues suddenly gone? Perhaps they didn’t want public scrutiny given the recent flooding problems.
Since the local planning scheme has changed substantially since the original approval in May 2015, South Perth Council subsequently withdrew its support for approval. Amendment 46 from the WAPC and recently approved by Minister Faragher raises the performance criteria required and increases setbacks amongst other items.
Understandably residents in South Perth are extremely concerned about the stability of the area after seeing the pavement and road recently subsiding. Independent experts need to assure the community that this silt peninsula is suitable for this style of high rise construction given the problems Finbar’s builder Gerry Hanssen has had with the excavation of Aurelia’s five levels of basements on the opposite side of Mill Point Rd and the vast quantities of excess water being pumped to the Civic Heart site opposite.
One nearby property at #100 Mill Point Rd, has had to have ground water continuously pumped from its basement for more than 2 weeks now.
The South Perth community were looking forward to an iconic building on this site, one that would bring new retail and entertainment and a sustainable amount of apartments. But with this level of high rise also come significant problems, not the least are poor sales, delayed construction, unacceptable traffic problems and now a rise in the water table, apparently due to the way waste water is being disposed.
It has been proven that JDAP’s original approval of Civic Heart was incorrect making this proposal non-compliant along with 5 others in the area. DAPs are not accountable for their wrong decisions. They are unelected, unrepresentative, and untouchable and the whole of Perth is suffering with poor planning decisions. Even Main Roads made a very strong recommendation for refusal at the original review of Civic Heart, but disgracefully their professional opinion was ignored.
Developers are taking advantage of a weak, outdated government and an ineffective, old fashioned planning philosophy. Other states have overhauled their DAPs to make them independent of their own industry and in some states if there are changes to a local planning scheme all developments not started are required to be reassessed.
The Office of the Government Architect commented that South Perth deserves better than what has been proposed. Finbar should be forced back to the drawing board to make significant improvements for what should be the iconic centerpiece of a world class location.
We want a Civic Heart, but it needs to be something that does not kill off South Perth’s livability and character.
Finbar’s ‘Civic Heart’ in South Perth has been on the books for 2 years and the approval is due to expire in May this year. But, just hours before the Joint Development Assessment Panel (JDAP) meeting, Finbar withdrew their request for a 12 month extension of time. Why?
Perhaps they suspect JDAP might take notice of Council's recommendation to refuse and they didn't want to go through the public scrutiny.
The most obvious reason for Civic Heart wanting an extension is likely that they’ve not sold enough units and many they have sold could be in jeopardy, given the new restrictions on moving money from China. But market conditions are not an “allowed reason” for an extension, so they cited technical issues. But where have all those significant technical issues described suddenly disappeared?
After the events of the last week, people in South Perth are now extremely concerned about this area and want to be assured by an independent expert that these fine silt soils are actually suitable for this style of building . using an inverted bath method.One also has to seriously question why basements in nearby properties are flooding in the middle of summer and for the past week one building has had ground water continuously pumped from the basement.
The South Perth community were looking forward to an Iconic building on this central site, one that would bring new retail and entertainment and a sustainable amount of apartments.
But going from the 18 storeys originally intended to the now 39 storeys proposed brings significant traffic issues. More than 600 car bays are supplied in this building which equates to around 2400 car trips a day. The private entrance and exits are planned to be right on the Mill Point/Labouchere corner requiring the traffic coming off the freeway to turn right and go around the triangle to turn into the left-only entrance.
Main Roads made a very strong recommendation for refusal at the original review, but disgracefully their professional opinion was ignored.
Directions2031 states “new large residential areas should be built around transport hubs“.
To consider a 300 apartment/ 600 car bay proposal without a mass, regular high frequency public transport system is beyond crazy – it is scandalous and developer vandalism. Finbar are taking advantage of a weak, outdated government and an ineffective, old fashioned planning philosophy.
There is no train station at South Perth and its not likely for 20 or so years according to the Transport Department.
And yet the Planning Department is still encouraging high rise residential towers in South Perth on the basis that that increased population would be able to use a train.
The private entrance and exits are planned to be right on the Mill Point/Labouchere corner requiring the traffic coming off the freeway to turn right and go around the triangle to turn into the left-only entrance.
Main Roads made a very strong recommendation for refusal at the original review, but disgracefully their professional opinion was ignored.
It has now been proven that JDAP’s original approval was incorrect making this proposal non-compliant with both the new and the previous amendments to the scheme. Sadly for the whole of Perth, JDAP is not accountable when it makes a wrong decision. JDAPs are unelected, unrepresentative, and untouchable.
Sadly t This was an opportunity to make a meaningful change to what is supposed to be the iconic centre piece of a world class location in the heart of South Perth. Finbar should be sent back to the drawing board.
We want a Civic Heart, but it needs to be something that does not kill off South Perth’s heart and character.
In the last week I have been asked 3 times if I am just being a NIMBY - at first I was amused and brushed it off. But the lasting impression is I am aggrieved by that label!
After a lot of thinking, I have concluded that it is a cheap throw-away line from the inarticulate who are incapable of putting forward a rational argument. It’s an easy jab at people who are standing up and speaking out for their rights.
Who is going to protect my backyard, if I don’t, when I see something is wrong?
NIMBY name-calling seeks to intimidate and silence people. The term NIMBY “Not In My Back Yard" - is often used to criticize people who oppose development in their community. It labels people as selfish individuals, hypocrites who want the benefits of modern society without paying any cost. As a community aren't our values important? Why should we sit back and just accept whatever is presented to us, accepting it as just progress or growth? Many times it is more a Not-In-ANY-Backyard argument - but labellers rarely think altruistically.
Consider for a moment of what makes us feel good, what makes us enjoy our life, feel part of a community, love where we live, feel connected and happy. Whatever it is - it’s called lifestyle! I think that is worth fighting for. Labelling someone as a NIMBY attempts to shut down the conversation that we should having about the things we value.
True democracy requires an open discussion; it should encourage questions and initiate debate. We have the right to protect and defend the things we care about and it’s our constitutional right to stand up for it and our right to freedom of speech to speak out!
In a democracy, governments exist to serve the needs of people - and those needs should not only be economic ones. Is it so much more important that a developer makes a massive profit than a resident maintains a lifestyle? Why do we have to simply accept that as progress and growth? Why can’t we challenge that argument? Not everything about ‘progress’ is worth embracing.
From what I have seen it’s the people who are labelled NIMBYs who are the ones pursuing political and environmental justice. These are the people who empower and engage communities and help refocus the debate to remind those in power of the broader issues, allowing for a more considered, sustainable and thoughtful decision.
In fact, it is defeatist to not stand up!
Most people they are not interested in fighting just for the sake of fighting. Most want to preserve what is good about their community area, street or backyard. Thankfully there are people who are willing to fight for solutions that enrich our lives and increase our collective prosperity.
Labelling someone as a NIMBY is really akin to McCarthyism (those who make unfair allegations especially in order to restrict dissent or political criticism).
What these oppressive accusers would rather have, and in fact what they really are, is a WAIF - Weak Apathetic Inarticulate Followers. WAIFs lurch through life without a true comprehension of what is going on around them, and even when they do see a problem, they feel powerless and inadequate to exercise their democratic rights.
I would rather be a NIMBY than a WAIF!
Vicki Redden / Craig Dermer
A waif (from the Old French guaif, "stray beast") is a living creature removed, by hardship, loss or other helpless circumstance, from its original surroundings. Wikipedia.
The Save the South Perth Peninsula campaign is not anti-development.
We support the need for in-fill and higher density development to account for Perth's likely population growth by 2050. Indeed, South Perth leads the way in higher density for all suburbs in the Perth metropolitan area. One of the reasons we find the development at 74 Mill Point Road so objectionable is that it does NOT deliver environmentally responsible in-fill and is antipathetic to the kind of community-spirited approach to increased density that we believe is essential to combat urban sprawl in Perth.
Luxury, high rise apartment blocks are NOT socially responsible developments. Luxury high rise simply caters to second home and/or foreign buyers without adding anything to the available stock for first home buyers or those on an average annual salary. It does not solve any housing problems for a growing population.
Research shows that high rise residential apartments are rarely owner-occupied, they have high tenancy turnover and are often empty for long periods. This is socially irresponsible.
Many experienced architects and planners believe that high rise residential apartments create "vertical ghettos" where residents hardly know each other and have little connection to the rest of the community.
In contrast, responsible in-fill planning schemes prioritise developments of 3-8 storeys of "family friendly" buildings which encourage long term rental or owner-occupier status. This is the kind of development that we believe is appropriate for 74 Mill Point Road and which should be encouraged by Council.
In the Peninsula, a significant number of the existing medium density apartments are owner-occupied. These residents are strongly community-minded and look out for their neighbours, adding to the village atmosphere for which South Perth is known. Residents of the Peninsula are shocked at the sudden change to their neighbourhood which is heralded by the development at 74 Mill Point Road. The changes to the community caused by this building, including the traffic jams, car pollution. 0 frontage and the overshadowing, are going to be negative and anti-community.
This unexpected decision by the City of South Perth planners to convert South Perth into a high rise residential development area is therefore a huge backward step in the WA Planning Commission's efforts to encourage greater in-fill and community acceptance of greater density. These high rise residential apartments are not going to fulfil any laudable community objective. Quite the contrary, the most likely outcome of this character-changing inappropriate development in the Peninsula is that other suburbs in Perth will be resistant to any changes to their current 1-2 storey density and we believe this would significantly undermine the stated aims of the WA Planning Commission.
We are therefore not anti-development. We are pro-responsible, community-minded development. We also believe that all radical planning changes to the character of a suburb should be properly notified to the public and that they should be consulted first, not simply after the fact as part of the one-sided and inadequate JDAP process. In South Perth, we were not consulted at all about our neighbourhood being converted into high rise residential developments. The public consultation process for the South Perth Station Precinct told us only about medium rise development designed to encourage commercial development.
This sudden unilateral change is bad planning and anti-democratic.
Please support us by signing the petition/open letter to Colin Barnett, John Day and Eric Lumsden.