The Supreme Court of Western has recently set aside a decision
of the Metro-Central Joint Development Assessment Panel
(JDAP) in relation to a proposed development to be
located on Mill Point Road, South Perth.
The JDAP decision was challenged by two Applicants, being owners
of apartments adjacent to the development site. In addressing
standing, Chaney J found that the Applicants had a special interest
in the action, which was greater than other members of the
public.1 It was accepted that the proposed development
may have impacted the Applicant's property, by affecting their
views and thereby affecting their property values.
"In summary, the
Applicant's case was that the JDAP acted outside of its
jurisdiction in respect to its approach to the questions of plot
ratio, building height, the characterization of the shortfall in
lots size as a minor variation and the requirements of Clause 7.5
of TPS6 and the discretion to vary the minimum
The proposed development was for a mixed use development,
comprising of 91 residential apartments and 18 commercial tenancies
including a café and various residents' amenities. The
proposed development site had an area of 1,427m2, a building height
of 97m and a frontage of 33.1m. The total plot ratio of the
proposed development was 7.9, with a residential plot ratio of 6.4
and non-residential plot ratio of 1.5. The proposed development was
approved by JDAP on 25 May 2015. The approval was granted pursuant
to the City of South Perth's Town Planning Scheme No 6
Clause 3.2 of TPS6 created various precincts within the Scheme
area. The development site was located within Precinct 15 and was
also within a special control area (SCA). Schedule
9 of TPS6 created further sub-precincts, and contained provisions
relating to lots fronting the more significant roads within the
precinct. The development site was located within the Mends
sub-precinct and was also designated a Special Design Area
(SDA) in accordance with Schedule 9.
The purpose of the SCA was
"to introduce very specific
development requirements relating to comprehensive new development
within the Special Control Area ... where a variety of daily
activities are closely integrated with substantial growth for an
increasingly dense commercial centre".
Schedule 9 also imposed various other requirements in the form
of Tables and Plans.
Element 3 "Plot Ratio and Land Use Proportions" of
Table A, Schedule 9 required:
a non-residential minimum plot ratio of 1.0;
where the total plot ratio is 3.0 or less, the residential plot
ratio area is not to exceed 50%; and
where the total plot ratio exceeds 3.0, the residential plot
ratio is not to exceed 1.5.
Element 13 of Table A Schedule 9 provided, in relation to sites
within the SDA, that Element 3 "Plot Ratio and Land Use
Proportions" and Element 5 "Building Height" may be
varied where it can be demonstrated that the development is
consistent with the guidance statements applicable and meets all
the relevant performance criteria of Table B.
It is worth noting that clause 4.3(n) of TPS6 showed the
building height limit for the development site as 24.5m.
Table B of Schedule 9 specified a development site is to have,
unless otherwise approved:
minimum area of 1700m2; and
a frontage of 24m
Chaney J considered that the proposed development in this matter
was for predominately residential use. In this respect, His Honour
considered that the discretion to vary the requirements of plot
ratio and height had not been enlivened, as the proposed
development had failed to demonstrate consistency with the guidance
statements or meet all the relevant performance criteria. The
proposed development was inconsistent with the purpose of ensuring
that the precinct consolidated its role as an employment
destination. Therefore, the JDAP had made a decision not properly
or reasonably open to it, because no reasonable decision-maker
could have been satisfied that the development consisted of a
predominately non-residential use.
In relation to the discretion to vary once enlivened, Chaney J
commented that the "significance and importance of a
variation must properly involve an examination of the particular
development proposed so as to understand the impact of the
variation on the relevant planning objectives". In
addressing variations, any assessment must involve an analysis of
the particular development proposal and the impact of the variation
on the planning objectives inherent in Schedule 9.
The proposed development, with a total plot ratio of 7.9,
required the non-residential component to be at least a plot ratio
of 6.4, and not 1.5 as approved. The Supreme Court therefore found
that JDAP had made a decision not properly or reasonably open to
it, because no reasonable decision-maker could have been satisfied
that the development consisted of a predominately non-residential
1Australian Conservation Foundation Inc v
The Commonwealth  HCA 53; (1980) 146 CLR 493,
2 Nairn v Metro-Central Joint Development
Assessment Panel  WASC 56, para 45.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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