CEO Statement - Proposed Development 74 Mill Point Road, South Perth

Since the Joint Development Assessment Panel (JDAP) granted conditional approval of 74 Mill Point Road, South Perth on Wednesday 19 October 2016, I have personally received emails from concerned City of South Perth ratepayers and residents. Whilst I would prefer to respond to these emails individually, given the number received, I have taken the opportunity to identify the common issues and themes which I believe need to be clarified and addressed, particularly given the community sentiment towards 74 Mill Point Road, South Perth.

Background to proposed development 74 Mill Point Road, South Perth
In May 2015, the JDAP resolved to conditionally approve a proposed 29-storey mixed use development on 74 Mill Point Road, South Perth.

This approval was challenged by several local residents and subsequently set aside in a Supreme Court of Western Australia ruling in February 2016, requiring the development to consist of predominantly non-residential uses before the discretion in plot ratio and building height could be applied. That decision, I understand, has also been appealed by the applicant to the Court of Appeal Division of the Supreme Court, although it has yet to be heard.

In December 2015, the applicant prepared a revised 44-storey mixed use development proposal, with amendments to the plot ratio and land use mix of the development to produce a predominantly non-residential land use mix.  In July 2016, consistent with the City of South Perth staff recommendation, the JDAP resolved to refuse the development. It was refused on many grounds, including the mix of non-residential not contributing to precinct employment; the proposed height of 143 metres significantly impairing the proposed height limit of 25 metres in Amendment No. 46;  the development not being compatible given its height, bulk and scale; and the adverse amenity impacts of the development, particularly in relation to traffic.

State Administrative Tribunal appeal
Following the JDAP’s refusal of the 44-storey Development Application in July 2016, the applicant lodged an appeal with the State Administrative Tribunal (SAT). As a result of the appeal process, the applicant revised the proposal with amendments to floor plans and land use mix proportions, also reducing the overall building height to 34-storeys plus a mezzanine.

The SAT appeal process required the City of South Perth to reassess the applicant’s revised proposal and make a recommendation to the JDAP. In October 2016, the City of South Perth Council strongly recommended a refusal of the application and also requested the JDAP to give due consideration and regard to Amendment No. 46. 

The Council recommended refusal on many grounds, including the residential plot ratio being greater than 1.5;  the building height being greater than 25 metres (116.60 metres) and significantly impairing the effect of Amendment No. 46, and the zero street setback impairing the effect of Amendment No. 46;   and the amount of traffic that would be generated by this development. 

The JDAP in this instance did not accept the Council’s recommendation and recommended conditional approval on 19 October 2016.

The decision made by JDAP is the final decision in the current SAT appeal process. Of note the City has no further right of appeal to the SAT. This is not something we have a choice about, that is the legal reality.

City of South Perth Council position on JDAP determination
The Council is extremely disappointed with the JDAP approval of this development and believes that it will have a considerably adverse impact on the amenity of the South Perth Peninsula. The Council is of the view that it listened to the strong view of its community and voted unanimously to recommend refusal.  City staff provided compelling evidence to the JDAP meeting, particularly in relation to the traffic modelling and the effect it would have on the South Perth Peninsula road network.

The Council especially is very disappointed that the JDAP did not have due regard to the Amendment No. 46, approving a large scale development with significant height and zero street setback. Whilst the outcome of Amendment No. 46 is yet to be determined by the Minister for Planning, in the event it is approved in totality, this approval of 74 Mill Point Road, South Perth has created a significantly compromised and inconsistent development in the South Perth Peninsula.

City of South Perth Council presently considering all options
It has been incorrectly reported in some media outlets that the Council has ‘conceded defeat’ and made a decision not to appeal the JDAP approval of 74 Mill Point Road, South Perth. However, City staff have been and are continuing to seek legal advice into opportunities the Council may have to appeal the JDAP approval.  Given the JDAP decision was on Wednesday 19 October, the Council would only be able to consider this matter at its next scheduled meeting, being Tuesday 25 October. 

Whilst the Council is legally precluded from the SAT appeal process, it does have formal standing to seek a judicial review of the JDAP approval. However, this would require the Council to establish and present reasonable grounds for an appeal to be considered by the Supreme Court.  Subject to Council resolution, legal advice can be sought to determine whether such reasonable grounds exist that would require the Supreme Court to consider a review, and also as to the prospects of a successful appeal in the event the appeal is heard. 

Amendment No. 46 and the State Government Delay
The City of South Perth Council and staff remain committed to strongly representing the interests of its community and will continue to advocate for the Minister for Planning to determine in favour of Amendment No. 46 as soon as possible. 

The Council undertook a comprehensive community consultation process in the development of Amendment No. 46, with over 850 submissions received. Listening and responding to the diverse views of the City of South Perth community, Amendment No. 46 introduced absolute height limits (25 metres);  reduced the Special Design Area precinct; required maximum 10% variation from minimum lot area and frontage; increased street setbacks in identified streets;  and required a mandatory 1.5 minimum non-residential plot ratio. 

The Council strongly believes that Amendment No. 46 balances the need to accommodate a growing population and higher density living, whilst maintaining the unique character and heritage of the South Perth Peninsula.

The City submitted Amendment No. 46 to the Western Australian Planning Commission (WAPC)  in early May 2016.  The City of South Perth Council and staff have since lobbied and advocated at a political level for this Amendment to be determined as soon as possible, to provide certainty in planning for the South Perth Peninsula. A number of meetings have been held with now two Ministers for Planning and the relevant Committee of the WAPC. The unacceptable delay by the State Government has contributed to a number of recent developments being approved by the JDAP, with the JDAP unfortunately acting contrary to the expert advice of the City’s staff and not having due regard to Amendment No. 46 in some instances.   

South Perth Council position on JDAPs
With developments like 74 Mill Point Road, South Perth being approved by JDAP, the City of South Perth Council has been concerned by the integrity of the JDAP process for some time.

The City of South Perth Council resolved in June 2016 to request the Western Australian Local Government Association advocate for an independent review of decision making in the Western Australian Planning System, including the roles of local government, delegated authorities, JDAPs and State Administrative Tribunal appeal processes.

The City of South Perth Council strongly advocates for the following to be taken into consideration:
How the aspirations or values of the community are incorporated into the decision making framework;
Improvements to the statutory framework, including Local Planning Schemes, that would improve the transparency, certainty and consistency of the decision making process;

• Ensure that decision making occurs at appropriate levels that promotes good and efficient decisions for the community;
• Ensure that Local Governments have a third party right to present local community views to the State Administrative Tribunal;
• The erosion of the roles of Local Government in planning for their communities.

Final comment
A fundamental role for local government in the planning system is to make the rules via its Town Planning Scheme. The Council has put forward Amendment No. 46 to its Scheme to the State Government to be the rules by which development in the South Perth Peninsula should be judged. Amendment  No. 46 has been several years in the making and has been subject to two rounds of public submissions first commencing in January 2015. It contains the rules to effectively manage development applications such as 74 Mill Point Road. Our energies are directed towards ensuring that the best rules are in place for not only applications such as 74 Mill Point Road, but the others that are likely to be considered and impact forever the vision that the Council has for the South Perth Station Precinct.

Geoff Glass
CEO