City seeks legal advice following JDAP decision

Journalist’s background: Media enquiry following JDAP’s decision to conditionally approve a 34 storey proposed development on 74 Mill Point Rd, South Perth.

Please attribute the following quotes to City of South Perth Mayor Sue Doherty.

The council's position last week seemed to be that it was disappointed by the JDAP decision but it had no right of appeal, what has changed since then?
The Council is indeed bitterly disappointed with the JDAP decision to approve the development application for 74 Mill Point Rd, South Perth.

The Council’s position last week took into account that the City has no right of appeal to the State Administrative Tribunal (SAT). The decision made by JDAP is the final decision in the current SAT appeal process, which was between the applicant and JDAP. The City’s involvement was to reassess the applicant’s amended development application and provide recommendations to JDAP.

It is of critical importance to note that whilst the Council has formal standing to seek a judicial review of the JDAP approval, it needs to establish and have reasonable grounds for an appeal to be considered by the Supreme Court. Hence, this week at the Council Meeting held on Tuesday 25 October 2016, the Council unanimously resolved to allocate funding of up to $60,000 to seek legal advice and engage a Senior Counsel to determine whether reasonable grounds exist that would require the Supreme Court to consider a review of JDAP’s decision, and as to the prospects of a successful appeal in the event the appeal is heard. 

What does the City mean by a Senior Counsel?
A senior lawyer.

What does the City hope to gain from engaging a Senior Counsel?
Engaging a Senior Counsel will enable the City to seek expert legal advice and determine whether reasonable grounds exist that would require the Supreme Court to consider a review of JDAP’s decision, and as to the prospects of a successful appeal in the event the appeal is heard.

The council has put $60,000 towards the review, how will the money be used?
As mentioned previously, the funds of up to $60,000 will be used to seek legal advice and engage a Senior Counsel. 

What does the City hope to achieve from the review?
As outlined in the City officer’s Responsible Authority Report, the City recommended refusal of the development application for 74 Mill Point Rd on numerous 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.

Allocating funds of up to $60,000 will enable the City to determine whether grounds exist that would require the Supreme Court to consider a review of JDAP’s decision, and as to the prospects of a successful appeal in the event the appeal is heard. 

As previously stated, the City and Council are disappointed with the JDAP’s decision to conditionally approve this development.

What is the timeline for this review?
The review of the decision will take place over the coming months and if suitable grounds are established and Council resolves to make application to the Supreme Court, the application should be made within 6 months of the decision by the JDAP.

There was some applause after the City passed this motion last night, does the council believe it has the backing of the majority of the community on this issue?
At the Council meeting there were numerous City of South Perth ratepayers and residents. The Council acknowledges there are a diverse range of community views and opinions in regards to the proposed development on 74 Mill Point Rd. As a Council we act for the greater good of the community we serve.

It was mentioned last night that the City wanted feedback from the WA Planning Commission on Amendment 46, what exactly is Amendment 46 and why is the City pushing for a decision from the WAPC about it?
Amendment No. 46 is an amendment to the City’s Town Planning Scheme that was developed by the City through a comprehensive community consultation process, with over 850 submissions received. Listening and responding to the diverse views of the City of South Perth community, Amendment No. 46, amongst other changes introduces absolute height limits (25 metres); reduces the Special Design Area precinct; requires maximum 10% variation from minimum lot area and frontage; increases street setbacks in identified streets; and requires a mandatory 1.5 minimum non-residential plot ratio for developments in the South Perth Station Precinct.

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.

Amendment No. 46 was sent to the Department of Planning in early May 2016. It has now been nearly 6 months and a determination on Amendment No.46 has still not been made. At a Statutory Planning Committee of the West Australia Planning Commission meeting held on Tuesday 25 October, the City made a further deputation requesting the determination on Amendment No. 46 be expedited.

This delay, allowing the amendment process to remain in limbo is totally unacceptable for everyone – the Council, City, our community and developers and is enabling decisions like last week’s to be made without JDAP from our perspective taking into account the provisions of the amendment. The City’s 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 Amendment No. 46 as soon as possible. 

What impact would Amendment No.46 have on 74 Mill Point Road?
If Amendment No. 46 is approved in its current form by the Minister for Planning, it will introduce numerous planning controls in the South Perth Station Precinct including capped height limits of 25 metres which would change the development potential of any future proposed development on 74 Mill Point Rd. However, the 34 storey development application for 74 Mill Point Rd has already been approved by JDAP, and this approval will not be impacted by the finalisation of Amendment No.46.