EMM No. 2
My second Elected Member’s Motion was unanimously carried by Council on 28 August 2012.
We passed the following resolution:
That the Council resolves to seek legal advice on the DAP determination (undated) to approve the development application at 125-135 Railway Road, Subiaco for which the land is reserved under the Metropolitan Region Scheme or the City of Subiaco Town Planning Scheme No. 4, being Public Purpose – Hospital, in respect to:
- As this land is reserved for a public purpose (hospital) on what basis was it considered appropriate for there to be a recommendation for approval or subsequent determination of approval for a commercial development?
- As the City has initiated an amendment to TPS4 to rezone the relevant land to Residential R80, the effect of this approval will be to constitute the development as a non-conforming use following the eventual gazettal of the amendment (assuming that it is gazetted). Was the proposed scheme amendment re-zoning the land taken into account for the purpose of considering the acceptability of this development?
- If the proposed scheme amendment was taken into account, what weight was given to it?
- As a matter of urgency legal advice should be sought as to the permissibility of this development on reserve land.
It should be noted that on 20 July 2012, the Director of the Department of Planning, Mat Selby wrote to the City of Subiaco explaining that the DAP had “legally” approved a commercial building (undated) and that its use would be non-conforming if the site was zoned as per the Council’s resolution on 20 December 2011. He claimed that our resolution was not reflective of orderly and proper planning.
- This Council has taken the following steps to ensure orderly and proper planning of the site:
- On 28 September 2011 the City of Subiaco received correspondence from the WAPC requesting comments on the MRS Rezoning application.
- On 11 October 2011 the Council resolved to advise the WAPC of its support for the MRS Rezoning application.
- On 8 November 2011 the Development Services Committee (DSC) received a notice of a late item “Proposed Amendment No.17 to Town Planning Scheme No.4 – Rezoning of lots 2,3,4,7 & 412 Railway Road, Subiaco”. A report from the Senior Strategic Planning Officer dated 20 October 2011 which recommended zoning as Commercial/Residential with an additional use number of A22 to allow for added uses of consulting rooms, restaurant and shop and a plot ratio maximum of 3.2 and additional maximum wall heights (the TPS rezoning report). The Committee decided report lie on the table whilst Councillors consider the site further.
- On 22 November 2011 the Council met. The TPS rezoning report was not placed on the agenda whilst Councillors continued to considered the site further
- On 6 December 2011 the Acting Coordinator Statutory Planning presented a report to the DSC regarding the Development application as amended (the DA report). The DA was presented to Council and it voted to lie on the Table for the following reasons:
i. The Committee is not in a position to provide a recommendation on this application as the site is not yet appropriately zoned under the Metropolitan Region Scheme and Town Planning Scheme No. 4. The Committee resolved to advise the WAPC that it would be desirable to defer the determination of this application until the proposed amendments to the Metropolitan Region Scheme and Town Planning Scheme No. 4 have been finalised.
ii. Later in the meeting the Committee decided to lift the item from the table so that its Resolution to REFUSE the development application could be submitted to the WA Planning Commission on the basis of:
- The proposed bulk and scale of the development would unreasonably impact upon the adjoining residential amenity of the adjacent residential properties on Bagot Road, and the streetscape amenity of Railway Road.
- The intensity of the proposed land use could potentially result in adverse impacts to traffic movement on Railway Road and Bagot Road.
- The lack of street activation to the Railway Road and Bagot Road frontages would not result in a positive contribution to the amenity of the locality, ref. p.203
- On 20 December 2011 the TPS rezoning report (previously before the DSC on 8 November 2012) was considered by Council. The zoning recommendation was rejected and the Council resolved to initiate TPS zoning of Residential R80 (the Council’s TPS rezoning decision). Cr Matheson gave the following reasons:
i. the proposed rezoning by Bagot Developments encourages bulk and scale that would unreasonably impact upon the adjoining residential amenity of the adjacent residential properties on Bagot Road, and the streetscapes of Railway Road;
ii. The intensity of the proposed rezoning by Bagot Developments could potentially result in adverse impacts to traffic movement on Railway and Bagot Road;
iii. the proposed rezoning by Bagot Development could result in the potential loss of street activation to the Railway Road and Bagot Road frontages would not result in a positive contribution to the amenity of the locality;
iv. to change the existing use from non-conforming to conforming use as residential with the appropriate rezoning referenced under TPS4;
v. the site is an entry point to Subiaco’s existing character and amenity in living, shopping and entertainment so any redevelopment should reflect the development pattern, scale, character, details and materials of the predominant building types; and
vi. the site’s proximity and setback of the King Edward Memorial Hospital, and surrounding heritage buildings.
- On 19 April 2012 the WAPC wrote to Subiaco council advising of the plans to advertise change from reserve to urban. The WAPC advertised the MRS Rezoning application for public comment between 24 April and 29 June 2012
- During the advertising period submissions from Subiaco residents were sent to the WAPC to both support of the change from Public Use – Hospital, and Council’s resolution to rezone the site Residential R80.
- On 28 June 2012,CoS wrote to the DoP regarding the proposed amendment No. 17 to rezone the site Residential R80