DAP review submission from Myaree/Alfred Cove/Melville
23rd January 2015
The Honourable Catherine (Kate) Esther Doust MLC
Chairperson
Uniform Legislation and Statutes Review Committee
Legislative Council of Western Australia
Parliament House
WEST PERTH WA 6005
Dear Ms Doust
Submission – Parliamentary Inquiry: Planning and Development (Development Assessment Panels) Regulations 2011
We write to you on behalf of the Striker Balance! Community Action Group in relation to the inquiry into the Planning and Development (Development Assessment Panels) Regulations 2011.
The Striker Balance! Community Action Group formed in March 2013 as a result of a non-compliant development application submitted to the Metro Central Joint Development Assessment Panel (JDAP) for 94 Kitchener Road, Alfred Cove/Myaree in February 2013. Nearly two years on, our action group represents well over 200 residents in the community surrounding the site in question.
On 10 March 2014, the JDAP approved a high-density apartment block (three-storeys, 84-dwellings, 6 housing blocks long, unbroken at any point) at 94 Kitchener Road, an R40-coded site in a gazetted low-density, R20-zoned suburb.
We believe the JDAP’s decision was deeply flawed and made a mockery of all relevant State planning requirements and their stated objective of “proper and orderly planning”. As the process proceeded, we also became concerned that our case was symptomatic of a broader, system-wide problem.
The Development Assessment Panel (DAP) system consists of decision-making panels which are clearly unelected by, unrepresentative of, and unaccountable to the people. As such, we consider them fundamentally undemocratic. Their high level of autonomy and lack of transparency does nothing to engender public trust in the system. To this day we have not received a concise explanation for the approval of such a non-compliant development.
The following facts about our case indicate to us that the DAP system and its Regulations require a major overhaul:
- In 2012, the site at 94 Kitchener Rd was rezoned from R20 to R40. The City of Melville explicitly rejected the application from the developers to have it rezoned to R60/R80, stating that anything higher than R40 would seriously impact on the amenity of the area. The Local Planning Scheme’s Statement of Intent indicates the site is R40.
- During community consultations in 2013 regarding the first two proposals for the site, the Council received 111 letters from residents opposing the proposal, plus two petitions totalling more than 1,000 signatures. These were all in protest against the proposals, both of which were non-compliant regarding height (13.5 metres) and plot ratio (1.359). (there were none in favour
- Since March 2013, the community’s concerns have publically been represented by members of Striker Balance! which presented at the initial JDAP meeting on 9 September 2013, and again on 10 March 2014. The arguments about excessive height and plot ratio were presented on both occasions, as were their impact on the amenity of the locality – traffic congestion, safety for children and eldercare residents, noise, visitor parking.
- At the first JDAP meeting on 9 September 2013, the JDAP unanimously refused the application.
- The developer, Tuscom, appealed the decision and the matter went into mediation through the State Administrative Tribunal (SAT). The community, in particular local residents and neighbours of the development site, are considered to be “not an interested party” by SAT, and so all further representation of the people’s views was completely shut out of this mediation process.
- After six months of behind-closed-doors mediation, the SAT referred the matter back to JDAP in February 2014. The “new” development presented to the community had not changed in its essential non-compliances – height and plot ratio – which are the two key determinants of bulk and scale.
- The City of Melville’s Planning Office, in its Responsible Authority Report (RAR) to the JDAP in March 2014, duly recommended refusal of the application on the grounds that the building height was still more than two metres in excess of the 9 metre maximum imposed under the Scheme, and that the proposed plot ratio, at 1.28, was still more than double the maximum of 0.6 for the R40 zoning, as per Table 4 of the Residential Design Codes. Since this latest proposal was still grossly non-compliant in both areas, the City’s Planning Office advised that further community consultation was not required. The points raised in all earlier letters and petitions remained valid in their view.
- At a Special Council Meeting on 24 February 2014, the City of Melville’s elected Councillors voted unanimously to support the RAR’s recommendation to refuse the proposal.
- Striker Balance! again presented to JDAP on these issues, but the JDAP decided to exercise discretionary powers to bypass the usual planning requirements, AND Design Principle 6.1.1 of the R-Codes, which states: ““Development of the building is at a bulk and scale indicated in the local planning scheme and is consistent with the existing or future desired built form of the locality”. As a result, the JDAP voted 4-1 in favour of the development proposal.
- In doing so, the JDAP overrode all the normal planning requirements (in both the Local Planning Scheme and the Residential Design Codes) not just for R40, but also those for R50, R60, R80, and, in the case of plot ratio, even R100. With only one other R code remaining (R160), in our view that is not a variation; that is an obliteration. To argue that the development was “at a bulk and scale indicated in the local planning scheme and is consistent with the existing or future desired built form of the locality” is a total nonsense.
- To add insult to injury, no explanation for approving such excessive variation to the codes was given at the JDAP meeting, nor provided in the meeting’s minutes. And to add further insult, in the immediate aftermath of the JDAP meeting and again at the Parliamentary hearing in October 2014, the Presiding Member blamed the Local Planning Scheme for providing his panel with the powers to make such a variation, despite the fact that the same Council had twice refused the application.
- Striker Balance! wrote in April 2014 to the Minister for Planning explaining our concerns and asking him to look into what had occurred and, in his capacity as Minister responsible for State Planning, to take action to have the decision overturned. The Minister responded saying that “due process had been followed” and that he could do nothing. Although the DAPs report to the Minister for Planning, there is apparently no accountability for their decision-making.
- In response to the JDAP decision of 10 March 2014, on 10 April 2014, two petitions each containing over 3,600 signatures opposing the approval of the development, were tabled in the WA State Parliament, one by MLC Sue Ellery in the Upper House, and the other by MLA Matt Taylor in the Lower House. Via these petitions, Striker Balance! called for an inquiry into the circumstances behind the decision by the JDAP in approving the development as well as into the broader DAP process and the use of discretionary powers in particular. A hearing by the Environment and Public Affairs Committee of the Legislative Council relating to this Petition No. 35 was conducted in October 2014, but without a satisfactory outcome for residents. Representatives from the City of Melville and the JDAP appeared before the Committee – Striker Balance! was not invited to appear, despite having requested this. The Committee instead referred us to this present Inquiry into the DAP Regulations and we were informed the Minister for Planning felt “due process” had been followed. It is this very process that is now the subject of your Inquiry.
- On 16 May 2014, Striker Balance! also wrote to Mr Charles Johnson, the JDAP Presiding Member, who is the only person legally allowed to comment publically on his JDAP’s decisions, requesting an explanation, arguing that the deliberate exercising of powers by his panel to enable such an extraordinary variation must have extraordinary reasons to back it up. As at the date this present submission, we have still not received a reply from Mr Johnson.
Our major contention in our submission to this present Inquiry is therefore that, if “due process” can lead to such a complete disregard for both basic planning requirements and the clear intent of the Local Planning Scheme, if “due process” can also show apparent contempt for the views of our local government’s Planning Office, plus the unanimous opinion of our elected representatives (our City of Melville Councillors), and if “due process” can also dismiss the torrent of opposition from our local community, and do all this without fear of being accountable to anyone, even the Minister, then what constitutes “due process” here urgently needs serious investigation and overhauling.
It was not in any way surprising to our community to read in the Department of Planning’s Review of the DAP system (September 2013) that, on average, 95% of industry respondents gave the system full marks, while less than 10% of local governments did. The views of those most heavily impacted – the community – were not sought. Quite clearly, this is a system that favours developers and their profit margins to the long-term detriment of communities. And, at the moment, it appears to be able to do so with impunity.
We are aware that, under the updated Residential Design Codes endorsed in August 2013, applicants may choose to seek a variation from the “Deemed-to-Comply” requirements (as set out principally in Table 4 of the codes plus the Local Scheme’s requirements). They may seek this variation through the Design Principles pathway, which allows for some discretion to be exercised by the decision-maker. However, it is highly questionable that these Design Principles should in fact be interpreted in such a way as to completely subvert the purpose of the Deemed-to-Comply pathway. That is tantamount to having two sides of a system that are effectively incompatible with each other.
In such circumstances, it has to be seriously asked what incentive any developer would ever have in going down the Deemed to Comply path (of the R-Codes), if they can make greater profits via the Design Principles route, where the unbridled use of discretionary powers is demonstrably available. Add to this the fact that no one involved is publically held to account, and you effectively create an environment where the system and its intent of “proper and orderly planning” can be seriously distorted, subverted and corrupted.
It seems to us that, if Design Principles cannot be quantified, then they are a massive loophole in the system, and an invitation to such outcomes.
This said, we accept that discretionary powers should exist, since there may, at times, be good reason for granting variations. However, the use of discretionary powers needs to be severely limited (see below) not by Local Planning Schemes, but by the R-Codes, and in the JDAP Regulations themselves. It is our firm belief that If the DAP system continues to have unlimited powers with no accountability so that variations can be so grossly out of kilter with normal expectations and rules, as has happened in our case, then there is a serious loophole in the DAP system making it highly vulnerable to abuse.
In our opinion, their use should therefore be strictly limited, for use only in exceptional circumstances, and those circumstances would need to be justified in writing and publically explained at Council Meetings and DAP Meetings.
We would also like to point out that the inclusion of two local government members as part of the five member assessment panel apparently serves no valid planning or community purpose. The two local government members (i.e. Councillors) are, with perhaps the very occasional exception, in no way qualified to make decisions about applications based on their planning merits, and a few workshops / training sessions will not put that right. To suggest otherwise is to undermine the value of the very qualifications and experience the “expert” panel members bring to bear on the process.
Neither do these local government members, according to the current DAP Regulations, have the freedom to consider or support the views of their own residents and council.
It would appear – and is firmly our view – that the appointed local government members merely serve to provide a thin veneer of democracy to an already seriously flawed system. They serve a political purpose, therefore; not a planning purpose.
If DAPs are to be retained, then, at the very least, their make-up should require a majority of capable local government members who are indeed allowed to represent their constituents during decision-making.
A further area for concern is that the DAP system allows developers to set their own projected costs for developments. In doing so this effectively gives developers the green light to manipulate the system by inflating costs, thereby enabling them to reach the trigger threshold (in accordance with Regulation 5 of the DAP Regulations) for DAP-assessed development applications (i.e. >$3 million), rather than assessment under the more stringent local government planning processes and regulations. One pertinent example of this is the recent Metro Central JDAP decision regarding 58 Kennedy Street, Maylands.
It is important to state that we, as a community, and our particular action group, are not anti-development. On the contrary, we have all been looking forward to the development of the site at 94 Kitchener Road for some time. However, that development has to be in line with community expectations, with regard to the amenity of the locality, and in line with “proper and orderly planning” guidelines. What has been approved through the DAP process quite clearly does not meet any of these criteria.
Suggested Amendments to the JDAP System
In light of the above, we would like the Inquiry Committee to consider the adoption of the following suggestions:
- That a clause be inserted in the DAP Regulations, indicating that multi-unit developments will be restricted to sites which meet all the following criteria (in addition to those already in place):
- The site in question is on a high-density transit corridor, as indicated on the relevant Local Planning Strategy and Local Planning Scheme;
- The site is coded R40 or above; and
- No variation to the “Deemed-to-Comply” Requirements applicable to the site’s R-Code will be allowable where the majority of neighbouring (i.e. bordering or opposite) built sites are zoned at a lower R-Code than the site in question
- In addition to Point 1 above, that a clause be inserted in the DAP regulations (and in the R-Codes) regarding the exercising of discretionary powers. This should state that the exercising of discretionary powers by JDAPs to vary the designated R-Code “Deemed-to-Comply” requirements be limited to variations of no greater than one R-Code above that of the site in question. For example, an R40 zoned site would allow the JDAP the discretionary powers to approve a non-compliant development only if its non-compliance fell somewhere between the R40 “Deemed-to-Comply” requirements and those applicable to an R50 zoning. This discretionary power to vary would, of course, be ruled out under the provision of Point 1 (c) above.
- Where any use of discretionary power is exercised to approve a variation to the “Deemed-to-Comply” Requirements (as set out in Points 1 and 2 above), the decision-maker is to provide a full, written justification of the decision to the owners of the neighbouring sites, and that this justification also be stated publically before the relevant Council’s next public Council meeting.
- The composition of JDAP panels to include a majority of elected Councillors from the relevant Council, and that the Presiding Member of each JDAP be one of these elected Councillors.
- That the JDAP Regulations be revised to ensure that Councillors on JDAP’s be required to actively represent and reflect the views of their communities and Councils in the decision-making process. This would also require the revocation of Clause 5.13.7 from the current Standing Orders.
- That projected costs for developments set by developers be subjected to assessment by the relevant local government Planning Office before the application can proceed to deliberation by a JDAP.
- That, if the developer’s current right of appeal against a JDAP decision is to be retained, that a parallel right of appeal for local residents against a JDAP decision that affects their community be similarly established. Alternatively, all rights of appeal could be removed, though this may lead to a less satisfactory situation for everyone, especially for developers if the other suggestions above are implemented.
Finally, we feel the community has just cause in requesting that representatives from Striker Balance! be invited to appear at this Inquiry into the DAP systems given our experiences in relation to the Kitchener Road proposal, which went from outright rejection to becoming completely palatable to those who wielded the authority to reject it, despite the fact that two key non-compliances remained. We hope this Inquiry Committee will understand why our community continues to be outraged at the disdain we have been subjected to in this case over the course of nearly two years, and at the lack of accountability and transparency of the DAP system generally, extending to the mediation and post-final-decision stages.
Whether or not the Committee sees fit to grant us this opportunity to speak, please understand that our deeply unsettled community (with the support of more than 3,600+ petitioners) very much looks to this Committee to do everything within its power to bring about a wholesale change to the DAP system, hopefully recommending in the process that a thorough review of questionable approvals such as the one regarding 94 Kitchener Road be undertaken.
We are aware of a good number of other similarly questionable JDAP decisions that have occurred over the last two years. For us, as for those other affected communities we have spoken to and connected with across Perth, it is evident that, in its current form, the DAP system has worryingly systemic shortcomings which, if allowed to go unchecked, will undoubtedly bring grief to other communities in future. We look to you to do all within your power to prevent this.
Yours sincerely
Marina Hansen Geoff Pearson
On behalf of Striker Balance! Community Action Group for the residents of Myaree / Alfred Cove / Melville
Attachments:
- Letter from Environment & Public Affairs Committee (27 November 2014)
- Chronology of Events – 94 Kitchener Road
- DAPs Review – Report and Key Statistics
- Letter to JDAP Presiding Member, Mr Charles Johnson (16 May 2014)
Hello,
This is the exact situation that happened to the residents of Seventh Avenue, Maylands at the City of Bayswater Council meeting last night, 27 January 2015.
The Council approved 3 storey building with 12 flats, which resembles a large office block. This is a quiet residential area.
The development has a maximum plot ratio of 0.85, a full 41.6% above the maximum plot ratio under the R-codes for this development coded R-50.
This is so far above the allowable maximum plot ratio for R-50, that it is also above the maximum limit for the R-60 code (and not far short of R-80).
It is a significant departure from the maximum plot ratio.
The excess plot ratio represents an extra 4 flats on the development (in a 12 flats proposed development). This represents a 50% increase in what would otherwise be allowed under the coding for this area.
Is there anything we can do now that the Council has approved it?
Thank you
L
Yes and No. You could report the matter to Department of Local Government and to Ministers Simpson and Day. You could use your community interest to discourage sales. Without a minimum number of sales, some developments can’t proceed and may not get finance. Suggest you contact Striker Balance to find out more via facebook.