A proposed 7-storey development in the middle of historic Bayswater has divided the community. Some people are desperate to see any development occur in an area which has been starved of development, others want a more controlled development, others want the Jacaranda tree preserved and others want the heritage buildings preserved in their entirety. As such, no matter what happens, there will most certainly be an aggrieved or disappointed party.

Because of the financial value of the proposed development the City of Bayswater is no longer the decision making authority, instead it is the Development Assessment Panel (DAP). I am one of two Councillors who sit on the DAP and when I do I am obliged to look at any proposal purely from a planning perspective and to take into account the existing planning rules. The primary method of doing this is by applying the rules as stated in the relevant Town Planning Scheme.  At the DAP meeting held in October 2015, the proposed development was rejected, primarily because of point 1 as detailed in the DAP minutes:

The proposed development simply does not comply with the City of Bayswater’s Town Planning Scheme No 24. Specifically the section of the Town Planning Scheme which relates to the Bayswater town site (Special Control Area 12) and states there must be no more than 5 storeys in any development:

How then can any application for 7 storeys  even be considered?

It turns out there is scope for variation from the rules if it is in order to facilitate heritage conservation:

The ability to vary the rules in certain circumstances is a logical thing to have. For instance, if the existing ground floor was historic but say 5 metres high, then allowing a development to exceed the overall permissible height of 20 metres may be warranted if the developer was going to keep the heritage existing ground floor and its exceedingly high ceilings. Logic dictates though that there needs to be a nexus between the heritage feature being preserved and the rules which are being varied.

In this case though, the only major heritage feature which is being proposed to be kept is the façade of one of the existing buildings. I personally see no nexus between keeping a façade and being granted an extra 2 storeys. This is doubly so when the retention of the façade was a condition of the demolition approval (point 1):

As the existing buildings can’t be knocked down without the retention of the façade, I am at a loss to know how an argument can be made that the extra 2 storeys will help facilitate any heritage retention. Ergo, I can see no way that any decision making authority can approve the 7 storeys.

This was the argument I presented during the DAP meeting and 4 of the 5 members agreed. Unfortunately any developer can take an application to the State Administrative Tribunal (SAT) for a review of any decision they don’t like. This occurred and is at the mediation stage where the presiding member of DAP (a recent rule change now limits it to only the presiding member who can attend) liaises with the developer in an effort to come to a mutually satisfactory development application. The amended application is then resubmitted to the City of Bayswater for their thoughts before going back to DAP to make a decision. If the developer still doesn’t like the decision then they will undoubtedly seek a favourable ruling from SAT which overrides DAP.

I have long had a problem with SAT and some of the decisions they make; approving the concrete batching plant in close proximity to residential houses is just one example. Hence I am concerned that if left to SAT to decide, literally anything may happen. That said, even though SAT may ignore rules about set-backs for buildings, parking shortfalls or buffer zones (concrete batching plant), it would be something new entirely for them, or DAP,  to ignore the planning rules which are dictated in very black and white text within a Town Planning Scheme.

Power to the people.

(Please be aware that these views are my own and have not been endorsed by the City of Bayswater or DAP (and certainly not SAT))

*** As a follow up ***
DAP ended up approving the development under the a different discretion allowed in the Town Planning Scheme (section 8.2). This discretion allows any application which doesn’t meet the Scheme’s minimum lot sizes, building height, setbacks, site coverage, car parking or landscaping and related matters to be approved should the decision maker want to. To use this discretionary power the decision maker needs to be assured that it will not negatively impact the amenity or inhabitants of the locality.

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