IRATE Kishorn Road residents believe the City of Melville plans to push through approvals for a contentious apartment development already knocked back by a joint development assessment panel (JDAP).
In September, a JDAP ruled Yaran Property Group’s proposed 21-dwelling development was not consistent with the objectives of the Canning Bridge Structure Plan, primarily because it was a five-storey building.
The proposed development is located near the edge of the Canning Bridge Activity Centre where buildings are limited to a maximum of four storeys.
When submitting its development application, Yaran Property Group elected to have the $3.5m project assessed directly by a JDAP and has appealed the decision to the State Administrative Tribunal.
However, it also re-lodged the development application with the City of Melville.
On October 26, nearby residents received an informal notification letter stating the City of Melville had received an application for a development “comprising 21 multiple dwellings in a four-storey building.”
The plans, available online through the City’s website, appear identical to those rejected by the JDAP.
The letter stated the application complied with the Canning Bridge Structure Plan and that no formal submissions would be accepted.
Resident Chris Young, who owns a property next door to the proposed development and attended the September JDAP meeting, said he was furious the City appeared to be ignoring the JDAP panel findings.
“It is the exact same building application that was rejected by the JDAP and the letter the City sent makes it clear they are intent on pushing it through,” he said.
“To me, the letter says ‘shut up, we are doing what we want and there is nothing you can do about it.”
Another nearby resident Jean Stanton has sold her home to escape the prospect of an apartment block towering over her property.
“I have been forced to sell my home and to leave Applecross, where I have been living happily for many years,” she said.
“The City of Melville’s plan to ignore the decision of the JDAP and approve the same or a similar design is reprehensible.”
Melville chief executive Shayne Silcox said while the City would await the outcome of the SAT appeal before making a decision it was not bound by the verdict.
“The City is not reassessing the JDAP appeal,” he said.
“It is assessing a new application lodged, which appears similar, if not identical to the one rejected by the JDAP.
“While this is not a common practice it is outside of the City’s control. The approach adopted by the applicant in this case is a legitimate one, and not, in the opinion of the City, prohibited by any legislation.
“It should be noted that the determination of the current application by the City is not dependent on the outcome of the applicants appeal to the SAT, however the outcome of the SAT processes will be an important consideration in the City’s decision making processes.”
Because City officers view the proposal as compliant it will not be voted on by council and instead dealt with under delegated authority.
Mrs Stanton’s daughter Fiona, a practising lawyer, argued against the development at the September JDAP and has been appointed by Mr Young to represent him in relation to the SAT appeal.
She said DAP regulations prohibit local governments from assessing applications that have already been dealt with by a panel.
“Any decision by the City to now approve the same plan that was refused by the JDAP would be invalid on the basis that the plan has already been dealt with by the JDAP and the City does not have power to now consider the same or a substantially similar plan,” she said.
In September, a JDAP rejected the developer’s argument that the 19m tall building was comprised of four storeys and a mezzanine, ruling the mezzanine level was a fifth storey.
Key to that decision was the outcome of a 2007 State Administrative Tribunal case between Health Resorts of Australasia Pty Ltd and the Western Australian Planning Commission.
During that case, then SAT deputy president John Chaney ruled that an entirely self-contained room placed above ceiling height of a lower level did not meet the definition of “mezzanine” and instead constituted an additional storey.
Dr Silcox conceded the City had not sought legal advice in relation to the definition of “storey” or “mezzanine” before preparing its Responsible Authority Report (RAR) but would do so if required to determine the second development application.
“The definition of mezzanine is provided by the Building Code of Australia which states clearly that a mezzanine ‘means an intermediate floor within a room’”, he said.
“The Canning Bridge Activity Centre Plan also includes a definition of storey which specifically excludes mezzanines.
“In the development application for 21 Kishorn Road, the mezzanine level is wholly contained within a room with access to it taken solely from within that room.
“No part of the mezzanine extends beyond that room and the mezzanine is designed to be open to that room.
“On that basis the City determined in the RAR report to the JDAP that the mezzanine level proposed in this DA does not constitute its own storey as it meets the definition of ‘an intermediate floor within a room.’”
The September JDAP also found the development was excessively bulky and raised concerns with the potential noise and vibration levels generated by a proposed 20-car stacker located within the building.
The City of Melville’s RAR recommended the development be approved but two of three independent panel members and Melville councillor Tim Barling voted to reject it.
Deputy Mayor Rebecca Aubrey and the remaining independent panel member voted to approve.