On November 5, 2021 the Supreme Court dismissed the challenge to the JDAP decision. This allows the four storey apartment to go ahead. Basically the decision means that state regulations have precedent over local planning scheme regulations. After the development was approved the council re-coded the area, changing the height level from four storeys to three. This is now awaiting minister approval.
Neighbours of the approved development launched a challenge to the JDAP approval in the W.A. Supreme Court. This was heard October 8, 2021. The challenge is based on the decision by the JDAP not to enforce the City regulation than prohibits buildings over two stories within 150m of the high water line. Instead it based its decision on the R-80 zoning. The community has raised over $20,000 to support the neighbours if they lose the challenge and have to pay the costs of the government lawyers.
In the meantime the developer has destroyed the existing four houses and is starting construction work. Under the conditions of the approval, the JDAP prohibited “any works required to implement the development” prior to submission of a number of plans and payment of roughly $120,000 to the city. The plans had not been submitted but the city has granted a forward works oermit allowing the ground level slab to be constructed. City planners were unaware if the funds had been paid.
On February 23, the Regional Joint Development Assessment Panel (RJDAP) voted to approve the four story apartment complex. The two Busselton Councillors on the panel voted against it but were outvoted by the three State government appointed professionals from Perth. One had the gall to say he thought buidings on Geographe Bay Road should only be three stories, but this building was really just three and a half (?) and so he voted to approve it. The only option now is for the neighbours to challenge the decision in the Supreme Court. Legal support has been offered but the neighbours run the risk of losing and paying the State’s legal costs which could reach $40,000. The panel ignored the fact the city had promised that the two story height limit would be enforced when the area was rezoned to R80 in 2016.
The DPA has written to the developer, Andy Hopkins, owner of Swings and Roundabouts and Aqua Resort asking him to forego the fourth floor and its 3 or 4 apartments in return for community goodwill. In a radio interview after the decision he said he had not ruled out limiting the building to three stories.
Background: The development application for a 28 unit apartment complex with a restaurant/cafe on the ground floor went to the Regional Joint Development Assessment Panel (RJDAP) Dec. 8 in Busselton The panel deferred its decision for up to 90 days to allow the city planners and the developer to clarify a range of issues. The RJDAP application is available here.
The DPA sponsored a petition to request the council lower the height limits on lots facing the foreshore from 5/4 stories to 3. (R80 to R60). This gained ver 740 signatures and the CoB council passed a motion to that effect. There is more information on this here.
The Developer is Andy Hopkins, the owner of Swings and Roundabouts and Aqua Resort along with a range of other properties in Australia and internationally. His architect said at the hearing Hopkins “wants to make a contribution to the Dunsborough town area.” He said they had already sold 7 apartments (two being combined, so 6 purchases. (The development has yet to be approved.)
The two city councillors on the 5 member panel (Henley and Carter) wanted the development to be limited to three stories, rather than four. The three state appointed members thought that if the change was made the proposal would go to the SAT on appeal and due to the city changing zoning in the area in 2017, the SAT would approve the 4 story development. However there is another regulation that restricts building height to 9m within 150m of the high water mark.
The development does not comply with most provisions of the planning scheme or state policies. The following sets out some of the issues.
The City expressed concern about the bulk of the building bordering Seymour Park. In response the developer suggested balcony planters! The City has said that is not good enough but has still given approval but made it a condition that the developer comes up with something to satisfy them. Surely that is the role of the DAP not a behind the scenes deal between the developer and the planning officer.
The development does not comply with clause 4.8 of the planning scheme-(7.5m within 150 meters of high water mark) but the city doesn’t care as it wants higher density in the area. “It is considered that generally the mass and scale of the development is in keeping with the requirements of the Scheme.”
Regarding being an eyesore, the city believes: “the development will be largely screened from view by existing development and vegetation and will provide a landmark feature designating the entry to the Town Centre from the foreshore. “
The following images give an indication of the visibility of the top of the building from various directions. The planning officer states: “While the development may be visible in places along the foreshore and beach, it will not present an overwhelming or unreasonable level of bulk.
The following images indicate the height of the structure and its visibility. (Obviously these are indicative as the actual building will look a lot different)
The development does not comply with the City parking policy. It should provide 6 parking bays for visitors. It is providing none, meanwhile it is providing 9 more than is required for residents. Instead it wants four parking bays created on the road reserve in front of the complex. So, in effect, the community is subsidising excess resident parking at a cost to the community of $65,011.62 as cash-in-lieu.
It is estimated that the restaurant/cafe should provide 22 car bays under the city policy. However the city planners are arguing that this is now part of the business zone and therefore there is lots of other parking nearby so only 6 bays are required. As there is no space the developer will pay $65,011.62 as cash-in-lieu. But nothing for the other 6 visitor and 16 restaurant parking bays. This means the community is missing out on $236,945.94 as cash-in-lieu. That would pay for a lot of parking spaces elsewhere.
Under LPP 2c, the developer should provide a Traffic Impact Assessment. Under WAPC guidelines individual developments with “moderate impact” ie 10-100 trips per peak hour require a Transport Impact Statement.(pg10 Vol 4 WAPC Transport Impact Assessment Guidelines.) The City estimates 26 trips per peak hour for this development. Why is there no impact assessment? The entrance to the complex is on Lorna Street and there will be signficant new traffic on Lorna and Chieftan Crescent. Quoting state guidelines, the City is forecasting 26 trips per peak hour (4×26=104). Quoting NSW guidelines the city is forecasting 138 a day or 34 over 20 hours(?). The city does not seem to be taking into account restaurant delivery traffic or restaurant traffic itself. Lorna and Chieftain are currently quiet suburban streets. Not for much longer, it appears.
The proposed development exceeds the plot ratio requirements of SPP 7.3. It should be 1 and is actually 1.1 which exceeds the requirements by 320m2. The City’s view is “the additional plot ratio is relatively minor considering the scale and context of the development“. It is hoped the city will be as flexible with you next time you request something.
The development does not comply with 5 of 7 criteria however the City is not making an issue of it. It is hoped the city will be as flexible with you next time you request something.
Landscaping/Communal Open Space:
The development does not comply in regard to retention of existing trees, only 4 medium trees will be retained. Nor does it comply in regard to communal open space. Given the size it should be provide 204sqM of open space, while it is only offering 72. Howevxer the city says “There is ample public open space within the vicinity of the development to service the additional residents and these areas will provide a higher level of amenity of residents to the development than providing a communal open space area on site.” So, in effect, the community is subsidizing the development…again.
Unless controls are mandated the park is under risk of being ruined by the development. It is proposed that all the groundfloor apartments have gates opening on to the park.
Currently there is extensive attractive vegetation along the boundary line (see above and below).
No doube residents will want to make paths from their gates through the vegetation as an access route into town. It appears the City wants to encourage this as it talks of the benefit of “passive surveilance”. “All proposed dwellings along the north-western elevation of the development incorporate courtyards or balconies, as well as major openings orientated towards the park achieving excellent passive surveillance.” It is not clear what the “major openings” are. They do not currently exist. No doubt there will be pressure to cut back more of the vegetation to open up views. There are already two dead trees on the road reserve in front of the development property. How many more dead trees will we see here. And then there will be complaints of noise in the park, with the skate park adjacent.
No doubt the estimated 73 residents, especially those on the ground floor, will think of the park as their front yard. This will certainly change the look and feel of the park. One option would be to not allow gates into the park. This may sound churlish, but it is the community’s park. Another option would be to fence off the park, allowing a walkway along the development side of the fence. Of course, if the development was smaller there would be space for parkland on the development side.
Regarding the restaurant, the City states: The commercial component of the development also proposes an active frontage to the park and will further enhance the opportunity for passive surveillance. This will no doubt mean further clearing of vegetation in the park.
There were 120 actual comments (one positive was clearly bogus). Only 8 were positive with no conditions. This means 93% were against the plans as they stand. There was no organised community campaign. These are real people with real concerns
Finally, the City made no comment on the proposed helicopter pad adjacent to the penthouse. A helicopter pad is also considered to provide residents with a luxurious way of arriving in Dunsborough.…Applicant’s Planning Report.