The sky is the limit – the Court of Appeal rules in favour of unlimited building height

In welcome news to the property development industry, the highest court in Western Australia has adopted a liberal and flexible approach to interpreting local planning scheme provisions that allow for variations to building height.  In effect, this means that many precincts may now arguably be taken to have unlimited building height.

 The Court of Appeal in Nairn v Metro-Central Joint Development Assessment Panel [2018] WASCA 18 was called upon to determine a judicial review application in relation to a development approval granted by a Joint Development Assessment Panel (JDAP) for a 34 storey mixed-use development in South Perth.

The development approval was ultimately ruled invalid because the JDAP made an error of law in applying complex development requirements regarding land use mix (which have since been deleted from the local planning scheme).  The applicants also however ran an argument that the JDAP made an error of law by allowing a total building height of 116.65 metres in circumstances where the standard buildings height for the precinct was only 25 metres.

The Court rejected this argument on building height and found that the JDAP was acting within its power in allowing a building height of 116.65 metres and that this was a proper exercise of discretion in the circumstances.  The Court even held, at paragraph [118] of its reasons, that: “…the power to vary height is, in terms, unconfined”.

The relevant local planning scheme provisions in this case imposed standard building height controls for the precinct, but also allowed for variations to building height, in circumstances where particular guidance statements and performance criteria were satisfied.  Some important contextual considerations included that the local planning scheme expressly stated that there was no maximum plot ratio in the relevant precinct and that the relevant objectives clauses clearly contemplated significant redevelopment occurring in the area.

In this context, the Court rejected the argument that there was some implied limit as to the extent to which a variation on building height could be approved.  The Court instead found that a decision-maker may allow any variation to building height, so long as the various other local planning scheme provisions can still be satisfied (in particular, the guidance statements and performance criteria).

The legal outcome arrived at by the Court in this regard is logical from a technical planning perspective.  In many locations (such as the inner city), it is inappropriate to impose strict controls on total building height, especially if such controls could potentially prevent innovative and meritorious development proposals from proceeding.  The philosophy underpinning many of the more modern local planning schemes therefore is that the proponent may propose any building height, so long as they can still satisfy various performance criteria (such as in relation to design quality, car parking and public amenities).

The reliance upon performance criteria also regulates building height in an indirect and flexible sense, as a proponent will only be able to build to a given height before they are physically unable to satisfy all of the necessary performance criteria (this is especially so for car parking, for which the requirements generally increase with additional building height).  In this sense, it could be said that even where there is no strict legal limit to building height, the height of buildings is still limited by physical design considerations.

This Court decision was confined to an interpretation of local planning scheme provisions that apply only to a particular precinct in a single local government area, but the reasoning of the Court should apply equally to other precincts around Western Australia, for which local planning schemes have similar structures in terms of regulating building height.

In particular, if a planning instrument permits variations to building height in circumstances where particular performance criteria are met, and does not expressly limit the permissible extent of such a variation, then applying the reasoning of the Court in this case, there would be a strong argument that building height is again unlimited.  Such drafting structures appear in many Metropolitan Redevelopment Authority planning instruments and in the planning instruments that apply in inner urban activity centres.

In light of this case, landowners and developers should revisit and reconsider the development potential of their properties, especially in relation to the potential building height that could be achieved under the applicable local planning scheme.










Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.